C2002/3425, Transcript of Proceedings [2002] AIRCTrans 3975 (7 October 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER FOGGO

C2002/3425

HOLDEN LTD

and

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION -
VEHICLE DIVISION VICTORIAN REGION

Notification pursuant to section 99 of the Act
of an industrial dispute re change of
shift times

MELBOURNE

2.18 AM, MONDAY, 23 SEPTEMBER 2002

PN1

MR M. POLGLAZE: I appear on behalf of Holden, with MS A. ROBERTSON, MR A. ROBINSON and MR D. BROWN.

PN2

MS S. SCHLESINGER: I appear for the Australian Manufacturing and Workers' Union, with MR L. PICCI and MR L. LONG.

PN3

THE COMMISSIONER: Yes, Mr Polglaze.

PN4

MR POLGLAZE: Commissioner, this dispute concerns changes in shift times for 12 employees within the foundry at Holden's engine operations and those employees taking illegal industrial action on 19 and 20 September and continuing to date. The context of the dispute is a significant down-turn in customer requirements for the engine operations. This caused the business to implement production down days, bring forward PDOs, schedule excess annual leave, make transfers to other areas of the business available and a range of other actions to try and manage a significant cost of excess labour we have.

PN5

To date the foundry has been mostly shielded from these measures due to ongoing customer volumes. Variation in the production requirements to the foundry, however, have required revision in working hours. For most of the first half of this year these variations were managed within the existing shift requirements and arrangements. It is noted, however, that for some of this time production was scheduled for 11 hours per day so that the hours for production were from 7.15 to 6.45.

PN6

The implication of this was that afternoon shift employees who commenced at 3.45 were allocated housekeeping duties for the balance of their shifts, so a significant amount of waste in the arrangements for shifts between that time. The background to the changes that came up at the moment were that back in April there was discussion with the unions and agreement reached to introduce a shift commencing at 10.15 am and finishing at 6.45. This shift was manned by five afternoon shift employees who were previously working from 3.45 to 12.15 am times.

PN7

The afternoon shift premium of 18 per cent continued to apply to these employees, given the shift finished after 6 o'clock. In June of this year and in response to increased volumes from Isuzu which will be effective from 9 July. It was identified that further variations to the shift times would be required to most effectively manage the increased volumes, and to meet these volumes it was proposed to commence some staggered shift start times and meet the requirements without the need for a second shift. Also in June employees were surveyed regarding their preferred start times and this happened on 5 June, to identify any personal issues which need to be accommodated in the changes.

PN8

A number of meetings were held with senior shop steward, Mr Lou Picci to discuss the volume variations and proposed shift times. In response to some of these meetings in particular, and on 19 June, Mr Picci was concerned with the overall picture at the engine operations and a suggestion that fabrication areas were also looking to implement staggered shift times to meet volume requirements without a second shift. His position was that no changes should be made until the 6 to 6 spread of hours was sorted out in the Commission.

PN9

THE COMMISSIONER: Until what?

PN10

MR POLGLAZE: Until the 6 to 6 spread of hours, so 6 am to 6 pm was sorted out in the Commission. On 21 June Mr Picci was provided with details of the current - those shift times in the foundry and the manning levels of these shift times and these details included the 40 employees that will be affected. Twenty-two employees will be moved from a 7.15 am start till a 6.15 am start, eight employees from a 7.15 am start to a 9.15 am start, five from 10.15 am to 9.15 and a final 10 would move from a 3.45 pm start to a 2.45 pm start.

PN11

The indication from Mr Picci was that all these changes are okay except for the 9.15 am start time. Further meetings were conducted including Mr Picci as well as organising Mr Lyle Long without agreement being reached. Mr Picci maintained that he wanted details of the requirements across EO and not just the foundry and it is noted that due to the volume reduction from Daewoo within the rest of the engine operations, there are no immediate plans for a 9.15 am shift although it is important, looking forward, that there is flexibility around our shift starts.

