C2001/5136, Transcript of Proceedings [2001] AIRCTrans 3013 (8 November 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2001/5136

SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION

and

O'BRIENS CATERING LIMITED

Application under section 170LW of the Act
for settlement of dispute re alleged
direction to perform work without payment

SYDNEY

9.38 AM, TUESDAY, 23 OCTOBER 2001

Adjourned sine die

PN1

THE COMMISSIONER: May I have the appearances, please?

PN2

MR W. DEDULA: If the Commission pleases, I appear on behalf of the Shop, Distributive and Allied Employees Association, New South Wales branch.

PN3

MR E. LEAHY: If the Commission pleases, I seek leave to appear for O'Briens Catering Limited. With me is MR E. COOK, senior operations manager for O'Briens Catering Limited.

PN4

THE COMMISSIONER: Is there any objection to Mr Leahy appearing? Leave is granted, Mr Leahy. Yes, Mr Dedula?

PN5

MR DEDULA: Commissioner, on or about 19 September I received a phone call in relation to the company requiring certain stocktakes to be done on their vehicles. The employee was required by the company to do an additional stocktake. The instruction from the union was that this was to be done and paid for and not in the employee's own time. I was informed a couple of days later that in fact the persons whose stocktake was out by some couple of hundred dollars, all of a sudden their stocktake was back in again and they were not out a couple of hundred dollars.

PN6

I took this as a rather serious position and rang Mr Ghilardy, who appears here today, on his phone number of 9274200 and was told by the receptionist that Mr Ghilardy had gone down to the fifth floor and when he returned he would be given the message. An hour later I rang Mr Ghilardy's office again and of course that was not returned, which subsequently led to this matter being notified here in the Commission.

PN7

Subsequent to that, Commissioner, I received a letter from the Australian Business Lawyers stating the following:

PN8

Clause 14 of the Mobile Food Vans Enterprise Agreement 1999 contains a disputes procedure. It provides that discussions are to take place between the employees or their representative and our client before a dispute shall be referred to the Commission. Our client instructs us that it had no discussions with your organisation in relation to the matters which are allegedly in dispute before a dispute was referred to the Commission. As such it appears that the dispute procedure in the agreement was not followed. In these circumstances the only proper course of action is for your organisation to withdraw the dispute notification.

PN9

Commissioner, if they don't return telephone calls, what is the union supposed to do? Given the fact that what occurred subsequently was a number of threats to people: if you do not do the second stocktake you will suffer the consequences. The union delegate, who appears here today, on 14 October had this said to her:

PN10

We only had to do a stocktake until the time was up we were paid for, that is, unload the van, itemise waste, put in computer, clean van, add credits, write sales, etcetera, half an hour, no time to do stocktake.

PN11

She apparently told Eric Cook:

PN12

I was not doing a second stocktake, he asked me if I was refusing, because if I was there would be severe disciplinary action; not from Eric, it would be over his head and out of his hands.

PN13

What happened then, this lady was talked into a second stocktake, which she did for her job. The company is going to say that this doesn't happen but of course it does and there is, in my opinion, only one way to find out. We would seek that the Commission have an inspection of this Chester Hill sit, speak to the van drivers individually and see what those van drivers have to say about the way they are treated by supervisors and managers in that area, because the company will continually say that this is not happening when it does.

PN14

Once again we have Mrs Holt with us and Mrs Holt is again copping time and a half over these stocktakes. Surprise, surprise, one day the van is out $200 or $300 and the next day it is all back in normal again and there was some ridiculous amount of $500 for her van being out, which is pretty hard to understand because these vans only carry about $600 worth of gear on it.

PN15

I don't know where all this money is going or who is doing the stocktake right or who isn't doing the stocktake right but the principle here is that when they return to the yard the time allocated for the stocktake is insufficient, they don't get time to do the stocktake appropriately and the company refuses to pay overtime. If the company wants these people to do the job then of course they have to pay for it. I refer to the registered agreement and I read the preamble, Intention of Agreement.

PN16

THE COMMISSIONER: This is only an extract, isn't it?

PN17

MR DEDULA: Yes, this is the first page.

PN18

THE COMMISSIONER: I will mark it is exhibit SDA1.

EXHIBIT #SDA1 EXTRACT INTENTION OF AGREEMENT

PN19

MR DEDULA: Thank you, Commissioner:

PN20

The purpose of this agreement is to regulate the terms and conditions of employment of the employees at O'Briens Catering Limited employed on mobile food vans. It shall cover all the terms and conditions of employment of the employees and shall operate to the full exclusion of the Shop Employees State Award or any other award or agreement which would otherwise apply to the employees.

PN21

I apologise to the Commission that I haven't got a full copy of this for the Commission but going through this, Commissioner, it talks about date, period of operation, hours and status of rostering, wage rates, superannuation, contract of employment, leave entitlement, annual leave, long service leave, redundancy pay, sick leave, annual picnic day, annual leave loading, public holidays, uniforms, payment of wages, bereavement leave, jury service, parental leave, dispute procedure. No stocktake, no company policy procedure, yet the company claims that these are the full terms and conditions that people operate under.

