C2002/1836, Transcript of Proceedings [2002] AIRCTrans 1521 (6 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT03587

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/1836
C2002/1851

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of
the Act by the Australian Liquor,
Hospitality and Miscellaneous Workers
Union to stop or prevent industrial action

AUSTRALIAN LIQUOR, HOSPITALITY
AND MISCELLANEOUS WORKERS UNION

and

BRIMBANK ACTIVE LEARNERS
CHILDCARE CENTRE

Notification pursuant to section 99 of the
Act of a dispute re alleged illegal stand down
of employees

MELBOURNE

2.10 PM, MONDAY, 22 APRIL 2002

Continued from 19.4.02

PN38

MS V. ILIAS: I appear on behalf of the ALHMWU.

PN39

MR R. ROGERS: I appear on behalf of the respondent in that matter.

PN40

THE COMMISSIONER: Thank you. Do you want to deal with any submissions about the section 99 notification at this stage?

PN41

MS ILIAS: Commissioner, we would seek an adjournment on that matter at this stage.

PN42

THE COMMISSIONER: Very well. And who wishes to report in relation to this morning. Yes?

PN43

MS ILIAS: I believe that would be up to me, Commissioner. Further to the section 127 order of last week and through conferencing with yourself it was discussed that a meeting should take place this morning at 9.30 to discuss the matter surrounding that section 127 order that was in place. Subsequently to that that has fallen way short of a reasonable outcome that we could come to you, Commissioner, or actually seek to have this hearing here before you today. The way that it has fallen short is that Ms Zapantis and Ms Pearce attended that meeting this morning, as I said, at 9.30 at Brimbank with the employer and their representative, Mr Rogers.

PN44

The two employees concerned were not present. They had been to their physician and had been placed on WorkCover due to work related stress. This meeting fell very short of what we thought would be a reasonable outcome where it is seen that Mr Rogers and his clients were not satisfied that the two employees were not there to discuss the issues at hand. Our submission on that would be that the two organisers who attended that meeting are au fait with the issues and that they could have and clearly resolved those issues on behalf of the two employees though they were not present.

PN45

Through this meeting it was - there was a lot of questions raised about the conduct of one of the organisers in particular, Ms Pearce, about her talking to the employees about their entitlements under the sick leave provision that they have under the Health and Community Services Industry sector rates. That Mr Rogers accused Ms Pearce of actually encouraging employees to take that entitlement which was not the case. So, Commissioner, the meeting this morning did not actually go to discussing the issues that we spoke about on Friday.

PN46

They went right off the track and I believe from what I have been told that Mr Rogers did not keep that meeting on track himself, that he chose to question employees of the union who were there to look after the best interests of the employees concerned which escalated the matter to talk about other things. So, Commissioner, Mr Rogers did not comply, if that was the term that I wished to use, to resolve the matter this morning. He instead chose to go on a tangent and not represent his own client in their best interests.

PN47

He chose to interrogate one of our officials which he has no right. He then proceeded to get individual employees into the office at Brimbank, question them about the effects of what happened on Thursday. Failed to offer them any representation or even offer them the choice of having someone there present. He did not advise the two union officials who were there at the time prior to them leaving the centre that his agenda was to go and discuss these issues with these employees. He has not really shown a moral, ethical work practice by going off the agenda which was our agenda to have that matter resolved this morning. To not take up any more of your time - - -

PN48

THE COMMISSIONER: Well, Ms Ilias, on that point, the application which I adjourned was an application for me to stop industrial action. The two persons concerned are now, you say, unfit for duty. What is left for me to do?

PN49

MS ILIAS: Well, Commissioner, I think that we would be hoping today that we could find a dispute as per section 493 of the Act.

PN50

THE COMMISSIONER: Well, that is this dispute that you asked for an adjournment on.

PN51

MS ILIAS: We would be seeking to find one under section 99 that has been lodged in the matter.