PN12

On 28 June, Holden wrote to Mr Picci advising that shift to changes would be effective from 9 July and Mr Picci maintained that in his view the 9.15 am start was still not agreed. On 5 July there was a further meeting with Mr Picci to discuss having a trial of the 9.15 am start. Mr Picci was happy with the details of the trial except that a meal allowance should be provided to employees to address any inconvenience that they would have. Given that such an allowances would have no basis in any award or any agreement, it was deemed inappropriate by the company and no agreement was reached.

PN13

So, it is clear from the Holden's position that there was no trial agreed to at that point in time. Given the consultation that occurred and the needs of the business, Holden confirmed to the unions on 5 July that the start time changes would proceed from 9 July and this would include the employees scheduled to commence at 9.15 am. Mr Picci advised the company that the organiser will be attending the site to meet with afternoon shift employees and advised that they would not be accepting the changes and it was at this point in time that the previous section 99 application was lodged.

PN14

On 9 July company representatives met with the unions and it was agreed to move forward with the changes hours, including the 9.15 am start. Again the unions claimed that this represented a trial. The company position is clear that this is an indefinite change although it was agreed that if any concerns were raised they would be discussed and on the basis of this meeting the section 98 application was deferred as employees would be working the hours required by the company.

PN15

Also on 9 July there were further meetings between the union representatives and their employees and they advised the company of the following issues and outcome from that meeting. The working hours were six week trial, according to the unions. At the end of that period any issues will be addressed and there was a concern for a loss of shift premium for those moving from the 10.15 am start time. The company confirmed in response that this was not a trial although any issues raised would be addressed where possible.

PN16

The company also met directly with the affected employees and advised in response to employee issues that, firstly, the changes were driven by our customer demand. Secondly, that moving to a day shift was not a voluntary event, although employee preferences had been considered in the start times and in response to concerns about long-term job security which were raised, the company is working through the difficult period were phased as best it could. It also provided employees with details of the enterprise bargaining agreement provisions regarding the spread of hours and the production requirements were explained.

PN17

Following the implementation of the new shift start times a number of issues were raised by employees. During July there was an issue concerning tea breaks which, after consultation between management and employees, were satisfactorily resolved. There was a further issued raised by one employee who had an inability to attend at 9.15 due to some personal issues and he was transferred to a 7.15 am start, and a further employee was able to shift to an early start each Friday to accommodate some personal needs.

PN18

So again, the company has shown a willingness to be flexible in meeting some general and personal issues where this was required. The employees have, on an ongoing basis now, since late August, raised concern about extra travelling times, extra fuel costs and the loss of a shift penalty for those who move from the afternoon shift. In response the company has advised - - -

PN19

THE COMMISSIONER: What do you mean by that?

PN20

MR POLGLAZE: Those employees who started at 10.15 continue to receive the afternoon shift premium because they finished after 6 pm at night, so when they move to 9.15 they have raised the issue that they have lost money in that process.

PN21

THE COMMISSIONER: Well, what do you mean by travel time?

PN22

MR POLGLAZE: One of the issues they have raised is that it takes them longer to get to work because of the different times of the day. In response the company has advised that while the foundry had not been affected by the down-turn affecting the rest of the engine operations, which has suffered down days and so on, the work business requirements which needed to be met and the spread of hours were detailed within the EBA and therefore part of the justification for the salary increases which they received, and that the hours would continue.

PN23

On 28 August there was a further meeting with union representatives including Mr Ashley Mayne and it was advised the employees were still not happy and they considered the trial period over. The unions requested a further review from the company and were advised that due to management availability that wouldn't happen immediately. On 11 September the company advised Mr Picci that it would look at the issues raised and production requirements and a further week was required before a formal response could be given. And on 18 September the company advised that they still couldn't confirm the position but would do so in a further week.

PN24

The union confirmed on 18 September they were not prepared to wait one more week and the 9.15 am starters would report at 7.15 am from the next day. The company also met directly with those affected employees on 18 September and explained the position and why a formal response would not be immediately available, and that that was due to a management availability and working through the schedules and the plans. From 19 September the 9.15 am start employees reported at 7.15 am and were advised that their hours of work started at 9.15 and they could start at work then.

