C2002/4822, Transcript of Proceedings [2002] AIRCTrans 4163 (22 October 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 VT311
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2002/4822

AUSTRALIAN LIQUOR, HOSPITALITY AND
MISCELLANEOUS WORKERS UNION

and

BROOKSIDE EARLY LEARNING CENTRE

Notification pursuant to section 99
of the Act of a dispute re full-time
employment, rosters and the transfer
of an employee

MELBOURNE

11.39 AM, TUESDAY, 8 OCTOBER 2002

PN1

MS V. ILIAS: I appear on behalf of the LHMWU. Along with me is the employee concerned, MS. L. SCAMANGAS and also MS C. PEARCE, organiser with the LHMU.

PN2

THE COMMISSIONER: Thanks, Ms Ilias. Stand up and tell me who you are, thank you.

PN3

MR P. HAMZA: I am the employer of Brookside Early Learning Centre and I represent myself.

PN4

THE COMMISSIONER: Thank you, Mr Hamza. Yes, Ms Ilias.

PN5

MS ILIAS: Thank you, Commissioner. This dispute has been notified with the Commission regarding three matters, those being the full-time employment and rosters and a transfer of an employee. Can I first point out to you, Commissioner, that I received a letter from Mr Hamza on 30 September. The letter is dated 27 September. Mr Hamza - I will hand one up to your associate for you to read, Commissioner. I just feel that it is appropriate that I address the issue that Mr Hamza raises in his letter.

PN6

THE COMMISSIONER: Thank you.

PN7

MS ILIAS: Mr Hamza, in his letter, says:

PN8

Please be advised that this is the first time we have become aware of a dispute relating to clause 12.1 full-time employees, clause 26 roster, employment transfer and transferring an employee to another centre -

PN9

until he received our letter notifying him of an alleged industrial dispute. He says then please could we be more specific and provide details to him to enable him to confer the matter. He then points out clause 11.1, .2, .3 and .4 of the Children's Services Victorian Award of 1998 which involves the disputes procedure.

PN10

Commissioner, it is my understanding that the disputes procedure has been followed to the point where we have notified a dispute with the Commission that we are unable to settle the issues at hand. And branch organiser Carol Pearce attended the final meeting with Mr Hamza and the employee concerned to try and settle the matter but was unsuccessful, hence we are here today. I would first like to take you, Commissioner, to the full-time employment clause of the award and I do have a copy of the award if you do not.

PN11

THE COMMISSIONER: Thank you.

PN12

MS ILIAS: Commissioner, I will point out that there are a few yellow stickers in this award for maybe easier reference. The first yellow post-it refers to 12.1 full-time employees. It does say:

PN13

A full-time employee is engaged for 38 hours per week or an average of 38 hours per week subject to the terms of his/her engagement.

PN14

The employee concerned, and I will refer to her as Lana, started her employment with Mr Hamza on 16 April. No letter of employment was given to her expressing what her hours of employment would be or her category of what she would be classified under. Lana was informed that her position would be at the Caroline Springs Centre. Mr Hamza does own three centres, one being Pecks Road, Caroline Springs and Grace Street.

PN15

Prior to her full-time employment on 16 April Lana did work some volunteer work at another centre for Mr Hamza. There was some complicated issues arising out of that as Lana was still on unemployment benefits therefore she never continued to have her employment ongoing at the beginning when she was doing volunteer work. A few days later Mr Hamza phoned her and asked her would she like to work at Caroline Springs on a traineeship. She never signed any traineeship papers that stated what her conditions would be under that traineeship or who the provider of the training would be under. Mr Hamza claims that that had already been done so that there wasn't an issue with it. So as I have already pointed out she was not given a job description or any form of notification of what her employment was.

PN16

She did sign a taxation form which stated that it was a full-time position and my understanding or what I have been informed is that Lana's parents actually contacted the taxation department and was informed that her slip had actually been changed from full-time to permanent part-time and was told by the taxation department that that could not occur, as she had signed it, so there has been some changing of some legal paperwork which we don't have copies of to produce to you today, Commissioner.

PN17

THE COMMISSIONER: Right. Hang on just a minute. It is all right. Great tragedy, my pen has died. Let's go.

PN18

MS ILIAS: Okay. So for the last five months Lana has been employed at the Caroline Springs centre. For four months she worked a 38-hour week and in the last month she had her hours reduced to 36 hours, being permanent part-time. She had raised this issue with Mr Hamza and gave him an example to explain why she believed her hours had been cut without any justification or discussion with her. She had a shift that ran from 7.30 am to 9.30 am, which is obviously two hours and then there was a break and I would also like to point out that there is no shift break period in the award that covers this type of thing, so generally people are employed for consecutive hours and then they go home. Lana resumed work at 2 o'clock in the afternoon and worked until 6.30 pm, so in total that was 6.5 hours in a day.

PN19

THE COMMISSIONER: So she worked so many hours, went home and then came back and worked the balance of hours.

PN20

MS ILIAS: Yes, Commissioner.

PN21

THE COMMISSIONER: Well that is not permissible.

PN22

MS ILIAS: There is no broken shift allowance in the award.

PN23

THE COMMISSIONER: No, so it is not permissible. So who imposed that?

