C2001/1722, Transcript of Proceedings [2001] AIRCTrans 718 (2 May 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 6797
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

MUNRO J

C2001/1722

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

and

IMERYS MINERALS AUSTRALIA PTY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re the employers threat
to terminate maintenance employees

MELBOURNE

9.00 AM, MONDAY, 9 APRIL 2001

PN1

MR V. JOSE: I appear on behalf of the AMWU together with

PN2

MR J. BIRD.

PN3

MR G. PELS: I appear for the Australian Industry Group on behalf of Imerys Minerals Australia Pty Limited. With me is MR L. WHETTER.

PN4

HIS HONOUR: Mr Jose, perhaps you could outline the nature of the matter? I regret that I - I will need to compel you to be brief. I have another matter listed this morning that has come up urgently and I have only about half an hour.

PN5

MR JOSE: Thank you, your Honour.

PN6

HIS HONOUR: Not about half an hour, I have half an hour.

PN7

MR JOSE: Thanks, your Honour, I will try and be as brief as I can, and obviously get to the point of contention. There are number of employees out at Imerys in Pittong, which is just outside Ballarat. Three of those employees work in a maintenance area. For a number of years, they have been working on day shift with a roster applied between the three individuals for call-outs. What I mean by that, your Honour, is that one individual per week is on a roster where if there is a call-out after their normal shift for some urgent maintenance work to be done, they carry a company issued mobile phone, I understand. And if they get a call, they are obligated or expected to come in.

PN8

If I just go back to late 1999, when we commenced negotiations with the Company for a new certified agreement, we raised an issue with Mr Les Whetter, in respect to the allowance that was being paid to these individuals. Now, the employees are covered, or the Company is respondent to the Metals Associated Industries Award 1998, and we pointed out to the Company that we weren't sure what the current practice was with this call-out allowance.

PN9

Now, the Company advised us at that stage that there had been an agreement reached a number of years ago where rather than paying the award provision, which basically says that anyone who is required to be on call gets paid their normal hourly rate, as during such time. The Company believes that there was an agreement reached a number of years ago, where they would pay a fixed dollar amount, and up until this stage I think it is about $231 a week. So as each individual is on the roster for the call-out, he receives a $231 a week payment.

PN10

We highlighted to the Company that we didn't believe that there was any such agreement. That we would be seeking that the Company starts paying the allowance as specified in the award, but at the same time we asked the Company to go back through its history and its records and just clarify when this was reached, or this agreement was reached with the unions. Commissioner, if I may hand out a consultative committee note that went out in November.

EXHIBIT #AMWU1 CONSULTATIVE COMMITTEE MEETING MINUTE OF 08/11/1999

PN11

MR JOSE: Your Honour, on the bottom of that letter, numbered B, Stand-by On-call Payments, Mr Whetter was - or committed to go away and look at the history behind this view that what the unions had agreed to monetary outcome, the following meeting which I didn't have any minutes to, in my records, the following meeting, I quite clearly recall Mr Whetter reporting to the consultative committee that he couldn't find anything in the Company records or history that suggested there was such an agreement reached. Hence we continued the discussions for the EBA, and we made it quite clear that we would like to have the on-call allowance paid as per the award.

PN12

To cut a long story short, your Honour, there was an agreement reached, an LK agreement between the employees and the Company. The agreement, as such, your Honour, I am not sure whether you have a copy there?

PN13

HIS HONOUR: No, I don't.

PN14

MR JOSE: I might hand up mine. Your Honour, if you go to clause 6.19.4, which is on page 12, it was agreed during those negotiations that rather than having that final point as a hurdle to get the agreement agreed and certified, that we would

PN15

... during the life of the agreement discuss and agree on implementation of changes, if any, in order to provide effective maintenance cover for the 24 hour plan operations.

PN16

In effect, your Honour, what the Company was saying, was that they had a problem with paying the $231. They didn't want to go back to the award provision which quite clearly identified what the obligations were, and that they would be seeking some other means to obviously minimise the costs on the Company for a stand-by situation. Since the agreement has been certified, I have been led to believe that there has been no real attempt to sit down with the consultative committee and go through this particular clause. What has happened recently, your Honour, is there has been a letter put out, and I will hand another copy of the letter.

EXHIBIT #AMWU2 LETTER FROM IMERYS MINERALS AUSTRALIA PTY LIMITED

PN17

MR JOSE: The letter, your Honour, what it is identifying is that the Company has made a decision that as of 30 April 2001, the three day shift or the three employees in Maintenance, unless they accept to go onto a rotating shift, will be made redundant. The proposal indicates that one of those three will be titled, Workshop Foreman, who will remain on day shift. The other two will rotate between day, afternoon and night shift. The company has identified in that letter that they will be working not only in maintenance but if need be, doing some production roles, and vice versa. Where there is a shortage of maintenance, the production people will be assisting with that maintenance individual.

PN18

The Company has suggested, or made it clear on the third page of that document, that there will be a change to hours. That the employees, if they accept these conditions, will forego their rostered day off. They will no longer have a rostered day off. And in a nutshell, your Honour, what the Company is saying is take it or leave it, if you don't accept it, come the end of April, you will be made redundant, you will be paid out according to the redundancy provisions in the certified agreement. And we will re-employ or employ other individuals who will work under these hours and these shifts.

PN19

Your Honour, on the last page of that document I have just handed up, there is a photocopy of a job advertisement which was put out and it does go back to 1998. The position clearly identifies that the successful applicant will also be required after an initial period to be on call on a rotation basis. So clearly the employees were made aware of that. They have worked to that criteria. And they are happy to continue doing so.

