C2001/2988, Transcript of Proceedings [2002] AIRCTrans 1142 (8 April 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

C2001/2988

GRAPHICS ARTS GENERAL AWARD 2000

Application pursuant to section 113 of the
Act by Printing Industries Association of
Australia to vary re casual employment

SYDNEY

10.00 AM, THURSDAY, 21 MARCH 2002

Continued from 28.2.02

Hearing Continuing

PN1645

THE COMMISSIONER: Is there anything we need to deal with before we get on to the next witness, Mr Kentish. I gather seeing Mr Abrams has leapt to his feet there is something else first.

PN1646

MR ABRAMS: Just to let you know that there is a change to the appearances as I will be representing ABL and AIG on this occasion, other than that the union has nothing else and if I could proceed to call Lorraine Cassin.

<LORRAINE CASSIN, SWORN [10.02am]

<EXAMINATION-IN-CHIEF BY MR KENTISH

PN1647

MR KENTISH: Ms Cassin, could you repeat your full name for the benefit of the transcript?---Lorraine Cassin.

PN1648

Thank you, what position do you hold with the AMWU?---I'm a Victorian state organiser.

PN1649

Have you made a statement in relation to these proceedings?---I have.

PN1650

Do you have a copy of that statement with you?---I do.

PN1651

Do you have any changes that you would like to make to that statement?---No, I don't.

PN1652

Do you swear that the statement is true and correct in every particular to the best of your knowledge and belief?---I do.

PN1653

Thank you, if I could have that document marked.

PN1654

THE COMMISSIONER: I've got no problems with that, Mr Kentish, the only thing is that the copy that I've got I think is a faxed copy that is not signed.

PN1655

MR KENTISH: It is unsigned.

PN1656

THE COMMISSIONER: Yes. So, I mean, I don't mind if Ms Cassin in fact has a look at it and signs the copy I've got or do you want to swap with the one - - -

PN1657

MR KENTISH: I do have a signed copy which I could hand up.

**** LORRAINE CASSIN XN MR KENTISH

PN1658

THE COMMISSIONER: Have you got a spare and I think we are up to AMWU 16, this will be.

EXHIBIT #AMWU 16 STATEMENT OF MS L. CASSIN

PN1659

MR KENTISH: I have nothing further.

PN1660

THE COMMISSIONER: Thank you, Mr Kentish. Yes, Mr Abrams.

<CROSS-EXAMINATION BY MR ABRAMS [10.03am]

PN1661

MR ABRAMS: Thank you, Ms Cassin, for making yourself available.

PN1662

Do you have a general working knowledge of the Workplace Relations Act 1996?---I have a general knowledge, yes.

PN1663

Do you have a working knowledge of the Graphic Arts General Award 2000?---I do.

PN1664

Do you a working knowledge of the Graphic Arts Interim Award 1995?---I do.

PN1665

Do you have a working knowledge of the Metal, Engineering and Associated Industry Award 1998?---I do not, I don't deal with that ward at all.

PN1666

Do you represent members in shops whose terms and conditions are based on or both of the two aforementioned awards, that is the Graphic Arts Award 2000 and/or Graphic Arts Award 1995?---I do.

**** LORRAINE CASSIN XXN MR ABRAMS

PN1667

There would be some shops that may employ maintenance officers who would be covered by the Metal Trades Award?---That's correct.

PN1668

Can I show you an extract of the Metal Trades Award. Ms Cassin, this is an extract of the Metal Industry Award and there is under Part IV there is a provision for employment relationship, and at 4.2.3 there is a casual employment provision, is there not?---That's correct, yes.

PN1669

Then I just want to take you over the page, there is at 4.2.3, it talks about casual employment and at 4.2.3(b)(I) states:

PN1670

Casual employees other than irregular casual employee defined in clause 4.2.3(f) if they are engaged by a particular employer ...(reads)... beyond a convenience process.

PN1671

?---That's correct.

PN1672

That's pretty self explanatory. What does that mean to you that provision?---That you have the right to elect to become permanent.

