C2001/6144, Transcript of Proceedings [2001] AIRCTrans 3547 (18 December 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

C2001/6144

AUSTRALIAN MANUFACTURING WORKERS UNION

and

TOOWOOMBA FOUNDRY PTY LTD

Notification pursuant to Section 99 of the Act
of a dispute re inclusion of meal breaks as time worked

BRISBANE

2.08 PM, MONDAY, 3 DECEMBER 2001

PN1

THE COMMISSIONER: Can I take appearances, please?

PN2

MR I. McCOMB: I appear for the AMWU and with me is Mr T. WINTER who is our shop steward at the Toowoomba Foundry.

PN3

THE COMMISSIONER: Thank you, Mr McComb.

PN4

MR M. BELFIELD: If the Commission pleases, I appear for the Australian Industry Group and for Toowoomba Metal Technologies, and with me I have MR D. HARLAND.

PN5

THE COMMISSIONER: Thank you. Mr McComb?

PN6

MR McCOMB: Yes, Commissioner. The Union is seeking assistance regarding the hours worked with the 12 hour shifts at Toowoomba Foundry. This dispute arose from an AMWU member requesting advice from myself of a proposed example contract of an agreement the company was asking him to sign and the clause being - I think you should have a copy of the particular document as exhibit - that particular clause, Commissioner, is on page 3 that they actually rang me about.

PN7

THE COMMISSIONER: The cancellation of 12 hour shift roster?

PN8

MR McCOMB: That's the one.

PN9

THE COMMISSIONER: Right, and what do you say about that Mr McComb?

PN10

MR McCOMB: No, it's right down at the bottom of that. It says:

PN11

When Toowoomba Foundry cannot offer suitable alternative work and the employee does not wish to continue on the 12 hour shift, it will be deemed to be resignation by the employee and that the employment will cease on the last day the employee works on the rostered 12 hour shift.

PN12

So that was the reason why they rang and my advice was for him not to sign that particular document based on that clause, mainly because it's pretty clear if there's no work the termination and the redundancy part of the award clear fixes that up. At this stage the company has agreed in principle to take that out and I understand there's a new contract out on which that has been deleted. And that's the reason why we've done that because the clause was unjust and it was - my advice was not to sign which a couple of them didn't.

PN13

Commissioner, as the time went on pressure was put on the employees to sign. For example one on was put to - by some of the management there. There was even a notice put on the board. They have a whiteboard there which they communicate to the employees - I've got a copy of that if you wish to have a look at that - it was put on the board.

PN14

THE COMMISSIONER: So the award is in place and this is an ancillary agreement that is in operation to the award?

PN15

MR McCOMB: I don't - I don't even know that that's quite legal what they've done anyway because it's not part of the EBA. It's just an agreement that they've got like this and asked people to sign it. It's not part of an EBA, it's just something that they've gone around and asked people to sign it as conditions of employment.

PN16

THE COMMISSIONER: But there isn't an agreement in place is there?

PN17

MR McCOMB: There is.

PN18

THE COMMISSIONER: There is an agreement?

PN19

MR McCOMB: Yes.

PN20

THE COMMISSIONER: Right.

PN21

MR McCOMB: Because we're not parties to the award.

PN22

THE COMMISSIONER: So your employees work under the award.

PN23

MR McCOMB: They do. They work under the agreements and they get paid as such under the agreement.

PN24

THE COMMISSIONER: Right.

PN25

MR McCOMB: But the important part about the agreement is when we get to the hours of work. The reason we didn't sign the agreement - it's pretty clear that they didn't reach the March 2001 - because we were going for the - you know, what we were after in that area. So that it was a one-off for that particular reason.

PN26

THE COMMISSIONER: Sorry, Mr McComb, just so I understand, your employees are employed under the Metal Award?

PN27

MR McCOMB: The Metal Award and also work under that agreement.

PN28

THE COMMISSIONER: Under this agreement that you've handed to me?

PN29

MR McCOMB: No, not that one, no. Some of them do.

PN30

THE COMMISSIONER: Right.

PN31

MR McCOMB: Is that right, Troy - - -

PN32

THE COMMISSIONER: Under which particular agreement are you referring to?

PN33

MR McCOMB: I'm talking about the Enterprise Bargaining Agreement.

PN34

THE COMMISSIONER: Okay.

PN35

MR McCOMB: Yes.

PN36

THE COMMISSIONER: And what's the name of that agreement?

PN37

MR McCOMB: Toowoomba Foundry Certified Agreement 2000.