PN20

Your Honour, what we see this is simply that the Company is obviously trying to renege its commitment or move away from its obligation to sit down with the consultative committee and these maintenance employees and discuss this particular issue as per the agreement. The award itself is silent in respect of the employer's right or the notification period to change people on to other rosters. We believe that it is simply a matter - or consistent with the facilitative provisions, that if there is no mutual agreement, well it doesn't happen. The individuals themselves have some valid reasons why they can't go onto the shift.

PN21

They have family and personal commitments. And we think it is grossly unfair that the Company is saying to them, quite simply, you either accept it or you'll be made redundant. I think I will leave it at that, your Honour, thank you.

PN22

HIS HONOUR: Yes. Mr Pels.

PN23

MR PELS: Yes, thank you, your Honour. Your Honour, as indicated in AMWU2, the Company has indicated through its consultative committee and to the employees affected, that they held meetings in December 2000 and February 2001 regarding implementation of shift work, over maintenance cover, and quite clearly the Company, to ensure that its operations are working effectively have now - wish to have their maintenance on a three-shift rotating roster, which would mean that the current employees in this room today are not automatically made redundant or terminated.

PN24

However, the Company has indicated that after discussions in December and February, that it does intend to move to a rotating shift roster for its maintenance employees, with the day shift foreman - with a workshop foreman remaining on day shift. This will require a third person to provide shift or production maintenance. So that will mean another person will have to move into the maintenance area to cover the three shift rotating roster.

PN25

Now the employees - the three shifts, your Honour, will be that - will be from 7.00 am until 3.00 in the afternoon, 3.00 to 11.00, and 11.00 pm to 7.00 am. It will mean that those employees will be paid a 20 per cent loading on their afternoon shift and a 25 per cent loading on their night shift, which is above and beyond what is currently in the award. The Company has made a calculation for those employees who have moved from their current system of day work and call-outs, and in actual fact they have done a quick calculation to find that employees will be better off financially than they currently are. So no employee will lose income - - -

PN26

HIS HONOUR: How much better off will they be?

PN27

MR PELS: I think approximately - - -

PN28

HIS HONOUR: And on what basis? The 231 payment or award payment or actual payment?

PN29

MR PELS: Well, it is based on the fact that their shift work penalty rates that they - on average they will be paid 36,600 under the new shift work arrangements, and currently, they are 36,300. So in actual fact they are slightly ahead, and that is obviously removal of the on-call allowance or requirement as it currently applies.

PN30

HIS HONOUR: Are those calculations been supplied to the employees?

PN31

MR PELS: I believe so, yes. Yes, they have, your Honour. So no employee, in effect - and this also takes into account that the employees will now move to a 37_ hour week. So there is an improvement in penalty rates. There is a reduction in hours albeit the employees will be required to work rotating shifts. But they paid in accordance with their enterprise agreement, which was certified by Commissioner Cribb on 21 July 2000. So the Company has consulted with employees and - through its consultative committee, it has held discussions with the unions, and it has advised employees with at least one month's notice, that it intends to move to this new operation.

PN32

So in that sense, really there is not much else the Company could do, apart from, of course, comply with what the employees want, and that is that they would like to stay on day shift, but that is not possible, because the Company has made a definite decision. It needs to change its mode of operation in regard to the maintenance of employees, and its rotating roster. So as far as that goes, your Honour, perhaps you might allow the parties to move into conference. I won't add to that, apart from the fact that the company believes it has done everything it can at this stage to accommodate some conciliation and some consultation. If the Commission pleases.

PN33

HIS HONOUR: Yes. Mr Jose.

PN34

MR JOSE: Your Honour, we don't have a problem with going into conference. Just before we do though, your Honour, I would like to respond just a couple of points. One is in fact the employees, according to the figures, are only $242 better off, and we haven't actually looked at the figures to make sure that they are in fact accurate. But according to the figures provided, it is only $242.

PN35

Your Honour, in respect to change of hours, again there is quite clearly - in clause 6.15 Hours of Work in the EBA, the second paragraph goes onto say that:

PN36

Changes to work hours shall be by agreement with majority of employees concerned or with individuals such that any changes do not have a negative impact on the running of the plant.

PN37

So quite clearly it says it has got to be reached with agreement with a majority of employees or individuals. That certainly hasn't occurred. And again, our view is that the Company are trying to, you know, run from their obligations under the awards and the certified agreement, and quite clearly are not prepared to follow through with their commitments that they reached upon certification of the document. Your Honour, I am happy to go into conference, thank you.

PN38

HIS HONOUR: Yes, well, I indicate, if necessary, I am prepared to find a dispute, because it is in relation to Victoria. In any event, I think the matter has been processed through your dispute resolution process. So to the extent that there is any question, at least that is the jurisdiction to conciliate. That can be dealt with if necessary, and on the findings, that is a dispute I would, in the ordinary course, direct the parties to confer.

PN39

If the matter comes up under the agreement, then that would be a different process, but I will adjourn the matter into private conference. If necessary, I will provide a report or recommendation on the file, rather than resuming on the record, but I note that should it be necessary to report back, then the 30 April would be the likely timing for such a report back. I put that on the record for the purpose of noting it on the transcript. The Commission will adjourn into private conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMWU1 CONSULTATIVE COMMITTEE MEETING MINUTE OF 08/11/1999 PN11
EXHIBIT #AMWU2 LETTER FROM IMERYS MINERALS AUSTRALIA PTY LIMITED PN17