PN1673

Over the page, I think it is the reverse back of it, there is 4.2.3(b)(II) and it says:

PN1674

Every employer of such an employee shall give the employee notice in writing of the provisions of each clause within four weeks of the employee obtained such ...(reads)... comply with this paragraph.

PN1675

And from your experience what do you think that might mean?---I'm not familiar with that clause at all, I've never had this clause before today.

**** LORRAINE CASSIN XXN MR ABRAMS

PN1676

Having now seen it what do you think it might mean?---Within four weeks the employee has the right to put in a notice, that's what it says.

PN1677

That's correct, there's no prizes for right answers, Ms Cassin. Then the next paragraph:

PN1678

Any such employee who does not within four weeks of receiving written notice elect to ...(reads)... any such conversion.

PN1679

So if they don't then elect to take that full time or part time employment provision they are deemed not to have made that election. Is that your understanding?---That's what you're explaining and that's what it says, yes.

PN1680

Then finally, the last paragraph:

PN1681

Any casual employee who has a right to elect under clause 4.2.3(b)(I) upon receiving notice under ...(reads)... unreasonably so refuse.

PN1682

?---That's what it says.

PN1683

What do you think that might mean?---That you have the right to elect for full time employment and the employer has to consent or refuse.

PN1684

That's right, okay. Now, thanks for that. Under the Metal Trades Award and that provision in the Metal Trades Award, casuals are obliged to offer or employers are obliged to offer casuals full time or part time work after six months?---That's what it says, yes.

PN1685

If they don't make that election they have deemed not to have accepted that full time or part time provision?---Correct.

**** LORRAINE CASSIN XXN MR ABRAMS

PN1686

Then the award provides for them to be engaged in an ongoing casual capacity?---Yes.

PN1687

So do you consider that that award provision allowing an employee the choice to be made full time or part time or not to accept that full time or part time work and therefore be engaged on an ongoing casual capacity is fair and reasonable, that's their choice?---Yes, it's fair.

PN1688

Are you aware of the application made by the Print Industry Association of the Australian Industry Group in these proceedings?---I have a general understanding.

PN1689

What is your general understanding?---That you wish to have the Metal Award provisions put into the 2000 award as a Graphic Arts Award.

PN1690

As you indicated that it was fair and reasonable an adult employee to make that choice to accept full time or part time work they elect not to accept that to be engaged in an ongoing casual capacity. Will it equally seem fair and reasonable for them to make that election under the Graphic Arts Award?---The reason I made the statement that it is under the Metals Award, I have no understanding of that industry and I don't deal with that industry on a daily basis at all. I have a very clear understanding of the Graphic Arts Award Industry that we cover. I don't believe that is fair an reasonable under our industry, the Graphic Arts Award Industries in terms of printing.

PN1691

Why do you say that?---Because of my experience as an organiser, out on the job everyday, people would not see this as fair and reasonable to have to elect to become permanent, people like to understand what the guidelines are and most of the arrangements that we have via EBA and the award there is a provision and most people after 12 weeks have a right to become a permanent employee and I have not seen that being a problem in the industry since the variation.

**** LORRAINE CASSIN XXN MR ABRAMS

PN1692

If an employee hypothetically would prefer to remain in an ongoing capacity do you think that is their right?---But unfortunately in my experiences I haven't come across that in the industry in four years so I find that pretty difficult to answer, I'm afraid.

PN1693

I accept that however it is quite possible, is it not, that there are employees who would prefer to be engaged in an ongoing casual capacity?---When we start talking about possibilities, I mean, anything possible in any circumstances but I mean in my experience that's not what occurs out there on a daily basis.

PN1694

Why do you say that it is fair and reasonable under the Metal Trades Award?---Because obviously that's a provision that's under that award that's been negotiated between the parties. I'm only generalising and making my own assumption on that but having no knowledge of the industry at all.

PN1695

So you don't think that that award in the metal award is against the public interest?---I don't think I understand what you mean by that, I'm afraid.

PN1696

Are you aware that your union has made an application in these proceedings that our application should not proceed as it is against the public interest?---I'm not aware of that, no.