PN38

THE COMMISSIONER: Has that been certified?

PN39

MR McCOMB: This one has, yes. Yes.

PN40

THE COMMISSIONER: It's just I did a search on it and I couldn't pull it up.

PN41

MR McCOMB: Yes, your associate was saying, yes. The important - when we get to the agreement is that it's actually a 39 hour week they work there not 38 as per the award. That's probably the only thing I need to discuss about the agreement is the 39 hour week. Commissioner, there then was a call from the membership of the unions, that's both unions, the AWU are the other members of the union - they belong to the AWU; the machinists and people like that. So there was two unions involved with the meeting with management to discuss this particular contract - that's the one I've given you - because there was a couple of other issues that arose over the issues. One was the one that we're here today over; the dispute of payment for the 12 hour shifts and the further one was the position of overtime.

PN42

There is a clause in this agreement that says they'll get paid overtime at time and a half for the first three hours and double-time thereafter. We're all aware that if you're a continuing shift worker all overtime is at double-time. Where we're getting the dispute over the 12 hour shift is that the unions position is that the rest pauses - in this particular document they are 51 minutes - which is 30 and a 21 for rest pauses. Our argument simply is that that's calculated as time worked, which it is and the award clearly says that. I'll give you a copy of that particular part of the award.

PN43

THE COMMISSIONER: So Mr McComb, you have got difficulty with this particular provision in the agreement that you've taken me to?

PN44

MR McCOMB: Yes.

PN45

THE COMMISSIONER: And this other matter that you're referring me to?

PN46

MR McCOMB: Well, that's right. The first one was that one of our members rang up and said look, they want me to sign this contract and that's the clause that he mentioned. I said, well, you don't have to sign it - that's pretty well duress sort of stuff and you need to sign it because it's clear that - you just - you don't want to take yourself off a 12 hour shift; you're not going to resign your job, and that's what that says - you terminate your own employment.

PN47

THE COMMISSIONER: And your understanding is that that's been deleted from the new version.

PN48

MR McCOMB: I understand that's been deleted.

PN49

MR HARLAND: As soon as I become of it I said to was null and void and I gave Ian that undertaking.

PN50

THE COMMISSIONER: Thank you, Mr Harland.

PN51

MR McCOMB: The next was one was, there's a clause in there - - -

PN52

THE COMMISSIONER: So that's out of the way? That's not in dispute any more, that provision then?

PN53

MR McCOMB: I understand that's the case. I haven't seen a copy of the - it wasn't taken out until the last - there's a couple of agreements gone out, they want them to sign them, because the company - I'm sort of jumping ahead of myself a bit - the company now has gone out and asked for people to a particular document saying that they have done this under their own will, they have signed off on the agreement and all that sort of stuff, without duress.

PN54

THE COMMISSIONER: All right, I'll let you go on.

PN55

MR McCOMB: So I think you need that. That's the clause in the award which talks about the ordinary hours of work, continuous shift and works - you know, any rest pauses is counted as time worked - - -

PN56

THE COMMISSIONER: All right.

PN57

MR McCOMB: - - - because that's the key to it all. We went with management on a number of occasions, and I refer to a paper that our delegates - which I'll read again later, which goes through the times and the dates. It's still a bit more thorough than I've done. The union's, that is the AMWU and the AWU, have met with management on a number of occasions and have progressed the issue to an acceptable outcome. We've actually got the agreement in principle with the accountant, or manager - mainly does, mainly their accountant, I think, I can never pronounce his name right - Mithrin, at one stage of the game, but when that was put to management as the proposal that was not acceptable.

PN58

The unions are certainly not wrong in their claim, and, Commissioner, the claim is as follows. The award identifies that shift-workers, that is the rest pauses are calculated as time worked. The award identifies that a period example of eight weeks on average of 312, that's 156 hours for a four hour week. And, Commissioner, the reason the hours are averaged 156 and 152 as the award, gets to the 39 hour, which is a part of their agreement. So that's stopped any confusion. And as the award - as the EBA states, the hours of work are 39 and not 38, so that's the difference there.

PN59

The company have worked out a formula that equates to 312 hours, as it should under the award over eight weeks, which brings them into the average of 39 hours over the eight week period. The position is that the hours that are actually worked are 336, 24 hours over the award over the eight weeks, which calculates a 42 hour week, and the unions' claim is for three hours pay per week for that; not a double time, because what they have done to get the hours right is they have actually - they do the sums to get the 312 right, then they pay the rest pauses at single time. I think I've got that pretty right.

