C2001/5925, Transcript of Proceedings [2002] AIRCTrans 1293 (17 April 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2001/5925

SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION

and

KMART AUSTRALIA LIMITED

Application under section 170LW of the
Act for settlement of dispute re
employment of C. McInnes at Kmart
Ballina store

SYDNEY

10.35 AM, WEDNESDAY, 6 MARCH 2002

Continued from 3.12.01

PN43

THE COMMISSIONER: Yes, if I could have the appearances again, please?

PN44

MR B. GOVIND: Yes, if the Commission pleases, I appear on behalf of the Shop, Distributive and Allied Employees Association of New South Wales.

PN45

MR D. RITCHIE: Commissioner, I am from the Australian Retailers Association appearing for the company and with me is MR C. FERNANDEZ of the company.

PN46

THE COMMISSIONER: Yes, Mr Govind, you sought this matter to be relisted.

PN47

MR GOVIND: Yes, thank you, Commissioner. Commissioner, this matter was before you on the last occasion on 3 December 2001. You may recollect that you made a recommendation, a suggestion that we organise with the company and particularly with the store up in Ballina that we do inspect rosters to satisfy ourselves or point out to the company that they have not been allocating hours in the manner contemplated by the agreement. So that's where it was left at on the last occasion, Commissioner.

PN48

I, in fact, liaised with the company and in particular Mr Brad Mansfield, the store manager up there in Ballina. We then locked in a day and the date was 12 January 2002. I went up there personally. I met up with the organiser, Mr Trevor McKosker, Mr McInnes and there were some human resource representatives from Kmart present at that meeting. It was disappointing, the whole thing, Commissioner. It could have been very promising but the upshot of the whole thing was that the company defended its position throughout that meeting so as far as my trip up there, Commissioner, it was a very unproductive one.

PN49

Mr Mansfield produced rosters that went back three weeks. There was no other documentary evidence that he was in a position to provide or had at his disposal. You may recollect that over that busy Christmas period, the Christmas New Year period, Commissioner, Mr McInnes whose base hours are 30, was flexed up to 35 hours. So the issue was that he was relatively close to permanency and in fact, that he was getting those additional hours. He since then has come back down to his 30 hours and that's where he's at presently.

PN50

So a certain level of frustration on our part, Commissioner. Can I also add that at that meeting, the manager undertook to liaise with the organiser, Mr McKosker and provide these other documentation of rosters going back some more time specifically around about three or four years. Now, Mr McInnes has been with the company about 10 years and he's been asking for permanency for that length of time and that request was initially agreed to but subsequently withdrawn.

PN51

So we are now in a position, Commissioner, that we are not able to access records to any satisfaction to assess for ourselves and in fact point out to the company that no, you have not been allocating these hours in a fair way, people have come in and been employed subsequently in areas and departments and hours that Mr McInnes could well have done and which is simply not in the spirit of the agreement. My last conversations with the company and with Mr Ritchie was that the company does not keep rosters. In fact, it discounts them pretty much straight away.

PN52

So we're now in a position that we are not able to inspect these rosters to any great length. Now, it may well be that they are committed to some electronic form or something along those lines that we can access, Commissioner, but without really having access to those documents and in the face of the company just not accepting that they have not breached the agreement in any shape or form but they're quite content that things be left as they are, I mean, I don't really see how we can progress the matter other than serve on the company a notice to produce documentation.

PN53

I have a copy of that document here, Commissioner, and that would be my request that the company be asked to provide those documents so that we can progress this matter basically. That's where we're at and that is the reason why Mr McInnes is not here today because it's simply now attaining those documents. That's where we're at. At that meeting that we had, Commissioner, if I may go on very briefly, the store manager in fact did agree that other people had been hired. He also agreed that permanent employees had left in recent times and their hours have not been reallocated or allocated to Mr McInnes on any ongoing basis.

PN54

The hours could have gone to Colin and in some cases Mr Mansfield agreed that whilst Colin wasn't suited on the face of what was being offered with some very minimal and specific training Mr McInnes may well and could well have done those duties and the point I made at the last mention date, Commissioner, that Mr McInnes has worked in numerous departments across the shop floor, he has been there for 10 years. So the issue for the company was that quite simply that these hours could be allocated to Colin and perhaps with a little bit of effort on their part but the impression I got, Commissioner, there has been no effort being made at all.

