C2001/671, Transcript of Proceedings [2002] AIRCTrans 245 (23 January 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT02041
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2002/671

SHOP, DISTRIBUTIVE AND
ALLIED EMPLOYEES ASSOCIATION
VICTORIAN BRANCH

and

COLES MYER PTY LIMITED

Notification pursuant to section 99 of the Act
of a dispute re concerning the application
of site agreements and the subsequent loss of
potential overtime payments

MELBOURNE

10.00 AM, TUESDAY, 15 JANUARY 2002

PN1

MR J. CERRITELLI: Appearing with me is MR A. CURTAIN. We are from the Shop Steward and Allied Employees Association. Also appearing with us today are the two shop stewards from the site, MR P. MALLISON and MR L. McLEOD.

PN2

MR P. HOWELL: I appear on behalf of Coles Myer Logistics. Appearing with me is MR M. SINCLAIR, the HR manager for the site and MS V. FRINTZILAS, the operations manager for the site.

PN3

THE DEPUTY PRESIDENT: Thanks, Mr Howell. Mr Cerritelli?

PN4

MR CERRITELLI: Thank you, your Honour. The application before you today, your Honour, is a section 99 in relation to an industrial dispute re the payment of overtime and understanding in that fact of site agreements within that site. This directly affects nine members employed within the site who feel that they lost some overtime payments as a result of the application of - - -

PN5

THE DEPUTY PRESIDENT: Sorry, that was nine?

PN6

MR CERRITELLI: Nine, yes.

PN7

THE DEPUTY PRESIDENT: Yes.

PN8

MR CERRITELLI: Nine out of a potential 166.

PN9

MR CERRITELLI: 180, I am corrected. 180 employees. What I hope to do today, your Honour, is just quickly run through the case. Mr Mallison and Mr McLeod will actually also present their point of view on the issue, and if we may, go into conference to hopefully resolve the issue with the intent of actually resolving it today. Thank you, your Honour. What I might just do is just hand up a copy of the agreement that governs the employment at the site.

EXHIBIT #A1 COPY OF AGREEMENT

PN10

THE DEPUTY PRESIDENT: Presumably you have a copy of the agreement, Mr Howell?

PN11

MR HOWELL: I do, your Honour.

PN12

MR CERRITELLI: Thank you, your Honour. On Monday 10 December last year talks were held with Mr Mclaughlin[sic] by the local supervisor on the afternoon shift, as Mr Mclaughlin, at that stage, was working on the afternoon shift re problems with the sorting machine on the site. The site is a distribution centre and there is a sorting machine that sorts out crates and so forth. There was a discussion about the sorting machine - potential damage to the sorting machine - breakdown - and that the staff would have to be re-allocated out of the traditional areas that they work in which is sorting, receiving, despatch and move into another area to do some work that night.

PN13

Mr McLeod, at that stage, asked if the day shift crew were informed of the potential, and from his understanding of the incidents that occurred, he was informed, that, yes, they were aware of what is going on, so the afternoon shift delegates at that stage felt, well, it is okay, we will go and work in that area, there shouldn't be a problem. Subsequently the following day, on Tuesday 11 December the day shift started working that day and were amazed to find that some of their work within the confectionary area which is where some of Mr Mclaughlin's crew went to work, had actually been done.

PN14

As a consequence of which local members at the local level placed work bans on the movement of certain stock within that area. There was some sort of discussion at a local level that occurred between the local representative and management at that stage which resulted in no resolution. Subsequent to that on Wednesday 12 December I attended as the local organiser to see if we can resolve the issues that were affecting the members there. The members on day shift felt that if there was work to do within the confectionary area they should have had the right to do it as part of their overtime.

PN15

The reason for that is there is a site agreement in Coles Myer Logistics Centre at Tamis Avenue there in respect to how overtime is actually managed and distributed amongst the workforce. In light of that what I will actually do is present a copy of the overtime agreement.

PN16

THE DEPUTY PRESIDENT: That is simply a local agreement, is it, Mr Cerritelli, it is not part of any certified - - -

PN17

MR CERRITELLI: It is a local agreement but it is structured under clause 16.3 of the certified agreement.

