C2002/4052, Transcript of Proceedings [2002] AIRCTrans 3441 (6 September 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER JONES

C2002/4052

AUSTRALIAN LIQUOR, HOSPITALITY
AND MISCELLANEOUS WORKERS UNION

and

INTERNATIONAL THEME PARK PTY LIMITED,
t/as WONDERLAND SYDNEY

Notification pursuant to section 99 of the Act
of an industrial dispute re employer ceasing
practice of rotating employees among job stations

SYDNEY

2.05 PM, WEDNESDAY, 21 AUGUST 2002

Hearing Continuing

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN1

THE COMMISSIONER: May I have the appearances, please.

PN2

MR M. VANCE: If the Commission pleases, I appear on behalf of the Australian, Liquor, Hospitality and Miscellaneous Workers Union and with me is MR R. GEIKE, who is the union's delegate at the Wonderland site in question.

PN3

MS J. TAYLOR: May it please the Commission, I appear as agent on behalf of Wonderland Sydney.

PN4

MS J. GREEN: If the Commission pleases, Human Resources at Wonderland, Sydney and with me is MS Z. SCHARENGUIVEL, who is the Operations Manager at Wonderland Sydney.

PN5

THE COMMISSIONER: Thank you. Well, Mr Vance, it is your application.

PN6

MR VANCE: Thank you, Commissioner. The union has notified this dispute following some failed attempts to address an issue of employee rotation between job stations at the Wonderland Theme Park in Sydney's west. The union's members who are affected are employed by the respondent in an area which is known as attractions and they are responsible for running rides and other amusements at the theme park.

PN7

Up until around the end of the year 2000, Wonderland had a practice of rotating employees around jobs on an hourly basis or so, certainly on a number of occasions each day. That had what we would regard as beneficial effects to both employees and the employer and we say when properly managed, the system of rotation did not unduly interfere with the operation of the park.

PN8

However, over the last 18 months the rotations between jobs have become more and more infrequent and over the last couple of months have practically ceased and this has resulted in employees being required to operate equipment which can be noisy and busy through to other equipment which is situated in cold wet areas and operating that equipment continuously during a shift with only minimal breaks for lunch and tea break as per the breaks required by the award.

PN9

In respect to one particular ride, Commissioner, which is known as a Skyrider and that ride is an overhead gondola riding device which used to exist at the Royal Easter Show when it was situated at Moore Park in Sydney and some years ago it was purchased by Wonderland and is operated there. You may be familiar with that.

PN10

In respect to that ride, Skyrider, we have some serious concerns for the safety of members resulting from the employer's practice of ceasing job rotations. In fact, back in 1997 Wonderland sought some expert advice following complaints from employees about the safety aspects of operating that ride and indeed, Wonderland commissioned a report by a company called Hughes Occupational, Health and Safety and Risk Management Pty Limited. That report indicated that it was safe to operate the ride with two operators - it had previously been operated with four operators, but on the basis that there were regular rotations throughout the park and the provision of rotations was recommended primarily on the basis of avoidance of lengthy exposure to excessive noise levels.

PN11

Since that time I understand, Skyrider has now been reduced to only one operator at sometimes and that they remain on that ride for all of the shift which we say would increase unreasonably the exposure to noise levels. We also say that there are various other rides or attractions within the park which also expose our members to excessive noise, the noise not just being from the equipment but being from the understandably exuberant voices of the guests of the park.

PN12

THE COMMISSIONER: Paying guests.

PN13

MR VANCE: Yes. In the past where rotations were provided, members were also able to access toilet facilities and such during the rotation. However, now they rely upon being relieved by a supervisor when a break is needed outside of the meal or the normal break times. The union has recently received a number of complaints relating to excessive delays before being relieved for a toilet break.

PN14

In one particular instance, one of our members, Ms Kerry Owen, who is present in the court room, wasn't relieved for a period which we say was approaching 45 minutes, but the employer says was only 15 minutes. I don't seek to argue about exactly what period it was before she was relieved but we do say that in any event that 15 minutes in itself would be excessive and that situation might very well have been avoided if the past practice of regular rotations was still occurring.