PN25

It was confirmed with Mr Picci and the employees that the company considered this to be illegal industrial action and that we would be seeking the assistance of the Commission to resolve it. It was also explained to Mr Picci, in particular, that we were disappointed that the union has not chosen to follow our detailed grievance procedure which provided for the status quo to remain while any issues were resolved. In terms of the Holden position, we state that as a result of the operational requirements, the most efficient and cost-effective shift arrangements have been designed and implemented for the foundry. These arrangement are consistent with the award and in particular the Holden 2001 Enterprise Agreement which provides for a spread of hours from 6 am to 6 pm.

PN26

The company went through an extensive consultation process to ensure the employee preferences were accommodated wherever possible and this included leaving all pre-1987 employees on an afternoon shift and take the length of service into account in reallocating hours. So there was a range of flexibility shown. Two specific issues have been raised by the unions. Firstly, that such changes should be treated as significant change according to the enterprise agreement and the process defined for significant change followed. In response the company notes that there are changes to start times on a regular basis within our operations and such a definition - such a change doesn't meet the definition of significant change.

PN27

Further, we would say the unions have accepted all changes to start times except for the 9.15 am start and it is highlighted that this part of the arrangements that the unions have a problem with rather than changes to start times in general, and that further supports the argument that this isn't a significant change issue. Secondly, the unions have maintained that the changes were a trial, which has now finished. The company is clear that we are prepared to consider a trial but failing agreement over the details for it, advised that the changes would be implemented.

PN28

The unions acknowledged that the company does not regard the trial to be implemented. We further reiterate the unions have expressed a willingness to work these hours if an allowance is provided and we say that this reinforces that the objection is financially motivated rather than based around any principle or significant change or customer practice. And given the wages increases provided by our enterprise agreement and that the spread of hours is expressly included in it, Holden rejects any argument for an additional allowance.

PN29

In conclusion, Holden needs to arrange its operations in the most efficient and cost-effective manner possible and especially in the current climate where volume down-turns have created significant cost pressures for the whole of the Holden engine operations. It is noted that the foundry has volume reviews on a six weekly basis and given the nature of the business within EO at the present time, our ability to flexibly and efficiently adapt to business requirements we are the major determinate of our ongoing viability.

PN30

We say the changes implemented are in accordance with our awards and agreements and the Holden 2001 EBA in particular, and further, a significant consultation process was followed and personal preferences met wherever we could. Unfortunately, it is not possible to arrange our business to meet every personal demand and some people may be unhappy with the outcome of the changes. In this case, however, we say the changes have been made with a view to the long-term viability of the operations and the well-being of as many employees as possible. If the Commission pleases.

PN31

THE COMMISSIONER: Yes, thank you, Mr Polglaze. Ms Schlesinger.

PN32

MS SCHLESINGER: Commissioner, the company has an award with the union and enterprise agreements with the union and we think they haven't been adhered to. Commissioner, I will perhaps table some correspondence which you can follow if you choose, as I refer to the dates. Commissioner, I propose my submission going in chronological order and you will see some of the correspondence I refer to, to there.

EXHIBIT #S1 BUNDLE OF CORRESPONDENCE CONTAINING AWARDS AND AGREEMENTS

PN33

MS SCHLESINGER: Commissioner, on 22 April 2002, Mr Dennis Brown from Holden wrote to Gail Tierney, the State Secretary of the Vehicle Division advising of a requirement to move employees within the mould iron and melt area in foundry operations from afternoon shift to day shift. The company proposed that the hours be 10.15 am to 6.45 pm, Monday to Friday. The 18 per cent afternoon shift premium was to continue to apply for the normal hours worked. The union in correspondence dated 24 April 2002 endorsed the specific proposal given the unusual circumstances and the short-term nature of the proposed arrangements.