EXHIBIT #A2 COPY OF OVERTIME AGREEMENT

PN18

MR CERRITELLI: I refer to the enterprise agreement, yes, I believe it is clause 16.3 - sorry, 16.2 which reads:

PN19

The current internal overtime agreement must be reviewed and simplified through discussions with management.

PN20

And then 16.3 refers to:

PN21

If there is a breach of that agreement then we go through the grievance procedure.

PN22

And 16.4 refers that:

PN23

If the breach is proven only employees concerned will be compensated.

PN24

THE DEPUTY PRESIDENT: Right, very well.

PN25

MR CERRITELLI: The reason why the members felt aggrieved at that point is because they believed in relation to the afternoon shift, the site agreements which were struck on the implementation of an afternoon shift was breached. That afternoon shift is only a temporary shift within the organisation and discussions were held earlier that year on how that shift was managed, how it would be implemented and so forth. And there was an understanding that delegates had in respect to what that actual work would be done by that afternoon shift.

PN26

And that is where there was considerable concern by the day shift, saying, well, hang on, we had an understanding of what the afternoon shift does. All of a sudden we find they are doing work outside the three traditional areas that they do. This means that obviously that we have lost our overtime we can do within that site. What I will also do is just to - for the Commission - - -

PN27

THE DEPUTY PRESIDENT: This goes back to the fact there was a machine supposedly out of service at the time.

PN28

MR CERRITELLI: It wasn't out of service at the time. It had - I think the company's point of view, it had the potential to be out of service.

PN29

THE DEPUTY PRESIDENT: But the afternoon shift accepted that circumstance and they went and then did this other work in the confectionary area.

PN30

MR CERRITELLI: The afternoon shift accepted that circumstance on the basis - they had the understanding that the day shift crew were already spoken to about it.

PN31

THE DEPUTY PRESIDENT: Yes, yes, I understand that.

PN32

MR CERRITELLI: Yes, whereas the day shift crew were not. There is a different point of view between us and the company on that point of view in respect whether the day shift - whether the supervisor actually told the afternoon shift that the day shift crew had been spoken about it.

PN33

THE DEPUTY PRESIDENT: Just so I can get it clear in my mind. What would the afternoon shift do in circumstances where that machine did break down. Would they normally go and work in these other areas or what circumstances would - - -

PN34

MR CERRITELLI: If the machine had broken down there was an understanding by the workers they would move into other areas.

PN35

THE DEPUTY PRESIDENT: Right, okay.

PN36

MR CERRITELLI: And what - the reason why I have asked the two delegates actually to make a slight presentation here as well at the Commission is they have got a much better understanding than what I do because they actually work with the system. What I will also do is just present to you the expressions of interest for the temporary afternoon shift which is basically the site agreement in respect to the afternoon shift, just for your information.

EXHIBIT #A3 EXPRESSIONS OF INTEREST

PN37

MR CERRITELLI: Subsequently on Wednesday 12 December I met - and with the delegates on site, met with the company debating this issue. Unfortunately at that stage the - we could not reach agreement and we are still pursuing compensation for nine members who we felt were - did not receive potential overtime payments. On Thursday 13 December Coles Myer applied for a section 99 in relation to the lifting of work bans. We had subsequent phone conversations with the company on that day and it was agreed that the work bans would be lifted in order for further discussions to take place on this matter.

PN38

Subsequently on Thursday the work bans were actually lifted. We did meet with the company again on Monday 17 December. Unfortunately, at that stage, we could not reach agreement on this matter and that is why we have come here today to seek the Commission's involvement and help in resolving the matter. What I will do now is I will actually just hand over to the delegates who can actually explain from their perspective what the arrangements were and what the agreements were in relation to these two agreements. Lachlan, do you want to go - - -

PN39

MR McLEOD: If it pleases your Worship, I would like to read a statement which may clarify the situation for you. A statement by L.D.O. McLeod:

