C2001/492, Transcript of Proceedings [2001] AIRCTrans 439 (29 March 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 6381
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2001/492

THE AUSTRALIAN WORKERS UNION

and

JAMES HARDY

NOTIFICATION PURSUANT TO SECTION 99 OF
THE ACT OF AN INDUSTRIAL DISPUTE RE
PROVISION OF RDOs

MELBOURNE

10.02 AM, WEDNESDAY, 14 MARCH 2001

PN1

MR C. WINTER: I appear on behalf of the Australian Workers Union and appearing with me is MR J. SADDINGTON.

PN2

MR G. PELS: I appear for the Australian Industry Group on behalf of our member James Hardy Windows and appearing with me on behalf of the company is MR B. EICHORN, MR G. GREEN and MR C. SHARPLES.

PN3

THE COMMISSIONER: Mr Winter.

PN4

MR WINTER: Thank you, Commissioner. On 20 February the AWU notified you of the existence of an industrial dispute under section 99 of the Act - - -

PN5

THE COMMISSIONER: Notified the Registry, I think?

PN6

MR WINTER: Notified the Registry, sorry. The matter was set down for the 22nd and at that stage the company sort an adjournment of the matter and we agreed to the adjournment. The matter, as I understand it, couldn't be resolved and therefore it is back before you today. The matter we see as a straight forward matter, and that is whether those employees who are members of ours covered under the National Joinery and Building Trades Products Award 1993, whether they get - who work at James Hardy Windows Proprietary Limited, whether they get 13 RDOs, as is the norm within the building construction industry under the Building Construction Awards, or whether they get 12 RDOs. Commissioner, in relation to this case, there is an agreement in place called the James Hardy Windows Proprietary Limited Enterprise Agreement. If we could give you a copy of that agreement, Commissioner.

EXHIBIT #A1 JAMES HARDY WINDOWS PTY LTD ENTERPRISE AGREEMENT

PN7

MR WINTER: Commissioner, this agreement was certified on December 13, '99, it comes into force from 29 November '99 and remains in force until 30 June. It covers all the operations of James Hardy Windows. If I could bring your attention to - - -

PN8

THE COMMISSIONER: Is this matter before the right member of the Commission?

PN9

MR WINTER: Sorry, Commissioner?

PN10

THE COMMISSIONER: Is this member before - is this matter before the right member of the Commission?

PN11

MR WINTER: I couldn't answer that. I presume it is a construction type arrangement because it is a construction - - -

PN12

THE COMMISSIONER: I just noticed that Senior Deputy President Watson certified the agreement. And it would have either been - it normally would have been either Vice President Ross, Senior Deputy President Williams or myself. Anyhow, go on.

PN13

MR WINTER: If I could bring your attention to clause 7 of the agreement on page 2, and that is the relationships to the parent award. It lists a number of awards there, including the Forest and Building Products Manufacturing and Merchandising Award; The Glass Merchants Award; The National Joinery and Metal Industry Award. Our members are covered under the National Joinery and Building Trades Products Award, 1993. This is in fact the third enterprise agreement that has been certified by the Commission, the first being back in 1997.

PN14

A debate then occurred whether our members were entitled to 13 RDOs or 12, at the factory. The awards concerned, being the Forest and Building Products Award and the Glass Merchants Award, have similar provisions in the award for the taking of RDOs as ourselves, and which 13 RDOs is an entitlement. If I could bring the Commission's attention to the relevant clause of the award - - -

PN15

THE COMMISSIONER: Do you have an extract?

PN16

MR WINTER: Yes, Commissioner, I have.

EXHIBIT #A2 EXTRACT OF AWARD

PN17

MR WINTER: And if I bring your attention to the last page, and I have marked the relevant line, and this is a standard clause - - -

PN18

THE COMMISSIONER: You just might let me read the whole clause, Mr Winter, I think reading subclauses out of awards is often fraught with danger.

PN19

MR WINTER: It commences on - - -

PN20

THE COMMISSIONER: Yes, I - this - well this - - -

PN21

MR WINTER: - - - the third page.

PN22

THE COMMISSIONER: Well, just sit down for a bit, I read fairly quickly. Mr Winter, you are not - you are putting that the RDOs are taken on a four week cycle basis, is that what you are putting?

PN23

MR WINTER: Yes, I am Commissioner.

PN24

THE COMMISSIONER: Yes. Go on.

PN25

MR WINTER: The key point, Commissioner, like the other construction awards, being the National Building Trades and the AWU Construction the Metal Awards, the key point is at 17D and that is:

PN26

That each day of paid leave taken -

PN27

meaning annual leave -

PN28

except for a rostered day off, and any holiday prescribed in clause 21 -

PN29

which is the public holiday clause of the award -

PN30

occurring during any cycle of four weeks shall be regarded as a day worked for accrual purposes.

