C2001/1572, Transcript of Proceedings [2001] AIRCTrans 570 (12 April 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N 6574

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2001/1572

AUSTRALIAN LIQUOR, HOSPITALITY
AND MISCELLANEOUS WORKERS UNION

AND

PRESTIGE PROPERTY SERVICES

NOTIFICATION PURSUANT TO SECTION 99 OF THE ACT
OF A DISPUTE RE THE COMPANY'S FAILURE TO COMPLY WITH THE TERMS OF AN AGREEMENT

MELBOURNE

9.00 AM, WEDNESDAY, 28 MARCH 2001

PN1

MS R. FRENZEL: I appear for the ALHMWU in this matter.

PN2

MR G. FREEBAIRN: I seek leave to appear on behalf of Prestige Property Services.

PN3

THE SENIOR DEPUTY PRESIDENT: Any objection, Ms Frenzel?

PN4

MS FRENZEL: No, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Freebairn.

PN6

MR FREEBAIRN: Thank you.

PN7

THE SENIOR DEPUTY PRESIDENT: I have called this matter on rather quickly at the request of the union. You will no doubt have noticed that it has been called on for mention and I thought I would bring it on this morning because I have got commitments for the remainder of the day. At least you can put your position on the record, Ms Frenzel, and Mr Freebairn will have an opportunity to comment if he sees fit.

PN8

MS FRENZEL: Thank you, your Honour. Your Honour, first of all I would like to thank the Commission for bringing this matter on so expeditiously. It certainly, I hope, will facilitate in the resolution of the dispute between the parties. Your Honour will recall that last week the union made an application pursuant to section 127 of the Act. That was C number 2001/1443 which dealt with, at the time, the locking out of the union's members employed at the Victorian Arts Centre arising out of a dispute regarding the compulsory taking of annual leave at the direction of the employer.

PN9

The matter was listed before the Commission last Friday as I recall and because we were all here for the other matter dealing with AXA we had the opportunity to have some discussions about the Arts Centre. I might indicate that the parties were able to reach an agreement about the stand-down and also about the more substantive matter of the leave. It is unfortunate, your Honour, that it appears that part of the agreement has now fallen by the wayside with the employer, hence the section 99 application lodged with the Commission yesterday.

PN10

The agreement, from the union's perspective with respect to the Arts Centre matter generally was that the employer was to pay the employees for the time that they were stood down, which I understand has occurred. The employees in response to be stood down on the first day took industrial action on the second day. The parties agreed that the employees would not be paid for that and that largely resolved the 127.

PN11

A substantive matter of the annual leave: it was agreed between the parties that with the exception who was already on leave at the time that we had the discussions here at the Commission that the annual leave notices issued to the employees would be delayed, if you like, pending discussions between the parties on Monday of this week and that we would try and work out a program for the taking of the excessive credits of annual leave that have been built up by these employees.

PN12

On Saturday, your Honour, I was advised by Brian Oates, our organiser, that in actual fact one employee who had been paid the annual leave in her wages but had not yet commenced annual leave, because that was meant to commence on Monday, was told not to attend for work on the Monday. She was on leave and that was the end of the issue. That - - -

PN13

THE SENIOR DEPUTY PRESIDENT: Sorry, just run it past me again. One employee had been paid for her leave?

PN14

MS FRENZEL: Yes, paid for her leave in the last pay and was meant to commence annual leave this Monday but did not form part of the arrangement between the union and the company with respect to people remaining on leave, was told not to attend for work. The understanding that the union had with respect to that one particular employee, given that she had been paid was that she was more than happy in actual fact to return the bank cheques that Prestige had drawn to Prestige and in fact the union has that bank cheque in their possession with the intent of giving it back to Prestige.

PN15

The employee then attended for work on Monday. The cleaners essentially took strike action. They sat in the cleaners' room until the company came to an agreement that the parties would discuss the annual leave generally and the employee who was not fenced off, if you like, could recommence work. On Tuesday, the employees once again attended for work, sat in the cleaners' room and ultimately the cleaners went to work following Prestige indicating that the one cleaner in question could return to work.