PN15

Sadly, and eventually after Ms Owen says in her words she began to leak, she was forced to lock up her ride and make her way to the nearest toilet herself and indeed, for that action, our member received a written warning and as punishment she has been advised that she would be remaining on that one ride, which I understand is known as Antique Autos indefinitely. I'm also instructed Antique Autos is situated in an area that is prone to becoming cold and damp. Recently our member suffered from a bout of pneumonia and she subsequently presented a certificate from her doctor advising that she should not be required to work in those cold areas for lengthy periods.

PN16

When she originally tried to give the certificate to her supervisor, it was given back to her with the words, I can't read this, and Ms Owen subsequently returned to the surgery where she gained that certificate and visited an alternate doctor, as the original doctor wasn't working at that time and the alternate doctor printed a legible copy of the certificate. However, despite the reproduction of the certificate, Wonderland continues to refuse to rotate that member.

PN17

Commissioner, that is a little bit empiric now in that our member's employment has now been terminated this very morning I've learnt for reasons which I'm sure the respondent will say are unrelated to this matter or her involvement in attempting to have the rotation system addressed and the union will proceed with that matter after some investigation of it in the appropriate fashion.

PN18

On 9 August, the union's delegates and myself met with Ms Joanne Green and Mr Steven Smith, Wonderland's Human Resources management, regarding a number of issues including the issue of job rotation. We were advised by Ms Green that the question of rotations was up to individual supervisors and that no management directive had been given in relation to ceasing rotations. We heard that supervisors would decide on rotations at the time and that the criteria of starting availability would be in their minds. In relation to Ms Owen's specific situation, still the respondent wasn't prepared to budge despite the medical certificate.

PN19

Commissioner, another problem which arises from the non-rotation is that there are certain rides within the theme park that operate on a dead mans type switch and that's designed to ensure the safety of guests in the event of accident or other eventuality affecting the operator. We agree that's an appropriate system in the circumstances and an appropriate safety method. However, we have said that some of those dead man switches are unnecessarily difficult to depress. They require a level of force to be pressed which is more than is normal and we suspect that there is some problem with that particular equipment. The operation of that equipment is aggravated by the lengthy periods of time that members are required to remain on one ride.

PN20

The question as to whether modification of the switches is possible is, I understand, currently before Wonderland's Occupational, Health and Safety Committee. However, we think it is disappointing that in the interim, members haven't been afforded any rotation to avoid working those jobs for lengthy periods of time. I'm also instructed that as recently as yesterday a meeting of employees was held where management advised that there had been five near misses in the park over the last eight weeks and that the importance of remaining attentive at all times was emphasised.

PN21

We agree, Commissioner, that it is important that people remain attentive for the safety of both the staff and the guests at the park. We say though, Commissioner, that that attentives would be improved to no end were there a proper of system of rotations in place. At the meeting on 9 August, we suggested that the parties have a look at the different rides within the park and see if we can prioratise those rides where regular rotations are needed and other rides where rotations would be needed less often or even not at all on some rides. However, again, Wonderland has refused to negotiate on that question.

PN22

Our final reason, Commissioner, that rotation between rides is beneficial is that on many of the rides, it is necessary to have operated that ride in each three month period or fresh training will be needed before an operator can return to that ride and in some instances, the lack of rotation could mean that employees are unable to return to particular jobs without retraining which would have been unnecessary had the practice of rotations occur.

PN23

Now, Commissioner, generally it is the case that people do operate much of the equipment across Wonderland. However, there are some people and indeed in Ms Owen's dismissal she was one of those where they would remain on one ride for a lengthy period of time. Now, I accept that if somebody operates one ride today and another ride tomorrow, they could certainly go around all of the rides within three months and that would not be an issue, but there are some people who aren't generally rotated and that is the difficulty we have.

PN24

Commissioner, we seek simply to have some meaningful negotiations with the employer in relation to what we say is a not unreasonable request for a proper system of job rotations. We request your assistance by way of conciliation or recommendation to that effect. I have had some minimal contact with the Australian Workers Union who cover some employees employed at theme parks on the Gold Coast and understand that in some instances people are rotated and in other instances that they are not depending upon the ride itself.

PN25

It's also the case, Commissioner, that all of Wonderland's employees bar three, who are ride operators, have now signed a petition, which I've only received this morning, requesting that Wonderland again have a look at the question of returning to rotations. That's all I have for the present, Commissioner.

PN26

THE COMMISSIONER: Thank you. Are you saying to me there has been a rotation which involved everyone, but now there is a rotation which is involving some but not others?

