C2001/1987, Transcript of Proceedings [2001] AIRCTrans 776 (4 May 2001)

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Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT GILCHRIST

C2001/1987

TEXTILE, CLOTHING AND FOOTWEAR UNION
OF AUSTRALIA

and

KIMBERLY-CLARK AUSTRALIA PROPRIETARY LIMITED

Notification pursuant to section 99 of the Act
of a dispute re breaches of the certified
Kimberly-Clark Australia Lonsdale Mill
Enterprise Agreement 1998

ADELAIDE

2.34 PM, WEDNESDAY, 11 APRIL 2001

PN1

THE DEPUTY PRESIDENT: I will just take for the transcript, a record of the appearances please.

PN2

MR BRENNAN: I appear for the Textile, Clothing and Footwear union.

PN3

MR DOWNES: I appear for Kimberly-Clark Australia Proprietary Limited and with me is MR R. DUGGAN.

PN4

THE DEPUTY PRESIDENT: Now, Mr Brennan, can you just briefly outline to me what the dispute is about?

PN5

MR BRENNAN: I can. A situation occurred - it is going back over a month, whereby there was an employee on a probational period with the company who was notified of his impending termination from the company. That process of the employee's status is being reviewed through an unfair dismissal case that is being heard this week, however, the reason we are here is in regards to associated issues to that unfair dismissal, specifically a breach of the company in regards to the certified agreement. There is a 1998 certified agreement under which all employees at the site operate under.

PN6

That agreement is underpinned by the Textile Award and in that award it clearly states that maximum probational period is one 3 month period. In this case, the employee was unilaterally given a letter by management indicating that there would be two 3 month probational periods which is outside the realms of the certified agreement. It is outside the realms of the Textile Award and it was not discussed as other issues have been through the company's consultative committee process. Because of the company's unilateral decision to include a second 3 month probational period, there was a great deal of concern expressed by the membership which resulted in a 24 hour stoppage about 2 weeks ago.

PN7

That stoppage has ceased. It was a 24 hour stoppage. The employees are back at work, but the issue regarding the company's process of unilaterally extending the probation period by 3 months and the resultant termination of an employee because of the request of the company to move into that second 3 month probational period, and then my understanding is within the last week of that 3 month probational period, being told that his services would no longer be required. That is the crux of the issue, as well as some subsidiary issues regarding the process management used to train and to assist this new employee.

PN8

THE DEPUTY PRESIDENT: Does the enterprise agreement actually deal with the issue of probation or is it dealt with in the award?

PN9

MR BRENNAN: It doesn't - I have a copy here if you would like it.

PN10

THE DEPUTY PRESIDENT: It doesn't, or - - -

PN11

MR BRENNAN: It doesn't, no. It is underpinned by the Textile Award which I also have a clause of that for you. That is the certified agreement and that is an extract of the Textile Award clause 22 which is the clause that we are currently speaking about. Specifically in regards to that, we are talking in regards to the award, is clause 22, the last sub-clause in that document which is probational periods, and there it clearly indicates that the period is a maximum of 1 month. I don't have a copy - I just gave my copy away. 22 - terms of engagement, the last clause is 22 on page 81, so it is clause 22, page 5, trial period, and it clearly indicates that the first month of employment will be on trial basis, and may be terminated by 2 days notice and that is the totality of the probational period within - - -

PN12

THE DEPUTY PRESIDENT: I downloaded off the internet clause 27 of the award which talked - it is in similar terms. Is that - - -

PN13

MR BRENNAN: Clause 27 is of the new award, 2000 award. Because the agreement was done in 1998 it still had the older award underpinning it.

PN14

THE DEPUTY PRESIDENT: Right, okay.

PN15

MR BRENNAN: This is a new award, but the wording is almost exactly the same, that is correct.

PN16

THE DEPUTY PRESIDENT: All right.

PN17

MR BRENNAN: I also want to bring to the attention of the Commission if I may, and I do have enough copies of this one - is that the process that has been undertaken at the plant up to this point in time has been that - it has been co-operative, you know, I'm not here saying that there has not been a co-operative arrangement at the plant - there has been, and I have got a consultative committee meeting agenda for minutes of 8th of the 6th of '99 whereby the company approached the employees and asked that the award be superseded by a 3 month probational period which is clearly indicated there.

PN18

That was agreed through the consultative committee and all employees were aware of it. Our dilemma, and our issue in this case, is that the company unilaterally included another 3 month period on top of it which was not negotiated through the consultative committee and was not notified to all employees and therefore that is the area of our dispute and on-going dispute with employees at the site.

PN19

THE DEPUTY PRESIDENT: Just let me get this straight. There has been a consensual variation of the original term which only provided for a 1 month period of probation to increase that to a 3 month period of probation. Is that right?

PN20

MR BRENNAN: Yes. Just in confirmation in regards to the company's position, I will give you a letter of offer here in regards to employment. There is a copy for everybody. In this letter - it is a letter given to new employees and under 1.b you can see that the company has included there a clause:

PN21

Your probation will be extended for a further period of up to a maximum of 3 months or your employment terminated.