PN55

Jobs had been advertised within the store on the noticeboards and what have you, positions have been advertised, hours have been advertised, but we keep hearing that Colin is not suited to those roles and except that there are some positions and some hours going in specific departments such as the mini-lab which Mr McInnes accepts he can't work in and there is no dispute about that at all but generically for the company to say, well, he is not the best person for the job and we will put the best person for the job regardless, I just don't think it is in the spirit of the agreement, Commissioner.

PN56

The other pertinent thing and the very poignant about this is that Kmart in the last negotiations made a concerted effort resulting from that that they would convert a lot of permanent part time employees to full time employees and it was reported to me at that meeting that some 500 permanent employees had been allocated so permanent part time employees have got or received full time employment status, I asked the question how many in this store and the reply was, well, none. So it seems that the management style of that particular store and the way that that store is being run, it has been determined that, you know, casuals will be called in as and when necessary and permanent hours on a ongoing basis will not be allocated and they have about 120 stores across Australia, Commissioner. So that's an average of four or five people per store and none in Kmart, Ballina, and I think this is the issue the selection boils down to. The company has had opportunities, they will argue I suspect that at this time they are undertaking a major re-rostering across all their staff and I accept that, Commissioner, but once again I say that Mr McInnes had been at it for 10 years, it is not simply good enough to simply say, well, presently the company is not in a position to oblige.

PN57

Also my understanding is, Commissioner, that there are others in this store who have now apparently put their hand up and my understanding some 20 or so people that have all of a sudden put their hands up and said we want additional hours as well and the manager is saying, well, how do I do this. So it seems to me rather than looking through this thing in a constructive way what has been done is that they effectively were getting no movement in this and the point I make is if you have five or 10 people asking for these hours it does not by that reason disqualify Mr McInnes for asking and I don't think that necessarily presents an obstacle for Mr McInnes or for the company to allocate hours.

PN58

THE COMMISSIONER: What is that you seek today, Mr Govind?

PN59

MR GOVIND: Commissioner, unless there is something that the company wishes to report on that they have an offer or something that perhaps we could consider what we would like to do to progress this matter is to get my hands on some documents, basically rosters and employment records that show people working hours and where they work and in which department so that we can take it back to the company.

PN60

I made the point that certainly in the last four years you cannot say that not one or two or three persons that have come through the store are new employees who have taken hours that Colin may well have been able to do. I suspect that that position is not defensible, Commissioner. So unless the company has something else to report what I would be seeking today is for the Commission to stipulate a date on which the company produce those documents and that is my application.

PN61

THE COMMISSIONER: Yes, thank you for your submissions, Mr Govind. Yes, Mr Ritchie?

PN62

MR RITCHIE: Commissioner, just some information that may assist the Commission. First of all, Mr McInnes commenced with the company on 11 November 1995 as a casual employee and in 1997 he was made a part time employee on 20 hours and in 1998 he was increased hours to 30 hours, and as I understand except for the periods of time when he has been flexed up he has been working 30 hours a week.

PN63

When one goes to the notification that the shop union directed to the Commission on 7 January it talks about in the second paragraph:

PN64

The dispute concerns the company's failure to provide more stable and secure employment for Colin McInnes at the Kmart, Ballina, store ...(reads)... and secure employment.

PN65

Now, if that it what the dispute is we say there is no dispute. Mr McInnes's employment is stable and secure as a part time employee on 30 hours a week currently at the store, that's the first point. When you look at the section that they have notified under 170LW(a) it talks about to settle disputes over the application of the agreement. Now, I don't perceive the company has breached any aspect of the agreement that the Commission can settle.

PN66

Now, the third part is here we have in essence a country store and as Mr Govind said there are as I've been advised of the 32 part time employees 23 would like more hours. Mr McInnes is no different to the other 22 employees who require more hours. Now, I would imagine Mr McInnes perceives he should not be treated any different to anyone else. The company in allocating hours look at the availability, look at the roster the person is already working and look at the skills of the persons already working and they seek to try and improve it but if they can't do it what the union is seeking is for Mr McInnes to be treated in some favourable fashion that goes beyond that of the other employees who seek more hours.

