C2001/4627, Transcript of Proceedings [2002] AIRCTrans 136 (7 January 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2001/4627

NATIONAL UNION OF WORKERS-SOUTH AUSTRALIAN BRANCH

and

PPI CORPORATION PROPRIETARY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re failure of the employer
to pay for a crib break on continuous shift work

ADELAIDE

9.55 AM, TUESDAY, 18 DECEMBER 2001

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, can I have some appearances please?

PN2

MR D. TRENOUTH: I appear on behalf of the National Union of Workers.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Trenouth.

PN4

MR A. MARKIEWICZ: I appear on behalf of the company, PPI and it might be the opportune time, sir, to tender my apologies for being late. I did have it earmarked for tomorrow.

PN5

THE SENIOR DEPUTY PRESIDENT: That is all right, Mr Markiewicz. Now, Mr Trenouth, are you going to open the proceedings this morning?

PN6

MR TRENOUTH: Yes, Senior Deputy President. Perhaps if I could just outline what the matter is concerning. Hopefully it is agreed to in perhaps - whether we should seek some response from Mr Markiewicz or perhaps go into conference to see if there's any way we could perhaps settle the matter. This is a matter concerning members of the union who work at PPI Corporation at Ottoway who have been working continuous shifts for quite a number of years under the Rubber, Plastic and Cable Making General Award.

PN7

To the best of my knowledge, they have always worked through the 8 hour shifts without actually having a meal break. I wasn't actually aware of this until some little while ago took over the work site and they were previously members under the old Rubber Workers Union and I was advised that our members were under the standing that they were paid - well, they have been $6 for each of the shifts as a meal allowance which in the past has not been taxable and has not been shown up on the group certificates. Earlier this year they were advised by the company that that particular $6 would now have to be taxed and also shown on the group certificate.

PN8

The company sent through a memo, a copy from the Australian Tax Office advising the outline of a number of meal allowances and they pointed out that this was not an overtime meal allowance pursuant to the award and therefore was taxable and had to be shown on the group certificate. Our members were not very happy about it because they had always been under the impression that the $6 was tax free and obviously once it became taxed, they got less money and the group certificate. So they raised this issue with the company. We held a meeting with PPI earlier this year, in fact on 1 August, with Greg Goodwin who is the supervisor and also we spoke to Brian Sullivan of PPI over the phone because their head office is based in Brisbane.

PN9

Now, after discussing the issue, they claimed that the so called meal allowance was actually time and half of 15 minutes in lieu of the lunch break, not a meal allowance at all and they claim that - PPI claimed at that stage that the members had agreed quite some time ago just to be paid the $6 for not having a break because they didn't want to shut down the lines, they need to keep them working continuously. As I said they are on continuous shifts. Because we have a delegate and I was the only person from the union attending the meeting, I arranged for a meeting of our members there to talk to them about this so called agreement about being paid $6 for working through their meal break.

PN10

When we had the meeting, none of the members concerned knew of any agreement, in fact I spoke to two of the workers who had been there for over 10 years and they said there was never an agreement made to pay the $6. When they started there, they were just told you work through your meal break and you get paid a meal allowance and they said: well, fair enough, that is all right. Of course, they did understand that the meal allowance has now gone from $6 up to I think $8.15 under the award. So after that particular meeting, we wrote to Brian Sullivan at PPI Corporation on the basis that further discussions you had with David Trenouth regarding the payment of $6 per meal break to our members, meaning the members employed at Ottoway, was held on 9 August 2001.

PN11

Our members are stating clearly there was no agreement reached between them and management regarding the payment of $6 for not taking a meal break. They are happy to continue the practice of not taking a paid meal break but are seeking the $6 be increased to $8.15. That is the current award meal allowance and the appropriate back pay since the $6 was increased and just sought an early response to the particular claim and we have not received any official response by the company in relation to that but have been verbally advised in a telephone conversation that they weren't prepared to change the situation and after that, they referred the matter to be handled in future by YASA.

