C2002/1848, Transcript of Proceedings [2002] AIRCTrans 1825 (24 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 VT03919

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

C2002/1848

TEXTILE, CLOTHING AND
FOOTWEAR UNION OF AUSTRALIA

and

AUSTRIM TEXTILES PTY LTD

Notification pursuant to section 99 of the Act
of a dispute re redundancy calculations and
payment of entitlements of member at Dyehouse
- Coburg

MELBOURNE

10.29 AM, FRIDAY, 10 MAY 2002

PN1

MR C. HARTIGAN: I appear on behalf of the Textile, Clothing and Footwear Union of Australia.

PN2

MR C. HARTIGAN: I seek leave to appear on behalf of Austrim Textiles.

PN3

THE SENIOR DEPUTY PRESIDENT: Any objection to leave

PN4

MS OZTURK: No, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Leave is granted, Mr Hartigan.

PN6

MR HARTIGAN: Thank you, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Ozturk.

PN8

MS OZTURK: Your Honour, this matter is in relation to a worker by the name of Jimmy Tatsoulis who is a 45 year old employee of Austrim, now Melbatex who has had over 23 years service with the company as a dyehouse operator. When he originally commenced employment he started working in the dyehouse as an ordinary rank and file worker as a machine operator. Approximately in about 1994 he was given a promotion of what is termed at the workplace as working staff and doing exactly the same work as he was doing prior to the promotion.

PN9

Austrim Textiles took over in 1996 and he has continued employment with the company. In about 24 December 2000, just on Christmas Eve, approximately 26 workers were made redundant by the company and another eight workers of working staff were also made redundant. Out of the people that there were 12 working staff with the company at the time only four of those 12 working staff remained with the company. The other eight were made redundant. The four who have since been redundant by Austrim Textiles and have been taken over by the new company, Melbatex Industries.

PN10

The rank and file workers of the redundancies of 2000 were paid under the terms of the enterprise agreement at the time and the working staff workers were also paid under the terms of that enterprise agreement at the time and that meant that the workers would receive redundancy payments as three weeks per year of service. They would receive the full pay out of sick leave entitlements. They would receive their long service leave and they would receive an age allowance of 15 per cent if they are over 45 years of age and they were paid those moneys in accordance with whatever their rates of pay were as working staff at the time.

PN11

In January 2000 the four working staff workers that remained with the company were all given a letter by the company giving undertakings to them that their entitlements up until that date would be held at whatever their current rates were and that beyond that date their entitlements would accrue at their new rates. So that meant that their annual leave, long service leave and their redundancy and sick leave at the time, whatever they had accumulated would be held at whatever those rates were and then beyond 2000 they would be paid at the new rate.

PN12

THE SENIOR DEPUTY PRESIDENT: Is that 2000?

PN13

MS OZTURK: 2000.

PN14

THE SENIOR DEPUTY PRESIDENT: So that was prior to the redundancies of December 2000?

PN15

MS OZTURK: Yes. Sorry, I would just have a look. Sorry, your Honour. Yes, it was, your Honour. 31 January 2000. But in the December 2000 redundancies all those working staff people that were made redundant were paid exactly in accordance with the enterprise agreement with no cappings of entitlements and paid whatever their rates were at the time. The people that are the working staff workers, your Honour, just for your information, have not received a wage increase in the last two years.

PN16

The company Austrim Textiles made some decisions that they were going to pull out of the textile industry and the majority of the workers across a number of sites of Austrim have been made redundant. The last group of workers to be made redundant are the Coburg workers and those workers were made redundant on 4 April this year and they were then given casual employment with the new employer, Melbatex Industries and Jimmy Tatsoulis is one of those workers that were made redundant by the company on 2 April this year.

PN17

The dispute, your Honour, is about what moneys Jimmy Tatsoulis should receive on redundancy and that his entitlement to redundancy should be based on the current enterprise agreements without any capping. There is currently an enterprise agreement in place with the Austrim Textiles and that was registered, certified by Commissioner Whelan on 19 February 2002. What I propose, your Honour, and I have had some discussions with Mr Hartigan and also Ms Ratkovic is that if we go into conference to see if we can resolve this dispute.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Do I take it that the employee concerned has been paid some redundancy or is the no payment subject to this dispute been resolved?

PN19

MS OZTURK: That is correct, your Honour. He has been paid notice payments which we say is incorrect. He has been paid annual leave payments which we say is incorrect and he has been paid long service leave. Again we say it is incorrect. However, he has not received his redundancy entitlement and the age allowance and also by the looks of this, termination payment he has not received any sick leave.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Hartigan.

PN21

MR HARTIGAN: If I may briefly before we go into conference, your Honour. This company with which you have some familiarity in the past, the companies that were bought up by Austrim Textiles, one of them where this worker came from had a practice of putting some workers on significantly above award wages and they performed supervisory functions and they were called staff. Now, in this worker's case as I understand it he was paid something like $940 a week which was in the order, you know, the top.

PN22

The relevant applicable award rate as I understand it would have been around $700 a week, so over a number of years he was paid significantly above and he had different conditions and he wasn't considered from the time he was employed as a staff person which by the sound of it was something like eight years ago he wasn't considered to be an award employee and he didn't participate in the normal union functions. Now, with regard to the sequence that Ms Ozturk has outlined and we can go to this, at the beginning of 2001 with this particular group, a group of employees who although they were called staff and paid above award wages there was the issue of whether they should have entitlements under the enterprise bargaining agreement.

