C2001/1780, Transcript of Proceedings [2001] AIRCTrans 838 (11 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 6974
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

C2001/1780

KEPPELL PRINCE ENGINEERING
PTY LIMITED

and

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

Notification pursuant to section 99 of the
Act of a dispute re public holidays

MELBOURNE

3.30 PM, MONDAY, 23 APRIL 2001

PN1

MR I. HARMER: I am from the Australian Industry Group and I appear on behalf of Keppel Prince Engineering. Appearing with me today is MR S. GARNER, Managing Director, Keppell Prince.

PN2

MR M. SOLLY: I appear for the AMWU with two shop stewards.

PN3

THE COMMISSIONER: Yes, Mr Harmer.

PN4

MR HARMER: Commissioner, this matter makes its way to the AIRC as a consequence of proposed industrial action threatened against Keppell Prince Engineering for the upcoming Anzac day holiday scheduled for Wednesday, 25 April 2000. In fact the claim does, Commissioner, have obvious potential flow on for casuals for all public holidays and I will get to that in a little more detail within the submission. I have attempted, Commissioner, to contact Mr Solly on two occasions to discuss this matter by phone, he has failed to return my calls on this matter.

PN5

The company has placed this matter into dispute as a consequence of what we believe, Commissioner, be poor advice in consultation between the Union officials and their members at Keppell Prince. In fact, we believe that for whatever reason that an alternative motive does exist, Commissioner, in relation to the union pursuing this claim. That actually then takes me to the matter in dispute. It does relate, Commissioner, to the interpretation of the Award as it pertains to working on a public holiday. The Award in question is the Metals, Engineering and Associated Industries Award, 1998.

PN6

That award, Commissioner, as you would be well aware, has been in place for as long as I can remember, but certainly dating back many, many years. Interpretation with respect to working on public holidays has also been within the Award for many years and has been without question and without dispute, particularly in relation to this site. The Award provision that we speak of, Commissioner, relates to 7.5.2(c) which simply is the payment for time worked by day workers on a public holiday. I have got only one copy of that clause but I see you have got the award there. I will just briefly read into transcript Commissioner - - -

PN7

THE COMMISSIONER: I hope that mine's up to date but you say that this has not changed for some time.

PN8

MR HARMER: No, not this particular provision Commissioner. 7.2 sorry, 7.5.2(c)(i):

PN9

Day workers required to work on a public holiday shall be paid for a minimum of three hours work at double time and a half, and double time and a half is to be paid until the employee is relieved of duty.

PN10

That is simply all that the award provision provides. There are alternative definitions for persons working on continuous work on a non-continuous shift but even in that case the penalty rate for public holidays, even for non-continuous shift work, is in fact still double time and a half. That is not the dispute that we are here for today, Commissioner. The provision is very clear, as an employee who works on a public holiday is entitled to double time and a half payments. The award makes no mention of any other provision, nor does it provide any additional benefit other than the penalty rate.

PN11

This interpretation, Commissioner, is wide spread throughout the industry. I certainly, in my 10 years of being an advocate, have never come across any additional claim other than what might be conceded within some form of enterprise agreement for any additional entitlement, for working on a public holiday. In saying that, Keppell Prince does have in place, Commissioner, a certified enterprise agreement and again there is no provision within that certified agreement for any additional entitlement other than the award obligation imposed.

PN12

And again, as I put to you earlier, that has simply been double time and half. The other issue, Commissioner, is that the claim is an obvious breach of a no extra claim commitment given by the union. Probably at this point, I should stress what we believe, Commissioner, to be the claim in question. It has been put to us, or been put to Mr Garner, that employees are seeking not only the penalty rate of double time and a half, but an additional day off if required to work on a public holiday. Now obviously we are looking at Anzac Day at this point in time, but I would see the claim of course, being a flow on implication relating to all public holidays.

PN13

So the claim that we have rejected, Commissioner, is an additional day, in addition to double time and a half penalty as prescribed within the award. Now that has been clearly rejected for, as I say, the award makes no mention of any additional entitlement other than the penalty rate as prescribed. Having said that, Commissioner, we see this particular claim as an obvious breach of the no extra claims commitment given by the union in respect of Keppell Prince Engineering certified agreement, only certified, Commissioner, recently within the last couple of months with a common expiry date of 31 March 2003, so it certainly is a certified agreement before the eyes of the Commission.

PN14

Commissioner, the company is concerned about having to bring this matter to the Commission for resolution, not only do we believe that the claim is without merit, but we believe that it has been brought about with a deliberate intention of breaching the commitments given to the company, and in fact to this Commission through the certification of the enterprise agreement. So the enterprise agreement, Commissioner, has clearly provided an opportunity for the Union to pursue any additional claims. We see this particular claim as an additional claim therefore, breach of the no extra claim clause.

PN15

The parties to this dispute, we believe this particular claim being sought by the Union is pettiness at its worst extreme Commissioner. The Union is clearly acting, in our view, outside the scope of the Award and is clearly acting outside the scope of the certified agreement. The other issue I do seek to bring to your attention is that the other union that is party to this certified agreement, the Australian Workers' Union, passed at a general meeting of members last Thursday, Commissioner, a resolution not to support the metal workers in this claim for they felt that the Award and the certified agreement was very clear on this matter.

