C2002/2972, Transcript of Proceedings [2002] AIRCTrans 2252 (19 June 2002)

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ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOFFMAN

C2002/2972

TRANSPORT WORKERS' UNION OF AUSTRALIA

and

BRAMBLES AUSTRALIA LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re taking of annual leave

BRISBANE

10.30 AM, WEDNESDAY, 5 JUNE 2002

PN1

THE COMMISSIONER: Yes, we have the appearances, thanks?

PN2

MR D. PRIOR: As it please the Commission, my name is Prior, Industrial Officer for the Transport Workers' Union of Australia, Queensland Branch and with me, at the table, I have MR RUSSELL VIERITZ.

PN3

THE COMMISSIONER: Thank you.

PN4

MR T. SMALL: If it please the Commission, my name is Small for Cleanaway and I have with me MR T. WESNER.

PN5

THE COMMISSIONER: Thanks, Mr Small. Yes, Mr Prior?

PN6

MR PRIOR: Thank you, Commissioner. The dispute notification dated Monday, 3 June, refers to employees seeking to take accrued annual leave with an indication that it pertains to Cleanaway employees successful in gaining employment with a new contractor from July the 1st of 2002. Perhaps, you would recall significant history in relation to this agreement and the not insurmountable agreement that has now been put up for the continuation with another contractor in the circumstances post the end of this financial year. It's come to our attention in the last couple of weeks that what has happened in the last 12 months, apparently - we're advised that correspondence was handed out to employees last December indicating that people with in excess of six weeks annual leave should make attempts to put in requests to take that annual leave leading into the last six months of the contract with a view to winding down on 30 June.

PN7

Now, what has brought the matter to a head this week, Commissioner, for your benefit, officially last Wednesday, the 29th, the letters have finally been posted in relation to where current employees of Cleanaway stand with the contract, which commences on 1 July 2002, and the point was put, in discussions that we had from various people who have accrued annual leave over recent years, that it's quite a sensible and understandable position that people would retain that annual leave on the basis that, "Well, if I don't gain future employment at least I've got some money as a stop gap whilst I look for employment" - these types of things - but the concern that we have, based on what was put out in correspondence last year to the effect that, "Look, if you've got more than six weeks, you know, try and dispense with it," is that simply we've now been provided with a list of employees' entitlements, and, again, it's not the case that it's across the board, but there are persons with in excess of 10 weeks' leave owing in the circumstances, and, in relation to the notice that we put in, the concern that we have, in this latter period, is that people have, I understand, made requests since knowing whether or not they have gained a future employment with the new contractor, and, I understand, that the response has been, with the winding down of the contract, sensibly time-wise, that people have not been afforded, or have been refused, access to that annual leave and this has created some frustration in the workplace.

PN8

The last point of the concern that we have in relation to that: not to be discussing any terms and conditions of an agreement which takes place in a new financial year. It is certainly the concern that people have that working hard right up until the termination of this contract that they be afforded otherwise no opportunity for any break whatsoever apart from receiving written entitlements paid out. We would certainly give them some financial relief in that sense, but for those who would be continuing gives them no physical break in the types of duties they're performing moving from one contract to the next. And, Commissioner, it's in recognition of that concern that we've listed the matter before you today.

PN9

THE COMMISSIONER: How many of these employees would be in the category out of the total number that are looking for leave?

PN10

MR PRIOR: Commissioner, I understand in terms of - perhaps, excessive is the correct word - that those with excessive accrued entitlements, perhaps, would be as many as 10. Sorry, I'm advised that that's 10 on the southside and as many as, perhaps, half a dozen on the northside. We appreciate, Commissioner, obviously, the time-frame is pretty short, obviously, in relation to the termination of the current contract, but notwithstanding that it's not the case that, you know, people have sat around for six months saying, "Oh, look, you know, we will wait till the last minute and we will take annual leave." It's only really now that they know where they stand with future employment that there's some relief to the extent where people know that they actually have a job that continues. Now the concern is that they have some access to a break between this contract, and, obviously, recommencement.

PN11

THE COMMISSIONER: What does the agreement say about approval to take annual leave? Does it have some notice requirement?

PN12

MR PRIOR: I was just going through that in context and the Cleanaway Municipal Collection Domestic Refuse Northside Agreement of '99, on my understanding, doesn't have a specific provision relating to annual leave and reference back to the award, which is now the Transport Workers' (Refuse, Recycling, Waste Management Award 2001) at page 35, clause 37.4 and 37.5 doesn't provide terribly much comfort either except to say that it states:

PN13

Any leave to which an employee may become entitled here under shall be granted by the employer within four calendar months of it being due...

PN14

- and the only circumstances where there is an exception to that -

PN15

...provided that if because of circumstances over which he/she has no control, an ...(reads)... may by mutual agreement postpone such leave until a later date.

PN16

And I think in context we would certainly not be agreeing, or conceding, that there's mutual agreement that it be put off. I understand, Commissioner, perhaps, for your benefit, in the extreme circumstance there's one person - and I stand corrected if it's not more than one - who has made repeated requests over the last 12 months and I understand he made something like 10 requests. He took block leave of three months to remove that accrued annual leave. So it's not the case that there's a suggestion that everybody wants to put their hand up for a break. Well, we've certainly got persons that - I brought the delegates today to identify who they might be - that certainly feel that they deserve, in terms of not through want of applying, some form of break between this contract and the commencement of the next contract.