PN23

There was a proposal put by the company, Ms Ozturk described them as guarantees, but I have a copy of the letter and what it was essentially was a proposal that the relevant employees would drop back from the above award wages to a particular identifiable skill level under the EBA and that going forward they would have the benefits of the EBA but at the point of transfer they would have a preservation of entitlements at the higher level, broadly as Ms Ozturk identified. Now, it is my instructions that that proposal was rejected by all of the relevant workers including Mr Tatsoulis for the obvious reason that it included a drop in their immediate salary, their base salary.

PN24

So although his base would have dropped he would have had access to all the EBA benefits such as shift allowances, overtime, uncapped redundancy pay and so on, but what I am instructed is that that was rejected and therefore he continued on his above award salary. During 2001, in the middle of 2001, the company promulgated a staff redundancy policy, a copy of which I can provide you, which differed in significant terms to the EBA rates but applied in respect of workers in some cases were earning up to 100 per cent above the relevant award rate.

PN25

So they got the benefit under the staff redundancy policy of being paid at the staff rate but there were certain other limitations such as caps to what they received. Now, the company, Austrim Textiles, announced in about March or April last year that it intended to wind down all its textile operations and parts of the company were sold to different persons including Melbatex was one surviving part of the company. Other parts were closed down. So essentially effectively the vast majority of people either transferred to the new employer, Melbatex on the same terms or they were made redundant and this included making several hundred staff employees redundant and the other EBA staff.

PN26

Now, during the second half of last year, as you are probably aware, there was a bargaining round with the textile unions and the issue of the staff redundancy pay was raised what level they should be paid at, should they be paid under the EBA rates uncapped but at their staff rates or should they be paid in accordance with the company's redundancy policy which had been promulgated in June of last year. The matter was brought to the Commission and we at the time raised the objection with the fact to the Commission arbitrating on the matter for the reason that it was a claim with regard to redundancy.

PN27

Redundancy was one of the matters between the parties in the negotiation for the new EBA and the Commission therefore and as I recall it, it was his Honour Deputy President Ross then declined to proceed with a determination of that matter. Now, in subsequent negotiations for the EBA this issue of the staff what they would be paid was a precise issue between the parties. I am not sure whether you have a copy?

PN28

THE SENIOR DEPUTY PRESIDENT: No, I don't.

PN29

MR HARTIGAN: I will hand one up if I may.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN31

MR HARTIGAN: This then issue of the staff pay was a live issue between the parties and it is dealt with in the agreement at clause 15 under the heading Staff Redundancy Entitlements and essentially what the clause provides is that certain nominated staff employees, and they are listed in schedules at the back and Mr Tatsoulis is listed under schedule A, these persons were persons identified as staff and what the agreement provides is that they could have the better of the staff policy in its terms at their staff rates, their above award rates, or they could have the EBA conditions, which is the second option, but paid at the top EBA rate, which you can see from there it talks about classification level 5.

PN32

So the deal was essentially yes, if you want the EBA conditions you can have the EBA conditions for that particular group of employees but you only get it paid at the top EBA rate. You don't get it paid at your rate which in some cases was 100 per cent higher than level 5. That was the subject of a conciliation hearing before Commissioner Whelan. This was the major remaining issue. This point was expressly discussed and agreed as a resolution of the claim in respect of this group of employees including expressly Mr Tatsoulis.

PN33

How the matter was resolved was the union would have the right to nominate certain persons. They had a week to go away and nominate persons to be included in schedule A as people who would have a choice between the EBA at level 5 and the staff policy in its terms and they nominated Mr Tatsoulis as a person. Ms Ozturk was the person negotiating on their behalf and representing them in the Commission. Now, we haven't had articulated in any form, in written form what the claim is.

PN34

We don't know and Ms Ozturk says, well, the long service leave has been incorrectly and so on. We don't have any particulars of what the claim is and perhaps that is something we can determine in conference. As you have indicated, your Honour, the company hasn't paid the redundancy payments in accordance with the agreement because it was aware of - it was indicated that the employee was in dispute and we were aware the matter was coming here, but the company is happy to indicate it is certainly happy to pay in accordance with the terms of the agreement, as were agreed with the union at the time.

PN35

THE SENIOR DEPUTY PRESIDENT: So it hasn't paid out under the staff redundancy policy at this stage?

PN36

MR HARTIGAN: No, whichever the higher is but it is happy to do so.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes.

PN38

MR HARTIGAN: Where the issue first came in dispute was determine the staff redundancy policy that an employee sign a release in return for the receipt of payments and Mr Tatsoulis said, well, no, I think I am entitled to more and that is where the issue came along. If the Commission pleases.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes. Do you wish to say anything further at this stage, Ms Ozturk, before we go into conference?

PN40

MS OZTURK: No, your Honour.

PN41

THE SENIOR DEPUTY PRESIDENT: The conference will adjourn into conference and I will see whether it is necessary at a later stage to go back onto transcript.

NO FURTHER PROCEEDINGS RECORDED