PN31

Thus it give you 13 RDOs per year. And it is unique to the construction awards. We believe that that clause clearly indicates that there are 13 RDOs arrangements. There was no variation to that hours clause as part of enterprise bargaining negotiations, either in this agreement or previous agreements, and I can provide the company with copies of all those agreements, if they don't have them.

PN32

THE COMMISSIONER: Well, I would be surprised if the company didn't have copies of those agreements, they are their agreement as well as yours.

PN33

MR WINTER: So there was no trade-off on that 13th RDO and thus we believe that those members are entitled to those RDOs. We also had a look at a number of other awards that applied there, including the building products, Forest and Building Products Award and the Glass Merchants and Glazing Award, because of the nature of those two awards, and they also provide for similar construction arrangements.

PN34

THE COMMISSIONER: Yes, I am award of that. I am aware of those.

PN35

MR WINTER: So we would - what we are seeking is some sort of, I suppose, acceptance if you like. We haven't been able to convince the company that our members are entitled to 13 RDOs where we clearly believe they are. We understand the Commission's powers in this area, but we thought we would bring it here in the first instance to see if we could get some sort of guidance, Commissioner. If the Commission pleases.

PN36

THE COMMISSIONER: Yes. When you are read, Mr Pels.

PN37

MR PELS: Yes, thank you, Commissioner. Commissioner, the - I suppose we are not going to - it is not in my intention to go back and canvass the 38 hour week test case or the application thereof but - - -

PN38

THE COMMISSIONER: Well don't bother, Mr Pels, I lived all through it, as a union official, so you will not only bore me to tears you will make me make comments about the metal workers ratting on the rest of the trade union movement, and the metal employees too.

PN39

MR PELS: Yes, sir, Commissioner. The company has applied the averaging system and the application of entitlements for RDOs consistently across its operations, irrespective of the relevant particular award. I think it is probably best or more appropriately gone into conference, but the employers challenge the fact that there is an entitlement to 13 RDOs. The Commission would be well aware of the averaging system and the fact is that all employees are all paid an average of 38 hours a week whether they take annual leave or not.

PN40

The company rosters 12 RDOs per year and irrespective of that, whether an employee takes annual leave or not that the actual 13th cycle, or alleged 13 RDO in actual fact can be taken as annual leave, whether it be - well, whether it is taken as 19 days of 8 hours of annual leave and one RDO or simply just in a straight 20 days at 7.6, but I don't intend to get involved in the esoteric arguments but generally the principle applies, we rely on the principle of the averaging system of 38 hours a week. We don't concede that awards provide for 13 RDOs, whether it be building or construction or whatever, but the - we rely on the - - -

PN41

THE COMMISSIONER: Well, I can assure you they do.

PN42

MR PELS: Sorry.

PN43

THE COMMISSIONER: I can assure you they do, because I have had to live with them at least for the six years I have been in this place.

PN44

MR PELS: Yes and - - -

PN45

THE COMMISSIONER: And another place as well, as a former officer of the Labour Council of New South Wales.

PN46

MR PELS: I suppose the - where it is a bit confusing is we have got four different awards and the application of - as a standard practice across those awards to all employees have been applied consistently, and obviously it will be of great concern if there was a suggestion that some employees, albeit a small minority, might be entitled to 13 and others not - only entitled to 12, based on metals, obviously creates it own problem, but the company obviously will be guided by what the award says, but it certainly has applied the system of RDOs equally across the whole workforce - - -

PN47

THE COMMISSIONER: Are you saying to the Commission that irrespective of the award coverage, of the individual award coverage of different sectors of James Hardy's employees, you have applied a similar RDO principle across all of those employees?

PN48

MR PELS: Well, my understanding is that is how it applied because they all work in basically the same proximity, that if - - -

PN49

THE COMMISSIONER: Doesn't that fly in the face of the specific award provisions?

PN50

MR PELS: Well, according to Mr Winter it is, we are not conceding that at this stage, but I say we need to probably go into conference to say, well - the company at this stage hasn't looked at the - or believes that the wording in those two awards conflicts with that in the metals, but that is something which we need to go into conference. Obviously Mr Winter believes that some - - -

PN51

THE COMMISSIONER: I think it does, but anyhow.

PN52

MR PELS: Yes, well that is his contention and the company is not convinced that is correct at this stage, and perhaps we might go into conference to perhaps - - -

PN53

THE COMMISSIONER: Yes, okay.

PN54

MR PELS: - - - to flesh that out.

PN55

THE COMMISSIONER: We will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 JAMES HARDY WINDOWS PTY LTD ENTERPRISE AGREEMENT PN7
EXHIBIT #A2 EXTRACT OF AWARD PN17