PN67

What is this about, if this is about this person wanting more hours then we say that's contrary to one, the dispute notification to start with and contrary to the section 170LW because we don't perceive we are in dispute, the man is secure, the man has got stable employment, that's the situation. Now, the application by the union which they have made, but I haven't seen, notice to produce, we've advised the union that we don't keep rosters, why should we, once the roster has done it has been usurped by another one they turf it, it becomes a paper warfare if you have got to maintain things that you don't require.

PN68

It is true to say the company is having difficult times at the moment and all aspects of the business are being considered but the company is not going to put itself in the position where it favours one person above 22 others or anywhere else, that's our position. This person has been treated no different to anyone else and the union have been given information to show why they are not in a position to be provided with extra hours or hours that have come about through, if I can put it, part time contracts, that's all been discussed with the union organiser up there but in reality what they're seeking is favouritism and we're not going to get involved, that's my opening statement.

PN69

THE COMMISSIONER: Do you accept, Mr Ritchie, that the certified agreement does state that Kmart or the Coles Myer I think there are some letters, are committed where practicable to enhancing the number of hours part timers receive.

PN70

MR RITCHIE: Correct, and as I understand it they have converted a lot of casual hours into part time hours and that is not only something if I could say that that company is seeking to do but many other major companies have recognised the benefits of offering casual hours stable and secure employment and offering them part time hours that's happening, if I can put it, throughout the industry in the major companies.

PN71

THE COMMISSIONER: Mr Govind, when Mr Mansfield however met you what was wrong with the material they gave you.

PN72

MR GOVIND: The rosters only went back two or three weeks, Commissioner, hardly enough time to assess and were people were flexed up this was coming off a busy period, so presumably people were still on a flexed-up rate, Mr McInnes was still doing 35 hours. So on an inspection of the rosters Mr McInnes was getting additional hours and relatively close to full time employment. Our argument about whether he should get the additional hours was a non-argument, Commissioner, because he was on 35 hours at that time, that's why the exercise is not a productive one and that's why we made the request to demonstrate to the company that there have been hours that have gone and that Mr McInnes could have done.

PN73

Can I say it is not favouritism that we are asking for, the memorandum of understanding, and I took the Commission through this on the last occasion clearly provides with respect existing an increase in full time jobs and look Kmart has obliged by this one store. Mr Geoff Woodcroft, the human resources manager up there very proudly says that 500 people had been put on as full time employees or thereabouts and then converted across.

PN74

MR RITCHIE: It wasn't full time, casual into permanent part time, that was our commitment to the SDA.

PN75

MR GOVIND: Except that increasing the number of full time jobs particularly for part timers and that's greater security of employment and that appears under the memorandum of understanding dated 24 June 1998 and none of those have been in Kmart, Ballina. It is in Kmart, Ballina, it has been determined that the best way to run this store is to employ additional casuals.

PN76

MR RITCHIE: No.

PN77

MR GOVIND: That is what was imparted to me when I was up there and it was agreed by Mr Mansfield that perhaps Mr McInnes could have taken some of these jobs had it not been for perhaps inadequacies in some areas. I made the point that with some specific and minimal training he could be brought up to speed, Mr Mansfield said, yes, quite possibly. Can I say that those people on that list no one had approached the union and we have not perused hours for any of those other people. When I was at that meeting it was flagged to me that quite possibly there would be people, no names were provided but I subsequently now learn that there are 23 people asking for hours and prior to the dispute being launched I didn't know of it and when I made the point there Mr Mansfield could not give me a firm answer about how many other people but he said I'm sure there would be other people but now I understand there is a list of these people.

PN78

THE COMMISSIONER: Yes, thank you, Mr Govind. When this matter was last before me Mr Grahame was with the AIR and there was no mention of other people and it seems to me this may very well be a convenient tactic by Kmart at Ballina to muddy the water. The conference was left upon the basis that the SDA would get all the roster information and the employee profiles so that there could be an ability for people to sit down, the SDA having got the material beforehand saying, well, why can't Robyn, John or Mary do this working in the toy department on Wednesday afternoon or something and then Mr Mansfield, the manager and others could say, well, that's not possible he or she doesn't have the skills or somebody else is doing it or we need only somewhere for two hours and that doesn't suit us so to have a proper response.

PN79

Now it doesn't seem as if that has happened, I thought it was pretty straightforward. Now, Mr Govind, you're on your own as to comments that say that with a little bit of training he might be able to do that, well, I'm not saying that is a matter of no value but that really goes to the company's desire or otherwise to facilitate that sort of training, but that's kind a second step. The first step I thought would have been to have a look at what the objective material is, what people are working and see if Mr McInnes's hours can be adjusted without putting the company to too much trouble.

