C2002/2597, Transcript of Proceedings [2002] AIRCTrans 2856 (25 July 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 VT04896
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER FOGGO

C2002/2597

SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION

and

COBINVALE PTY LTD t/as AMPOL
CAMPBELLFIELD

Notification pursuant to section 99 of the
Act of a dispute re long service leave
entitlements for two SDA members at the
Caltex Craigieburn site

MELBOURNE

10.05 AM, THURSDAY, 11 JULY 2002

Continued from 29.5.02

PN18

THE COMMISSIONER: Any changes in appearances?

PN19

MS A. O'HALLORAN: No, Commissioner, no.

PN20

MR W. CHESTERMAN: No.

PN21

THE COMMISSIONER: All right, where are we in relation to this?

PN22

MS O'HALLORAN: Commissioner, since we last met, the parties have had a number of discussions and the VACC have provided us with some documents which give us some background as to how the long service leave - their position in relation to the long service leave clause in the Vehicle Repair Service and Retail Award has been interpreted. We, since, have spoken to our members and have confirmed the continuity of their service at this particular site. We have also confirmed that both of them were employees.

PN23

There was an issue about Mr George Lee being an employee. That has been confirmed, that he was never a contractor or anything other than an employee while he was at that site. And we would also like - sorry, on that score we would also like to confirm that at the time of the purchase, in March 1999, of that business by Mr Frank Crovino, who is the current owner of the business at Caltex Craigieburn, which is - it is actually Caltex Craigieburn, which is the site we are dealing with.

PN24

No pay-out of entitlements was ever made to either of these employees, Mr George Lee or Ms Julie Johnson, in relation to long service leave. And that is a fact that both the employer and, I believe, the VACC should be aware of. The terms of the contract of sale; we don't have a copy of the contract of sale but the employer and, certainly, its representatives would have that. So we could confirm no pay-out of entitlements in relation to long service leave ever occurred.

PN25

There are just another couple of points I would like to make, on the record. The day after, on 30 June, the day following our initial conference in relation to this matter, Mr Frank Crovino contacted Ms Julie Johnson at Caltex Craigieburn at her work and stated that he was not going to pay her anything and she reported to feeling - she reported this conversation to the organiser, Ms Lorraine Vallaro, and she reported feeling quite harassed and intimidated by his tone. I don't believe he has contacted her since, but he did indicate that he was not prepared to pay anything to either Ms Johnson or Mr Lee.

PN26

Just one other point we would like to make and that is in relation to the equity of this situation. We note that the Full Bench has applied to the Vehicle Industry Repair, Services and Retail Award, parental leave for casual employees. Now, now obviously, that applies to eligible employees with ongoing service records and it just highlights the inequity of this situation where parental leave for permanent casual employees can occur and yet the basic entitlement of long service leave, which has been a provision in many federal awards since the mid 1960s, continues to be denied to permanent casuals. So that is an issue that we would like recorded.

PN27

We have got nothing more to report, other than that we have not been able to reach a resolution in relation to this matter. We do seek your continuing assistance and we are happy to proceed into conference, once the VACC have reported their position in relation to this matter.

PN28

THE COMMISSIONER: Yes, thank you.

PN29

MR CHESTERMAN: Yes, thanks, Commissioner. What Ms O'Halloran says is correct, that the investigation I undertook regarding any outstanding - sorry, any payment of entitlements doesn't appear to have occurred at the time of the sale. I would have to say that, from my investigation of the matter, that it appears that both parties were permanent casuals or, I would think on the rostering arrangements, probably permanent part-time employees. The one thing I would say is that, and Ms O'Halloran is aware of this, is that at the moment there is no existing entitlement for pro rata long service leave given that under the Vehicle Industry Repair, Services and Retail Award Long Service Award 1977, I think it is in clause 6b(iii), it only applies to employees who have left the employment of an employer.

PN30

When we were before the Commission last time we indicated that both case history and legal opinion supports the view that the - that clause 16, the leave reserve clause, effectively covers - well, not only one, covers the field in relation to long service leave but, in our view, is prescriptive in the sense that it states that:

PN31

Any parties to apply for inclusion of provisions regarding part-time workers and casual workers -

PN32

and this - a similar clause in a metal industry long service leave award, which has an identical clause and I suspect this clause originated from this metal industry long service leave award in South Australia - Full Bench decision in South Australia, addressed this issue and said that - and that was some time ago, I admit to that, it was 1979, that basically, because the provision of - the leave reserve provision was in the award and was prescriptive with respect of permanent part-timers and casuals then there was no entitlement under the Federal Award.

PN33

And since that time we have also obtained legal opinion stating that that is the case and a High Court decision effectively meant that because it was included in the Federal Award then it covers the field. But the other thing I would like to report is - - -

PN34

THE COMMISSIONER: Well, just - - -

PN35

MR CHESTERMAN: Yes.