PN52

THE COMMISSIONER: I see, yes. Very well.

PN53

MS ILIAS: As there is a dispute where the intention was - I understand that the two matters do coincide. The issue is still somewhat the same. The employees are on WorkCover due to stress related issues. If I could just take a moment. I am just trying to get my thoughts back in order.

PN54

THE COMMISSIONER: It is all right.

PN55

MS ILIAS: There was - Mr Rogers did raise the question about the employees not being paid until the employer receives the WorkCover certificates which I have presented to Mr Rogers this afternoon.

PN56

THE COMMISSIONER: Yes.

PN57

MS ILIAS: There is a dispute in the sense of not resolving the issue - that is a definite. And that the failure of Mr Rogers to sit down and discuss the matters on this morning and get to the crux of it and resolve it for both parties.

PN58

THE COMMISSIONER: Well, the dispute notification talks about the illegal stand down of employees.

PN59

MS ILIAS: That is the sole - the issue. If we took the WorkCover issue out of the matter, Commissioner, that issue would still be there.

PN60

THE COMMISSIONER: I see, okay. So, is it the terms on which employees can be stood down with or without pay, is that the dispute?

PN61

MS ILIAS: That is the dispute and the manner that it was conducted in.

PN62

THE COMMISSIONER: I see, all right. And what do you want me to do now?

PN63

MS ILIAS: I would actually - - -

PN64

THE COMMISSIONER: Apart from finding a dispute.

PN65

MS ILIAS: Well, also, Commissioner, we have by way of service, by fax, sent a log of claims to the employer and we would be hoping that you also might be able to hear that matter some time next week.

PN66

THE COMMISSIONER: Have you got a copy of the log that you served on the employer?

PN67

MS ILIAS: No, I haven't actually. It is on the fax because I was sending a copy to Mr Rogers. Mr Rogers might be able to help out under those circumstances.

PN68

THE COMMISSIONER: Have you got a copy of that, Mr Rogers?

PN69

MR ROGERS: I have a single copy, Commissioner, I would be happy to hand up.

PN70

THE COMMISSIONER: I see. Yes?

PN71

MS ILIAS: And also, Commissioner, if you saw fit to use your discretionary powers under 111(1)(t) of the Act to have that matter heard early. That would be also part of today's application. But we would be seeking to have the dispute finding under the section 99 with the C number 1851.

PN72

THE COMMISSIONER: Yes, I follow. Thank you.

PN73

MS ILIAS: Thank you, Commissioner.

PN74

THE COMMISSIONER: Mr Rogers?

PN75

MR ROGERS: Thank you, Commissioner. I must thank my friend for granting me such control and power as to consult her organisers in the way that I am alleged to have done that. Commissioner, the meeting was scheduled for 9 o'clock, not 9.30. At the end of the proceedings the union advised that they wouldn't be able to attend until 9.30 because one of - the organiser was attending to some child care issues and another had to attend a meeting and so we said that that was fine, it would be 9.30.

PN76

There was an expectation that the employees would attend that meeting and I received a message on my mobile phone from, I will say, the more senior of the organisers and I put nothing to that than she - I have known the person as an organiser longer than the other - and that they advised she was running 10 minutes late which was accepted. When she arrived - and she made no mention that the employees would not be attending nor did she say that the employees had sought to go on to sick leave nor had she advised that the employees were seeking to seek WorkCover for some alleged illness or anything of the ilk, such as stress, caused by - that was work related.

PN77

When the organiser attended, I greeted them. We went into the staff room as it was the most convenient. I asked where the employees were again. She advised that they weren't attending, that they had in fact gone on to sick leave, and it is important that the Commission is aware that the employees are on sick leave. What I advised the organiser at the time was that until the employer had before him a doctor's certificate which attested to the nature of the sick leave, being that they were unfit for work, that they would be on leave without pay and if it was genuine sick leave then they would be placed on it.