PN60

And it took us six or seven meetings, I can tell you, to try and even come to grips with this, and how the actual workers on the job ever come to grips with it I'll never know, because it takes a while before you sort of get it around your mind how it all works, but it's - getting down to the bottom of it all is that the award is pretty clear, that over eight weeks period its average is over 152. This particular one, it doesn't do that - sorry, again I'm confused, over the fortnight, 152 for the month, over eight weeks it comes to the - where am I? It's 152 over eight weeks period, over 156 because it's 39; it's clearly that they're working a 42 hour week, that normal hours are 39, so there's three hours per week should be paid at double time. They actually pay at single time. I have a copy of the - and it's actually what they're paying at the moment is in the - if you go to the back there it clearly demonstrates how they're actually paying it, and where they separate the rest pauses and the payment of that from away from the actual hours.

PN61

Commissioner, I have a copy - they are reasonably complex, and I'll have to say, well at least I've said a number of meetings to get some idea of the arithmetic. It is very clear that the employers would have a similar difficulty. Commissioner, as you can see there is only the AMWU involved at the moment, and to say that the AWU members are told then to back off for the following reasons. They have been told by the company they can do shifts cheaper by working eight hours per day, and I will leave up to the observers whether that is intimidation or not. Commissioner, the union, that is both unions, AWU and the AMWU, have a combined meeting which was held on - like I said, he's got the dates in here. The meeting, after hearing reports from delegates and organisers voted unanimously to take the matter to the Commission for assistance.

PN62

The alleged intimidation occurred after the meeting, and the AWU members have had a change of heart. I understand the pressure that occurred. Further, the company is attempting to get employees to sign a contract that has not changed from the first one - at that time it hadn't changed; it has, I understand, changed with that clause being taken out. But still has, I understand, the one-and-a-half hours at three, and double time thereafter, although - - -

PN63

THE COMMISSIONER: In this agreement here?

PN64

MR McCOMB: Yes. Although the company is paying - if you work in your own cell, without getting too far away, they actually are paying double time if you work overtime in that cell. If you work in another cell, which is an area workplace, I suppose, but they call them a cell, you only get paid time-and-a-half. And we accepted that as a compromise. So it's still - what they say in the agreement is actually wrong.

PN65

Commissioner, the agreement itself, the draft regarding termination of employment, management agreed to erase that clause. Further, the overtime clause stated that overtime would be paid at a day's rates of one-and-a-half for the first three hours and double time after that. The award is clear that it's double time for shift-workers. The company agreed to the change. The unions accepted it, allowing compensation to management; that is shift-workers who work overtime in their own work cell, which is double time, and any other cell, time and a half for the first three hours and double time after that.

PN66

Commissioner, my understanding is that these changes have not occurred on the current contract an employee is being asked to sign, apart from that clause being deleted. The union needs to know so that we can have an understanding of the issue, that is the payment for a 42 hour week not 39 as calculated by the company. Commissioner, our claim is for three hours at single time, an example, 12 hours - $36 per week it works out at, if you are on 12, that is.

PN67

Commissioner, the sub stewards have formulated an overview of the situation which I will read in a minute. But just of late there has been a draft agreement which has been put together by another company, actually just across, not very far away from the Toowoomba Foundry, and expresses exactly what the unions are asking for, exactly the same. It talks about - except they are a 38 hour week, of course - it talks about the extra hours because they working 42, and it is four on, and four off, that is the same rosters.

PN68

And it is very clear in here that is the way it should be worked. So I will put this up as an example as well. It goes out for ballot, so the members at that particular factory in, I think, it is about three or four days time.

PN69

THE COMMISSIONER: Are you seeking to tender these documents, Mr McComb?

PN70

MR McCOMB: I beg your pardon?

PN71

THE COMMISSIONER: Are you seeking to tender these? Would you like these marked as exhibits?

PN72

MR McCOMB: If you don't mind, I think so, yes, especially the last one.

PN73

THE COMMISSIONER: Right, I will mark the first one, which is the Toowoomba Foundry 12 Hour Shift Agreement, as exhibit 1.

EXHIBIT #1 TOOWOOMBA FOUNDRY 12 HOUR SHIFT AGREEMENT

PN74

THE COMMISSIONER: And the - what could we call this? It is not marked. It is just an alternative site agreement as exhibit 2.

EXHIBIT #2 ALTERNATIVE SITE AGREEMENT

PN75

THE COMMISSIONER: So which part are you directing me to in this?