PN22

Commissioner, the union made a phone call to Mr Cook to arrange a meeting for Mr Cook, the new manager of the mobile catering division, so that we could sit down and negotiate a new document to cover all the problems that we have been facing. We have been to this Commission a number of times now and at our last appearance when Mr Ghilardy was here he said to me, well, we should be helping this. Well, we extended the olive branch, to sit down and negotiate.

PN23

Mr Cook rang me back on 5 October and told me that the new general manager of mobile food vans was not interested in sitting down and talking to the union about this agreement. So here we have a company saying that they are interested in working with the unions to settle problems, yet they are not interested in speaking about that. Of course, that is clearly illustrated by a document that I received today about the honesty of this company. It says Draft Proposal for Comment, Uniform Policy, Sales Van Driver. The SDA is a party to this document, begrudgingly, but we are a party to it. The company has not given any indication to us that they want to change any policy, we found it out second hand.

PN24

THE COMMISSIONER: The company can have a policy on a range of things; why do you have to be consulted? They can have a policy about no drinking on the job, no fighting, they can have a policy about how people should annual leave, it doesn't all have to regulated by the enterprise agreement.

PN25

MR DEDULA: Well, this part of their policy one would say has to perform with due respect, Commissioner. The policy is a two-pronged policy because it talks about staff policies from A to Z and then staff procedures from A to Z. It talks about staff procedures A to Z, where it talks about all of their conditions of employment that they would be doing during the course of the day. One would think that that would be in here.

PN26

THE COMMISSIONER: Well, why would one think that?

PN27

MR DEDULA: Well, the terms of this agreement state what really as I pointed out on SDA1:

PN28

The purpose of the agreement is to regulate the terms and conditions.

PN29

And this is the only document that regulates the terms and conditions.

PN30

THE COMMISSIONER: Well, I don't know why. In law that might override the Shop Employees State Award, but not withstanding what it says, covers all terms and conditions, the employees have a contractual arrangement with their employer. It might be that they have got to turn up on time and it might be that they can't fight on the job and they can't steal food. Now, that doesn't have to be in the agreement. I'm not raising the issue of when stocktake should occur, but that's the issue that is currently before me and maybe we will focus on that, but I don't see what's the great shakes about them developing a policy and procedure. Practically every employer that comes to this Commission - well, not practically, many employers have got certified agreements and they've also got a booklet full of policies of some description and they all sit together.

PN31

MR DEDULA: Yes, Commissioner, but those policies and procedures have been over the years developed in conjunction with the workforce and they are directly involved. Some policies and procedures that companies introduce are at the whim and fancy of the board and we don't have any direct input into them if they affect the terms and conditions of any instrument that covers those terms and conditions. There have been incidents in the past in commissions where those policies have been overruled.

PN32

THE COMMISSIONER: I don't know what you're talking about with the other policies. One, they don't have to consult with you. It would be good if they could, and it would be good and advisable if they could consult with their employees, but if they want to come out with a policy that you're not allowed to smoke, I don't see anything wrong with it. I agree with you if they develop a policy that says people will work 40 hours a week ordinary time, and if the agreement says it's 38, well, the policy goes down, I agree with you there. But anyway, just get back to this stock taking.

PN33

MR DEDULA: The stocktake policy. Under the company policy, that 22 stocktake, it lists a number of things that people are supposed to do during this stocktake, but it doesn't say how long the stocktake is to take and what you get paid for it. Now, we have no problem whatsoever doing a stocktake as long as the company pays for it. What occurs is that they allow half an hour for a stocktake. The people are counting it quickly, because not only do they have to count their stock but they have to clean the truck as well, and if they don't get paid, then I don't see why these people should be doing that particular job, it's quite a simple thing, no one does anything for nothing.

PN34

THE COMMISSIONER: Right, and how many employees are we talking about?

PN35

MR DEDULA: We're talking about every employee in that yard. That would have to be close to 50.

PN36

THE COMMISSIONER: Right, so there's 50. I don't know if they are all your members, but are you saying that a complaint about not being able to do the stocktake in time and therefore it essentially has to be done in their own time, if it's done at all, that that is something that is a complaint or it's a point put to you by a number of people or just some people?

PN37

MR DEDULA: It's a complaint being made by a number of people regarding the stocktake. To date we still haven't received - Mr Cook tried to give me an explanation of how it's to work on the phone. I asked Mr Cook whether he would like to put that down on paper and give it to everyone in the yard.

PN38

THE COMMISSIONER: Yes, and?