PN40

On 10 December 2001, Graeme Clarke, afternoon shift manager called a meeting concerning shutting down the sorter system due to all the live despatch racks being fall which was caused on work done on Saturday. Both afternoon shift union delegates, Wayne Dawson and myself, Lachlan McLeod were present at this meeting which was held in the staff canteen. Graeme Clarke clearly stated to both Wayne and I the following points. That he would have to shut down the sortation system due to all the despatch racks being fall. Day shift had had a lot of stop/start during the shift due to the same problem. Day shift staff had been asked to work overtime. His only alternative was to shut it down and send the sorting people to processing. This allowed time to clear the racks out during the shift so the day shift would not have the same problem again the next day. Did we have a problem with him doing this. We had no reason whatsoever to doubt any of the points that Graeme Clarke had stated to both of us. The agreement or the understanding that we had on an afternoon shift was that if the sorter breaks down they could go to processing and work. If it was not mechanical then all the people on day shift would be asked for overtime. If they were all asked then they could come down and there is no problem.

PN41

Thank you, your Worship.

PN42

THE DEPUTY PRESIDENT: Just let me clarify that again. So the thing hadn't broken down so the point at issue here is whether or not it would have and - - -

PN43

MR McLEOD: It would have but it didn't.

PN44

THE DEPUTY PRESIDENT: Okay, and on the basis that it didn't, then day shift people under, what you are putting to me, should have been asked in the first instance for overtime?

PN45

MR McLEOD: Yes.

PN46

THE DEPUTY PRESIDENT: And what then would you have done had they have been asked for overtime and accepted the overtime?

PN47

MR McLEOD: We couldn't dispute - there would be no problem. The concern is that nine people - - -

PN48

THE DEPUTY PRESIDENT: What would you have actually done in terms of work given that these racks were full or whatever. I mean, I might be misunderstanding the mechanics of all of this because I obviously haven't seen the site. But given that you couldn't do your work - or you could continue to do it. Is that what you are putting to me, because it hadn't broken down so you could have continued to operate it?

PN49

MR McLEOD: The company was aware that the live despatch racks were full.

PN50

THE DEPUTY PRESIDENT: Yes.

PN51

MR McLEOD: They were foretold, the manager told them.

PN52

THE DEPUTY PRESIDENT: Right.

PN53

MR McLEOD: If you run the sorter on the Saturday you are going to jam all the racks up.

PN54

THE DEPUTY PRESIDENT: Yes.

PN55

MR McLEOD: Okay. They could have taken - there is ways and means that they could have taken to relieve the racks - to get the stuff out. They could have brought people in on Sunday - - -

PN56

THE DEPUTY PRESIDENT: I see.

PN57

MR McLEOD: They could have brought people in early Monday. They are alternatives that the company could have looked at.

PN58

THE DEPUTY PRESIDENT: I see.

PN59

MR McLEOD: Right.

PN60

THE DEPUTY PRESIDENT: Okay, thank you, yes, thank you.

PN61

MR MALLISON: Your Honour, my name is Glen Mallison the union delegate on day shift. When we - it will be a question of interest - when we discussed this with management, that the departments to be worked was receiving, sort and despatch and may - and staff may be required working in other departments. We clearly asked the company that what do you mean by this because those departments aren't included in the advertising for afternoon shift. They said to us if there was not enough work in receiving they would drop crews and send them to despatch to help out there.

PN62

THE DEPUTY PRESIDENT: This was when, Mr Mallison? When did you have discussions with the management?

PN63

MR MALLISON: Prior to 21 June 2001, before the expressions of interest, would they decide to run a temporary afternoon shift.

PN64

THE DEPUTY PRESIDENT: Right, okay.

PN65

MR MALLISON: So, we had the clear understanding they wouldn't work other departments than was advertised unless there was mechanical breakdown. Now, apparently on the Saturday 8 December management were discussing about shutting the sorter down on Monday night because they - all the live despatch racks were full. Monday they shut the sorter down. On Tuesday when I found out whey members were upset - they weren't asked for overtime. So I approached management.

PN66

The response I got was, it has got nothing to do with me, it was an afternoon shift matter. Now, the way I look at it, we are all members, we all work for the one company in there. If management had approached the shop stewards on day shift we may have been able to discuss this with our members and avert the problem, but management didn't see fit to approach us.

PN67

THE DEPUTY PRESIDENT: Okay, and at that point in time you applied some bans apparently?

PN68

MR MALLISON: Yes, just on stopping the afternoon shift - people to processing. Thank you, your Honour.