PN36

THE COMMISSIONER: - - - I mean, this is a very important point, so if you are just going to rattle over them - and do you have references for these - - -

PN37

MR CHESTERMAN: Yes, we do, I was actually going to present a copy of that decision, but - you have got this, haven't you?

PN38

MS O'HALLORAN: Yes, I do.

PN39

MR CHESTERMAN: And it is a decision of Lockyer v Key Proprietary Limited and it was a Full Industrial Court decision of, South Australian Industrial Full Court decision. And effectively, just by way of background, what had happened in this case was an employee who was, in fact, a casual employee, was given or provided long service leave under the State Long Service Leave Award Act and then applied to the Magistrates' Court that because the Federal Long Service Leave Award, the Metal Industry Long Service Leave Award, was more beneficial then the applicant was seeking those provisions and the Full Bench was asked to consider the question of an identical leave reserve clause 16. And at page 1 - it actually referred to at page 1086 by way of reference and I will quote:

PN40

However, it is to be noted that the substantive right, conferred by the Award, is that contained in clause 4. This stipulates, in effect, an employee shall be entitled to long service leave with pay in respect of service, with an employer, as in this award provided.

PN41

Clause 16 of the award, which bears the title Leave Reserve, later expressly states inter alia as follows:

PN42

Leave is reserved to any party to apply for inclusion and provisions regarding piece workers, part time workers, casual workers, boards of reference.

PN43

And it went on, page 1085, in the second paragraph and I quote:

PN44

Be that as it may, it appears to us, that there is a strong argument to the effect that when read as a whole ...(reads)... for consideration at the instance of the intended party at a later stage.

PN45

Clause 7 of the award which prescribed what payments are to be made in respect of long service leave entitlements is limited in its stipulations to the situations of full-time employees and perhaps piece workers and employees who are the subject of other systems of payments by result. Well, basically, the decision went on to say that given that this clause had been expressly - sorry, the question of permanent part timers and casuals had been expressly dealt with in the leave reserve clause. Then in that Court ruled that the Federal Award would not apply and in that case the State long service leave provisions which had been given to the employees would be the relevant provisions.

PN46

But before - I would like to go into conference, but before I do so I would also like to tell the Commission that at the conference, last Saturday, involving all metals trades associations, we looked at the question of long service leave. It does - the award gives and I quote - "any party the right to apply - - - "

PN47

THE COMMISSIONER: Where are you?

PN48

MR CHESTERMAN: I am in clause 16, Leave Reserved in the Vehicle Industry Repair Services and Retail Award for Long Service Leave 1977.

PN49

THE COMMISSIONER: What clause?

PN50

MR CHESTERMAN: Clause 16, Leave Reserved, Long Service Leave Award.

PN51

THE COMMISSIONER: Clause 16, in the copy of the award I have relates to aged or infirm workers.

PN52

MR CHESTERMAN: That would be - that is the Vehicle Industry and Repair, Services and Retail Award 1983. You will find that 1977 Long Service Leave Award should be behind the - behind that award, is that correct. It is a separate award.

PN53

THE COMMISSIONER: What happened arising out of the award simplification in relation to - - -

PN54

MR CHESTERMAN: The award has been simplified with no change.

PN55

THE COMMISSIONER: So the Long Service Leave Award 1977 - - -

PN56

MR CHESTERMAN: Yes, has been simplified.

PN57

THE COMMISSIONER: What is it now known as?

PN58

MR CHESTERMAN: Well, it is - perhaps I could provide a detailed letter. I did - actually, I was intending to bring that award with me but I don't appear to have it with me. Perhaps if I could provide it to the Commission.

PN59

THE COMMISSIONER: All right. So at clause 16 of the Long Service Leave Award does state there in relation to part-time workers.

PN60

MR CHESTERMAN: Now, at this conference we held we believe there is a need to address the issue but, we believe that if we are addressing it, it needs to be addressed in the context of what is happening in the area of service stations or retail service stations and the conditions that apply or govern the operation of those employees that are employed in that area under the Vehicle Industry Repair, Services and Retail Award 1983. So we are not saying that - we are saying that there is a need to review it and, actually, I am the person that has been delegated to review it, which is unfortunate, but one of those things.

PN61

So what I am suggesting is that we are not - it is incumbent on any party to have the right to apply to the Commission for variation of the award and, certainly, the unions have had the opportunity to do that. But I am prepared - well, I am not prepared to, but we will be looking at what applies in other federal awards and perhaps look at some other issues involving console operators. And perhaps I might say, just by way of example, one of the problems that we have with console operators is that not only the fact that we have had a number of mergers and takeovers but some employees, actually, who are employed as casuals actually like to remain casuals.