PN80

Now, from what Mr Govind has said the material wasn't provided or if it was it was a very limited kind and he says Mr Mansfield only took to provide rosters going back a further time and then that was subsequently withdrawn, they don't have the rosters, well, why did he say and it is all very suspicious.

PN81

MR RITCHIE: Commissioner, I didn't go in my submissions to that but Mr Mansfield was spoken to and he denies categorically that he gave an undertaking with respect to future rosters for the simple reason he doesn't have. I didn't think it was appropriate to go over it, if I have to go over everything that Mr Govind says, I will.

PN82

THE COMMISSIONER: You might have to in due course, but you will see what I say.

PN83

MR RITCHIE: Commissioner, can I go back to something. The notification put before the Commission clearly says the company's failure to provide more stable and secure employment for a particular person, now that's not just right, it is just not right, the person has been provided with stable and secure employment. It is not as though he has been taken from being a casual, offered part time work, then terminated, offered casual work and then perhaps offered part time work then terminated and offered casual work, one could say then the person does not have secure and stable employment but for the last three or four years he has been working 30 hours a week. I mean, how more stable can you get and what I say it is just wrong it is a fundamental misleading I'd say of the Commission.

PN84

THE COMMISSIONER: Yes, thank you, Mr Ritchie. Mr Govind, I don't need to know about anything now. I still can't believe that Kmart is making this difficult as it seems to be making it, as I said, all of a sudden there are people asking for part time employment if this goes and gets any more serious I'll be in Ballina and I will examine myself in the witness box exactly when these other so called people made their desires felt and how formal it was, hopefully we won't get to that.

PN85

There are provisions in the Act that require the employer to have a whole range of records. If push comes to shove I'll have those records somehow produced by summons and produced here in the Commission and I'll allow the SDA to perhaps have a look at them. So if that doesn't provide me with rosters and if you say there are no rosters, Mr Ritchie, well, I can't create them but it certainly will provide all employment records going back quite a number of years of all employees at Ballina including the hours they worked, whether they are part time etcetera, now that's the hard way.

PN86

I think the easy way is for me to say that I again ask, as I asked on the last occasion, well, where there was no disagreement from the employer that material be provided to the SDA as to all the employees they currently they have, how many hours they are now working, we know in March things have settled down, how many hours they are now working and presumably this has been a hot issue and I would trust that rosters have been kept at least since the 12 January. If they're still being turfed because it's not that important, well, again that's something I'll take into consideration.

PN87

The starting time of people, that is when they started with the company also be provided because as I said, I don't think this is a walk up start for Mr McInnes. What it is though is, I would have thought it's a walk up start to have material presented so that the SDA can progress its claim and on the other hand for Kmart to not surprisingly defend its position. I'm not critical of Kmart's employment practices. What I'm a bit staggered by is they're making it so difficult to have material around the table.

PN88

So again I say, I expect the material to provided to the SDA in some kind of reasonable form here at or about March, early March of this year with rosters going back and starting times of people, exactly where they're working and if it means a few phone calls to clarify exactly what a matter is, then that should occur. As I said, otherwise we'll do it the hard way. I'll go up to Ballina and we'll get all the records and we'll go through it bit by bit and we'll examine everybody and Mr McInnes might very well still come out with his hours unchanged but at least we'll do it properly. So that's the way I see it gentlemen.

PN89

MR RITCHIE: Commissioner, you've made your point. If we are to provide that, then we'll be providing detailed records of about 120 people.

PN90

THE COMMISSIONER: Yes, and?

PN91

MR RITCHIE: I'm just advising.

PN92

THE COMMISSIONER: But what I'm saying to you, Mr Ritchie, is this that - well, you've got to provide, I would have thought, the rosters of people going back these past few couple of months now. Now, you say they've turfed the rosters. Well, are you telling me that they've turfed the rosters since this roster issue has been a hot issue?

PN93

MR RITCHIE: I don't know, they could well have.

PN94

THE COMMISSIONER: Well, I won't be very impressed with that. I mentioned rosters when the parties were before me on 3 December I mentioned the word "roster". Now, don't tell me that people have just sort of thrown it in the bin like it was only a joke?