PN17

THE COMMISSIONER: And is there any understanding with the new contractor that they'd be prepared to allow these new employees come 1 July to take any leave in short or medium terms - - -

PN18

MR PRIOR: Well, I understand the problem - well, the concern that employees have that have gained employment with the next contractor is simply the determination that the Act contemplates, which is that initial three months probationary period. And this is people, you know, that have 8, 10, 12 years experience. They're not concerned about their ability. The real concern they have is that they shine in the employment in that initial period, because the next concern they have is that they don't want to put themselves in any sense in the possibility of being identified within that three months and being dealt with under probation. So, in answer to your question, whilst there may be provision for them later in the year, it's the initial three months virtually from day 1 that is of great concern to them.

PN19

THE COMMISSIONER: Yes, thank you. Yes, Mr Small?

PN20

MR SMALL: Yes, Commissioner. Having listened to what the union has put, probably it's appropriate that I just provide a little bit of background on the company's policies in respect of leave. The company has had a stated policy right throughout the term of this particular agreement that place a limitation upon the number of employees that can be absent at any one time. There are quite obviously operational reasons for that, and it is to ensure that business can continue to meet its obligations and to function accordingly. At the time of appointment, those arrangements are identified within the letters of appointment that are handed to the employees.

PN21

And we have a situation where a number of employees have actually applied for leave throughout the June period and have been granted leave under the normal processes of leave allocation within the company. The situation which has arisen is principally on the south side of Brisbane at the present time, and on the south side we have some 54 employees. The situation that we have there at the present time is that we have an allocation of people on leave. We also have people that are unavailable for work because of being involved in a WorkCover program, and we also have absentees from the point of view of sick leave.

PN22

The present time, Commissioner, we have some 13 per cent of the workforce unavailable through various categories of leave. The company has taken a position in the present circumstances that is of consistency, and that we will continue to have the full regard to the operational requirements of the business and that those people that had applied previously for leave would be granted leave. The Commission has heard the union acknowledge that a number of people have wanted to hold onto the leave entitlements as a safety net in the event that they were not successful in gaining future employment. And the company has to a degree accommodated those concerns of the employees knowing that the end of the contract was coming up.

PN23

The situation very clearly though, Commissioner, is one that if we were to grant the applications presently before us, we would have 42.5 per cent of the workforce absent between now and the end of the contract, which is a totally untenable situation as far as being able to meet our obligations and see the contract through to conclusion. Commissioner, I guess that the company does view this particular issue with some concern. We had a situation back on 30 May when there was a yard meeting that morning. Following that yard meeting, there was some 16 applications for leave lodged that day from employees and it is those employees that the union is now making representations on behalf of.

PN24

The view of the company was one that was of some concern, given the long history and the tradition of industrial disruption that has occurred right throughout this particular contract, or the finalisation of this contract, maybe I should more appropriately say. We have raised the spectre as to whether this was effectively a form of covert industrial action coming up to the end of the contract. And we would prefer to think that that was not the case, but when we have a yard meeting and 16 people walk in and then apply for leave, it certainly leaves it open to that sort of conjecture.

PN25

Commissioner, the company has a long history of complying with the requirements for the allocation of leave. We're treating it no differently in the present situation. The circumstances with these employees going into a new job is one that is now not something which Cleanaway has control over. The company has advised us - that is CITA that have been successful in winning the contract that they are prepared to grant staggered leave as from the commencement of the fourth month of the contract which follows a three month probationary period, and to provide people with progressive leave from that time onwards.

PN26

We say very strongly to the Commission that this is not a situation that the company can accede to or can accommodate. Already we have a very significant number of workforce unavailable; any further extension of that would create operational problems which would not be able to be overcome. We certainly don't want to be put in a position of playing favourites and allocating leave to two or three people overall and then saying the rest of the people are rejected. We find that situation quite unpalatable and in that regard it's the company's intention that these people work through to the end of the contract.

PN27

We have been saying very clearly right from the outset of negotiations, which took place under the auspices of this Commission from around June last year, that very clearly we would require people to be in attendance and work through to the end of the contract: that has not been something that we've resiled from. It's not been something that we have not put right up front. Everyone is well aware of that situation, and the company at this late stage is not in a position to look at alternative arrangements given we have less than four weeks of this contract left to run if it please the Commission.

PN28

THE COMMISSIONER: Yes, thank you. Yes, Mr Prior, do you wish to put anything further on the record?

PN29

MR PRIOR: Nothing further perhaps at this stage except to say that certainly what the company is suggesting in terms of limits - suggesting to people as at the point of engagement that on a letter of appointment limitation and number of employees absent is one thing; but, again, unfortunately, the situation in fact now is also of a nature where people to that extent have significant entitlements, some of whom have received an offer of future engagement in the new contract, some of whom have not.

PN30

And the problem has been that people have now come forward, or people have come forward previously, seeking that relief in that period and, again, the concern is not so much what or to what extent any arrangements are made with the new contractor, but certainly that if they're working hard to the end of this financial year, those transferring over commence the next day and the next employment. They're straight into a probationary period and this is the period that's concerning them now in terms of making that request for leave. Perhaps if we're discussing this further, Commissioner, we might break in to conference.

PN31

THE COMMISSIONER: Yes, we will adjourn into conference. Mr Small, do you have any objection to me initially speaking to the union or is there something you want to say in joint conference first, and I'll speak to yourselves later?

PN32

MR SMALL: Commissioner, I've already had some discussions with the secretary of the union in this regard. I have explained the operational difficulties confronted in granting of the leave and I don't think that there is probably any further benefit to be achieved with further discussions at that level.

PN33

THE COMMISSIONER: All right, we will adjourn to conference. I'll speak to the union first.

NO FURTHER PROCEEDINGS RECORDED