PN69

THE DEPUTY PRESIDENT: Thanks, Mr Mallison.

PN70

MR CERRITELLI: Thank you, your Honour. The SDA believes that the company failed to actually act properly in respect to the situation they were confronting. We believe that the company knew about the situation on Saturday. We believe they failed to talk to the delegates concerned, particularly the day shift delegates, in order to avert a potential problem. We do know the company met at - after three in the afternoon on Monday to discuss it. We also believe that there could have been other avenues persuaded by the company in order to avert this situation.

PN71

We are also at a bit of a loss to understand that - they are saying, we averted the breakdown of the machinery because they are saying we were pumping, something like, 2800 crates through this machinery. We have no idea, because we haven't been able to get this answer, what is the capacity of this machinery, so we have no idea whether to make a valued judgment upon that. It seems strange to me because this centre along, the Target distribution centre out there, deals with some 11 million crates per annum. So I didn't think at that stage, and I am not a technical expert, that 2800 crates through a sorter would be that much of a problem.

PN72

What we are basically seeking today, your Honour, is basically two hours of overtime payment to the nine employees who have been affected. We have lists here we can present later on and we wish to get a resolution of that today. We are happy to go into conference mode to discuss the matter in a free and open manner. Thank you.

PN73

THE DEPUTY PRESIDENT: Well, we may do that, Mr Cerritelli, but we will hear from Mr Howell first.

PN74

MR HOWELL: Thank you, your Honour. The dates and times of the issue of - are correct, Mr Cerritelli says, so I am not going to go back over all of that. It is true that the - sorry, I will start again. The expressions of interest that you have got before you were put up when the afternoon shift was initially started. This itself was an issue - a dispute before the Commission when we began the afternoon shift. It very clearly says that employees - the second paragraph:

PN75

The focus of the shift will be on conveyable products and we are seeking to operate receiving, sortation and despatch functions.

PN76

That was the prime reason for starting up the afternoon shift. However, the second sentence:

PN77

Their work in other areas may be performed by shift staff on an as required basis.

PN78

I would also like to hand up a copy of the contracts that were given to the employees who were placed on those afternoon shifts.

EXHIBIT #R1 COPY CONTRACTS

PN79

MR HOWELL: And under the second point there, under the department:

PN80

For this particular individual you just have to see Mr McLeod. Despatch and other as required. Whilst you are allocated to this department, being despatch, you may be required to perform work in other areas on an as required basis. Your shift manager will advise you should there be a need.

PN81

It was always the intention of the company to run the afternoon shift to focus primarily on receiving sortation and despatch. But we were not going to place limits on their ability to move people around that shift depending on what may or may happen on the shift or depending on the needs of the business from time to time. The reality is that maybe twice during the afternoon shift did we move people and re-allocate them outside of those areas. And one of those was the issue in question today.

PN82

THE DEPUTY PRESIDENT: And the other one was?

PN83

MR HOWELL: The other one. Yes, the Tuesday - the Monday between Cup Day and the weekend - just a lack of available labour on the day. We had some absenteeisms, people not being at work, so we moved people around on that day as well. So they were the two occasions. This issue - yes, Saturday we became aware that there was a potential problem in terms of the system - in terms of the volumes that was going through the system. We operated despatch - the issue was essentially in despatch and that we weren't able to get - product kept coming in, we weren't able to get it out quick enough.

PN84

On the Saturday we operated despatch as a priority to try and clear the racking so the product could continue into those racks because we obviously knew the sort of volume to expect on Monday, so we tried to clear the way for the Monday product. What happened on Monday - well, we know the volumes, we don't necessarily know the size of the different cartons that go through the conveyor system. The size of the cartons will impact on the number of pallets required to store those cartons and that the 2800 referred to by Mr Cerritelli is the number of pallets that sit in the racks of product.

PN85

I guess, it is an explanation of the process as much as anything else, because I don't think it actually impacts on the end outcome. But the result of the types of product that came through that day - the Monday morning - we didn't - we weren't able to keep the racks as clear as we thought we might be able to. At 3 o'clock that day the operations has their normal operations meeting to evaluate how the process was going and it was decided there that they would continue to operate - continue to receive product and would look again at the system at about 4.30 - 5 o'clock to see how we were going on that day.