PN76

MR McCOMB: Well, it clearly shows - if you go to page 8 it talks there, there have got the graph there about pay average for 12 hour shifts. And you go to the average each week, which is ordinary hours at 38, because they are working a 42 hour week, and then the ordinary hours is 3.9 which is near enough to four hours, and that is paid at double.

PN77

THE COMMISSIONER: Right, so they are working a 38 hour week.

PN78

MR McCOMB: They are working 42.

PN79

THE COMMISSIONER: Right, but on average it works out - - -

PN80

MR McCOMB: But they are getting paid 38 hours at ordinary rate, single rate.

PN81

THE COMMISSIONER: Yes.

PN82

MR McCOMB: And the other four hours are double time. Because what they have done they have calculated the actual time worked as part of the equation, as tax on time worked. Their lunch hour is - they have an hour break there though, so it is a little different in 51. Actually I cross out at the bottom, the company, but when you read through it you can see who it is any way. So there is no secret about it I don't think. Dairy Farmers, that is correct.

PN83

THE COMMISSIONER: Right.

PN84

MR McCOMB: Could I just briefly go through the background of the sub steward, I think we should do that, because they put a fair bit of work into it. This is the background of the workplace itself. The Toowoomba Foundry Machine Shop is made of several different sections.

PN85

THE COMMISSIONER: Just wait, Mr Belfield, do you have a copy of that, that agreement, that document, did you get a copy of that?

PN86

MR BELFIELD: Yes, I did.

PN87

THE COMMISSIONER: The one that was handed up.

PN88

MR BELFIELD: I did, I will leave my comments until later.

PN89

THE COMMISSIONER: If you would.

PN90

MR McCOMB: The Toowoomba Foundry Machine Shop is made up of several different sections, being heavy transport, and this is what they call the cells, like just different departments. Their main products is brake drums and wheel spiders. You have the water products, you know, for making, mainly the foundry where they do a lot of the pumps and that for the irrigation and that type of thing, miscellaneous products which is a box and parcel of a lot of stuff that they make in that area. They do cylinder head cells, which is a 12 hour, they work 12 hour shifts, and the powder coating cell.

PN91

Approximately two years ago the management and the Australian workers, and the workers in the heavy transport section formed an agreement to work a 12 hours continuous shift. No other sections were involved in this process. Implementation into miscellaneous section: the management decided to implement this 12 hour shift in the miscellaneous section without any consultation with the workers on such issues as: roster cycle, which was who was on what shift, pay rates, how the figures were worked out, health monitoring, none done at this time, and the conditions in the agreement in general, the determination clause which is the one I mentioned.

PN92

The AMWU was not notified at any stage during these implementations, two machines are needed, or were manned by eight workers to run these 12 hour shifts, four on each machine. The supervisor of the area, Garry Scott told the workers of the machines, that we are starting these 12 hour shifts in three days, so you blokes work out the shift roster and we .... Now if you need any clarification you could ask Troy to give us a clarification on that.

PN93

When this shift was implemented into the section there were 14 people employed to work the machines. The facilitation by a majority or individual agreement, section 223 of the award, should have been applied and a meeting of all workers in that section should have taken place. By having eight people out of the fourteen work these shifts, the majority of individuals was again contrary to section 2.23 of the award. A copy of workers that were working in this section is provided in appendix A.

PN94

The employees working these 12 hour continuous shifts in the machine shop were asked by management to sign the 12 hour shift agreement in August 2001. Some employees did not want to sign as they were clearly getting less than the award and had not had any chance for any input into the agreement. When the workers arrived to start work on 25 August 2001, a message was left by the Production Manager, Wayne Day, and signed by Garry Scott, the Area Supervisor. I am not sure whether you want to have a look at this or not, but it probably wouldn't hurt, I think, as I have put it up as am exhibit to say that there was some coercion.

PN95

THE COMMISSIONER: Did they contact the union at that stage, Mr McComb?

PN96

MR McCOMB: No.

PN97

THE COMMISSIONER: Are you going to speak to this, Mr McComb?

PN98

MR McCOMB: Yes, I will speak to that, yes, and refer to the list of people who had refused to sign, apprentices and some people had signed after reading this but signed under duress. We were just trying to get that there were certainly people under duress when they signed the document.

PN99

THE COMMISSIONER: What part of that shows that, Mr McComb.

PN100

MR McCOMB: The bottom section.

PN101

THE COMMISSIONER: Have you seen that, Mr Belfield?

PN102

MR BELFIELD: No, I haven't.