PN1697

At point six in your statement, you have it with you?---Yes, I do.

PN1698

You say although the company agreed to have this 12 week maximum included in the certified agreement that covers our members at Salmat, management told the union that the provision would not work because it did not allow the company enough flexibility to run their business. Now, were you surprised by the company's response that it didn't allow them certain flexibility?---At that time, that's referring back to the first agreement they have had another agreement since then. No, I wasn't surprised it was at a mail house industry which is very very high, or was at that time very highly casualised and the management were saying that any restrictions on casual hours would be detrimental to the company that has since been proven to be not valid.

**** LORRAINE CASSIN XXN MR ABRAMS

PN1699

At point 7, you state that Salmat is a profitable company with all of its employees employed as permanents and there have been no problems or breaches of the award or the agreement. How do you say with certainty that there have been no problems with Salmat which Salmat has had to face in accommodating the provisions of the Graphic Arts Award relating to casual employment?---As from my point of view as being the organiser for that site up until when we had the 95 award provision with Salmat we had constant breaches, we would have had up to 30 or 40 people at a time and possibly more that would have been under the 95 award deemed to have to be made permanent. Under the 2000 award provisions I haven't had the casual issue raised at all in the last three years that's the reason that I make that statement.

PN1700

When you say you have had breaches under the 95 award how many prosecutions were you involved in?---Prosecution, I wasn't involved in any personally, no.

PN1701

So what happened when you brought to the company's attention the fact that they were in breach of the award?---Between the company and the union it was agreed that the best process to deal with it was through an EBA.

PN1702

An EBA based on the 95 award?---At the time I think - I would have to check the first agreement, I'm sorry, I couldn't be positive whether it was based on the 95, we're going back 20 years.

PN1703

But the agreement that you have been involved in what is the nature of the casual flexibility?---I'm not sure I understand what point you're asking.

PN1704

How many agreements involved indirectly and those agreements that have gone to providing for a more flexible casual provision what's the nature of that?---Do you mean what was agreed.

**** LORRAINE CASSIN XXN MR ABRAMS

PN1705

Yes?---Just generally most of the agreements talk about a provision of a 12 week or could be three month period where employees and casuals can work for on a continuous basis which is usually the same hours of work as the permanent employees, if they do that after that 12 week period or the three month period they are made permanent.

PN1706

So really does it really differ from the current 2000 award provision?---Slightly, but not a huge amount no.

PN1707

So it doesn't provide many additional flexibilities over and above what the current award provision provides?---No, it doesn't.

PN1708

Now, from your experience, Ms Cassin, would it be that some companies are confused with the award provision?---The 2000 award provision?

PN1709

Yes?---Yes, that's a possibility some employers are confused.

PN1710

But once you alert them to the errors of their ways they generally correct?---I personally haven't come across since the 2000 provisions have been put in any what I would call breaches of that provision and my own personal round of shops that I look after in Victoria.

PN1711

Would you agree that some companies find the aspect of the award in terms of the 12 weeks and then by agreement extended by a further 12 weeks the regular casual, part-time casual, daunting?---No, I wouldn't say so, most of them are members of an association, they would clearly explain it to them, I don't find many employees are daunted by it, no.

PN1712

But to use your words, they would have some confusion nevertheless with the current award provision?---Most employees understand what it is, they understand the award provisions, that's why I haven't come across any breaches. I think in the 1995 award there was a huge amount of confusion by the employees, that's why we had so many breaches, why it was varied.

**** LORRAINE CASSIN XXN MR ABRAMS

PN1713

You indicate at point 12 that where employers do have a genuine problem the AMWU will consider appropriate terms for an enterprise agreement, if a particular employee wished to remain as a casual then it would be possible to make an agreement with the employer to facilitate such an agreement, do you see that?---That's an arrangement, yes.

PN1714

How would that be done?---I have never had an instance where I have had to use this, I am just speculating in my statement when I say that. I regularly get employers telling me that employees prefer to be casuals, I personally haven't come across anybody.