PN34

It was clear that the proposal was once-off and that the company needed to advise the union in writing of any extension or additional proposals. The company has not further consulted with either the state or the federal secretary of the vehicle division since this time. On 28 June, Mr Brown wrote to our senior steward, Mr Picci, proposing a range of start and finish times. These were broadly acceptable with one exception. And that exception was the proposal to change the start time and payment of employees who were presently - or at that time trialing the 10.15 am start.

PN35

The company advised that those 13 or so affected employees would start work at 9.15 am. It is not put in writing there that the 18 per cent loading would be taken away but we understood that that is what the company was proposing. Members were not happy with the proposed 9.15 am start and they sought to raise that with their senior steward. In attempt to allay our member concerns there were discussions with the company and it was agreed that there would be a trial of the 9.15 am start. It was put to the company that if people were happy with the 9.15 am start, the 9.15 am start could remain.

PN36

If there were problems, the problems would need to be dealt with. One of the important considerations as part of that trial from our point of view was that any participation in the trial be voluntary. As it transpired there was no genuine process for calling for volunteers. The company did ask the affected employees whether they would like to start at 7.15 am or 9.15 am. I believe there was one employee would did volunteer for the 9.15 am start. The rest expressed their desire to start at 7.15 am. The company then advised that there was no room for them on the 7.15 am start.

PN37

With the agreement that the parties had reached for the trial of the 9.15 am start, the Commissioner hearing that was scheduled for 9 July 2002, that was averted. After the trial of the 9.15 am start had been in place for about eight weeks, the company sought that the trial be further extended by two weeks so it could further analyse whatever it was that the company was analysing. Then after that time, on 18 September, the company sought yet another extension to the trial.

PN38

In an e-mail to Mr Picci, Mr Dennis Brown advised that he anticipated the review would be completed the following week. I think that e-mail is in your pile there, Commissioner. Whilst there was an attempt by the organiser and the steward to suggest to the affected members that they maintain working on that 9.15 am start until, you know, the end of this week, that being 27 September 2002, that was not acceptable to the members. It seems - now, part of the concern was that it was not clear exactly what the company was analysing during these continual extensions to the trial.

PN39

It does seem that management needed further time so it could get its appropriate management people together. I don't think they have been able to do that over the 10 or so week period of the trial. The 13 members who are undertaking the 9.15 am trial, they have reported for work at 7.15 am on Thursday, 19 September, Friday, 20 September, and today, Monday, 23 September. The company has not provided work at 7.15 am but at 9.15 am. On Thursday and Friday those members finished work at the usual day shift finishing time of 3.45 pm.

PN40

When Mr Brown of the company met with union organiser Ashley Mayne and senior steward several weeks ago, the company was advised of members' concerns about the 9.15 am start. Amongst those concerns were travelling to work in peak hour and the effect of travelling time, as opposed to starting and travelling, you know, before 7 am or then travelling prior to 10 am, increased traffic congestion, the increased travel time and the associated increased fuel costs that go with that. Essentially people were having the same wake-up time whether they were starting earlier or that later, family arrangements.

PN41

I believe in one instance there was a matter of car - family car sharing arrangements which would necessitate purchase of another vehicle in that household. The issue of the shift premium was raised and that such work also be of a voluntary nature. I believe Mr Brown committed to Ashley Mayne that he would get back to Ashley promptly on these issues. This has never happened. Mr Brown didn't arrange for any further discussions. From our perspective, the company has given no indication of being sympathetic to members' concerns.

PN42

As advised earlier, the company has not sought to meet with union officials or the state or federal secretary. We believe they have been shopping for an agreement on this 9.15 am proposal, and we would say that the only authority that they had to amend the original 10.15 am 18 per cent loading trial was to re-raise the issue with the state secretary of the vehicle division. It has also been put to our federal secretary that our steward and organiser have been obstructing the company's desired outcome. That is not a true allegation.

PN43

Commissioner, you are aware that the negotiations for the EBA were extensive. We submit that through that process the company didn't demonstrate that there was a problem with the spread of hours and indeed the company actually reaffirmed the existing spread of hours and changed the shift arrangements that have been in enterprise agreements as far back as 1992 and then reaffirmed '94, reaffirmed '96, reaffirmed '98, and now, again in 2001, 2002.