PN39

MR DEDULA: And he said that it's been explained, but we don't think that it has been explained and we would like to see the company write out a full sheet on stocktake and how they expect it to be done. Mr Cook explained to me that the onus was upon the supervisor in the yard to clean the truck. Once the stocktake was done, if the girls were out of time or were going to be out of time then the rest of the procedure had to be done by the supervisor in the yard. Now, how many people know that? What I rely on was, apart from Mr Cook's statement, is the fact that he did say to another lady here we only had to do the stocktake till time was up and we were paid for. If you don't finish the work on time then who does the rest of it?

PN40

THE COMMISSIONER: Why do you care about that? If that's what they do, if that's what they're saying, well, what do you care?

PN41

MR DEDULA: Well, the reason I care is because it's not down in black and white and everyone else should know about it. If that's the procedure, you do your stocktake and the minute that you don't finish your stocktake someone else takes over from you, being the supervisor, and they clean your truck and finish your stocktake. If the stocktake is so important then the person on the truck, my contention would be that the person operating the truck would have to do the stocktake, and if they go overtime they would be paid overtime for that because it's very important that the person running the truck does their own stocktake because there are many factors involved where things can go wrong if someone else does a stocktake for you.

PN42

Another problem that we have with the trucks in the stocktake, Mr Commissioner, is that one key apparently opens all of them, not the cabins, the side where they keep the stock, and if people leave non-perishables on board then there could be the avenue for people who are less scrupulous to take things off other people's trucks and put in theirs. Of course, that leads to problems and that's been raised in the past as well, you know, fix the trucks, but yet that still hasn't been done. And of course, Commissioner, what we still have as a result of this is the bullying and harassment of employees.

PN43

Mrs Holt once again is being harassed about her stocktakes. We have another lady who is being harassed and told that if she doesn't do the stocktakes then she's going to be facing disciplinary procedure, and I would like to hear from the company what disciplinary procedure that would be and by whom? If it's out of Mr Cook's hands, who does it go to, and who is going to administer this disciplinary procedure? The people working in unpaid time or refusing to work in unpaid time? If the Commission pleases.

PN44

THE COMMISSIONER: Yes. Yes, Mr Leahy?

PN45

MR LEAHY: Commissioner, if I may, I will just respond to some of the points made by Mr Dedula and go to the question at issue. I think one point which the company is clear on, and I'm instructed that the employees do know this, they have been told this and should therefore understand it, is that the stocktake takes place during their normal working hours. So when Mr Dedula referred to a discussion, I can't remember who the discussion was between, but I think it was a discussion between either Eric Cook or a team leader and an employee saying if you don't finish your stocktake in time go home, someone else will complete it. That's correct, that's the company's position. I would have thought that is fairly simple, but obviously for some reason it's led to a dispute here.

PN46

Another issue, I suppose starting at the beginning from our perspective, is in terms of the disputes procedure in the agreement, Commissioner. Commissioner, do you have a copy of the agreement?

PN47

THE COMMISSIONER: No.

PN48

MR LEAHY: I could hand you a copy.

PN49

THE COMMISSIONER: Yes, thank you.

PN50

MR LEAHY: It sets out a disputes procedure and it seems that the references in clause 14.1B and in 14.2 aren't necessarily different because they talk about the dispute being discussed between the employees or their representative and the employer. I am instructed that there were no discussions before this dispute was lodged and from what Mr Dedula has said here today at the bar table, there were no discussions. He said he had tried to contact Mr Ghilardy twice; if that's the case that is the case but there is a difference between making a phone call and contacting Mr Ghilardy who does certainly provide human resources assistance to O'Briens Catering and certainly I would have thought a person who went to O'Briens Catering should have contacted and the matter discussed. In any event the matter was not discussed.

PN51

Australian Business Lawyers wrote to the union on behalf of O'Briens Catering and in addition to the part of the letter quoted by Mr Dedula, we said:

PN52

Our client extends an invitation to meet with an officer of your organisation to discuss the matters which are allegedly in dispute. If you would like to meet, please contact Mr Eric Cook, senior operations manager, O'Briens Catering Limited, on telephone number - - -

PN53

So it wasn't simply withdraw the dispute finding. We say the proper course is withdraw the dispute finding, please contact Eric Cook, arrange to meet and discuss the matters in dispute, because that hasn't taken place. Instead, what happens following that letter being sent to the national secretary/treasurer and also a copy to Mr Dedula, I received a phone call from Mr Dedula saying that the dispute notification would not be withdrawn. Then what happens is that some time yesterday one of the two employees of the company who are here today - - -

PN54

THE COMMISSIONER: Which two, the drivers?

PN55

MR LEAHY: Yes, Ms Hird and Ms Holt. I understand Ms Hird told a team leader that she would not be at work today because she intended to attend these proceedings. There was no such notification from Ms Holt. The company had to contact her as I understand it today and as a result Ms Holt's van has not gone out onto the road. As a consequence a number of things follow.