PN78

There is no requirement under the award or the Act or the industry sector which the employer is subject to to compel that employer to pay that unless it is proved to their satisfaction, and that was simply it. I then asked the organiser, being Carol, had she - and this is the way I tersed it - had she advised the employees to take all of their sick leave before they proceeded on maternity leave. She denied that. I said, well, there are people here that have said that she said that.

PN79

It was a genuine concern and reasonable to bring up. The meeting had nowhere to go. There was nothing to be able to be satisfied or settled. And in fact the section 127 failed at that point when the employees advised that they were on sick leave. There was no dispute. There was no industrial action unless the Commission is satisfied that the employees proceeding on sick leave or alleged sick leave is a form of industrial action. The employer has not stood them down. They were paid for Thursday and Friday. The union has supplied certificates which need to be viewed by the employer and signed off and then forwarded to the proper authorities with respect to the WorkCover.

PN80

And if the employees have sick leave they will be granted their sick leave payments until the WorkCover deems one way or the other whether it is a bona fide claim or not, and we make no submissions on that today. With respect to the section 99, well, we are not - other than we think that the union, although it has sought to have a very compressed timeframe, is simply seeking to rope the employer into an award.

PN81

THE COMMISSIONER: Do you have any difficulty with me finding a dispute on - - -

PN82

MR ROGERS: Commissioner, I would simply - I would like to place on record that the employer currently paid, though they are not bound by the award, pays to the terms and conditions of that award - - -

PN83

THE COMMISSIONER: Yes.

PN84

MR ROGERS: - - - other than the leave loading. And if the Commission finds a dispute and the union puts forward an order to have them individually named in the award, when the Commission does that, then I would believe that there is some part settlement in that dispute.

PN85

THE COMMISSIONER: Well, I certainly won't be entertaining an application for a roping-in award today but - - -

PN86

MR ROGERS: I mean, that is the ultimate potential outcome, Commissioner and - - -

PN87

THE COMMISSIONER: Yes. But are you content for me to find a dispute on two matters. One, the terms on which employees can be stood down with or without pay and, two, the log of claims that was served on you with the exception of preference which I can't find a dispute of?

PN88

MR ROGERS: I haven't had an opportunity to read it. I - - -

PN89

THE COMMISSIONER: I am happy to show it to you. It is a - - -

PN90

MR ROGERS: I just picked it up as I was running in and out of the office, Commissioner. I just happen to have a copy - - -

PN91

THE COMMISSIONER: Wy don't I adjourn - - -

PN92

MR ROGERS: - - - and the union was kind enough to fax it to me.

PN93

THE COMMISSIONER: Why don't I adjourn for five minutes and we will get copies of that.

PN94

MR ROGERS: Yes.

PN95

THE COMMISSIONER: You can have a look at it. It looks like it is in a similar standard log.

PN96

MR ROGERS: I would think it is.

PN97

THE COMMISSIONER: I think that it is probably something that you won't acquiesce to immediately.

PN98

MR ROGERS: I would not think so, Commissioner.

PN99

THE COMMISSIONER: All right, well, I will adjourn for five minutes, we will get copies of that and you can have a look at it.

PN100

MR ROGERS: Thank you, Commissioner.

SHORT ADJOURNMENT [2.25pm]

RESUMED [2.37pm]

PN101

THE COMMISSIONER: Now, Mr Rogers.

PN102

MR ROGERS: Thank you, Commissioner. Commissioner, with respect to the log of claims that was served on the employer, there are only two matters that we would bring to the Commission's attention that we believe are not part of the allowable matters. One is point 3 of the log on the first page which goes to service payments. That tends to a paid rates award and paid rates award are not part of the minimum rate provisions.

PN103

THE COMMISSIONER: But I don't need it to be an allowable matter to find a dispute. It is the only making of a subsequent award, is it not?

PN104

MR ROGERS: We simply bring that as a note.

PN105

THE COMMISSIONER: Yes, yes.

