C2002/3053, Transcript of Proceedings [2002] AIRCTrans 2801 (23 July 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS


O/N VT04842
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2002/3053

THE AUSTRALIAN WORKERS' UNION

and

QAF MEAT INDUSTRIES PTY LTD

Notification pursuant to section 99
of the Act of a dispute re the interpretation
of clauses regarding casuals and overtime in the
enterprise agreement

MELBOURNE

4.06 PM, MONDAY, 8 JULY 2002

PN1

MR B. DAVIS: I appear on behalf of the Australian Workers' Union.

PN2

MR M. McNAMARA: I appear on behalf of QAF Meats.

PN3

THE VICE PRESIDENT: Thank you, Mr McNamara. What can I do for you, Mr Davis?

PN4

MR DAVIS: Commissioner, the issue at hand, today, is really, I think, about the interpretation of the current enterprise agreement in place at the site. The AWU BMI Seville Agreement 2000. BMI is now, of course, QAF. And the issue result, revolves around the correct payments that should be made to a casual employee who performs overtime during the week, i.e. performs work above and beyond the scheduled hours, the rostered hours. And I guess, where the AWU is coming from is that we have a member who rang me, probably three months ago, and raised the fact that he thought he had been underpaid and paid incorrectly.

PN5

Mr Oliver, Mr McNamara and myself, then worked through that, worked through his pay slips and it became evident, in those pay slips, that on some occasions Mr Oliver had been paid, what I would assume is the correct penalty rates for that work performed during the week and on other occasions he was merely paid his normal casual rate of pay. Upon raising this with Bunge, as it was then, QAF as it is now, they investigated and came back and said that he actually owed them money, because in fact, he shouldn't have been paid the overtime for the weekly work, at all, only for public holidays and weekends, where he has worked all week.

PN6

I then, of course, examined the agreement and I guess what we are relying on, we being the AWU, is the clause in the enterprise agreement, clause 17D, of which I will hand a copy up, one to you Michael. And I will read it, it is the overtime clause -

PN7

Subclause D, weekdays overtime, other than public holidays. All approved overtime worked in...(reads)...for the first two hours and double time thereafter.

PN8

To me, that suggests, quite plainly, that my member should have been paid for overtime performed during the week in all instances, not merely on some.

PN9

THE VICE PRESIDENT: Just bear with me for a moment.

PN10

MR DAVIS: Sure.

PN11

THE VICE PRESIDENT: Right.

PN12

MR DAVIS: And in response to that claim, and I am not going to try and take words out of Mr McNamara's mouth, but he claimed that, in fact, another clause in the agreement, took precedence, but I will let him - - -

PN13

THE VICE PRESIDENT: It is clause 4, is it?

PN14

MR DAVIS: No, it is actually clause 13.

PN15

THE VICE PRESIDENT: I am sorry, 13, subclause?

PN16

MR DAVIS: 13(iii) subclause 2.

PN17

THE VICE PRESIDENT: Yes. Just bear with me for a moment - yes, okay, 3 - well subclause - - -

PN18

MR DAVIS: I have copies of that, so I will hand a copy up.

PN19

THE VICE PRESIDENT: Yes, I have got a copy of the whole agreement. So that is, clause 13(iii) casuals, subclause 4, overtime.

PN20

MR DAVIS: No, subclause 2, actually. I suspect that the company can speak for themselves.

PN21

THE VICE PRESIDENT: Well, yes, but 2 and 4 are both relevant. Can I take you to 4, for the moment?

PN22

MR DAVIS: Yes.

PN23

THE VICE PRESIDENT: It deals with overtime, for casuals, right?

PN24

MR DAVIS: Yes.

PN25

THE VICE PRESIDENT: It says -

PN26

Where a casual has worked at least 38 hours, in any one week, and is then requested to perform...(reads)... payments to be in lieu of the casual loading...

PN27

Then goes on to say -

PN28

Where a casual is requested to perform overtime on a public holiday, then they are entitled to the overtime payment.

PN29

So, the specific clause dealing with casuals and dealing with overtime, only seems to go to the payment of overtime, on either a weekend or a public holiday.

PN30

MR DAVIS: That is correct.

PN31

THE VICE PRESIDENT: And on what basis - so you then say, it is on the basis of the general provision, in - - -

PN32

MR DAVIS: Clause 17.

PN33

THE VICE PRESIDENT: - - - clause 17D, that casuals are entitled to overtime during the week.

PN34

MR DAVIS: Yes.

PN35

THE VICE PRESIDENT: Okay.