PN1715

In this statement you make you have not based it on your personal experience but on speculation?---Not on personal experience. I would envisage that it would be done through an EBA.

PN1716

So you speculate?---Correct.

PN1717

What part of your statement is factual?---The rest is factual, that part is not.

PN1718

You speculate that if an employee wished to remain as a casual it would be possible to enter into some sort of agreement to facilitate such an arrangement?---Mm.

PN1719

What do you think might be the reason an employee would want such an arrangement?---Can I just understand what you are asking, are you asking me why would someone want to be a casual?

PN1720

You have already speculated about this; what do you speculate would be a reason that an employee would elect to offer?

**** LORRAINE CASSIN XXN MR ABRAMS

PN1721

MR KENTISH: I am not sure that the witness's speculation in this regard is particularly useful to the case, Commissioner. I object to the question.

PN1722

THE COMMISSIONER: Do you want to press it, Mr Abrams?

PN1723

MR ABRAMS: She has already said that she's speculating, she made a statement - - -

PN1724

THE COMMISSIONER: Mr Abrams, that's right, and you are speaking about it as though it is some thing. Aren't you then wanting her to compound that problem?

PN1725

MR ABRAMS: I am not here throwing stones, Commissioner.

PN1726

THE COMMISSIONER: Well, the way in which you keep saying "speculation" appears to be giving that impression. Aren't you then asking for it to be compounded?

PN1727

MR ABRAMS: I am asking the question, what do you think could well be a reason that a casual employee might have in wanting to seek ongoing casual employment?

PN1728

THE COMMISSIONER: You can ask the question, I don't know whether the answer is going to be very helpful, but you can ask the question.

PN1729

THE WITNESS: I don't know that I can answer it. I personally haven't come across it in the industry so I really don't think I can come up with a situation off the top of my head, I'm afraid.

**** LORRAINE CASSIN XXN MR ABRAMS

PN1730

MR ABRAMS: What remedy do you think could be made?---Remedy?

PN1731

Yes. You say in your statement that it would be quite possible to make an arrangement, an agreement with the employer to facilitate such an agreement. What sort of agreement do you think could be made?---For an EBA.

PN1732

Yes, and what particularly, what sort - say the casual employee said, look, I would like to work beyond six months. The award provides 12 weeks and by agreement a further 12 weeks, is that correct?---That's correct.

PN1733

That's a total of six months, is it not?---Correct.

PN1734

Say if someone wished to work for, say, 12 months in an ongoing casual capacity, could that be arranged, could that be agreed to?---Through negotiation and discussions through the normal EBA process, we would have to negotiate it. I personally have not been in that position but I would think we would negotiate it.

PN1735

You wouldn't be opposed to entering into such an agreement?---I wouldn't be opposed to it, no.

PN1736

Would you be opposed to entering into an agreement that would go over 15 months?---Yes, I would be opposed to that.

PN1737

Well, why the additional three months, you said you wouldn't be opposed to an agreement that goes for 12, why would you be opposed to an agreement that goes an additional three months over 12 months?

**** LORRAINE CASSIN XXN MR ABRAMS

PN1738

MR KENTISH: The witness is being asked about a hypothetical situation which Mr Abrams further defines as the questions go. I really think it's difficult for the witness to provide a satisfactory answer to such questions which will assist the Commission, I mean we don't know the circumstances, whether the hypothetical casual is asking for 12 months or 15 months, or the circumstances of the shop, I don't think that the witness could give answers likely to assist the Commission in any way.

PN1739

THE COMMISSIONER: I must say I am at a bit of a loss, too, Mr Kentish. I think you can perhaps continue, Mr Abrams, but I don't want to be going into extra periods of time ad infinitum.

PN1740

MR ABRAMS: I am only trying to establish, Commissioner, what the witness considers a fair and reasonable time frame. She has already indicated that she wouldn't be opposed to an agreement that would go to 12 months.