PN95

MR RITCHIE: No, I understand, Commissioner, rosters have been provided to the union. The union says they're not satisfactory because they give an unreal position and I agree with that. Over Christmas nothing is real, nothing is normal.

PN96

THE COMMISSIONER: Yes and I accept that having rosters going back three years, with due respect to you, Mr Govind, may not be all that helpful but what I see is - - -

PN97

MR RITCHIE: We were asked four years.

PN98

THE COMMISSIONER: Yes, but what I say is rosters going back from 6 March back into February would have given a real picture of the current operating situation at the place.

PN99

MR GOVIND: Can I just make a point, Commissioner. At the moment, as I referred to earlier, Kmart has cut its hours effectively to the bone. There are no casuals within the store so in the present climate, I suspect what the rosters will say, you have permanent part time employees and full time employees who have been rostered to cover weekends and basically have served the hours that casuals have taken.

PN100

So the climate is such that, I suspect that it won't lend any credence to Mr McInnes' case presently but I suspect if you look back at the hours and the rosters that had been worked some time before this cut across and this is a national thing which has happened, Kmart has consulted with the union for various reasons including the position that the company finds itself in but had to undertake massive rosters from 1 January onwards or thereabouts, sometime in January, that's my understanding.

PN101

That is why we requested for rosters to go back some length further and that is why in fact my notice to produce does request that.

PN102

THE COMMISSIONER: The only difficulty with that is that the Commission is only seized of this since 3 December of last year. Now, for you to say well, look, in August Mr McInnes should have been given fulltime employment, well, the problem is the Commission didn't have that in August. It had it in December and at December I think you even said that given Christmas, he was actually not doing too bad as were other people.

PN103

I thought the big concern was that other people were coming and going with getting full time employment or casuals coming and that's unfair to him and that's possibly the case. But now there are people in place and you say there's not that many casuals. Well, it may be of assistance, it may be possible to get some current part timers and have their hours brought back so that your person goes ahead but that's something that Kmart may defend.

PN104

The Commission may not necessarily support you on that. It may. I mean, it just depends on the facts but given what they've said about rosters that they don't keep them, well, I can't do much about that, can I? All I'm saying is, I'd be a little bit surprised they haven't kept them since 12 January. Surely they'd -

PN105

MR GOVIND: Can I just hand up a document that I've prepared, Commissioner, just in terms of wording and what it covers. Perhaps that may assist the Commission in what we're asking. I understand that the company is obligated to keep records showing starting and commencing times according to the regulations for up to seven years. Now, if they're not keeping rosters, presumably they have some sort of electronic system whereupon the starting and finishing times of these employees are displayed. If that's not the case, we'll they've certainly breached the regulations.

PN106

THE COMMISSIONER: Even if you know that for the past, how does that assist you? I mean, the structure of the agreement is that they'll do things to enhance peoples hours and permanency in their stores. Unless something is so red hot that new people have been brought on, this person has basically been shoved to the side in which case, you might argue, well some of these other people have got to go, but it's probably not going to be as black and white as that is it? It's going to be a bit grey and at the very least out of all this, Mr McInnes may very well mark the spot and the next time there is some real hours come in or someone leaves, Kmart is going to be in a very difficult position to deny Mr McInnes his due.

PN107

MR GOVIND: That's the point.

PN108

MR RITCHIE: Or any other.

PN109

THE COMMISSIONER: Well, why create rosters that go back a lot longer?

PN110

MR GOVIND: The company is adamant if I can say this that they have done exactly what they've had to do and in terms of breaching the agreement or not, certainly not being in the spirit of it, they have said that they have not. That's the position that the company is coming from. They're denying that that's in fact ever taken place when we know that people have left, new people have appeared in areas that Colin could have done it. That's anecdotal,

PN111

Commissioner, but Colin has been there for some time and that's what he reports to us that in fact people have left. Permanent employees have left in recent times and going before that and certainly people have commenced employment after him that have in terms of a base rate, are now on hours higher than Mr McInnes is.

PN112

So it's merely to demonstrate that the company has always defended something that we say is indefensible that people have taken hours that Colin could have done. That's the position that we are seeking to highlight to the company, at least in that store in Ballina - I'm not talking generically about Kmart, Commissioner, but in the Ballina store, in that particular store only, we've had people that have been employed and taken hours that Colin would have done some time in the past and there's a pattern that we can point to the company and highlight to the company that in that store it's been happening.