PN36

MR DAVIS: And I note, as well, that in the overtime clause, excuse me - earlier clause 13, particularly clause 13(iii), which is the casuals section - - -

PN37

THE VICE PRESIDENT: Yes.

PN38

MR DAVIS: - - - subclause 1, and it says and I quote -

PN39

The employment of casuals will not be used to diminish the work opportunities of...(reads)... full time skilled employees.

PN40

Given that full time skilled employees to perform that work, outside their scheduled hours, during the week, would otherwise be paid overtime, it would indicate to me, further, that the casuals, themselves, should be paid overtime or in fact, because if they aren't entitled to it, then employing them to do that is, in fact, in breach of the agreement, because it should be offered to full time employees, first.

PN41

THE VICE PRESIDENT: All right. Mr McNamara.

PN42

MR McNAMARA: Yes, your Honour. I can only, I suppose, reflect on what you have just indicated and that is that clause 13 of the Contract of Employment of the AWU, Being by Sole Agreement 2000, clearly sets out the conditions under which casuals are employed and paid. The wording, in regards to hours for casuals, as compared to full time and part time employees, is totally different, to reflect its actual intent. That is, full time employees, engaged by the week, for ordinary hours, as described in clause 15 of the Agreement and part time employees are obviously engaged by the week, for lesser hours than a full time employee.

PN43

Your Honour, casuals are employed, by the hour, for a minimum of three hours and receive an hourly rate of pay, plus 20 per cent loading, for, as it says, all hours worked. Your Honour, this is only subject to subclause (4), overtime at the same clause, and given that you have already touched on those, I won't bore you with those details again. The clause, in question, has been subject to negotiations between the parties. The most notable change that was made in the 2000 Agreement, as certified to that in the '97 agreement, was the fact that casuals in the '97 agreement weren't entitled to overtime on public holidays. That was later included in the 2000 Agreement, to reflect that they would be paid overtime on public holidays.

PN44

THE VICE PRESIDENT: Mr Davis, if your construction of 17D, is right, that is that all approved overtime worked in excess of ordinary hours - well, let me look at E, for a moment, weekend work, right. It provides for all overtime worked on a Saturday, to be paid at etcetera and you have also got a provision, in relation to public holidays. If those provisions were intended to apply to casuals, why would you need the provision in clause 13?

PN45

MR DAVIS: I am not quite sure what you mean by that, sir.

PN46

THE VICE PRESIDENT: Okay. I am trying to understand, what work the provision in clause 13(iii)(4), does. It provides that casuals get overtime on weekends and - provided they have worked 38 during the week, and on public holidays. Well, clause 17 deals with overtime on the weekends and public holidays, it also deals with weekday overtime. If clause 17 was intended to apply to casuals, if the whole clause applies to casuals, then why would you need clause 13(4). Why would you need a specific provision, dealing with overtime for casuals, in circumstances where there is a general overtime clause, that you say applies to everybody?

PN47

MR DAVIS: Because the Seville and its sister agreement mirror agreement at Huntley, have both been - that very issue about weekends and public holidays, have been the subject of three rounds of negotiations, pre-dating Michael and myself, I think, and I as I recall, at Huntley, because I have only just become involved with Seville, in the last six months or so. At Huntley they negotiated - until this round of bargaining, they were negotiated at the same and it is part of the same SBU. And at Huntley, it was claimed that we had a dispute with the employer about whether casuals were entitled to overtime at all, on weekends, and it was because of the '97 agreement was poorly worded, it might have even been the '95 one, we put those clause in there, to sit, to work in combination with the overtime clause.

PN48

So the overtime clause, was the generic clause that applied to everyone and where the circumstances differed, I believe, those occasions, we then added bits in the casual clause, in particular, yes, you are entitled to public holidays and yes you are entitled to weekend overtime, but only if you have already performed 38 hours during the week, or normal time during the week. In fact, this is the first time, between the two sites, and I have been dealing with this company for six years, that we have actually had this issue, at all at Beardmore and my understanding is it hasn't happened at Colville either, but that is - - -

PN49

THE VICE PRESIDENT: Is that because there has been no practice of casuals working overtime during Monday to Friday?

PN50

MR DAVIS: It is at - - -

PN51

THE VICE PRESIDENT: During Monday to Friday?

PN52

MR McNAMARA: They are all basically site specific agreement, while the Huntley and Seville are generic which is, I suppose, a little bit the same, they do differ in their hours of work and the structure of the employees work. They are site specific differences, being the way they operate. I suppose it goes back to why you do agreements, in the first place, Commissioner and at the time, it is looked at, to find some sorts of offsets for the companies, as to why they are paying the money they do. And that was identified at the time.