PN12

I've had some discussions with Mr Markiewicz about it but there's been no change in the company's position. Our members have taken the view that if the meal allowance is not going to be paid per what they thought the agreement was and the appropriate award rate, they believe they should revert back to clause 30.1.1 of the award, that is "meal breaks and continuous work shifts" and states:

PN13

On continuous work shifts an employee is entitled to have a meal period of at least 20 minutes which counts as time worked.

PN14

They would then seek to take that paid meal break and continue with shifts. So, Senior Deputy President, that is where the situation lies at the moment.

PN15

THE SENIOR DEPUTY PRESIDENT: That is 31.1.1, is that right?

PN16

MR TRENOUTH: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: Not 13.1?

PN18

MR TRENOUTH: No, sorry, 30.1.1, sorry, Senior Deputy President. The position is they are not overly keen to try and change the situation but they feel they have been hard done by when they are under the impression they were to be paid the appropriate meal allowance under the award for working through the meal break on their continuous shifts. Because the matter has not been resolved, we've referred the Commission to seek some assistance in the matter.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Trenouth.

PN20

MR TRENOUTH: Thank you.

PN21

THE SENIOR DEPUTY PRESIDENT: Mr Markiewicz?

PN22

MR MARKIEWICZ: Thank you, sir. Sir, the position of the company is fairly simple. The company has adopted a particular approach since it took over from St Regis back in the 1990s and in terms of that situation under the award provision, there is a particular provision that where there is continuous work that if they work through the particular meal break, provided they can partake in a meal and receive the payment at time and a half for the 20 minutes and it is in accordance with the provisions of the award.

PN23

THE SENIOR DEPUTY PRESIDENT: Can you assist me, Mr Markiewicz, in terms of telling me which clause in the award provides for this? I can see - - -

PN24

MR MARKIEWICZ: Sir, it is in the same clause. I am somewhat disadvantaged. My file is actually back in my office but if you go down further it is - - -

PN25

THE SENIOR DEPUTY PRESIDENT: You see, I do not have a copy of the full award. I just have a copy of a couple of clauses that I thought might be of assistance.

PN26

MR TRENOUTH: I think Mr Markiewicz is referring to 30.1.3, Senior Deputy President.

PN27

THE SENIOR DEPUTY PRESIDENT: That is not one that I have but no doubt we can locate it if we need to. You see, what I'm trying to come to grips with, Mr Markiewicz, is if I understand the issue here, the employees concerned are continuous shift workers and there's no dispute about that, I take it, is that correct?

PN28

MR MARKIEWICZ: Correct.

PN29

THE SENIOR DEPUTY PRESIDENT: Pursuant to clause 28.2.2, they are entitled to a 20 minuted break on each shift which would be counted as time worked.

PN30

MR MARKIEWICZ: Correct.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes. What you are saying is there is another clause which we do not have which establishes that where there is agreement to work through that period, then - sorry, that is 30 point - - -

PN32

MR MARKIEWICZ: 30.1.3.

PN33

THE SENIOR DEPUTY PRESIDENT: I think I do have it. So that reads:

PN34

Employees required to work during their usual meal time shall be paid at the rate of time and a half until they are allowed the usual meal time except where employees are allowed to have their meal at their job and are paid at the rate of time and a half during the time of their usual meal time.

PN35

MR MARKIEWICZ: That is the particular provision.

PN36

THE SENIOR DEPUTY PRESIDENT: Mr Trenouth, that is agreed is it the relevant provision that we are debating?

PN37

MR TRENOUTH: Yes, Senior Deputy President.

PN38

THE SENIOR DEPUTY PRESIDENT: Thank you. Sorry, Mr Markiewicz, I'm desperately trying to come to grips with the issue here, yes.

PN39

MR MARKIEWICZ: Certainly. Certainly I think in terms of that and my understanding in discussions, Senior Deputy President, is that the situation is that they believe that whilst on a technical provision, the award I don't there is a disagreement, it is in terms of I guess the practical application because they have been receiving this amount of $6. The company introduced that because it was their understanding that was the particular practice of the company prior to the takeover.

PN40

THE SENIOR DEPUTY PRESIDENT: So can I take it there is no dispute that the employees are in fact receiving time and a half payment for that meal period?