PN103

THE COMMISSIONER: Were you seeking to have that marked as an exhibit?

PN104

MR McCOMB: I think so.

PN105

THE COMMISSIONER: Well, Mr Belfield might want to comment on it, have an objection if you do on it, or is it for the information of the parties?

PN106

MR McCOMB: Is it more or less to say that there was definitely intimidation, no question about that. That was on the board, that is their communication, their white board that they use to communicate to their employees.

PN107

THE COMMISSIONER: Well, I might let you proceed and Mr Belfield might want to comment on that before we mark it any way.

PN108

MR McCOMB: Okay. This was just another form of on-going intimidation on the workers by management to get what they are after. Some of the other instances include: the workers doing these 12 hours shifts in areas other than the heavy transport section, and cylinder head cells were asked to go for their four weeks notice to end the 12 hour shifts. In the agreement because of the downturn in work, when the workers tried to negotiate two weeks instead of four, that is just part of this agreement here that talks about terminating the agreement at that particular time.

PN109

THE COMMISSIONER: The original exhibit 1?

PN110

MR McCOMB: Yes, exhibit 1, yes. When the workers tried to negotiate two weeks instead of four, as per the agreement, they were told by the Production Supervisor, and he swore, he didn't give an "f" about their unions and if they didn't like it they knew where the front gate was. After this the Shop Foreman, Ian Pollocks went around and asked whether they agreed to go their four weeks notice, forego their four weeks notice.

PN111

At a meeting between the employees, the supervisor, and the Production Manager, reporting of the Marburg Strategy Planning Report, the workers were told by the Production Manager that things like, "Don't forget I own you people. Don't worry about going to the General Manager, even though he has an open door policy." Two employees that would not sign their contracts were taken to the Production Manager's office by the supervisor and were told if they did not sign they might not have a job for them in the organisation.

PN112

After the notice was left on the notice board, they took certain steps to resolve these problems. Two of the affected employees sought consultation with the Queensland Industrial Relations Inspector, Neville Polk, at the Toowoomba office. After reading the 12 hour shift agreement referring to the award and current Toowoomba Foundry Enterprise Bargaining Agreement, he pointed out what he thought in his opinion was needed to be changed.

PN113

The overtime for continuous shift workers should be double time, the last clause in the agreement about termination of employment needed to be removed, and the figures worked out on payment were wrong, as the meal breaks were not being counted as time worked. Inspector advised that the employees needed to discuss this with their supervisors and to seek union representation as this was a Federal matter, not State. The machine shop foreman and two of the section supervisors were then approached by the two employees to discuss their concerns. The production manager contacted Troy Winter, AMW shop steward, one of the affected employers, who met the machine shop supervisor to raise their concerns of the agreement. The AMW was contacted by another of the workers concerned about the agreement and the intimidation being used by the manager, and that's when I was notified.

PN114

Dispute resolution procedure was carried out to resolve the dispute. The meetings were held with management, AMWU and later the AWU. Meetings took place on 13 September, 25 September and 2 October - I won't go and read who was at them all - 15 October and 25 October. What the workers are asking for is back pay on any overtime worked on continuous shifts, pay at one and a half to be converted into double time, back pay of three hours a week on continuous shift to be paid, different between 42 and 39, back pay on any superannuation - - -

PN115

THE COMMISSIONER: Sorry, Mr McComb, just take that a bit slower. The first one was back pay - - -

PN116

MR McCOMB: On any overtime that's been worked, you know - they were getting paid time and a half instead of double.

PN117

THE COMMISSIONER: Yes.

PN118

MR McCOMB: And the back pay of three hours a week on continuous shift work to be paid, the difference between the 42 and the 39 hours, and the back pay any superannuation workers are entitled to. And insurance for the general manager that this past intimidation practice will cease and none of these workers making this claim will be victimised or discriminated in any way in the future. I think that's very, very important, that particular thing. The general manager claims that these workers have attacked the integrity of the company by raising these issues and going to the Commission. Integrity in the Collins Dictionary is to have high moral values, honesty. What's moral about wanting workers to work for less than the award and what honesty is there in letting the management intimidate workers to get what they want?

PN119

People that work for the Toowoomba Foundry have over the years put a lot of trust in the company and management to do the right thing, but when they allow management to operate in this manner they put back industrial relations factors at least 50 years. In two meetings the general manager said that if this agreement was outside the award he would fix it. This I believe would be a test of integrity. At no time while the parties have attempted to resolve this matter has any worker refused to work or engaged in any disruptive action. Most of these workers that have not signed the contracts have found their machines have suddenly not enough work and sent to eight hour shifts and all apprentices have been transferred to eight hours a day in new work policy.