PN56

Ms Holt can certainly clarify this herself, but I understand that Ms Holt's van would normally visit somewhere between 30 and 40 locations. Whilst the company can try and vary the runs of drivers that have gone out, there is no guarantee that those locations will actually be visited today, so if a location isn't visited on that run that doesn't send a signal to the client that my client is operating his business very effectively, because that location is not being serviced. Along with that, I suppose obviously, there is a loss to the company in terms of any revenue that could have been gained from that run.

PN57

I raise this in the contact that if the disputes procedure had been followed in the first place, there had been discussions, the events which flowed did not have to flow. In terms of saying that, one thing which we would like to see come from today, and I have heard Mr Dedula raise some issues which he would like to see addressed, is that if the union has a concern which it sees as being a dispute in terms of the enterprise agreement, that that be taken to Mr Eric Cook and there be discussions.

PN58

Another issue which we raise is that should there be a meeting between the parties, that there be an agenda and agreed attendees, we have had some issues where that hasn't been followed, and that meetings be conducted in a civil and professional manner. Again, one wouldn't think that is necessary as a requirement but that is one thing which I think would only benefit both parties.

PN59

In terms of what Mr Dedula has said, Commissioner, stocktake has been dealt with very broadly here today. My instructions are that what normally happens is that van drivers undertake a stocktake once a week and that's on a Tuesday afternoon when they've returned back from visiting their locations. That stocktake takes place and apparently the company gives an hour for that to take place on a Tuesday afternoon and hopefully that is the only stocktake that's required during the week.

PN60

If there is a significant variance in the stocktake so that the figures just don't reconcile and that's seen as being significant the company, as I understand it, will approach the van drivers concerned and request that an additional stocktake place. So that may take place the very next day. I'm not sure, be it for Mr Dedula to clarify, I think what this dispute concerns is the additional stocktakes. I don't know whether there is any dispute about the stocktakes that actually take place on the Tuesday afternoons. In terms of the additional stocktakes - - -

PN61

THE COMMISSIONER: The additional ones are because something is out.

PN62

MR LEAHY: That's right, and it is out by a reasonable degree. The additional stocktakes take place on the basis that if a person is requested to undertake the additional stocktake that person is approached by the company and told, look, that was out by blah blah, an additional stocktake should take place. The additional stocktake that is done so far as the company is concerned should be on the basis the employee isn't expected to work any more hours than they would normally work.

PN63

What they would do is when they return from the road is they do a number of things, they would unload their van, they may do some cleaning of the van etcetera. The unloading, cleaning etcetera they would not be required to do those duties. What they will be required to do is do the additional stocktake and they do the additional stocktake until their normal hours of work and if they don't complete it it is completed by somebody else. So there is no, as I am instructed, there is no additional hours of work required from these people. If there was they would then receive payment, so they are my instructions.

PN64

In terms of undertaking those additional stocktakes it is also my instructions that since my client has been running this business for the last three years additional stocktakes have been required from time to time over those three years. It is not something that is new and in that respect its something which I suppose has taken three years for a dispute to arise before the Commission. The company says that this was a practice that's been going on for some time and has been something which these employees have on occasion be required to do as part of their normal duties and it shouldn't extend beyond their normal working hours.

PN65

Now I suppose all I can say here is that obviously, I say obviously, because we are in the Commission dealing with this issue being brought to you as a dispute. If there is a misunderstanding, well, there is a dispute and it would have been worthwhile if it could have been discussed between the company and the union as a first step. Certainly, as a former union official, Commissioner, I understand that obviously the union has a right to bring disputes and I've done that myself in the past many times but I also did hear many times from the other side of the table, and which I'm now on, that the dispute procedure should be followed, discussions should take place not try to have discussions, make some phone calls and no response, discussions should have taken place.

PN66

Now having said that the company is in a position where there have been several, when I say several, to be correct here, disputes notified to the Commission in the past have been heard by yourself on 24 May, 3 September and now today, that's something like three disputes in the last five months. The company I understand employs about 150 van drivers.

PN67

THE COMMISSIONER: At Chester Hill?

PN68

MR LEAHY: No, not at Chester Hill, in total. That track record is not necessarily favourable to the company, not necessarily favourable to the union. I think what it does say is there needs to be some work put into developing the relationship between the parties and, again, that's another reason why we really do strongly request that in future disputes procedures be followed, and that's why we sent the letter to the union in advance of this hearing because it would have been, I think, a cheap shot to be taken. That wasn't our intention, our intention was to say let's have the meeting now before we go to the Commission, and if you want to keep the dispute notice on foot just have the date vacant and it can always be re-listed. Anyway, unfortunately that didn't happen on this occasion, but it would be worthwhile if it would happen in the future.

PN69

In terms of some of the other issues which Mr Dedula raised, he quoted Eric Cook as having said to I think some employees that if they didn't perform the additional stocktake severe disciplinary action would be taken. My instructions are that's not the case. I am told that words to the effect were said by Eric Cook, "Please don't put yourself in a position where you don't follow a reasonable direction". I think those words have quite a different character, and in the context of the way in which an additional stocktake is expected to be undertaken, I don't know whether that request, in fact I would say I don't see how that request would be unreasonable.