PN41

MR MARKIEWICZ: They are receiving the equivalent of - they are in actual fact receiving more than the award provision.

PN42

THE SENIOR DEPUTY PRESIDENT: Mr Trenouth, there's no argument on that question?

PN43

MR TRENOUTH: I think it just depends on the amount of money concerned, in my calculations, if you include the shift allowance of 15 per cent when they are on afternoon and night shifts, the rate would be about $6.84 and I think the real question is that they are not under the understanding they are being paid pursuant to that particular clause and it has always been an agreement that they would paid a meal allowance. That has happened in the past because they have not been taxed.

PN44

THE SENIOR DEPUTY PRESIDENT: Okay. So what I'm now understanding to be the situation is that the $6 payment the employees have been receiving, the company is saying represents the rate of pay for work during the meal break pursuant to clause 30.1.3 and the employees are saying represents a deficient meal allowance?

PN45

MR MARKIEWICZ: Sir, perhaps if I can go back. In terms the company actually pays for that particular time. They pay at ordinary time plus $6 which more than adequately covers any of the particular classifications involved at the current rate of pay. In terms of the provision of the meal allowance, and again the company has never referred to the particular payment as a meal allowance. It was a particular allowance which they understood was previously applied, a particular company, which they agreed to continue paying. It is that particular amount that always was paid. In terms of it, the company certainly gave an indication if the employees wanted to go strictly back to the award provision, the company is quite happy to do that because it will mean that there will be a decrease for everyone of the employees.

PN46

In receiving the $6 they are in actual fact receiving more than they are entitled to under the award. The question of the meal allowance, that is for a separate purpose and my understanding is that there is no question that there is no entitlement to the overtime meal allowance as covered in the award. This is purely in a situation of where they are working their ordinary hours and you have a particular award provision which allows for the working of the meal break provided they can partake for their meal and receive the appropriate payment. I think that is basically the situation. My understanding in discussions that I've had with Mr Trenouth is he has an appreciation of the award provision.

PN47

He also has an appreciation - if I can use it in my terms - that they have been receiving the $6 for some time and they believe that it should reflect a rate which equates with the meal allowance which is the $8.15. What the company is saying is no, in terms of going through their particular records, it was agreed to pay the $6 because they believed at the time that they took over from St Regis that that was what was occurring in practice. In terms of going through at that particular time, sir, going through '95 to '97 there was an in-house company agreement and there was no provision whatsoever in that particular agreement in respect to that particular $6.

PN48

THE SENIOR DEPUTY PRESIDENT: So can you tell me when the $6 deal was struck, Mr Markiewicz?

PN49

MR MARKIEWICZ: My understanding is that it was around about '95 or '96. It was in terms as far as PPI are concerned, that is when they took over from St Regis, it was their understanding that that was a practice that had been in place. How long it had been in place, there seems to be no detail in respect of that, sir, but when PPI took over the company, it was their understanding and their manager at that particular time decided that that would continue because it was his understanding that that was had been the practice in the company previously.

PN50

THE SENIOR DEPUTY PRESIDENT: Well, then, you have indicated to me that in the company's view, the $6 exceeds the amount that would be payable in recognition of employees being required to work during their lunch break, as under clause 30.1.3?

PN51

MR MARKIEWICZ: Yes, sir, because that $6 is an addition to the payment for the 10 minutes.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes, at ordinary time rates?

PN53

MR MARKIEWICZ: At ordinary time rates.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes. Well, can you tell me then whether the company has done a calculation that shows just how much in advance of the award minimum that $6 represents?

PN55

MR MARKIEWICZ: Sir, in terms of looking at that, what the company has done is look at the calculation in terms of the rates for each of the particular classifications involved and in going through the highest of the particular rates, and going through that, the amount which would then equate the equivalent of 10 minutes is certainly way below the $6.

PN56

THE SENIOR DEPUTY PRESIDENT: So is it - - -

PN57

MR MARKIEWICZ: I don't actually have the figures with me, sir, but I can certainly undertake to have them made available later today.