PN120

Most of these incidents have occurred in meetings with several employees. It is not a problem to prove what happened and what was said. The names of the employees have been left out to protect them from any repercussions in future. Employees have agreed to sign statements and supply the Commission if needed. And that's the statements that have been put together on behalf of a number of people at the work-place.

PN121

THE COMMISSIONER: How many of your members are affected, Mr McComb?

PN122

MR McCOMB: I'll ask Troy to answer that one.

PN123

MR WINTER: How many people? At a rough count I would say 10, 12 would be affected. Some of them aren't doing the 12 hour shifts now. They've gone back to eight hours shifts, but they were working those shifts.

PN124

THE COMMISSIONER: All right. Is that all - - -

PN125

MR McCOMB: Commissioner, I will stop at this point. I believe that we've given a reasonably transparent view of the issue and we're keen to hear the employer's situation.

PN126

MR BELFIELD: Commissioner, I know it's a lot of detail to be sort of thrown at you to - - -

PN127

THE COMMISSIONER: I think we will need to go into private conference.

PN128

MR BELFIELD: Yes. Yes. I just want to put up on the record, however, that Mr McComb has not gone into any submissions in this regard other than tender the copy of the - extracts of the award. The issue is about the application of 61.1.2(b) of the award. That says that - and I'll just read it:

PN129

Subject to 6.1(c) the ordinary hours of continuous shift-workers are at the discretion of the employer to average 38 hours per week, inclusive of meal-breaks and must not exceed 152 hours in 28 consecutive days.

PN130

And the key sentence is:

PN131

Continuous shift-workers are entitled to a 20-minute meal-break on each shift which shall be counted as time worked.

PN132

This aware, as you probably would be aware, Commissioner, has a number of facilitative provisions in it, and the flexibilities that are available to the employer must be discussed with the employees in each section. And clause 6.1.4(b) identifies some of those issues, and one of those is at roman (viii), it says:

PN133

Matters upon which an agreement may be reached include any arrangement of ordinary hours which exceed eight hours in any day.

PN134

So a lot of this - all of these issues about how the ordinary hours are to be worked, and the shift-patterns they are to be worked over arise under the facilitative provisions of the Award. It is not as if there is the requirement - that there is a prescription limiting the employer's prerogative here. The to-ing and fro-ing is all about trying to find a method of working ordinary hours to suit the business, and there were suggestions that there was some pressure placed on employees, and so on and so forth. And I won't go into every one of those, but just to take a bigger picture of it, the company and the employees have sought to, in accordance with the Award, introduce a system of working a 12-hour shift continuous shift system.

PN135

The union has got involved in a couple of issues, and the one before us today, I believe, is limited, or is primarily related to the question of whether the clause 6.1.2(b) reads that you are to only deem one 20-minute meal-break as working time. Or in the union's proposal, as I interpret it, that all meal-breaks should be deemed as time worked. Now, our reading of that sentence says that there is only one meal-break, one 20-minute meal-break to be counted as time worked. And the figures that Mr McComb through at you, which are even - in any description of the situation, are fairly detailed, so we are quite happy to go through that with you in conference.

PN136

THE COMMISSIONER: Because this is where the difference between the 39 and 42 arises.

PN137

MR BELFIELD: Well, yes, the - to put in simple terms, or as simple as possible, there are 10.81 ordinary hours which are actually worked. And I have worked it - it is on the basis of the following spread of hours. It works the two shifts, 6 am to 6 pm, and it works - the day arrangement goes 6 am - this is working time - to 9 am. There is a break of - a 20-minute meal-break, and then work starts again at 9.20 am and goes through till 2.30 pm. There is a 31-minute break, work commences at 3.01 pm and goes through till 6 pm. The night-shift starts at 6 pm and works till 9 pm. There is a 20-minute break, meal-break, then they commence at 9.20 pm and work through till 2 am, then there is a 31-minute break, and then at 2.31 work recommences and goes through till 6 am.

PN138

Now, there is 10.81 ordinary hours worked in that shift. The .33 or the 20-minute break - .33 of an hour - is counted as time worked, which makes it 11.14 working hours in accordance with the Award. 11.14 hours by 14 days, which is the pattern they work over 28 consecutive days is 156 hours. That is the equivalent of 39 hours per week, which is the loaded hourly arrangement, which is in the enterprise agreement outcome. That is consistent with the ordinary - with requirements under the Award. Indeed, the company does pay the additional - the 31 minutes, or .51 of an hour per shift, that is also paid.