PN16

They particularly, being the majority union, within this particular establishment, having the majority of members. So we find that is an unusual division between the unions as it relates to this particular claim, and obvious that they asked not to be listed in this dispute and they have confirmed this information to me personally, and also to Mr Garner. Commissioner, what we seek from you today is certainly some discussion with the parties as to the actual claim in dispute, what we would be seeking is directions from the Commission as to the award provisions, and certainly as to the EBA provision as it relates to no extra claims and this being a breach of the no extra claim clause.

PN17

We further seek assurances, Commissioner, that labour will not be unreasonably withheld on that day. We believe that there is a threat, Commissioner, that workers will not make themselves available on that day as a means of disrupting any call outs, particularly that might need take place on that day. And I am talking again, Commissioner, with respect to Wednesday, 25 April. But this claim has much wider implication in that if they can unreasonably withhold working call outs on this particular day, what stops them from working call outs on any public holiday. And again, we put to you that this is an issue that hasn't been put to this company in all the years that I have been working with it and that dates six years now, Commissioner.

PN18

It has never been an issue that has raised its head in Portland and certainly has never been an issue that we have had to confront within this particular forum. We would be seeking, Commissioner, directions that the award and the EBA stand as they do, that the penalty rates are very, very clear within the award and the EBA and that labour, if needed, should not be unreasonably withheld as a call back on Wednesday the 25th. Now we say that there might not be any reason, Commissioner, to call out employees on the 25th, but this particular contractor, being a maintenance provider to the Portland Aluminium Smelter, may have cause to address any call out situations that take place at the smelter.

PN19

That is their contract, that is their obligation, and the threat to withhold labour on that day, certainly has serious consequences, not only for my contractor, Keppell Prince, but certainly has ongoing complications for the principal contractor, being Portland Aluminium. Now, they are not here today to represent themselves, because they are not party to this dispute, but obviously I have kept them abreast of developments and I have informed them that we were taking the matter to the Commission, seeking some assurances that labour would not be unreasonably withheld on that day and, if in fact labour did work on that day, they would be paid in accordance with the award.

PN20

I have nothing further. I am pleased to break into conference if there is an opportunity to address some of the issues, but that is the only issue I seek to put on transcript at this time. If the Commission pleases.

PN21

THE COMMISSIONER: I will hear Mr Solly first. Yes, Mr Solly.

PN22

MR SOLLY: Thank you, Commissioner. Firstly, I would just like to make it clear that it isn't in any way an extra claim, and secondly, Mr Harmer's advice if you like, that the AWU is the majority union on the site or in the company, that is not the true facts. We believe, for various reasons, that the company's interpretation of the award isn't correct, and we certainly were going to have some discussions with the company in relation to that provision of the award and unfortunately we haven't been able to have that opportunity.

PN23

THE COMMISSIONER: Why do you say it arises now, and it hasn't arisen before?

PN24

MR SOLLY: Well, I guess it starts because some of our people asked the question about the rates of pay for a public holiday, and given the fact that if our members don't work that day, that they get that time anyway, so how they are looking at it is that to work a public holiday, all you are getting is time and a half, in addition, if you like.

PN25

THE COMMISSIONER: Well there must have been previous public holidays when these conditions pertained?

PN26

MR SOLLY: Yes.

PN27

THE COMMISSIONER: Why wasn't it raised then?

PN28

MR SOLLY: I don't know.

PN29

THE COMMISSIONER: Do you have an objection for going into conference?

PN30

MR SOLLY: No, Commissioner.

SHORT ADJOURNMENT [3.45pm]

RESUMED [4.20pm]

PN31

THE COMMISSIONER: Is there anything further either party might wish to add? No?

PN32

MR HARMER: There was one issue that just came up in discussion, Commissioner, was in how would Mr Solly's interpretation be applied with respect to, say an Easter Saturday, with respect to penalty rate. And I am sure he wouldn't be obtaining overtime penalty rates for Easter Saturday yet he would still be wishing for public holiday penalty. That in itself, I think further confirms our position that that was just a passing comment that came up in discussion.

PN33

THE COMMISSIONER: Well, for the guidance of the parties, I make this statement. Having heard the conflicting positions of the parties in respect of public holiday penalties, it is clear to me that clause 7.5.2 provides for double time payment for all time worked. Employees not required to work on a public holiday enjoy a non-work day without loss of pay pursuant to clause 7.5.1(a). Accordingly, for public holidays, including Wednesday, 25 April 2001, normal custom and practice should prevail, that is, labour if needed shall not be unreasonably withheld.

PN34

Any claim made in pursuance of an additional benefit is an extra claim and should be processed in the appropriate manner. My recommendation is to - is as follows, employees should respect this guidance given by the Commission and the union is at liberty to apply to have the matter listed for further attention in need. This matter is adjourned.

ADJOURNED INDEFINITELY [4.25pm]