PN44

Commissioner, we say that through the enterprise agreement and through the award there is an obligation on the company to not only consult, but reach agreement with the affected individual and or the affected group when there is a change. That agreement has not been reached. In terms of a resolution to the matter, members have indicated that they would work on the day shift as a usual day shift with a 7.15 am start as for all the other day shift employees or we continue the trial on the 10.15 am basis. If the Commission pleases.

PN45

THE COMMISSIONER: Well, I don't understand what your last point is about.

PN46

MS SCHLESINGER: Well, they are - in terms of the resolution to the matter, if the company wants the employees on day shift, we haven't had any logic presented to us that a 9.15 am start is more appropriate than a 7.15 am start.

PN47

THE COMMISSIONER: So, you are saying you are prepared to be involved in a trial?

PN48

MS SCHLESINGER: Well, the 10.15 am trial, that appeared to be - I guess the effect of the trial on that was that that was a suitable arrangement. The 9.15 am start is not a suitable arrangement. I mean, that has been trialed. It has turned up a number of problems. Those problems haven't been addressed.

PN49

THE COMMISSIONER: I still don't understand why you are saying you support a trial then?

PN50

MS SCHLESINGER: Well, I guess a trial has occurred and that the outcome in terms of the hours that would be suitable are either the 7.15 start along with everyone else on day shift, or the 10.15 start that attracts the afternoon shift penalty.

PN51

THE COMMISSIONER: Yes, all right. Thank you. Is there anything else in response, Mr Polglaze?

PN52

MR POLGLAZE: Yes, Commissioner. If I could just clarify a couple of points quickly. First of all, it is true that 13 employees were placed initially onto the 9.15 am shift. Eight approximately of those employees came from the 7.15 am shift so they weren't all transferred from the higher premium attracting shift to 10.15, and I think it is important to note that from our point of view that means that there weren't - the whole group weren't losing their premiums.

PN53

We reiterate again that when we were faced with significant personal issues we did change the times of work for one employee and made some arrangements for another, so when faced with some general personal issues we showed some flexibility and fitted in with those wherever we could. To be honest, some of the issues, such as travel time and traffic, we recognise that these might have an impact on people but we need to arrange our business around what our customers require and travel time and traffic are things we aren't terribly sympathetic about, to be perfectly frank.

PN54

We also note the comment that there is a lack of understand around why a 9.15 am shift is required. We have on a number of occasions provided Mr Picci with details of the production requirements for the foundry in terms of output from different areas and how that fitted in with the number of production hours required and the 9.15 am shift provided an extra two hours in the shift which meant that we could run 10 hours of production and achieve what we needed to do. Mr Robinson is able to provide further details of that if necessary. If the Commission pleases.

PN55

THE COMMISSIONER: Yes, thank you. Ms Schlesinger.

PN56

MS SCHLESINGER: Commissioner, I believe of the employees that Mr Polglaze was indicating that may have come from the 7.15 start that they have all originally come from the afternoon shift, except for two. So they have been on the afternoon shift, they have come to the day shift and then there may have been some arrangement or rearrangement in the afternoon shift hours.

PN57

I think in terms of the briefings that have been provided to the steward, the issue that I guess leads to some inconsistency is that there is, I guess, a range of views that are sometimes put from the different managers in particular areas and that isn't necessarily what is put across every part of the company and, in any event, Commissioner, we maintain that through the instruments of the Commission the company is obliged to have discussions beyond the steward involving the relevant officials.

PN58

THE COMMISSIONER: And, according to the other parties to the agreement the status quo remains whilst application is made to the Commission to try and resolve the issue. I would hardly say status quo is turning up at 7 am. So, don't run that line of argument when you have left yourself so exposed in relation to that. All right. I don't see that re-hashing all those issues in conference is going to get us a long way. There are several options that are open.