PN113

That's what we seek to do with those rosters, Commissioner, going back for that length of time and perhaps put the company on notice that from here on in - - -

PN114

MR RITCHIE: Can I respond - - -

PN115

THE COMMISSIONER: Well, you don't mean rosters, you mean hours of work.

PN116

MR GOVIND: Hours of work and the departments that they work in because the other claim that the company is putting on is that he's not suitable to do that work and we say well, is he suitable? It's a yes or no thing, Commissioner, and that's where the whole thing stagnates. We just want to say to the company, perhaps at head office level that no, there is a manager in Kmart that's running his store different and contrary to the spirit of the agreement and that's the point we want to make by simply going back and highlighting those discrepancies or highlighting those rosters and bringing it to their attention so hopefully the head office will move on it, Commissioner.

PN117

THE COMMISSIONER: The only trouble with that is that it's a bit of a fishing expedition. The automatic process of the Commission doesn't enable me to have those records. All I say is if things got difficult, because they've got to keep those records, the Commission could make an order that those records be provided. However, equally, there's nothing that stops you or your organiser entering into those premises and seeking to look at those records.

PN118

I mean, whether they're there or whether they're kept in Melbourne or Sydney is beside the point. Somewhere they're entitled to have a look at that. What you say is, you want to cut out all that and have all these documents produced to you more centrally. The problem with that is if we're going to go to that, it is a bit of a fishing expedition. It puts the company to a lot of trouble.

PN119

I mean, if you say look, in August of last year Mr McInnes says that three people were put on in the toy department or the hardware section and they were casuals and that at that he was asking, well, that's a different thing and if there's a doubt about that, those records can be produced and should be produced. But if it's just like, as you say, he has this feeling that people are coming and going, well, I would have thought that needs to be a bit more pinned down.

PN120

Now, that's not to say that since December and certainly since January, we should have rosters so that you can actually see - there must be about six or seven pages. I guess they're weekly or fortnightly. They should be there and you can have a look at the whole 120 people, 100 people, but that's different from going back six years or two years. Do you see my point?

PN121

MR GOVIND: Can I make the point that I thought of that, Commissioner, and before I left I, in fact, between Mr Mansfield and Mr Trevor McKosker the Area Manager, arranged for records to be provided or access, electronic records. Those records or access to those records were denied. So we come here before you, Commissioner, because we have not been given access to those records and what has been said is the rosters have been turfed out, the rosters have been turfed out. So what we say, Commissioner, it must be there in some form because they're obligated to keep them.

PN122

THE COMMISSIONER: Yes, I understand that.

PN123

MR RITCHIE: Commissioner, can I make a comment that Mr Govind seems to say well, people come and go and those hours that are then created should be given to Mr McInnes. He fails to think about that Mr McInnes is already working 30 hours a week. Now, if someone leaves and Mr McInnes is working let's say a 6am to 12.30pm shift and a vacancy falls due and it's 8 to 12, well, Mr McInnes is hardly going to be asked two jobs at the same time.

PN124

Let's say the vacancy falls due at 5 o'clock in the afternoon and the person works 5 to 9 or 3 to 11, he can't do split shifts. In other words, he's already got certain hours. The man can't work in two places at the same time and he can't work split shifts. So what he is seeking really is that from his clock off time, he is then given extra hours somewhere that are available. Now, they just may not be available in the store at that time.

PN125

So it's very glib to say, people have come and gone and hours are available. The company set down and do rosters, they set down because of vacancies that fall due and they then fill those hours. If a person is already working the time that the vacancy falls, there's nothing they can do about that and if it's in the afternoon, there's nothing they can do about that because the agreement doesn't allow for split shifts. So there's more to it than meets the eye.

PN126

MR GOVIND: That is precisely the reason why Commissioner, we ask for these rosters because rosters - - -

PN127

MR RITCHIE: They don't exist. Do we have to write in a stone.

PN128

MR GOVIND: Or starting and finishing times of these people, Commissioner, that would show - - -

PN129

THE COMMISSIONER: If the company kept a roster that's usually, well, not one sheet of paper but several sheets of paper for 100 people, let's say and if they kept those records either electronically or a hard copy, they'd be in some kind of file and some clerk would photocopy 200 sheets that might go back a year or so and I would have thought that's not onerous on the company. However, if they don't have it and Mr Ritchie is adamant that they don't have it, you've got to get these hours in a different way and it's essentially going back to looking at wage records etcetera and I think that's a little bit more onerous. It's not quite as easy as you say.