PN139

THE COMMISSIONER: But not the 20 - - -

PN140

MR BELFIELD: But not counted as time worked.

PN141

THE COMMISSIONER: Right.

PN142

MR BELFIELD: Not counted as time worked. So we are looking at the average hours over that period, and we say that the company is within the average hours required under the Award, and is under no obligation whatsoever to count the second meal-break as time worked.

PN143

THE COMMISSIONER: So just to go back over that, Mr Belfield, they count the 31-minute meal-break; that one is paid or unpaid?

PN144

MR BELFIELD: The 31-minute is paid, but it is not counted as time worked.

PN145

THE COMMISSIONER: Okay.

PN146

MR BELFIELD: Which is quite significant.

PN147

THE COMMISSIONER: Yes.

PN148

MR BELFIELD: And we say that is entirely consistent with clause 6.1(b) of the Award.

PN149

THE COMMISSIONER: And the 20 minute one in terms of 6.1.2(b) is the one referred to there; that continuous shift-workers are entitled to a 20 minute meal break on each shift will shall be counted as time worked.

PN150

MR BELFIELD: That's it, that's correct.

PN151

THE COMMISSIONER: Right.

PN152

MR BELFIELD: I don't believe it is necessary to go into, address all of the other issues. We obviously reject that there was coercion. The notice that was put up and which was the subject of this photograph, was put up by a supervisor who was also, at the time, and I don't whether he is still, a bloke called Garry Scott, an AMWU delegate, a delegate of the very union that is complaining about the behaviour.

PN153

However, the management, when it was brought to their attention, that this had been put up, requested that it be removed immediately. So there may have been some individual pressure brought to bear of an over zealous supervisor, but it is certainly nothing, we say, is inconsistent with the facility provisions under the award, trying to get the majority of employees to agree to different systems of work.

PN154

I think - I don't want to get too far into the issue of representation and what we are exactly looking at, but the union is not a party to the EBA, by their own admission. This matter before the Commission is, I believe, and Mr McLean hasn't said as much yet, but I believe it is a request for an interpretation of the award. We are quite prepared to sit down and go through what could be a misunderstanding.

PN155

However, Mr McComb should be instructed and should be aware that if he does - if this is not - if a resolution or satisfaction, his satisfaction is reached, then that is not a matter for it to proceed any further in this Commission. If the Commission pleases.

PN156

THE COMMISSIONER: Mr Belfield, just before you sit, just to clarify before Mr McComb responds as I understand he will probably want to, the three issues that Mr McComb raised that he was seeking the back payment on overtime, the one and a half to the two hours, you are suggesting that there is no claim there because of the different way in which you claimed that the hours are worked there, or the hours are paid?

PN157

MR BELFIELD: Well, the two points, I understand that where overtime has been - I will just get instructions, if I may.

PN158

THE COMMISSIONER: Yes. If you could just discuss that any way in the conference.

PN159

MR BELFIELD: Yes.

PN160

THE COMMISSIONER: We probably need to have all the figures in front of us, I think, to assist the parties.

PN161

MR BELFIELD: Well, the issue about the 42 hours verses 39 hours, we say isn't true, because we haven't acceded the average, based on the figures that I have given you, Commissioner. The matter of the double time being the appropriate penalty rate for continuous shift workers seems to be related to the employees leaving the area, which is deemed to be a continuous shift work area as opposed to another area which is not.

PN162

THE COMMISSIONER: So what you are saying is that when they are in the continuous shift arrangement, the double time arrangement has been honoured?

PN163

MR BELFIELD: Yes, that the company's night time, has not misapplied that. And I am not altogether sure of the point that Mr McComb makes with tendering the document which dairy farmers. Dairy farmers is not subject to the Metal Engineering Associated Industries Award. That may be some - - -

PN164

THE COMMISSIONER: I think it was only tendered as an alternative in terms of a provision where it is clear.

PN165

MR McCOMB: They applied the award, that is what they done, exactly.

PN166

THE COMMISSIONER: It may be best any way - - -

PN167

MR McCOMB: And there is very little difference between the State Engineering Award and the Metal Industry Award.

PN168

MR BELFIELD: Again there has been no evidence really about that. I believe we are assessing the application of this award to the company, whether it has been - whether there has been a breach effectively.

PN169

THE COMMISSIONER: Mr McComb?