PN53

MR DAVIS: And the clause that is in this agreement and the Huntley one, about clause 13 -

PN54

Subject to subparagraph (iv) that casual employees should be paid an additional 20 per cent.

PN55

I have actually tracked it back, through both the current agreements, '97, '95 and it has been there for at least 10 years, as far as I can see, as a provision so - and this is the first time I have actually sought to define it. My understanding of the construction is, the overtime clause applies and then the casual - where we put casual overtime provisions in, they are to sit next to that clause in order to clarify it, in terms of specific provisions for casuals. That is my understanding of the history.

PN56

MR McNAMARA: Well, I am confused.

PN57

MR DAVIS: The clause is clear, in its reading and intent.

PN58

THE VICE PRESIDENT: All right. And you want from me a recommendation, or, as to what - - -

PN59

MR DAVIS: Well, I probably should have said this in my submission, we have had discussions about them and technically, if we were to pursuing the back pay claim, we wouldn't be here. We really just wanted to hear what the wisdom of the Commission was, and I think we both agree that we would accept a recommendation. Is that your understanding?

PN60

MR McNAMARA: I will accept a recommendation, obviously, but I suppose I need to point out, that our feeling is that it is actually a claim for back pay and it is also bargaining during the course of an agreement, in actual fact, so we would - - -

PN61

THE VICE PRESIDENT: Well, I am only really dealing with what is the proper construction. Do you want a recommendation as to the proper construction of the agreement and whether or not a casual, who works more than 38 hours in a week, Monday to Friday, works overtime Monday to Friday, is entitled to be paid at overtime rates for the overtime worked, or whether they are paid their loading rate. Okay, I am happy to give you one now and give you short reasons after. Can I just clarify, you said before, that the clause 13, something - the public holiday one was added.

PN62

MR McNAMARA: That is correct, in the 1997 agreement, it was - casuals were only entitled to overtime after 38 hours during the week, they were paid normal time on public holidays and in the 2000 agreement, that was actually included in the agreement, that they would then be covered or paid overtime rates for public holidays.

PN63

THE VICE PRESIDENT: All right. Is there anything else?

PN64

MR DAVIS: No, it is not quite my understanding of events, but it is close enough, sir.

PN65

THE VICE PRESIDENT: What is your understanding?

PN66

MR DAVIS: There was certainly an ambiguity about whether or not they were entitled to public holidays at Huntley, and at that stage there was one SBU to cover the both. And the best way to resolve that - because they were being paid it - the best way, we decided to clarify it and actually put it in the agreement. But that is now five years ago.

PN67

MR McNAMARA: I have a copy of the '97 agreement if you wish to see that.

PN68

THE VICE PRESIDENT: That is all right. I don't think it is in dispute that it went in in the '97 agreement - - -

PN69

MR DAVIS: Yes, that is right.

PN70

THE VICE PRESIDENT: - - - it is the circumstances that lead to it going in. But, presumably there was a desire to clarify what the position was, so in it went. All right. Well, in my view, the agreement does not provide for the payment of overtime for casuals, who work overtime Monday to Friday. I have reached that conclusion, because clause 17 overtime, deals with the issue in general terms, whereas, clause 13(ii) subclause (4) deals with the issue in specific terms. In the normal course, in construing an agreement or any other instrument, you would read the general down to the particular, so it is a specific provision that will prevail.

PN71

In this circumstance, the specific provision only countenances overtime payments, in two circumstances. One, is where - well in both instances, the casual has worked at least 38 hours, in any week. The two instances are, firstly, where he performs overtime work, on a weekend, and secondly, where he performs overtime work, on a public holiday. In both of those instances the casual employee is entitled to be paid the overtime rate in lieu of the 20 per cent loading. The clause does not deal with the payment of overtime or hours worked in excess of 38, on a Monday to Friday basis, and on that construction the employee wouldn't be entitled to overtime for that period.

PN72

By way of supplementary reasoning, if the agreement had intended to apply Monday to Friday, then I think one of two things would have happened. Either you would not have a clause dealing with overtime for casuals, at all, and it would all be regulated by clause 17, or alternatively, clause 13(iii) subclause (4), would cover a circumstance, where a casual works overtime Monday to Friday. I think the fact that it doesn't is probably the most telling point against the construction argued by the union.

PN73

I will put a short recommendation, with reasons in writing, either tonight or tomorrow and shoot it out to you. Okay. Thanks very much.

ADJOURNED INDEFINITELY [4.21pm]