PN16

In the meantime there were discussions between Prestige, notably Mr Geoff Morgan and myself, about where the whole dispute was going. Certainly I expressed very strong concerns that the undertaking and the agreement reached between the parties on Friday was not being upheld by Prestige and certainly created a level of uncertainty in the workplace. I indicated to Mr Morgan that he should outline as what he saw his company's position being in writing to me, which he did on 27 March, and I tender a copy of that letter.

PN17

THE SENIOR DEPUTY PRESIDENT: Is there any objection to that being tendered as an exhibit, Mr Freebairn?

PN18

MR FREEBAIRN: No.

PN19

THE SENIOR DEPUTY PRESIDENT: I will mark that AE1 in these proceedings.

PN20

MS FRENZEL: Thank you, your Honour.

EXHIBIT #AE1 COPY LETTER FROM MR MORGAN DATED 27/03/2001

PN21

MS FRENZEL: The letter addressed to me indicates that there are in fact four employees who are meant to commence leave commencing from 19 March running through to 6 April. The only employee that was subject to the agreement to fence off was in fact the first employee who was to commence leave on 19 March, given that that employee had already commenced leave. There was an arrangement between the parties that even with that particular employee we would talk about whether or not all the leave had to be taken now or whether it could be scheduled over the next 12 months.

PN22

With respect to the following three employees who were to commence leave on 26 March, 2 April and 6 April, there was no agreement struck and there still remains no agreement between the parties about those three employees. The position that I put to Mr Morgan yesterday prior to - - -

PN23

THE SENIOR DEPUTY PRESIDENT: Just interrupting for a moment, is the second employee the employee who you were telling me about earlier you said that - yes, thank you.

PN24

MS FRENZEL: Yes, your Honour, yes, and the other two have yet to commence leave.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes.

PN26

MS FRENZEL: The position that I put to Mr Morgan yesterday was that perhaps Prestige ought comply with its undertaking that we, as a union, have a principle position about people taking leave. We do not like to see leave accruals of this volume because it is our view certainly that people should take their leave when it falls due, unless there are some good reason for it to be accrued, such as taking overseas trips and the like. So I put that position very clearly to Mr Morgan. Having said that we did have an agreement, we did think that the issue was on its way to being resolved, and now what has happened is Prestige has moved away from its agreed position and that has, as a consequence, inconvenienced one employee who is now the subject of the industrial dispute and is likely to inconvenience two others who were not discussed between the parties at the time.

PN27

We remain willing to sit down with this company, to work out a program for the taking of this leave within the next 12 month period. We accept there is a problem with the leave accruals and we also accept, your Honour, that the company has a right under the award and in particular clause 22A(c) to give notice for employees to take leave. We accept all those things. There are mitigating circumstances, as I am instructed. For example, a number of these employees requested leave over the Christmas/New year period and were in fact knocked back.

PN28

We say let us sit down, let us work out who's who in the zoo, who is going to take leave when. We have that fundamental agreement in principle about the taking of leave. What we do not like, your Honour, is coming to an arrangement, having the members who are actually here at the Commission on the Friday vote on that arrangement and walk away from here thinking that we have an agreement with the company only to find of a Saturday morning, i.e. the following day, that we do not.

PN29

We would be asking that Prestige abide by their agreement. We accept there is a problem with the leave accruals, I mean, that is a matter of agreed fact, but we would ask that they comply with the agreement they struck with us on Friday. If the Commission pleases.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Frenzel. Do you want to respond, Mr Freebairn?

PN31

MR FREEBAIRN: In part, yes, your Honour. Your Honour, I understand the union position relative to the rights of the company to have people take leave. The position of the company in this matter is clear in one sense and is summarised in Exhibit A1. The company has been negotiating for a lengthy period of time, months in fact, with some of these employees, for the employees to actually take leave. We take issue with the fact that these employees actually made application for leave over Christmas and that that leave was rejected. No such applications were made. Had they been made, the company would have been more than happy for these employees to actually take the leave because it was at that time, in some cases they were actually in discussion with the employees pointing out to them the need for them to take the leave.

PN32

In relation to two of the employees, in particular, as I am instructed the person listed first, and I am happy to have a go at the name but I will probably muck it up, Mr - - -

PN33

THE SENIOR DEPUTY PRESIDENT: The first employee will do.