PN59

There are options open to a continuation of resolving this dispute through the proper grievance procedure that is in the agreement. There have not been discussions at senior level despite the involvement of those people earlier on, and I am at a bit of a loss to understand why that hasn't occurred. Secondly, the situation that the company finds it in is perhaps not to their liking, or even of their making, but it is an pretty unexceptional situation and anyone in this industry knows that there are reappraisals, reassessments, confirmation of predicted orders, etcetera, etcetera, in relation to your production needs and I don't see this situation is any different from any usual situation that the company would find itself. This company or any other major vehicle company would find itself in from day to day.

PN60

[2.49pm]

PN61

Now, I thought that the agreement that was reached provided an opportunity for the parties to accommodate those changes. Now, here we are fresh out of an agreement - an enterprise agreement bargaining period and already there are these problems. I am going to issue a recommendation in several parts. One is that there should be discussions - the first thing is that there is going to be a return to work at the 9.15 time of these - however many employees it is. What is it, 9, 12, 13 - 12. Those 12 employees will - well, they can come to work whatever time they like.

PN62

I suppose they could sleep there if they were so enamoured, but they will not be provided work until the time of the notified shift at 9.15. And if that doesn't happen then I am going to refuse to deal with this any further. The other thing is though whilst that is occurring the union has raised what I believe to be a significant point in relation to resolution of this area continuing through the dispute resolution procedure.

PN63

I think given that Ms Tierney was involved early on from the letters that are shown in the exhibit that I have marked S1, and that she made it abundantly clear on 24 April that if any changes or extensions or additional proposals came up that they wanted to know, then I think that those discussions should occur. The other option is for the company to proceed to implement the changes on the basis they believe the appropriate notification, discussion, etcetera, etcetera, and all the words that are used in your agreements have occurred. I don't think that that third option would probably assist in resolving this.

PN64

So that is what I am going to do. However, I am going to leave it open to the parties - if there is no return to work at the 9.15 time then it is open to the company to bring alternate applications in relation to this matter. And then in the - they can be dealt with quickly and as are required under the Act. However, in the meantime if we can have this situation, then there can be discussions, and if there is a return to work then I will either be dealing - if there is not a return to work I will either be dealing with the alternate applications of the company or a situation that arises where the company implements the new roster arrangement in any case.

PN65

But I think that there should be all stops pulled out in relation to discussions at a senior level. Ms Schlesinger.

PN66

MS SCHLESINGER: Yes, look, I will certainly take instructions on that, Commissioner, from our state and federal office.

PN67

THE COMMISSIONER: Yes.

PN68

MS SCHLESINGER: And in terms of putting any recommendation to the members or anything that has come out of the Commission today, our organisers obviously will need to give 24 hours notice of attending the work site - - -

PN69

THE COMMISSIONER: No, they won't.

PN70

MS SCHLESINGER: - - - so that process can happen when they return to the office.

PN71

THE SENIOR DEPUTY PRESIDENT: No, they won't require 24 hours notice; that is outrageous.

PN72

MS SCHLESINGER: Well, Commissioner, I think that that was a point that was pretty certainly put by the company last time we were before the Commission about right of entry and about notice requirements, and we have certainly been endeavouring to meet with the requirements that the company was putting down.

PN73

THE COMMISSIONER: Yes, but they are rather different situations I think you would agree. They are covered by different parts of the Act. They relate to different powers and I don't accept that argument at all. Where there are people who are not working as required, then - in any case if they are so insistent on being there at 7 am in the morning, then not having to attend until 9.15 will provide them with another two and a quarter hours.

PN74

So I take it from that that there won't be assistance from the company - from the union in relation to notification of these people and I would, therefore, take it that the company will contact these people and advise them that they will be required to attend at 9.15 tomorrow. All right, is there anything else? Mr Brown, next time you come into Court finish your lunch before you do, please. All right, these proceedings are now adjourned.

ADJOURNED INDEFINITELY [2.54pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 BUNDLE OF CORRESPONDENCE CONTAINING AWARDS AND AGREEMENTS PN33