PN130

I also don't know, where are we going to get if it turns out that Mr McInnes perhaps could have been given a job that Mrs Jones got 18 months ago. What do you want us to do about that? What's that going to show? There'll always be - one, there'll be a need for someone to give Mrs Jones the bad news but more importantly, the company is going to have some kind of an excuse to say well, we gave it to her because -

PN131

MR RITCHIE: They worked at the same time.

PN132

THE COMMISSIONER: Yes or she had a particular skill. It hasn't turned out to be that way but she did us that she was a very good marker or consultant of some description so I don't know how that's going to help you that much. I mean, that's what I'm saying. One needs to balance the right for you to get reasonable information against the onerous nature of it on the employer and I'm not quite sure going back that period whether it's there, particularly if you can't say, three people did get put on and we want to know the details. That's a different thing.

PN133

If you say, three people were put on two years ago and another one a year ago and we want to know the details of it to show that the manager up there or several managers have not been playing the game, well, that's a different thing, I think you're entitled to and the company should be able to provide you with relevant details of what happened in January '92 or in July '99 and they'll explain it. It might be that they will be embarrassed and say, well, maybe we should have.

PN134

Then you'll get into the merits of whether Mr McInnes should be accommodated or not but going back just like that, it just seems to me more than I would be happy to require.

PN135

MR RITCHIE: Commissioner, can I make the point that I accept what you say with respect to the past history. What's the relevance going to be if they prove a point that the company somehow or other denied Mr McInnes because they didn't like the colour of his eyes? Isn't it really the reality of what's going on today because that's the reality of are hours available today? Now, I'm aware and Mr Govind has advised that the company is having difficulties and casual hours have been reduced significantly and part time rostering has changed, I understand.

PN136

In other words, there's not too much fat there at the moment at all, if at all. So I recognise the point that you make from an historical point of view. That will be an historical argument but it won't be of too much benefit to Mr McInnes. Is not the fact of what's occurring from today the reality?

PN137

MR GOVIND: The problem with that, Commissioner, is now all of a sudden you have 23 people asking for those same hours.

PN138

MR RITCHIE: No, it's not all of a sudden. It could well have been that these people have put the company on notice but the company said, yes, right, okay, and never made a great deal about it because they knew the reality was there was nothing there to give them.

PN139

MR GOVIND: Well, the chances of the company feeling compelled or pressured or in any way coaxed into providing additional hours, I suspect for Colin, bearing in mind there's a list of these people, I would suggest a sling, if it's simply left to examine rosters in the last three weeks or three weeks hence, Commissioner. The point we're making with Colin McInnes and I go back to it is that consistently he's asked for hours and the last time his hours were increased was not because the company as they're obligated to do approached him and offered these additional hours, it's because Mr McKosker went in there and demanded them and Mr Mansfield agrees with that and that coincides - - -

PN140

MR RITCHIE: With Christmas.

PN141

MR GOVIND: No, 1998 when he had the hours - I'm not talking about flexed up hours. I'm talking about when his base was increased, Commissioner, and locked in at 30. That was back in 1998 and that was due to Mr McKosker's efforts, not as the agreement says, it wasn't offered to him. It certainly wasn't offered to him even though he had asked for them previously.

PN142

MR RITCHIE: Commissioner, can I ask one other question? I notice in the notification here the date was 7 January 2000. Is that right?

PN143

MR GOVIND: No, it should be 2001, Commissioner.

PN144

THE COMMISSIONER: Still, why is that?

PN145

MR RITCHIE: 2001 it can't be. I mean, the Commission wouldn't - 7 January 2000, the matter first came on 3 December 2001.

PN146

MR GOVIND: I think this issue has been going on for some time, Commissioner. I inherited this file but -

PN147

MR RITCHIE: If you wrote to the Commission on 7 January 2000 -

PN148

THE COMMISSIONER: Well, it was received by us on 20 November 2001 is my sticker, the registry sticker so it's probably a typo.

PN149

MR GOVIND: Perhaps a typo, Commissioner.