PN106

MR ROGERS: And also the - point 36 on the second page, preference of employment which - - -

PN107

THE COMMISSIONER: Well, that goes to the - - -

PN108

MR ROGERS: - - - would be contrary to the Act.

PN109

THE COMMISSIONER: Well, that is a matter that goes to whether or not a dispute can be found on that matter and there is a Full Bench authority for the proposition that it can't be found.

PN110

MR ROGERS: Yes. That is correct, Commissioner.

PN111

THE COMMISSIONER: Very well.

PN112

MR ROGERS: So, Commissioner, with respect to that, if the Commission was of a mind to find a dispute then we would say, yes, there is a dispute currently between the employer and the industrial organisation.

PN113

THE COMMISSIONER: What is the employer's name?

PN114

MR ROGERS: The full name of the employer, Commissioner, is Brimbank Active Learners Childcare Centre Proprietary - - -

PN115

THE COMMISSIONER: Limited?

PN116

MR ROGERS: - - - Limited.

PN117

THE COMMISSIONER: Proprietary Limited. Thanks.

PN118

MR ROGERS: My apologies, it is actually - that is the trading name.

PN119

THE COMMISSIONER: Yes.

PN120

MR ROGERS: Commissioner, I will get the company name.

PN121

THE COMMISSIONER: Thank you.

PN122

MR ROGERS: Commissioner, for the correctness of the record, we would state that the company name is G and E Glanz - spelt - G-l-a-n-z Proprietary Limited trading as - - -

PN123

THE COMMISSIONER: Thank you.

PN124

MR ROGERS: And the address is correct. Actually, we have to correct the address that was - that the union has. It is the corner of Pecks and Tickery, not Trickery. Tricky.

PN125

THE COMMISSIONER: Tickery Avenue.

PN126

MR ROGERS: Tickery Avenue.

PN127

MS ILIAS: I am sorry, that was a slip.

PN128

MR ROGERS: Freudian, I would suspect.

PN129

THE COMMISSIONER: Yes, I accept that.

PN130

MR ROGERS: So, Commissioner, with respect to that, I make no further submissions but with respect to the 127 application there are some other matters that I wish to put to the Commission in having that matter settled.

PN131

THE COMMISSIONER: Well, it doesn't arise now, does it, the 127?

PN132

MR ROGERS: We would say that it doesn't, no, Commissioner. That by the employees own motion there is no stand down or anything going on.

PN133

THE COMMISSIONER: Well, there is no industrial action. I certainly don't order - - -

PN134

MR ROGERS: There is no industrial action.

PN135

THE COMMISSIONER: - - - people to work if they are ill.

PN136

MR ROGERS: That is if they are ill, Commissioner.

PN137

THE COMMISSIONER: Thank you. Very well, pursuant to section 101 of the Act having regard to section 493 I find there exists an industrial dispute between, on the one hand, the Australian, Liquor, Hospitality and Miscellaneous Workers Union, and on the other hand, G and E Glanz Proprietary Limited - G-l-a-n-z trading as Brimbank Active Learners Childcare Centre. The address is corner of Pecks and Tickery Avenue, Sydenham. The subject matter of the dispute - - -

PN138

MR ROGERS: Commissioner, Tricky.

PN139

THE COMMISSIONER: Tricky?

PN140

MS ILIAS: Tricky.

PN141

THE COMMISSIONER: Oh, Tricky, thank you. Not Tickery, Tricky. The subject matter of the dispute is twofold. Firstly, the terms on which employees may be stood down with or without pay. And, secondly, a log of claims tendered in these proceedings which I will mark for identification purposes. Given it is your log, Ms Ilias, I will mark it I1.

EXHIBIT #I1 LOG OF CLAIMS

PN142

THE COMMISSIONER: And I find a dispute on all matters in the log with the exception of demand 36 which is a demand that can't give rise to an industrial dispute for the simple reason, is the employer can't concede the demand. The other matters - it was raised by Mr Rogers in relation to allowable award matters, the allowability or otherwise if a matter goes to the making of an award rather than the finding of an industrial dispute. I will make a formal record of finding and forward a copy to the parties. In relation to the section 127 application, is there anything further you want me to do with that other than say it can be taken no further?