PN70

Mr Dedula has requested that the Commission inspect the Chester Hill site and talk to employees. I must say I was certainly aware of inspections taking place but never aware of an inspection in such broad terms and I wouldn't have thought it was necessary, the reason being that if the relationship between my client and the union is to actually develop into a constructive working mature relationship, it's something which predominantly and I suppose ultimately rests at this table, so hopefully something can be done.

PN71

In terms of Mr Dedula saying that Eric Cook had told him that the company was not prepared to enter into any discussions about an enterprise agreement, again that seems to be a conclusion reached from some words that passed between Mr Cook and Mr Dedula. Apparently what Mr Cook says is, and this part is a fact, Mr Calbesi, the general manager of the company, has moved to a different position. He's been replaced. His replacement wants to be in the chair for some time, having no understanding of the business before there was any discussion about a new enterprise agreement, and so Eric Cook said to Mr Dedula something like "the new general manager would like some time, a few weeks, just to be in the chair, see how the business runs, and also have a discussion with Mr Calbesi to get his ideas on what could be done with an enterprise agreement". And that was the tenor and the nature of the discussion, and again it's got a different flavour as reported by Mr Dedula.

PN72

Another issue which I think stands for itself, and if I'm wrong I stand by the record, but Mr Dedula again said some words that the SDA is party to this enterprise agreement grudgingly. My understanding was the union actually brought proceedings to the Commission to seek to be a party to this enterprise agreement because the enterprise agreement actually was made between the employees and the company.

PN73

I just raise that because I think it's important for you to appreciate that there's a certain flavour coming from the language of the union which colours the submissions that are made, and that will colour the discussions, if they do take place between the parties because its inclusions which are being reached which aren't necessarily based on either facts or words that are expressed.

PN74

By no means do I submit that the company is on all occasions perfect, but I think that on the occasions where the union says the company is less than perfect the disputes procedure should be followed so the company is given an opportunity to hear what the alleged matters in dispute are and then an opportunity to in fact resolve those matters before time is spent coming down here. Mr Dedula raised some issues about the policies which the company has. To some extent those issues were dealt with in the proceedings on 2 September 2001 where you yourself in conference expressed some remarks about the way in which the policy manual could be distributed informing employees in other matters, so I think hopefully that's where that rests.

PN75

Another issue which Mr Dedula raised was the fact that there is one key that may unlock a certain door on all vans. It's not the ignition key, it's a key to the serving side. That's a fact. If that were the root problem of stocktake variances, then the company would expect that more vans would be regularly out. The company doesn't see that as being the cause of the stocktake problem. Stocktakes are significant for the company because the stocktake variances run between $7000 to $10,000 per week, so it's something that the company can't allow a stocktake variance just to appear in the books and to continue occurring. For better or for worse the company needs to take steps.

PN76

THE COMMISSIONER: Is a stocktake variance always a debit?

PN77

MR LEAHY: Yes.

PN78

THE COMMISSIONER: It's never a credit. Well, there wouldn't be, would there, because a customer wouldn't just - well, once in a blue moon would they give you $20 and forget to take the meat pie, but most of the time - yes, yes, I see. And that $10,000, you say, is that something that has a broad impact on all 50 drivers? I mean, they're all at one time or another down?

PN79

MR LEAHY: Yes, it varies from van to van, it varies across all vans from time to time.

PN80

THE COMMISSIONER: But everybody ends up sometimes under for various reasons, or some never do?

PN81

MR LEAHY: Apparently some people never do.

PN82

THE COMMISSIONER: I see. Anyway, yes?

PN83

MR LEAHY: So having said that, Commissioner, I would like to think that I have addressed the issues which Mr Dedula raised, and I do seriously raise the concerns which the company has about the disputes procedure being followed and also the concern that if this matter was notified to the Commission, I think on 26 September, obviously if one of the van drivers wished to attend the proceedings they had had some time to let the company know. It's very unfortunate and regrettable and it's caused the company angst and pain that Ms Holt never let the company know in advance and, again, if van drivers are to come to these proceedings, if there are future proceedings, if the company could be given the warning.

PN84

THE COMMISSIONER: The union notified the Commission on what date? The notice went out on 27 September to you or to the parties. When did you write that letter to them?

PN85

MR LEAHY: 16 October, and that was faxed on 16 October on the afternoon, and I spoke to Mr Dedula on the morning of the 17th. Mr Dedula rang me on the morning of 17 October.

PN86

THE COMMISSIONER: Can you just tell me again, Mr Cook, what's his position?

PN87

MR LEAHY: Senior Operations Manager.

PN88

THE COMMISSIONER: Right.

PN89

MR LEAHY: It may be of assistance if I can actually hand you a copy of the letter because it has been referred to by both parties.

PN90

THE COMMISSIONER: Yes. And Mr Galati, what's his position?