PN34

MR FREEBAIRN: Exactly, the first employee who wa the one that was principally in question last week. As I am instructed, even with the current leave period that the employee has been booked off for, taking into account that employee will still have almost 400 hours of accrued leave left. So we are not talking about - we are talking about somebody who at the time a decision was made to book him off leave had almost 800 hours accrued leave and what the company sought to do is at this point in time reduce that accrual by 50 per cent. And I understand that that employee has indicated that he wants to take some leave later in the year. Well, there is nothing to stop him from doing that as I understand it and he has certainly got the credits to be able to do it.

PN35

In relation to the second employee on the list, as I am instructed, that employee also works for Prestige at another site at 360 Collins Street and has requested and been granted leave in relation to her employment at 360 Collins Street and is in fact currently leave at 360 Collins Street. Now, I mentioned to Ms Frenzel before we commenced this morning that I found it difficult to think that an employee employed by a single employer could be on leave from one particular work site and still working happily away at another work site. My understanding, and I am happy to be corrected if I am wrong, but my understanding of the employer/employee relationship is that if you go on leave, you are on leave, and whether you would normally work at one, two or 20 sites, you are on leave.

PN36

So it is our proposition that that employee in fact is currently on leave from the company at her own volition. The remaining two employees are yet to commence their leave. The award requirement is for seven days' notice. These employees had been given significantly more than seven days' notice and I am instructed in some cases the discussions for these employees have been taking place since 1999 for them to start to reduce their leave. Now, what the company is in effect saying, acknowledging the fact that yes, there were discussions last week, the principal focus of last week's discussions related to the 127, I put that, and I think Ms Frenzel has actually said that, the principal focus was the 127. I to take issue with the fact that she used the term stand-down.

PN37

It was, I think, agreed between the parties last week that what occurred was a misunderstanding bought about by the actions of an employee of the Arts Centre, not an employee of Prestige, in that the security guard in question misunderstood an instruction from Prestige and in fact the employees were not locked out or stood down on the first day and while they did take action on the second day the agreement was they would be paid for the first day, but not be paid for the second day and that, as I understand it, is what put paid to the 127 and that was a proposition bought by Ms Frenzel which the company readily agreed to in the circumstances, after we had discussed the matter and identified that there was obviously a breakdown in communication that had led to the problem.

PN38

The issue of the leave then became a topic of conversation and at that time in that discussion which I was a party to, I certainly was not aware that there were other employees who had been given notice. The proposition - - -

PN39

THE SENIOR DEPUTY PRESIDENT: When were they given notice, Mr Freebairn?

PN40

MR FREEBAIRN: They would have been given notice some two weeks, I would assume, your Honour. I do not have the exact dates, but certainly a significant time in advance of - I have just got information here - the 13th of the third in relation to the third named employee; the 13th of the third in relation to the fourth named employee; the 9th of the third in relation to the first named employee; it's the 13th of the third for the other three after the first named employee. So there has been a reasonable period of notice been provided to the employees that they are to go on leave.

PN41

THE SENIOR DEPUTY PRESIDENT: And when you were having discussions with Ms Frenzel you were not aware that those employees had been given notice?

PN42

MR FREEBAIRN: No, I was not and in the context of those discussions I would say that the focus from our perspective at least was on the issue of the 127 and having resolved that, we were in a very short adjournment in relation to the other matter. I think it was only a 10 minute adjournment and there was a very quick discussion about a meeting to be convened on Monday morning at 9 o'clock between the Prestige local manager, Mr Jasmin, and the union organiser, Mr Oates. Now, that meeting as I understood - - -

PN43

THE SENIOR DEPUTY PRESIDENT: That is Monday the 26th, Monday just gone.

PN44

MR FREEBAIRN: Monday just gone, yes, sorry, your Honour. That meeting as I understood, as I am instructed, if it did take place, was a very short, sharp exchange of views that probably do not bear repeating on the transcript, and that that meeting then subsequently broke up and there was no effective discussion on the Monday and that is when from my point of view the trial goes cold in terms of my personal knowledge of the matter, but as I am instructed, the proposition as broadly outlined by Ms Frenzel from that point on is factual in that on Tuesday the second named employee did work at the Arts Centre. I still question the validity of that relative to already being on leave from another site, but that is a - I have been told I will have that explained to me and I would be happy to listen to the explanation.

PN45

THE SENIOR DEPUTY PRESIDENT: We are both waiting with baited breath.