PN86

Staff were advised that at team talk at 4 o'clock there was a chance that we would have to close receiving and sortation on that shift. And at 5 o'clock - about 5 o'clock the delegates were informed, as I said, in a meeting with the supervisor, Graeme Clarke, that we were going to have to shut down receiving and sortation for that day and that people would need to be re-allocated to other areas of the shed. The question of people being asked to work overtime. Graeme is saying that people were asked to work overtime. People were asked to work overtime and overtime was occurring on that day in receiving, sortation and despatch.

PN87

So whether - I think the question comes down to the people in the confectionary area, whether they were asked to work overtime, and they weren't asked to work overtime. There was never any intention to do any work in that area. The bulk of the day shift were asked to work overtime and that was the answer Mr Clarke gave. If there is a misunderstanding about what the answer was, we can clarify that. Certainly, confectionary people were never asked to work overtime because - and the work - sorry - when we closed the sortation down we had to re-allocate people across the rest of the shed to keep them employed.

PN88

Both expressions of interest and the contract given to people state that people can be re-allocated across the shift on an as required basis. We made a decision that the system couldn't withstand any further receiving so we shut it down. That has to be the decision of the company. It can't be an acceptable position that we should run our system until it breaks down before taking some sort of preventative measure to avoid that occurring, whether the employees or the SDA have vision of the number of volume - whether they would have done it differently - really is irrelevant.

PN89

It becomes a management decision how to run the shed. Much the same way as if we had have decided to continue to run the shed and the system did break down, that is again, something that we would have to live with as part of our decision making.

PN90

THE DEPUTY PRESIDENT: And it is your position that the decision wasn't taken until after the commencement of afternoon shift on that particular day?

PN91

MR HOWELL: Definitely, your Honour, yes. There is no doubt the decision itself wasn't taken until that 4.30 - 5 o'clock period when it was then spoken to the delegates. At 3 o'clock there still had been no decision made as to what would happen with that afternoon shift. We still ran overtime. That time of the year we are pretty busy so we still need the work to get done, so there was still overtime being done. But at that point in time, no, no decision had been made as to what would happen with that shift.

PN92

So there was no - in terms of communicating an actual answer to the day shift people about we will be shutting down this receiving and sortation on afternoon shift, we couldn't have done that, the decision hadn't been made at that point. In terms of re-allocation of labour and the position that only receiving, sortation, despatch can be operated on at afternoon shift, the allocation of labour was done on the following basis. We kept as many people as we could in the receiving area who continued to work on containers. We kept as many people as we could in the sortation area to do some replenishment work.

PN93

So we maintain as many people in those areas as we could. We then put the maximum number of people we could fit into the despatch area, limitations being on just the equipment that is available, forklifts and such, to do as much despatch work as possible on that shift. We were then left with about 17 people at the end of that which we allocated to the processing area and the confectionary area which seems to be the issue here. The SDA has expressed a view that they should not have been put in those areas.

PN94

What should we do with them? There hasn't been an answer put forward for that. They were placed in those areas to provide them with work for the remainder of the shift. The only alternative to that is to send them home. Now, whether that is done on pay or off pay I am sure would be another interesting discussion to be had. We had to provide them with work so we put them in the confectionary area. There was no intention at the start of that shift to do any work in then confectionary area.

PN95

We would disagree that any work in any particular department is the right of a particular shift to do and a particular shift would have the ability to claim overtime as an alternative to other people doing it on their ordinary time. But that aside, if there was work - we didn't put people in there to get work done for the purpose of avoiding any overtime. The work that they did did not need to be done on that day but we had people available so they did the work. And that was the work that was then - bans were then put in place by the day shift and was stuck on the dock for a period of days while we tried to resolve that dispute.

PN96

In essence the SDA are asking for two hours of overtime for people. Two hours of overtime that never existed. There was never any intention to work any overtime. The work done was done because of a failure of the system to keep up with volumes. A decision made by management to close that part of the system down and the requirement to re-allocate labour across that shift, which we would hold and argue quite vigorously, that that is the right of the company to do that. In terms of the understanding of the delegates that we would only ever re-allocate people on the basis of a mechanical breakdown of the system, that is certainly not our understanding of what was explained to them.