PN91

MR LEAHY: Mr Galati works for Spotless Services.

PN92

THE COMMISSIONER: I see, yes.

PN93

MR LEAHY: And his position is industrial relations compliance manager, New South Wales and ACT.

PN94

THE COMMISSIONER: And Spotless is the bigger company and O'Briens is part of that, isn't it?

PN95

MR LEAHY: That's right, O'Briens is in the group.

PN96

THE COMMISSIONER: I'll mark this OB1, that's the letter of 17 October.

EXHIBIT #OB1 LETTER OF 17/10/2001

PN97

THE COMMISSIONER: Yes, thank you, Mr Leahy, for that. Mr Dedula, let's start off with Mrs Holt.

PN98

MR DEDULA: Commissioner, if I may just raise a few points that came out of Mr Leahy's - - -

PN99

THE COMMISSIONER: Before you do that, I'm just asking you about Ms Holt, why she knew about notifying the company, or did that occur?

PN100

MR DEDULA: We will produce Mrs Holt's mobile phone record because she sent a message by a phone text to a supervisor by the name of Jodie in the yard. So the company have been notified that Mrs Holt would be - she sent her a teletext.

PN101

THE COMMISSIONER: When did she do that?

PN102

MR DEDULA: Yesterday evening, I'm informed. Mrs Hird, who is here, is a delegate in the yard.

PN103

THE COMMISSIONER: Yes, well they know about her.

PN104

MR DEDULA: And Mrs Holt thought that Ms Hird was going to inform the company that both were going to be here but then she found out that Ms Hird didn't tell the company so she sent a teletext message yesterday evening to her supervisor by the of Jodie. So the company has got forewarning that she was going to be here.

PN105

THE COMMISSIONER: No, stop there. What do you say about that, Mr Leahy?

PN106

MR LEAHY: We weren't aware that the team leader by the name of Jodie had received that message and I can't confirm whether she did receive the message. But what we would say is a couple of things and one is - - -

PN107

THE COMMISSIONER: Look, you need not tell me any more. Yes, Mr Dedula, what about the other things that have been raised?

PN108

MR DEDULA: Commissioner, there are a lot of cheap shots mentioned about this wonderful dispute settling procedure and that there was no discussion. I wish to show the Commission a message sent to me and the date sent 5 October.

PN109

THE COMMISSIONER: No, you don't have to show it, Mr Leahy has read that.

PN110

MR DEDULA: The 5th of October, Commissioner. This letter dated 16 October that message was as a response to a call that was sent two days earlier. I had discussions with Mr Cook about the possibility of sitting down with this document and putting the document together. Also we discussed, and let Mr Cook deny that, we discussed the problem that Mr Cook raised with me on the phone about the matter going to the Commission. We discussed that issue and that's why I know he said they're not going to be forced to do it in their own time and they are going to be doing this that and the other, there were discussions. I asked him to put that down on paper and hand it out to people, he didn't, he claims he has told people. We have two people who work in the Chester Hill yard, let me ask them. Were you ever told by Mr Cook the procedures for stocktake in your own time or not, no.

PN111

But we do have here a document that says, "Mr Cook told everybody, do it or they would be counselled three times or you are sacked." So I mean these things are said and when they talk about tainting the language it was never stated to me that the new general manager of O'Briens wanted to get the feel, what they said was they weren't interested in talking about it at the moment, and that's what I've related to the Commission they weren't interested yet they talk about how they want to set agendas and talk about these different issues and items, well, we welcome that.

PN112

But first, as we said earlier, Commissioner, maybe it is the way that the Commission goes and has a look at these yards and see how these people operate and under what conditions and he has first hand from some of those people exactly what's said to them from the supervisors and their operation managers in the yard because I have members at Huntingwood, I have members at Mascot, and I have members at Chester Hill and surprise, surprise, we don't have problems at Huntingwood, we don't have problems at Mascot but we have them at Chester Hill.

PN113

So something is rotten in Denmark. Why is that two other sites don't have the same problems yet one does, the larger site of the lot has problems? We can state here in the Commission, and quite simply we can prove the phone calls were made, because all the phone calls are made on the mobile phone and when the bill comes in I've already asked the office to get me a copy of the bill so we can put down every time we rang the head office to speak to someone, industrial relations manager, doesn't return the call, threats made to employees, what is the union supposed to do make another half a dozen phone calls and wait, no, we notify.

PN114

In the notifying period as Mr Leahy has already said what happens, they could have contacted us and we could have put it aside, stood the date over. The company made no attempt to contact the union until we received a letter from the Australian Business lawyers, yet we can show that in fact we did contact the company, it was on 5 October and Mr Cook sent a message back to ring him. So there was dialogue between the two yet they want to come here an taint the issue. It is not us tainting it, we have people out there who have been told you don't do their stocktakes, the second stocktake, and the first stocktake, Commissioner, is not in contention. We understand that they do that and for the last three years there hasn't been a contentious issue with the stocktakes because they were paid, and for anyone to say that you can't get a grasp of this agreement it is one, two, three, four, five pages long and you don't know what's in it.