PN46

MR FREEBAIRN: Yes. Our proposition is that the position put by Mr Morgan in the letter of 27 March, Exhibit A1, is the company's position. The four employees that are principally in question and that are named within that document the company still requires them to take the leave that has been directed. In relation to the remaining, and I understand there is probably a further half a dozen employees whose leave credits would be regarded as being excessive, that the company is happy to sit down with the union and the employees and try and bring about a resolution whereby those employees take their leave in short order, your Honour, not necessarily over a period of 12 months, but in short order.

PN47

These credits have been amassing for some considerable time and the company has been trying to address it with the employees. It has not been sitting on its hands and there needs to be some resolution, and the company reluctant, I might point out, to move away from the directions that have already been issued. Is it in relation to these particular employees? The discussions have been going on and on and on and the company has just said, that's it, we've tried to reach an accommodation with you. We have not been able to.

PN48

Here is 14 days' notice, you are going on leave, and I will point out, I do not know what the remaining leave credits will be for the other three employees but I think it is interesting to note that the first named employee will still have almost 400 hours worth of credits when he resumes from his current period of leave. If the Commission pleases.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Frenzel, do you want to say something in reply?

PN50

MS FRENZEL: Briefly, your Honour - well, can I say this, that the company has consistently said to me that they have been attempting to have discussions with these employees about the taking of the leave and whether that is true or not it is, from the employees' perspective, at least it is anybody's guess, but having said that, the issue that we have now is that we have - the company has an in principle agreement from us to facilitate the taking of that leave.

PN51

It does put a new dimension on it. I mean, it is one thing for the employees to accumulate these credits. It is quite another thing for the company to let them do, because they must have let them do it. When you start getting leave accruals of 800 hours somebody in that company must have known that leave was accruing at that rate and it was not being taken. We say the company in fact tacitly approved the accumulation. It got to an unmanageable point, we accept it is unmanageable. They may have tried to have discussions with the employees about the taking of the leave, the employees have resisted. We have no further submissions to make about that, but the fact is that now they have an in principle agreement from us that we will assist this company to get these people to take their holidays.

PN52

What the company does is, they reach an agreement with us and I accept what my friend says about not being aware about the other three and that that could happen to anybody up here at any given time. But the fact is those discussions were not hurried. Those discussions were after the other matter had adjourned. Those discussions were in the presence of the site manager who would have known at that point in time that those three employees had been given the notice, even though I myself was not aware of it, and certainly my friend said he was not aware of it, the site manager would have been aware and he was here.

PN53

So what we do is we reach an agreement trying to solve a problem. The agreement unravels. We then have a situation where the cleaners take industrial action in support of what they see as being their rights, particularly with respect to an agreement they voted on here, because they were all here, and now we have the situation where the company is banging its chest essentially saying, well, we are not going to comply with their agreement, we did not know about the other three which is an absolute load of nonsense in my submission, and we are going to stick to this and we will get our rights under the award and that is the end of the issue.

PN54

Well, it does not move us forward, your Honour. It is the same old thing. It does not move us forward. The proposition I put to Mr Morgan yesterday was that we delay by two weeks the taking of any further leave. In that two week window of time we have discussions understanding there was a problem with the leave accruals, understanding their rights under the award and we try and work out a program for the taking of this leave to their satisfaction and to our members' satisfaction.

PN55

At one point the company said yes to the proposition; 30 seconds later, the company says no. The fact is, your Honour, this company agreed to a proposition like that last Friday. If Mr Freebairn had have been caught by himself up here without instructions about the other three I would be significantly more sympathetic. I am very sympathetic with Mr Freebairn's position. I am not sympathetic with the company's position. they knew exactly what was going on. We did not; Mr Freebairn did not, but the company did.

PN56

We make the offer again, we ask the Commission to recommend it, that it be a two week window of time, that the three named people who were not fenced off last Friday after the 127 had finished and not during a 10 minute adjournment, be deferred for two weeks that, if necessary, intensive discussions between the union occur about a program, not only for these three, but for the other half dozen or so and we set about getting this right and solving the problem. That is the offer that I would make to the company and that is the proposition I would ask the Commission recommend to the company.

PN57

THE SENIOR DEPUTY PRESIDENT: What is the position with employee number two who Mr Freebairn asserts he is on leave at one site and not on leave on the other site?