PN58

THE SENIOR DEPUTY PRESIDENT: Is it fair then, Mr Markiewicz, to identify a couple of parameters at either end of this dispute? One option would be to return, as you put it, to the award provisions whereby the 20 minute crib break is taken and paid for in accordance with the award. A further option that you have identified is maintain the current practice including the payment of the $6 and presumably that $6 would only be reviewed if at some point of time in the future the $6 failed to represent the full payment that would be due to employees in recognition of their being required to work through their lunch breaks?

PN59

MR MARKIEWICZ: Yes, sir.

PN60

THE SENIOR DEPUTY PRESIDENT: What Mr Trenouth is saying is that there is that first option of returning to the award arrangement so that employees take the 20 minute break. He is also saying in the event that the employees are to continue to work during that break, then the $6 should go to $8.15. Now - - -

PN61

MR MARKIEWICZ: Sir, perhaps in answering that if I could sort of raise with you, sir, there is another option which is available and that is to apply the award in line with 30.1.3 and in terms of where they are required, bearing in mind that is a particular requirement, there is no agreement necessitated under the award provision, there's a requirement for the employees to work provided that they could partake of a meal and are paid for that 20 minutes at time and a half. That can occur without any reference to the $6 whatsoever but that, what the company has indicated to the employees would in actual fact put in a rate less than they are currently receiving.

PN62

THE SENIOR DEPUTY PRESIDENT: One would presume it would probably result in you being dragged back in from your annual leave again.

PN63

MR MARKIEWICZ: I think that is a fair proposition.

PN64

THE SENIOR DEPUTY PRESIDENT: To appear back before this Tribunal.

PN65

MR MARKIEWICZ: Yes, sir.

PN66

THE SENIOR DEPUTY PRESIDENT: It does not take a huge amount of guesswork to estimate that as a possibility.

PN67

MR MARKIEWICZ: No, sir.

PN68

THE SENIOR DEPUTY PRESIDENT: Very well. Look, can I then clarify, Mr Markiewicz, the company's current position is one of saying that its position is fixed or is a negotiable position. You see what I'm cognisant is of that Mr Trenouth indicated that there may be some benefit in convening a discussion on this particular issue. Frankly there does not seem to be a lot of point in doing that unless that is some flexibility from both sides.

PN69

MR MARKIEWICZ: I think it is true to say, Senior Deputy President, that certain people who have been involved in this matter and have been trying to look at some pragmatic and practical solution to the problem. It is also true to say that the company has taken a particular stance that what they are doing meets the requirements under the award and they have indicated they will always meet the requirements under the award. In terms of that, my instructions are fairly solid, if I could indicate that, sir, but notwithstanding that, if there is any possible way in which the matter can be resolved to the satisfaction of both parties, we are willing to entertain that proposition, sir.

PN70

THE SENIOR DEPUTY PRESIDENT: You see, what I'm very well aware of is that I don't have obviously the jurisdiction to determine a judicial response to this particular problem and it may be that it requires such a judicial response in terms of looking at what the award particularly means and what payments are due and appropriate pursuant to that award.

PN71

MR MARKIEWICZ: Yes, sir.

PN72

THE SENIOR DEPUTY PRESIDENT: I'm happy to reconvene this hearing in a conference form.

PN73

MR MARKIEWICZ: I think that may have - - -

PN74

THE SENIOR DEPUTY PRESIDENT: There does not seem to be a lot of point if either or both parties views are absolutely entrenched, and that is not a criticism, it is just a blunt statement.

PN75

MR MARKIEWICZ: Sir, I have no objection in going to conference to explore the possibilities but I take note of what you have said, sir, and certainly my instructions from the company are fairly straight forward. As indicated previously, parties that have been involved in particular discussions are certainly willing to explore whatever possible resolution could be found in respect of this particular impasse.

PN76

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN77

MR MARKIEWICZ: Thank you, sir.

PN78

THE SENIOR DEPUTY PRESIDENT: Look, on that basis I'm going to adjourn this hearing into a conference. We will be able to go off record. I will ask our Court reporter if she would mind remaining here in the hope that we can reach some ready accommodation to the issue. We will adjourn the matter accordingly.

ADJOURNED ACCORDINGLY [10.20am]