PN170

MR McCOMB: Well, a couple of things and I am not quite sure when he mentioned about the jurisdiction or something before, but any way I am not sure what he is on about there. But the decision with the overtime let us clear that up. The decision whether double time, it has just been addressed very - what last month at best. But prior to that they were only getting time and a half, for the first three hours and then double time thereafter. So the decision of the double time certainly hasn't been addressed, for the going back as a breach of the award. So I think you need to understand that. Are you with me there?

PN171

MR BELFIELD: I think we will probably discuss it in conference.

PN172

THE COMMISSIONER: Look, do you have a specific claim in relation to the number of employees there, in that situation, or is that just a - - -

PN173

MR McCOMB: Well, if we need to do that, I think we probably need to do that. So on behalf of Mr X or whatever that we are claiming X amount of dollars as a wage, to go through the wages boxes or whatever to get it, I suppose. I think that is what you are suggesting.

PN174

THE COMMISSIONER: Well, I just think that we need to understand the claim so that the employer knows which employees you are referring to. But we could discuss that, your delegate may have some names.

PN175

MR McCOMB: It might be up to me to get that as well. Where they are really pulling a low bow by using the one clause there that talks about a twenty minute rest pause for a shift, but they are talking about an eight hour shift. It is very clear in a 12 hour shift, no matter where you go, any rest pauses that you have are clearly as time worked. And you could actually use the clause there where it says that:

PN176

If you average a 38 hour week, exclusive of meal breaks and must not exceed 152 hours.

PN177

It says exclusive, it doesn't say just the 20 minutes. This is just referring clearly to the 20 minutes as part of an 8 hour shift, inclusive. So that is the argument. The argument is clearly that the time that they have for rest pauses is calculated as time worked, as everybody else does. And to say that the award just says 20 minutes and that is it, well - - -

PN178

THE COMMISSIONER: Well, it says continuous shift workers are entitled to a 20 minute meal break on each shift.

PN179

MR McCOMB: That is for a 12 hour - sorry, Commissioner, that is for an 8 hour shift, they are talking about there.

PN180

THE COMMISSIONER: Well, where does it say that. It says for continuous shift workers.

PN181

MR McCOMB: Yes. That is - because you have got to go - you go to - - -

PN182

THE COMMISSIONER: What we might do, do you have any more remarks, anything else in response, because we might put the same documents before all of the parties in conference, so we can through them one document together.

PN183

MR McCOMB: Because the agreement on 12 hour shifts is different, you have got to go to another clause for that, because anything over eight hours has got to be done by agreement, which wasn't done by agreement. We weren't even involved in that.

PN184

THE COMMISSIONER: Do you have anything else that you would like to respond to, to Mr Belfield's comments?

PN185

MR McCOMB: Just - if I could respond - I am not quite sure, if he could explain to me what he said, the last little bit about we are not parties to the agreement.

PN186

THE COMMISSIONER: Well, we might go off the record and see if we can go through each of the issues.

OFF THE RECORD [2.49pm]

RESUMED [3.56pm]

PN187

THE COMMISSIONER: I'd resume note taking and I would record that I have undertaken lengthy discussions with the parties. There has been a significant amount of comparative mathematical work between the parties undertaken in terms of how the payment arrangements have been undertaken by the company. Whilst I understand that the union and a particular sector of its members have some concerns or disagreements with that particular calculation the parties are in agreement that due to a number of factors and to the detriment of neither party there was some difficulty in ensuring that all of the parties had a relevant and appropriate explanation as to how these shift payments would be calculated.

PN188

In order, in the first instance, to rectify that the company and the union has agreed that within the next fortnight appropriate explanations will occur with the parties affected as to how the calculations have been undertaken. If agreement is not reached in relation to the calculations as a result of these explanatory meetings then either party has the ability to seek to have this matter re-listed before the Commission. I would suggest to the parties that before re-listing, that appropriate documentation be provided by both parties as to their preferred - or set of calculations in relation to the shift payments, in relation to the appropriate award or agreement that is being applied and specifically their concerns with how meal breaks are being worked and paid to assist the Commission to provide relevant commentary at that report back meeting.

PN189

I do thank the parties for their commitment to the proceedings this afternoon and I'm confident that with the appropriate explanations and understandings of the parties that this matter may be worked out at the site. Thank you.

ADJOURNED INDEFINITELY [3.58pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 TOOWOOMBA FOUNDRY 12 HOUR SHIFT AGREEMENT PN74
EXHIBIT #2 ALTERNATIVE SITE AGREEMENT PN75