PN22

That was a unilateral decision to extend the probational period by another 3 months. That is the crux of our concern in regards to this. The flow on undoubtedly, and we are certainly not hiding the issue, is that because of the company's decision to increase the probational period by 3 months, there has been a termination of an employee which leads into issues of the process management used which we believe were outside of the terms of the agreement which I noted in some of the clause, in the notification of dispute. So, yes, that is the crux of the issue that we bring before you today.

PN23

THE DEPUTY PRESIDENT: All right. Mr Downes, is there anything you want placed on transcript, or are you happy to move into conference now?

PN24

MR DOWNES: No, I think we to place some things on transcript, just in the form of a rebuttal to some of those issues and then I'm more than happy to go into a conference situation.

PN25

THE DEPUTY PRESIDENT: Sure.

PN26

MR DOWNES: The history of the Lonsdale Mill is that when we started up down there, rather than just have a group of people who were employees, we had a group of employees that we called associates and these associates were given a whole range of conditions that exceeded the 1994 Textile Award, conditions that are normally associated with a staff position. Conditions like 10 days sick leave versus 8 days allowed for by the award. Staff superannuation which is Defined Benefits Scheme rather than just the minimum amount of money that might have been paid at that time which was 3 per cent. An extra week's annual leave after 15 years.

PN27

These are just to name a few situations that exist and people of that mill constantly refer to themselves when they are looking for conditions or interpretations and conditions, to staff conditions, which are placed in procedures which are in their lunch room so that they can maintain knowledge of all of those conditions and procedural changes as they effect staff people and of course, effect them. What happened a few years back was that we decided that we would have a probationary period put in for staff people, and as a consequence, along with all other conditions that we give them, we applied a probationary period to them.

PN28

Now, we didn't have a probationary period before. We didn't have 1 month and then decide to increase it to 3 months, we didn't have a probationary period at all for anybody in the company, and we decided that we would move into a probationary period. Now, the clause that Mr Brennan has shown you out of the letter of offer, is basically the clause that we have in every offer of employment that we make to every person in Kimberly-Clark who is covered by staff conditions, and that includes the employees at the Lonsdale mill, or the associates at the Lonsdale mill.

PN29

Now, this is not the first time that this has happened. We have had a person by the name of Dave Shearer who, at the end of the 3 month period, was not up to what we thought was an employable situation. We extended his employment and eventually Mr Shearer was offered a job and is currently an employee with the company. So we are not talking about something that is new and unusual here. We are talking about something that has been accepted as practice only in this instance, the employee was deemed not to be suitable and therefore we didn't extend an offer of employment to her. I think that is pretty important. I think also that - - -

PN30

THE DEPUTY PRESIDENT: When do you say the probationary period first became an issue?

PN31

MR DOWNES: The probationary period - - -

PN32

THE DEPUTY PRESIDENT: After the certification of the original agreement, was it?

PN33

MR DOWNES: Most definitely. Yes. Some time in '99, 2000, early 2000, late '99.

PN34

THE DEPUTY PRESIDENT: So you say at the time of the enterprise agreement probationary periods?

PN35

MR DOWNES: We didn't have any probationary periods anywhere in the company, certainly we didn't enunciate them in an enterprise agreement.

PN36

THE DEPUTY PRESIDENT: And were not applying the provision that was in the award?

PN37

MR DOWNES: No, no. Okay, so I think that is important to understand that, that we are not talking here about just one isolated condition that the company wants to impose on all of its employees, staff or associates, but it is just a one of a number of conditions that we impose or give, that are in excess of what would be deemed the norm that is applied under the award condition. So when we get to the case of Mr Laube, he was extended a further 3 months because he didn't meet our criteria in the initial 3 months as was Mr Shearer initially, and in the case of Mr Laube, he just didn't measure up.

PN38

Now, I don't necessarily want to go into the details as to why he didn't measure up and that is definitely, I would imagine, for the conference that is going to occur tomorrow in these premises. That is the first conference in relation to wrongful dismissal claim made by Mr Laube, but I think it is important to note that we have had section 99 hearing before Commissioner Lesses, on 22 March, over this very issue. We in fact, then put in a notice of dispute for the union not observing the conditions of the enterprise agreement and not observing them in the sense that they didn't observe the dispute settlement procedure and then went out on strike before the procedure had been exhausted.

PN39

Commissioner Lesses, he heard that matter. He agreed that there should be a much more comprehensive dispute settlement procedure put into the next enterprise agreement which will be negotiated later on in this year and the parties went away and subsequently notified him that we would adopt a dispute settlement procedure similar to ones that we have in other enterprise agreements with the TCFUA. So the matter has been heard, this matter of not observing procedures and one party saying to the other party not observing procedures, this matter has already been heard and it has been through Commissioner Lesses and Commissioner Lesses has told the parties to go away, fix it up and he made himself available to hear the matter further.

PN40

We both notified Commissioner Lesses that the matter was at an end. The parties were back at work. We had nothing further to say to him in regards to not applying the provision of the enterprise agreement and here we are here today again. Now, I don't know how many goes you have at this, but it would appear to me that we have had one go and this is just a waste of time and that is about all I need to say at this point in time.