PN115

This company could have been sitting down with the union, and as I've stated, the union is begrudgingly a party to this because we don't like this document. The only reason we're a party to it is so that we can intervene on behalf of our members because the original plan of the company was to have a non-union agreement. And first of all what the company did with this wonderful agreement, Commissioner, the history is they tried to register it through the State Commission, they didn't get their 65 per cent. So what do they do three weeks later they ran a vote under the Federal system because they knew they had the numbers to get the 50 per cent plus one to get it through.

PN116

How many employees still employed by the company today for registration of this document are still employed by the company, not as many as there were then, such a wonderful agreement. We've stated to the company they have problems with this agreement there are things that are cropping all the time and Mr Leahy tells us that we've been to this Commission three times now and that's correct, we have, this is the third occasion. On the last two occasions they were to do with warnings and the safety of a particular truck and they all relate to Mrs Holt and Mrs Holt is copping a wonderful time from this company.

PN117

I've seen the lady go down her health is suffering. There are allegations made about this lady all the time, stocktakes are one and they just keep going on and on. Allegations of not fuelling trucks, customers being rung up behind her back to see whether she is in fact charging the right prices for her goods. This is all harassment and bullying of these people and that's why we're saying, Commissioner, the truth is out there and we invite the Commission as part of this dispute to come out and inspect the site and have a look at the working conditions at Chester Hill and speak to some of the people at Chester Hill and we will find out quite clearly who is colourfully painting the language in this industrial arena.

PN118

We would like to see comprehensive agreements. We would like to see that people know quite clearly what the position is on stocktakes, not by word of mouth from one or two but a document that outlines what happens with all steps of it and if you do go over time you do get paid. You do your stocktake, you don't have to clean your van, that's someone else's responsibility, it is not written in the procedures, it is not written in the agreement and there is no other correspondence anywhere. If the company can show me this correspondence that they have sent with these memos, they keep telling me they send them to the people to inform them, then we would be very happy to see them. There has been no communication with employees regarding the procedures of the stocktake but there has been communication telling them that if they don't do it they will get warned and terminated. If the Commission pleases.

PN119

THE COMMISSIONER: Thank you. Well, I have heard the parties and I will make a number of comments. In respect of Mrs Holt, I don't want to make it a big issue but I must say I do not think it is satisfactory if an employee, if he or she is expected to go to work and it is critical, we are not talking about a factory here where there are 25 operators and if one is sick, well, presumably the leading hand or somebody will take over, these are people on runs and if they do not turn up it creates great difficulty for the company particularly because there are customers there waiting to be serviced. To say that she thought it had been cleared by somebody else or that the delegate had told the company and then find out that it's not the case and then they ring in or use some kind of electronic message to Ms Jodie, well, Ms Jodie could be in hospital, we don't know that, I just don't think it is satisfactory.

PN120

I think if someone is expected to go to work then they really need to talk to somebody face to face or on the phone, get the person and make it very clear, say to them, look, I am not going tomorrow. This is not a dispute specifically about Mrs Holt so there is no reason to assume that she was critical to the development so I don't expect any disciplinary action against her but I must say I do issue a warning through the union that just because it's a matter in the Commission and people have an interest, it doesn't mean it gives them a green light to basically attend and to leave some kind of message with somebody. The company have been told to say no, you can't go, you go to work. That takes care of that issue.

PN121

Secondly, there may have been opportunities to have discussions between when it was notified and now and I understand, Mr Dedula, that you say the company has not wished to discuss matters. The fact is that between when the dispute arose and when you notified the Commission of a dispute, on your own comments the only approach you made to the company was ringing Mr Ghilardy, who is not directly associated with the Chester Hill site, left two messages and he didn't get back to you. Well, with due respect, maybe he's a ratbag and doesn't answer calls, that's all very well but before you take it upon yourself to go to the next step, let's be practical about it. If a person refuses to talk obviously you have the right to go to the next step otherwise the disputes procedure would be undermined but I would have thought a more sensible thing would have been to put under SDA letterhead a letter to the proper officer of O'Briens saying, we have a dispute and if I don't hear from you to discuss the dispute we will be going to process 4.3.

PN122

Now, that wasn't done. All I am saying is, we don't know why Mr Ghilardy didn't get back to you but even on your material it was only a case of ringing him twice. He could have been overseas for all we know or, as I said, it may be he doesn't like you, but that doesn't mean you automatically can go to 4.3. I actually think we have to treat this disputes procedures seriously. Employers and unions seem to think that if they jump a couple of steps it's okay, you eventually get to the Commission. Well, I am not quite sure that I agree.