PN143

MS ILIAS: Yes, I think, Commissioner, there was a couple of things that I did want to raise. I know that you have found the dispute for us in the log but I think that it is important that I do raise a couple of more issues just for the record. Mr Rogers has made a statement that the employer was paying the - under the Federal award and that they were already - sorry, they were already paying the entitlements under the Federal award, childcare. That actually is not the case; that they have actually been paying under the State Health and Community Service Industry sector and that actually we haven't covered that there is an underpayment of wages for one of those employees.

PN144

She currently is paid a level 1 under the Health and Community Service Industry sector rates where she should be entitled to be paid under a level 2 under that award because she has a qualification. Also the Federal award has a incrementive progress over three years - four years of service in the sense of years of experience, I should say. And those rates got to 11.65 for the first year. 11.91 for the second year and 12.18 for the third year. Also just for your information I do want to give you something to have a look at. This is a memo that was put to all the staff in relation to the employer and what they could pay. So just for your - - -

PN145

THE COMMISSIONER: Show it to Mr Rogers first, please.

PN146

MS ILIAS: I have another copy.

PN147

THE COMMISSIONER: That is all right. Just - Mr Rogers can see it.

PN148

MS ILIAS: I would just like the Commissioner to have a look at it.

PN149

THE COMMISSIONER: Yes, thank you.

PN150

MS ILIAS: So that goes to the way that the employer has actually been dealing with their employees as well, Commissioner. If the employer was operating under the Federal award there is a disputes procedure that they could follow to discuss these issues that have raised the first instance of our 127 order where they could have sat down with the employees and gone through a proper process to resolve the issues without wasting the Commission's time. So I just really feel that there is a need to make that clear, Commissioner.

PN151

That, it is on the one hand to say that you are not bound by a certain award and you do pay by it, but, on the other hand, to actually be found not to truly comply is another question of moral ethics, Commissioner. So I just wanted to point that our for your information.

PN152

THE COMMISSIONER: Thank you. Mr Rogers?

PN153

MR ROGERS: Commissioner, thank you. Having had the opportunity to ask our members what - about this memo - yes, they issued the memo. It was in relation to an exceptional amount of sick leave that was being taken in a manner that appeared to be unusual, to put it politely. They have never acted on the memo. So it goes to the extent of trying to control a situation, whether it was the right way of doing it or not. It has never been acted on. With respect to the other concerns, and I appreciate my friend bringing them to your attention, although I would remind her that if there is a genuine underpayment that the Commission is not the place to present that.

PN154

They could in fact write to the employer in the first instance, seek clarification on it; that would seem to be a reasonable course of action. If the employer failed to do that then I suppose there are other avenues but this Commission is not one of them. But to respond, because I was concerned because I was informed that the employer was, for all intents and purposes, paying under the terms and conditions of the Federal award though they are not bound by it.

PN155

And that is that we - I am instructed that they believe that the employee who may be making this statement has never produced the certificate of competency and had she done that I am sure that they would have paid her. But we could go around and argue about this all day and really make nothing of it. Commissioner, again, there is nothing before the Commission that the Commission can deal with. There is no dispute. There is no illegal industrial action taking place. The employees are now on sick leave for all intents and purposes. We would press the Commission to finalise these matters. May it please the Commission.

PN156

THE COMMISSIONER: Thank you. Well, in relation to the 127 application there is nothing left for me to do in relation to that application. In relation to the 99 notification, well, I found the dispute. Copies will be sent to the parties shortly and I formally refer the parties into conference. The matter is adjourned sine die.

ADJOURNED INDEFINITELY [2.48pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #I1 LOG OF CLAIMS PN142