PN41

THE DEPUTY PRESIDENT: All right, thank you. Well, do you want to put anything on the transcript in your reply to that?

PN42

MR BRENNAN: Yes, if I can. The issue has been discussed, however, the issue brought forward Commissioner Lesses was on disputes and procedure. That was the scope of the issue brought before the Commission and that was the scope of the resolution of the issue brought before Commissioner Lesses. The reason for the delay over the past week since the Commission hearing with Commissioner Lesses was in regards to unavailability of myself, so the only reason there has been a delay has been my own unavailability.

PN43

So the issue that is brought before the Commission today is quite separate and quite important in regards to the legality of a certified agreement and the operation of both parties operate within the certified agreement. So I just want to clarify that, yes, we have been before the Commission in regards to a dispute settlement procedure. This issue was always going to be brought before the Commission because of the reality of a unilateral decision to change conditions of employment of a work site and so - but apart from that, I'm quite happy to go into conference.

PN44

THE DEPUTY PRESIDENT: All right. Just while you are on that, quite clearly the issue relating to the dispute settlement procedure, is an allowable matter for the purposes of section 99, but there may or may not be an argument as to whether the provisions in the letter of employment relating to a period of probation actually falls within an allowable award matter. And it might be that given that the enterprise agreement contains a grievance procedure, that vest the Commission with jurisdiction to ultimately resolve the dispute, it might be that the more prudent course is to amend as an alterative, an application under section 170LW which enables the Commission where the - because you are getting here by the dispute resolution procedures in the enterprise agreement, aren't you?

PN45

MR BRENNAN: No. I'm here - sorry.

PN46

THE DEPUTY PRESIDENT: The agreement provides - - -

PN47

MR BRENNAN: For a dispute settlement procedure under the agreement.

PN48

THE DEPUTY PRESIDENT: Yes.

PN49

MR BRENNAN: Yes, sorry, that is the trigger to bring the dispute here.

PN50

THE DEPUTY PRESIDENT: Right.

PN51

MR BRENNAN: Yes, that is correct.

PN52

THE DEPUTY PRESIDENT: And so because the next step of the chain, if you like in that, is for the Commission to assist the parties to resolve the dispute.

PN53

MR BRENNAN: Correct.

PN54

THE DEPUTY PRESIDENT: And an application for that to occur is an application made under section 170.

PN55

MR BRENNAN: I'm quite prepared to take on board advice.

PN56

THE DEPUTY PRESIDENT: Well, there was that recent decision from the High Court about the jurisdiction of the Commission and the Commission obviously can't exercise a judicial jurisdiction because it doesn't possess it. I don't need to go back in the old law about that, but what the High Court did say is that where a certified agreement provides for a grievance procedure whereby the parties have committed to provide the Commission with the ultimate authority to resolve that dispute, in resolving that dispute and interpreting the award, the Commission is not exercising its judicial power and therefore the Commission has jurisdiction to deal with it.

PN57

MR BRENNAN: Commissioner Lesses actually made that offer and because of the connection with this dispute in regards to the change of conditions of employment, but its connection, or the trigger which was Mark Laube, the company has made the decision not to enter into any discussion until the unfair dismissal hearing of Mark Laube has been heard.

PN58

THE DEPUTY PRESIDENT: Right.

PN59

MR BRENNAN: Our issue is that before an unfair dismissal can occur there has to be criteria under which it was underpinned and that the underpinning factor of the unfair dismissal is actually not legally enforceable because the certified agreement and the award and then subsequent to that their consultative committee consent variation to the agreement, does not include the second 3 month period.

PN60

THE DEPUTY PRESIDENT: All right. Look, we will worry about that if we have to. We might go into conference now.

OFF THE RECORD

PN61

THE DEPUTY PRESIDENT: I note that the parties have reached agreement and that the employer gives an undertaking to refer to the employee's consultative committee to consider its proposal for all future contracts of employment that are entered into by the company, to contain a probationary period along the lines that there will be an initial probationary period of 3 months during which time the employee's performance will be assessed and depending on the outcome of the assessment, at the end of that probationary period, one of the following will occur; A. The permanent employment will be confirmed; B. The probation will be extended for a further period of up to a maximum of 3 months or; C. That the employment will be terminated by the company, giving the employee appropriate notice of why the company paying the employee in lieu of that notice.

PN62

It is further agreed that the company will enter into a conciliation conference which is scheduled to take place in the Australian Industrial Relations Commission concerning Mr Mark Laube's termination of employment and to attempt negotiations in good faith. That if, as a result of that conference the parties are unable to resolve their differences by agreement, nothing that has been said today will prevent the company - and it intends in those proceedings, to assert that the Australian Industrial Relations Commission does not possess the jurisdiction to entertain that claim on the basis that Mr Laube was dismissed during the period of his probation. The company will also reserve its rights to argue that in any event, on a performance-based claim that Mr Laube was appropriately dismissed.

ADJOURNED INDEFINITELY [3.53pm]