PN123

That is why I don't propose to do anything, I don't propose to go into conference, I don't propose to hold inspections, I propose to direct the parties to hold formal discussions about the matters. In other words, let's go back to 4.2. The subject of those discussions really will be how is the stocktake going to work. The company says they only expect it to be done during normal working hours, if it's not done in time then someone takes over, but I think there needs to be some sensibilities here.

PN124

If one employee or a few employees constantly have problems with their returns, obviously they need to be involved, there is not much point in saying, well, it's 4 o'clock, I'm going home now, and the supervisor says, okay, I will do it for you. It seems to me they might have to stay back. Whether or not that includes overtime, I mean that really would depend on the circumstances; it may be that if we are talking about a very short period time perhaps people just have to cop it a little bit, it's either that or it's warnings.

PN125

Out of any outcome of those discussions, if there's an agreed process as to how these things operate then of course the company may need to an explanatory note to employees to say, this is how it works, the first stocktake for reconciliation is always on a Tuesday, as everybody knows, if there is a problem and the company wants a second stocktake it will occur on the next day, it will be done during working hours. That needs to be communicated and it obviously needs to be discussed.

PN126

People say, well, they will run out of time. The fact is that in all of these issues people just have to be efficient. If 50 per cent of the people who are asked to do the secondary reconciliation always run out of time then obviously the time the company allocates is not long enough and if in fact in the second reconciliation or the second check only one or two employees don't seem to be able to do it in time I would have thought there's got to be look at how efficiently they operate. People in this occupation are largely self-controlled, they have a run and presumably the runs are reasonably even, they have the same number of customers over a certain geography and they all get back to the depot at a certain time, round about the same time. Now, if some people come back and the truck is an absolute mess and it takes two hours to count things, it may be that the fault does not lie with the company, it might be that the employees need to consider how they operate.

PN127

They are all matters that I think need to be discussed. As I have said before, there seems to be a bit of a communications problem, at least at Chester Hill, or with some employees or some members of the union. Mr Leahy, you might provide appropriate advice and assistance to the company. I am not saying I am critical of the company but there are certain concerns. The first step is for the disputes procedure to now be complied with and I see no value in the Commission getting involved. There are lots of nuts and bolts to be put on the table and to be worked through.

PN128

As long as the processes by the company are clear and meets the competence and the time constraints, or the time available of employees, generally defined, that is that most of the employees are able to do what they are asked to do then I think there is nothing unreasonable about what the company might want to implement. The next step of course, as I said, is proper communication to the employees of the outcome of such discussions.

PN129

So what I propose to do is direct the parties to meet. I will re-list the matter for report back, should it be necessary. Well, I will list it and we will cancel it if advised by either or both you and it will probably be in three weeks time and that gives plenty of time for people to sit down and work out their relevant interests and have the necessary discussions on that. Yes?

PN130

MR DEDULA: My friend stated that there are people who regularly come in on stocktake and have no stocktake problems, they are regulars. How many of those people are there?

PN131

THE COMMISSIONER: Well, Mr Dedula, I don't want to know about it, you will find that out when you talk to Mr Cook.

PN132

MR DEDULA: In the month of September could Mr Cook tell the Commission that in the month of September how many people in the Chester Hill yard made a stocktake?

PN133

THE COMMISSIONER: I'm going to say it again to you, Mr Dedula, you will work that out with Mr Cook. If the discussions you have are not satisfactory to you then we will see you in three weeks time and you'll put everything on the table. But all I'm saying is I don't propose to have the Commission assert itself as at 4.2A. The Commission is at 4.3 and I'm not satisfied that you've got me to 4.2 yet, they are all questions that you need to explore and I'll just say again that there seems to be a communication problem and one thing that needs to be kept in mind is that the positions that people take - from the union's point of view - needs to be one that is consistent with the bulk of employees. It is not much point in saying one person's got a problem and they can never do it and everybody else can.

PN134

The company for its part says that many people or some people never have a problem, well, you'll explore all that. As I say, if it turns out that some people never have a problem but the bulk of the people have only a moderate problem but one or two or three have serious problems, well, I don't know if the problem is with the company in that instance but it may not be that way, I don't know. But let you all discuss it and let's, if we need to, hear from you in three weeks time.

PN135

MR LEAHY: Commissioner, if I could just say one thing. With respect to Mr Ghilardy, and it shows he didn't return the call, the message left for Mr Ghilardy was please call Mr Dedula.

PN136

THE COMMISSIONER: Yes, well I wasn't querying on Mr Ghilardy. I just say I don't know why - - -

PN137

MR LEAHY: But just so his position isn't painted or prejudiced in that respect.

PN138

THE COMMISSIONER: It is not tainted. I don't why he didn't answer and I don't really care. The point is, as I said, I don't think the Commission notification should have been triggered just on the basis of those circumstances. I propose to adjourn.

ADJOURNED INDEFINITELY [10.41am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SDA1 EXTRACT INTENTION OF AGREEMENT PN19
EXHIBIT #OB1 LETTER OF 17/10/2001 PN97