PN62

And we think that the existing provision in the award which provides for that clause - well, not in this award, but in the Vehicle Industry Repair, Services and Retail Award which deals with an employee working in excess of 38 hours per week over a six week period, then what happens then is that they actually become, you know, weekly employees are deemed to be weekly employees. From the examples I have got from businesses you have a number of - as you would be aware, Commissioner, because you have dealt with a number of cases involving console operators, you have a diverse range of people working in service stations and some of them are university students.

PN63

Now, university students like the 20 per cent loading and I have said to people, well, you know, they have been there for two years, you have really got to transfer them to permanent part-time status. The answer to that is "No, but they don't want to go to permanent part time status", or if they do want to go to permanent part-time status they want to retain the 20 per cent loading. And these are issues, I think, that need to be addressed along with the issue of long service leave. I don't believe that you can have a provision - well, in most awards, I would think now, but without having reviewed them where somebody has worked in excess of 10 years, particularly on a permanent part-time basis, I would suspect that most now have an entitlement, either on a state basis or federal basis, to long service leave. But that needs to be checked.

PN64

The problem, obviously, that we face with service stations, is that we have worked, we have operated on the basis that there have been decisions, like the South Australian decision, handed down, which support the approach that we have put to our members and, equally, there has been legal opinion on it that support that approach, too. But we are aware, obviously, that things change, times change and that certainly, as Ms O'Halloran indicated, you know, there is reference now to the parental leave provisions apply to permanent part-time casuals - sorry, permanent casuals.

PN65

THE COMMISSIONER: It is not only that, the 1996 Act specifically provides for regular part-time employee and in section 4.1 regular part-time employee means an employee who receives on a pro rata basis the equivalent pay and conditions to those specified in an award or awards for full-time employees who do the same kind of work.

PN66

MR CHESTERMAN: That is what I am saying, I am saying my view is it needs to be addressed. How it is addressed is another issue and when it is to apply from is, obviously, a very important issue.

PN67

THE COMMISSIONER: Yes, all right. Does the part-time worker in your leave reserve clause refer to permanent part time?

PN68

MR CHESTERMAN: I don't know. I mean, I don't know because I have checked the transcript of what occurred back in 1976 or '77 when this award was introduced and it seems to me, as I think I might have indicated last time, that the issue, in terms of flowing the Long Service Leave Award into the retail automotive industry, didn't focus on the provisions of the log - or the award or log of claims that was served on the parties, it more related to the parties who were to be bound by it. And it has led me to the conclusion that the Metal Industry Long Service Leave Award, which was the subject of a Full Bench decision around 1976, was effectively the award that was translated into the retail automotive industry area.

PN69

So there wasn't discussion on the intent of what clause 16 of the leave reserved clause meant or what it was intended to cover, whether it was permanent part-time people. But obviously, over the years, I mean, some 25 years plus, you know, employment arrangements and relationships have changed and we are prepared to concede that there is a need to look at it, but we would like to look at it on the basis of circumstances applying which we think are special to that industry because it is, in most cases, a 24 hour industry.

PN70

THE COMMISSIONER: And what will we do with these two people who are the applicants in this case?

PN71

MR CHESTERMAN: Well, they don't have - at the moment they don't have an entitlement to long service leave because if they are deemed to be permanent part-time employees they haven't ceased their employment with the company. So under this award they don't have an entitlement at this stage.

PN72

THE COMMISSIONER: So you are saying, under the award, the Long Service Leave Award - - -

PN73

MR CHESTERMAN: Yes.

PN74

THE COMMISSIONER: - - - that you can only be paid out pro rata long service leave, you don't get long service leave if you are still operating.

PN75

MR CHESTERMAN: No, you don't.

PN76

THE COMMISSIONER: Well, take me to that part.

PN77

MR CHESTERMAN: It is subclause 6(b)(iii). It says and I quote:

PN78

Subject to subclause (e), which relates to time frames, hereof, in the case of an employee...(reads)... a proportionate amount on the basis of 13 weeks for 15 years service.

PN79

THE COMMISSIONER: Well, what do you say of part (c):

PN80

Such leave shall be granted and taken and except as by this award permitted, payment in lieu thereof shall not be made or accepted.

PN81

MR CHESTERMAN: Well, I would say that applies to fully accrued long service leave entitlement after 15 years because (iii) is specific in its application to pro rata long service leave entitlements.

PN82

THE COMMISSIONER: Well, what do you say of the submission of Ms O'Halloran, that Ms Johnson was rung by the employer?

PN83

MR CHESTERMAN: I am unaware of that, but I will speak to the employer. I mean, I have spoken to the employer, saying that - indicating that at the moment there is not an entitlement under the award because the employees are - well, one, still employed by the company and two, our view based on past precedent and legal opinion, that the leave reserve covers - doesn't cover permanent part-timers and casuals. But certainly, I would have thought that it could have been a better explanation than just saying "you are not going to be paid".

PN84

THE COMMISSIONER: Yes, all right. It might be useful, I think, if we went into conference.

NO FURTHER PROCEEDINGS RECORDED