PN27

MR VANCE: I understand that that is the rotation on a daily basis. A person would now remain on a ride for all of the day or all of the shift. There are some people who rotate. On Monday they might do this ride, Tuesday another ride, and so on and another group of employees who basically stay on one ride all of the time. In particular our problem is that a person might be required to operate one particular ride for the whole of the shift which might unnecessarily expose them to difficulties, if nothing else, in relation to the noise levels on some of those rides.

PN28

THE COMMISSIONER: Yes. You're saying your research involving the AWU has shown that the theme parks in Queensland rotate some but don't rotate others?

PN29

MR VANCE: Yes, those are the instructions that I've received.

PN30

THE COMMISSIONER: So is there any difference in terms of what is happening now?

PN31

MR VANCE: No, Commissioner. I may not have explained it properly. In respect of those theme parks on the Gold Coast, there are some rides where employees are rotated and I don't know if it's hourly or a couple of hours or twice a day, but they are rotated during the day between rides. There are rides where it is accepted that it's quite proper that a person could remain on that ride for all of the shift.

PN32

THE COMMISSIONER: All right, thank you. Well, who wants to lead off for the employers? Ms Taylor?

PN33

MS TAYLOR: Thank you, Commissioner. In fact, the practice of rotating rides at Wonderland is actually still occurring. The practice currently is that employees rotate a minimum of once a day. So they will go from one ride starting at around 10am and after their lunch they will transfer to a different ride and that practice is still continuing. Occasionally people will change to a further ride and they'll actually swap over after afternoon tea as well. So that practice is continuing.

PN34

As Mr Vance says, towards the end of 2000 there was a practice of rotating on an hourly basis but the organisation found that logistically and administratively that was quite difficult to manage. As you would understand, Commissioner, one of the purposes of the ride operators is to ensure the safety of guests on those rides and the ride can't be left unattended at any stage. So in order to have staff change over on an hourly basis, that means one person going and relieving another before that person can leave and go to the next ride. So in fact, the difficulty of doing that is quite real but the practice is continuing.

PN35

In relation to Ms Kerry Owen, her circumstances are quite different to any of the other employees. As Mr Vance stated, she was given a warning for leaving her post on one occasion. The basis of that was basically the safety risk that was exposed as a result of her leaving that ride. In the circumstances, the employer chose to put her onto one ride, that ride being a safer one, given her, I guess, lack of regard to safety in that instance, and for a period she was to remain on that ride. She has since been terminated but for different grounds relating to breaches of policy.

PN36

So, Commissioner, as far as the rotation issue is concerned, we believe there is sufficient rotation. As Mr Vance indicated, the Queensland theme parks don't seem to rotate any more than once a day and that's accepted industry practice and, in fact, on some rides they don't rotate. These discussions have been raised with the employer.

PN37

Unfortunately, I guess, the details of the dispute notice itself didn't go into as much detail and perhaps some further research needs to be undertaken but as far as the employees are concerned, the rotation is occurring and it's not an issue and there's nothing further to discuss.

PN38

THE COMMISSIONER: All right. Given the particular circumstances that have been mentioned about one of the employees, was that matter checked out before a warning notice was issued? It's one part of the union case that there could be mitigating circumstances.

PN39

MS TAYLOR: Yes, there was an investigation of those circumstances and it was believed that her conduct wasn't justified in the circumstances. There was only a 15-minute break before she was relieved and in the circumstances, Commissioner, she has the ability to pursue her termination of employment in another avenue - - -

PN40

THE COMMISSIONER: I'm not going into that issue. I don't see that as part of this issue we have here now but certainly in terms of a break in some instances, be it male or female, 15 minutes could be a long time. Half an hour can be a long time too, but 15 minutes can be equally as long.

PN41

MS TAYLOR: Certainly, Commissioner your point is noted and directly following the issuing of that warning and that incident, there were specific directions issued again to supervisors and policies about relieving employees for the purpose of toilet breaks immediately and that that must occur immediately, but given the particular circumstances of that case, the employer didn't believe that the circumstances mitigated to that extent and that her conduct did justify formal warning.

PN42

THE COMMISSIONER: Yes. The other point that I've taken note of is that my exposure to the park here and the parks in Queensland is that certainly some rides would appear to be noisier than others and some of that noise, of course, can be attributed to the paying guests, if you like, rather than the machinery itself, but I'm looking at that then from an occupational health consideration, that maybe it should be investigated at least to see whether those particular areas may need something different in terms of rotation.