PN150

THE COMMISSIONER: We're going around a little bit in circles and I understand the frustrations but it seems to me this. The merits of whether Mr McInnes is being hard done by and whether or not his position should be corrected, it seems to me it's all speculation by the SDA and also by Kmart. Until you sit down and get some facts, you go through and you put your position and they respond or defend their position, you're not going to get very far.

PN151

As I said on the last occasion and I'm told the rosters are not kept, what I think should be provided to the union is a full list of the employees that work at Ballina, including the time that they started and their status, whether they're casuals or part time and the roster that people have worked at least through January, February and to now. Now, if the rosters have been turfed and not kept for very long, well, someone is going to have to sit there and go through some records and re-establish them. I'd be surprised if they were turfed given this was a hot issue.

PN152

As to anything that happened before Christmas, well, if you can specify either particular individuals that have been employed or promoted or their hours increased and if you need particular details in respect of those persons, then that should be responded to by the company. In other words, if you say, going back again, Mary got an extra six hours even though she started two years later, the company, well, I don't whether it needs to provide records, but it will have to defend its position or say something, saying well, that's not quite correct or as Mr Ritchie says, we needed people at about the same time as Mr McInnes was working so we didn't bother telling him about it etcetera.

PN153

So as I said, if you want that kind of material going back earlier than this year, well, I think you need to specify rather than just a broad brush. Now, that doesn't mean your organiser can't, as he might have rights, go in and inspect the books but, you know, that's your business. Armed with that information, that is what people are currently doing and have been doing, I would have thought is the setting for some negotiation or some discussion as to whether Mr McInnes has been hard done by, whether there were opportunities that have been foregone that he's been disregarded.

PN154

It's also an opportunity for you to be made aware of whether other people are also interested and whether that's really fair dinkum or only conveniently sort of drummed up material and it might very well be that it will be the basis for at least a pretty big mark on everybody's mind to say that more hours appear, you know, Mr McInnes is going to have a pretty good run at doing things.

PN155

I accept your frustration, Mr Govind. I just think that what I'm asking the company to do is what I expected them to do last time. I accept that perhaps that doesn't seem to have come about. Well, unfortunate as it is, it's now early March and it's probably a better time now to have a look at what are the possibilities in the store and how people are treated and to see whether there are possibilities for Mr McInnes.

PN156

Once you have that material, as I said, you might be able to ask a question and say well, why has so and so got 30 hours and when did they get 30 hours and why did they get 30 hours when they were working 20 hours four months ago because I could have got my extra five hours or eight hours. Well, they're all debates you can have. So I'm basically getting back to what I said originally. That's what I think should happen and that material really should be, to save expense, should be provided to you, Mr Govind, as well as to your people up in Ballina so that you're not in a situation where you fly up and find that it's all pretty unhelpful.

PN157

You will know down here whether the stuff is helpful and if you need to talk to Mr Fernandez and Mr Ritchie and say look, we just need a little bit extra here. I would have thought that would be a better way to proceed. If that's all, I propose to adjourn. Yes, Mr Ritchie?

PN158

MR RITCHIE: Could I just summarise because I want to make it very clear, Commissioner. What you require from the company to provide to Mr Govind and the local organiser is a full list of the Ballina employees with their date of commencement, their status and rosters that have been in force since January/February 2002. The second part, if before Christmas there are any specific examples of where the union believes that people have come in then they are to give the company exact information and for the company to see if they can provide details with respect to those exact examples. Is that what the company -

PN159

THE COMMISSIONER: Yes.

PN160

MR GOVIND: Commissioner, if I can clarify further. There's no limit on the specific, as far as it's not been confined to the last six months or -

PN161

THE COMMISSIONER: No, but I say to you, to say that he was shot in the eye two years ago will be unfortunate but I don't know whether that helps him all that much now because you've got to face operational requirements now and to say to somebody who has been in a position two years, we're going to reduce your hours because we really should have given it to Mr McInnes, well, presumably they're your members as well. But the short answer is no, it's not limited and if there's particular aspects that he is aggrieved about, as I said, that's all matters that Mr or Mrs Kmart will have to take into consideration.

PN162

MR RITCHIE: There is the difficulty, I've just recognised, Commissioner, that if they bring some item up that came up in 1998, it might be difficult for the company to remember if the present manager wasn't there in 1998 what the hell happened.

PN163

THE COMMISSIONER: Well, I understand that. I'm not expecting miracles. On that basis, these proceedings are now adjourned.

ADJOURNED INDEFINITELY [11.30am]