PN1741

I am trying to ascertain whether an employee, for a genuine reason, may want to work for 15 months in an ongoing capacity when they have a particular personal need through family responsibilities, care for a sick family member and that was their personal choice, would you have a difficulty with that?---We are talking hypothetically, the reason I said 12 months was reasonable was because I thought six months was in the award already and 12 months does seem reasonable, but 15 months does seem to be continuing on. You have now explained further that that would be in isolation. If it was a particular reason for an individual, I would have to consider it at the time when we were discussing - if it was an EBA situation, as I am sure you are aware, there's a huge amount of negotiation that goes on.

PN1742

Would it be fair to say that based on merit you would be agreeable subject to the merits of the circumstances?---I would have to look at it at the time and make a decision at the time, it's very hard to answer you right here and now.

PN1743

I have no further questions, Commissioner.

**** LORRAINE CASSIN XXN MR ABRAMS

PN1744

THE COMMISSIONER: Thank you, Mr Abrams. Mr Kentish, do you wish to re-examine Ms Cassin?

PN1745

MR KENTISH: Very briefly, Commissioner.

<RE-EXAMINATION BY MR KENTISH [10.30am]

PN1746

MR KENTISH: Ms Cassin, in answer to one of Mr Abram's questions you made the comment that you didn't think it was fair and reasonable that the election mechanism be brought into the Graphic Arts Award, the mechanism which is in the Metals Award. Can I just ask you to expand on the reasons why you say that?---At the moment it is very clear in the industry and most casual employees understand that at a certain point, whether it be the 12-week point or at the six-month point, casuals have a right to become a permanent or a permanent part-time employee. I think under the election process it would be more confusing to a lot of the casuals and people out there, I think it would cause a lot of confusion with employers as well, that concerns me. I don't believe that it's a fair process because if the employer for whatever valid reason decides you can't have that position, you may find yourself in a situation of not getting that employment, to be permanent.

PN1747

Thank you, I have nothing further.

PN1748

THE COMMISSIONER: You are excused, Ms Cassin. Thank you for coming along.

<THE WITNESS WITHDREW [10.35am]

PN1749

THE COMMISSIONER: That concludes your evidence in the matter, Mr Kentish?

PN1750

MR KENTISH: It does, yes.

PN1751

THE COMMISSIONER: I think on the last occasion there was some discussion, it may in fact have been off the record, about the future process of the matter. That was predicated on Ms Cassin giving evidence at some earlier time. Are you still able to meet those dates that we discussed as far as 27 March for your submissions or is there some need to change those dates.

PN1752

MR KENTISH: Commissioner, I would have a preference for those dates to go back a little, just because of the delay occasioned by the changing of dates for Ms Cassin. I understand that the Printing Association doesn't have a particular problem with putting the dates back although we may have to work around Mr Abram's leave. Perhaps if we could go into conference.

PN1753

THE COMMISSIONER: Yes, I am just wondering if it is something perhaps discussed off the record. Mr Abrams, do you have a difficulty - - -

PN1754

MR ABRAMS: No difficulty at all in going off the record, Commissioner.

PN1755

THE COMMISSIONER: Just to discuss the dates, that's all, because it does tend up a bit of time. We will go off the record.

OFF THE RECORD

RESUMES ]

PN1756

THE COMMISSIONER: After some discussion between the parties and myself off the record as to the further process in this matter, it has been agreed that the union will provide its submissions to the Commission and to the employer parties by close of business on 5 April. The employer submissions will then be provided to the union and to the Commission by close of business on 13 May. The union reply will be by close of business on 27 May and if it is required by either party or myself the matter will be relisted by speaking to those submissions, answering questions, etcetera, at 2.00 pm on 3 June. If there is nothing further, the matter is now adjourned.

ADJOURNED ACCORDINGLY [10.40am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

LORRAINE CASSIN, SWORN PN1647
EXAMINATION-IN-CHIEF BY MR KENTISH PN1647
EXHIBIT #AMWU 16 STATEMENT OF MS L. CASSIN PN1659
CROSS-EXAMINATION BY MR ABRAMS PN1661
RE-EXAMINATION BY MR KENTISH PN1746
WITNESS WITHDREW PN1749