PN97

Expressions of interest and the contracts are both very clear. The discussions that they had were with Ms Frintzilas. And at that point they did ask what do you mean by on an as required basis. And as an example, we said, if the system was to break down, that would be an as required basis. But that was an example given only. It could be any reason that we - if we needed to move people around we would do that. But I do want to be clear that our intention was to work receiving, sortation and despatch.

PN98

And all things being equal they were the only areas that we would be working in. And it was always our intention that we would not restrict ourselves in the event of something like this happening, because even with those words in these documents, we are still having the debate about the ability to move people across sheds. The claim that the company failed to act properly - I mean, that is a subjective call and that really is - it is up to us as to how we run the business. We don't believe - we did act properly. We believe that - the system was very closely monitored both for the Saturday and Monday morning to determine where it was at.

PN99

We believe the actions taken on the Saturday were to ensure that Monday was not going to be a problem. That the cartons we received didn't allow that to happen. The action taken Monday afternoon mean that from then on for the rest of the week we didn't have any problems with the system. So that was the required action at the time, to avoid what we believe, was going to be a breakdown.

[10.30am]

PN100

What it all comes down to, I think, has to be the right of the Company to make that decision anyway. I have no objections to going into conference as Mr Cerritelli requested. At that point, unless you have got any questions, your Honour, I will leave it there.

PN101

THE DEPUTY PRESIDENT: No. Thanks, Mr Howell. We will go into conference, I think, but before I do that I will just hear you in reply, Mr Cerritelli, if you have anything to add.

PN102

MR CERRITELLI: Thank you, your Honour. I think it will probably be more appropriate if we go into conference to help resolve the issue.

PN103

THE DEPUTY PRESIDENT: All right. Well, I might adjourn for a matter of - let us say until a quarter to 11, and we will reconvene in conference at 10.45, quarter to 11 in here.

SHORT ADJOURNMENT [10.32am]

RESUMED [11.30am]

PN104

THE DEPUTY PRESIDENT: I think we had a pretty good discussion in private conference on this matter. It seems to me that the dispute here arises more from misunderstanding than anything else, and I would have to say that misunderstandings in most circumstances derive from inadequate consultation between the parties. I think that is certainly true in this case, and with the benefit of hindsight, in my view, the Company could have done more in the circumstances with respect to consulting with the employees about the potential for the occurrences that ultimately did occur on the afternoon shift in question in terms of the shutting down of the equipment.

PN105

There are also, though, provisions in the certified agreement that the parties are both signatory to for compliance with disputes procedures. In the first instance bans resulted from this particular matter. In my view that was in direct contravention of the disputes procedure, and shouldn't have occurred. From the employees, the union's, point of view, there is an obligation to follow those procedures that are included in agreements, and I would suggest very strongly to them that that would be the course that they adopt in the future if they expect to get outcomes, particularly, that are in their favour.

PN106

In the circumstances, I don't believe that there are any grounds for any order relating to overtime payments, and therefore none shall issue. I think in the interests of ensuring that these circumstances don't recur should there be a further requirement for afternoon shift in the future, or even in the absence of a further afternoon shift in the future, I think there is a good case for a substantial discussion between the parties in relation to the overtime agreement that they have in place and the implications of that overtime agreement, but also discussions directly relevant to the afternoon shift, should there be a requirement for one, and the implications of having an afternoon shift in respect of allocations of people to other areas, so that that becomes a clearer circumstance.

PN107

Those discussions that have been determined will occur between the parties, and on that basis I will leave the file of this matter open, so that the parties are free on application to come back before me to either put on the record the outcome of those discussions, or anything that can't be resolved have further hearings and discussions about within this Commission. On that basis, I don't think there is any further requirement for the matters to be canvassed here, and we can adjourn. Thank you.

ADJOURNED INDEFINITELY [11.35am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 COPY OF AGREEMENT PN10
EXHIBIT #A2 COPY OF OVERTIME AGREEMENT PN18
EXHIBIT #A3 EXPRESSIONS OF INTEREST PN37
EXHIBIT #R1 COPY CONTRACTS PN79