PN43

MS TAYLOR: I believe there has been some investigation into that occupational health and safety issue and Ms Green may be able to provide you with greater information on that but as Mr Vance indicated, there is one particular ride the park is looking into on that issue. Certainly occupational health and safety and also obviously the safety of the public or the guests is a key issue for the park and they are mindful of that issue.

PN44

THE COMMISSIONER: Thank you. Yes, Ms Green?

PN45

MS GREEN: Commissioner, yes, Ms Taylor has indicated that we're looking into it and Mr Vance did bring to my attention at a meeting on 9 August hearing, the noise issue with one of our rides, the Demon Ride, only the one ride. Apart from that, no other discussion has been entered into about any other of the rides.

PN46

At the moment, the Demon Ride is down for its annual maintenance so we have been unable to conduct any tests. It is our intention when we run our tests to make sure that the annual maintenance is complete to the best possible ability, that we have a look at the levels of noise. The situation will be now that it's been brought to my attention, we will be doing that with every ride. The intention, I believe, is - - -

PN47

THE COMMISSIONER: I think you need to look at it, not only the ride itself but in terms of the noise that's created other than the machinery.

PN48

MS GREEN: Yes, certainly. My intention as a first step, once we have gauged the noise levels, was to be looking at some form of safety equipment to be worn by the operators if it appeared to be necessary as a result of those tested. Unfortunately, as I've indicated, the Demon Ride was the one brought to my attention and it's down at the moment and not running, so we can't do that test, but we intend to do that test and take on board what you suggest about there being guests on them as well. That's something we will look at for all the other rides as well.

PN49

THE COMMISSIONER: A lot of the guests involved are going to be children and understandably some rides will be noisier than others depending who is on the particular ride at the time, but I think what needs to be done, or what I am going to recommend be done, is, in terms of your situation and experience, I want you to list all the issues as you see it in relation to this rotation just in terms on advantages and disadvantages.

PN50

Now, I don't want a list of 100 things or an opportunity to bring every ..... up of every employee, but one should look at that list so that it brings out the major issues that need to be investigated more so than others.

PN51

The same from your side, Ms Green. If you could list the advantages and disadvantages of the rotation system, as you see it, and you'll have from Mr Vance also the various rides that are of concern in terms of noise that you will have to, of course, investigate, understanding that the Demon Ride at the moment is still down, once that comes up but you may be able to look at some of the other rides in the meantime.

PN52

If a copy of those lists could then be forwarded to the Commission once they are prepared and exchanged between the two parties, the parties could sit down and look at them and I mean look at them constructively. If need be, if the parties are going to be brought into the loop so be it and if need be the Commission can be brought into the loop in terms of sitting down with the parties, but if the parties can do this exercise without the necessary involvement of the Commission, I think it's better in their interests because the best solutions are the ones they can resolve themselves rather than having something foisted upon them.

PN53

So if that could be and I suggest it be done over the next two weeks with a report back to me.

PN54

MR VANCE: I think that would be more than enough, Commissioner.

PN55

THE COMMISSIONER: Is the afternoon suitable to the parties? What's preferable, morning or afternoon?

PN56

MR VANCE: Either would be convenient, depending on the day, Commissioner. I have a number of matters in - - -

PN57

THE COMMISSIONER: Will we need a hook up with Brisbane?

PN58

MS TAYLOR: Yes, we would.

PN59

THE COMMISSIONER: Well, that will be subject to being available on the day. I'm looking at the 5th at 2.15? That will be two weeks out. Is that all right?

PN60

MR VANCE: It's convenient to me, Commissioner.

PN61

THE COMMISSIONER: It will be subject to us finding out, of course, whether we can get a hook up to Brisbane on the video. Do you understand that, Ms Taylor?

PN62

MS TAYLOR: Yes, thank you, Commissioner.

PN63

THE COMMISSIONER: So it will be 2.15 on 5 September. We'll notify the parties accordingly but in the meanwhile, I would expect to see a copy of each others lists and have those exchanged and the parties should have been able to sit down and discuss those issues prior to coming to the Commission. Hopefully there's a solution. If there's nothing further to add, this Commission will stand adjourned.

ADJOURNED UNTIL THURSDAY, 5 SEPTEMBER 2002 [2.30pm]