PN58

MS FRENZEL: That is right, I was going to talk about that, was I not?

PN59

THE SENIOR DEPUTY PRESIDENT: You were.

PN60

MS FRENZEL: There is - the contract cleaning industry is a strange industry, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: I am starting to learn that very quickly.

PN62

MS FRENZEL: For example, an employee can work at two, three - up to four different sites, I have come across, for the one employer and certainly the award does not provide very well for that sort of method of work, but having said that it is common to have an employee working for the same employer at two different sites. There have been instances, your Honour, where a cleaning company has lost a contract at site A and because they have not been able to find the employee alternative employment or the employee has not moved on with the incoming contractor, the employee is paid redundancy for that job. It is all based on the job.

PN63

So you can actually have employees taking leave from one site, which might be their morning shift for argument sake, and still working their afternoon shift and you can have the vice versa as well. It is not something that we necessarily condone, your Honour, but the fact is that it does happen. It has been custom and practice for years way before I got involved in contract cleaning eight years ago, and it is just the way that the whole industry works. It works on the basis of jobs, and it is not necessarily two contracts of employment because the award provides that an employee can work up to 7.6 hours per day as a part-timer and they can work that at a variety of sites.

PN64

It does not say an employee must work two hours here or three hours there. The award is quite respectable with respect to the employment of part-time employees. Hence the payment of a 15 per cent part-time loading which goes some way to recognising, if you like, the flexibility these employees have. So Mr Freebairn in principle terms is right about the two contracts of employment, but this industry does have that characteristic of different jobs, the same employee. Employees can end up working for their current employee and a new employee on a change of contract, or indeed, they can end up being paid severance pay for losing that job. It is all based on the notion of the sites and the job.

PN65

So we say with respect to the second named employee, at this point in time she is on leave from 360 Collins Street, but she forms part of the arrangement with respect to the Arts Centre and in fact we have here the bank cheque drawn by Prestige to return to them for her annual leave from the Arts Centre. If the Commission pleases.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I will just go off the record for a moment, if I may.

SHORT ADJOURNMENT [9.27am]

RESUMED [9.50am]

PN67

THE SENIOR DEPUTY PRESIDENT: During the break the parties and the Commission engaged in discussions and the parties had further discussions alone and there has been an agreed position reached between the representatives of the company and the representatives of the union based upon a recommendation made by the Commission. The position is, and this position is accepted by the company and will be put to the employees concerned as a recommendation by the union tomorrow morning, that (1) the first and second named employees in the company's letter of 27 March 2001, which is Exhibit A1, remain on leave in accordance with the direction issued by the company; secondly, that in respect of the third and fourth named employees, the time for the taking of their leave is to be delayed by two weeks from the date specified in Exhibit A1 with a view to discussions to finding a suitable alternative.

PN68

If a suitable alternative is not found their leave will commence two weeks from the date set out in Exhibit A1, being the 16th - the leave will commence on 16 and 20 April respectively. Thirdly, the remaining employees who in the company's view have excessive leave accruals will be the subject of discussions to take place urgently with a view to having those employees commencing their leave within the next six months. They are the agreed positions between the representatives of the parties here today. I recommend that they be put into place and the company has noted that if the members tomorrow do not accept a recommendation, the company's position is that the leave, as notified in Exhibit A1, will occur and the company will act in accordance with the award in respect of other employees who in its view have excessive leave accruals.

PN69

Gentlemen, have I correctly put the position, and perhaps Mr Daly you should formally announce your appearance today too.

PN70

MR B. OATES: It is Mr Oates, Mr Deputy President.

PN71

THE SENIOR DEPUTY PRESIDENT: I am sorry, it makes all the difference.

PN72

MR OATES: Mr Daley is a bit taller than me. Yes, I would seek leave to appear for the ALHMU.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted and does that accurately represented the position, Mr Oates?

PN74

MR OATES: Yes, that is my understanding of the situation, thank you.

PN75

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Freebairn?

PN76

MR FREEBAIRN: That is my understanding as well, your Honour.

PN77

THE SENIOR DEPUTY PRESIDENT: Thank you. I will adjourn these proceedings indefinitely.

ADJOURNED INDEFINITELY [9.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AE1 COPY LETTER FROM MR MORGAN DATED 27/03/2001 PN21