PN24

MS ILIAS: The employer.

PN25

THE COMMISSIONER: Okay, let's go.

PN26

MS ILIAS: Thank you, Commissioner. As Lana had raised this issue, my understanding from discussions with her on several different occasions, she had actually involved her parents to actually go and talk to Mr Hamza because she has found Mr Hamza to be unreasonable when having discussions with him. He becomes somewhat hostile and somewhat overbearing. Her parents were first raised in regard to this on 6 September of this year and I don't believe that those discussions were at all successful. On Friday, 10 September, Lana had a discussion with Mr Hamza. I won't go into the drawn out of he said, she said, but the final comments to come out of that conversation was that if Lana didn't like the way that Mr Hamza ran his centres she could leave or be transferred to Pecks Road.

PN27

This is all over hours of employment; also about cleaning. This is very complicated, Commissioner, and I may jump from one issue to the other so if it does become somewhat confusing please let me know and I will backtrack and try to explain somewhat more in detail. The following Wednesday, being 15 September, branch organiser Carol Pearce went to the meeting with Lana to discuss the issues from the previous Friday. They went to issues of cleaning, traineeship, hours and the possible transfer of her employment. I may point out to you, Commissioner, the cleaning issue is in regard to Lana doing industrial cleaning at the centre. Examples of those have been wiping plastic leaves on plants from back to front, cleaning windows, wiping cobwebs down with a broom from the outside of the building and being pulled out of her area to go and do that. The award doesn't provide for the classification that she is being paid for cleaning of any description other than the normal spills of young children.

PN28

THE COMMISSIONER: What is her classification?

PN29

MS ILIAS: My understanding, Commissioner, and I make take you to the second post-it is Child Care Worker Level 1(A) and what it says, Commissioner, is that this is an unqualified employee involving the delivery of children's services program whose duties would include some of all of the following; implement an early childhood program under direct supervision, assist in the implementation of daily routines, ensure the health and safety of each child, give each child individual attention and comfort as required, work in accordance with the licensing requirements under the Act and understanding centre policy and work accordingly at all times.

PN30

THE COMMISSIONER: Right.

PN31

MS ILIAS: From what I have been told, Commissioner, Mr Hamza told branch organiser Carol Pearce and Lana on this day that everybody did this type of cleaning, but as far as we are aware only Lana was the person that does the cleaning of that description at the centre. The traineeship was raised and was told to basically forget it, that it wasn't going to happen and that there were no papers filed. The hours was also discussed and it was put to Ms Pearce and to Lana that they would stay as a split shift and they would continue to be reduced. It was basically Mr Hamza's explanation that it was Lana's attitude and that he would offer another position for 25 hours per week doing exactly the same as what she was currently doing. This obviously is not acceptable to Lana as her firm belief is that she was employed as a full-time employee.

PN32

The last issue, being the transfer, was that Ms Pearce told Mr Hamza that there was no roster in place that set out the hours of employment for when people could start and finish their shift as per the award. Mr Hamza, I believe, has said that he would so put a roster up that actually specifically outlines when people start and finished and Ms Pearce told him that he cannot transfer Lana to Pecks Road as there is no provision in the award for transferring of employee from site to site, regardless of whether they are owned by the one employer.

PN33

Mr Hamza also informed the people present that he said that Lana was a good girl once and that she needed some more supervision and that was partly the reason why he wanted to transfer her to another centre of his. He was asked for a job description and Mr Hamza gave a job description that basically had wrote on it 25 hours, no name of the employee concerned and it was just a generic description of a child-care worker level 1(a). Mr Hamza also made it quite clear that he could transfer Lana to another centre. He would give her seven days notice and transfer her to Pecks Road. He claimed that it didn't matter if it cost him $10,000, that that was his intention and he would do so. He was not prepared to listen to Ms Pearce and try and resolve the matter there that day. He just purported he owned the three centres and he could do what he liked.

PN34

Commissioner, Lana has not been back to work since this incident. She has high levels of stress and is deeply upset about her treatment and the way Mr Hamza has conducted himself. Currently she has been on four weeks sick leave. I would like to point out that Lana is not prepared to go on WorkCover as we have actually advised her that that would be the appropriate thing to do, for personal reasons, so, Commissioner, that is why we are here today. We are hoping that you may be able to assist us and try and resolve this issue that has been ongoing for some time.

PN35

THE COMMISSIONER: What do you actually seek, Ms Ilias?

PN36

MS ILIAS: Commissioner, we would seek that we establish Lana's contract of employment, that there is no provision in the award for broken shifts, that the employer cannot transfer employees between centres permanently. We understand that sometimes employers need their employees to go and work at another centre. There is a vehicle allowance to accommodate that if people are to go and pick up things and deliver and so on but there is no provision in the actual Children's Services Award that specifically pertains to people being transferred, so it is our opinion that we need to establish those things here today with your assistance, Commissioner.

PN37

THE COMMISSIONER: Thank you. Yes, Mr Hamza.

PN38

MR HAMZA: First of all I was surprised when I get this letter which I wrote to the Commission and I wrote to the union just to highlight that it is my first time come to my knowledge and seeking a resolution for any issue but I didn't get any response. I rang the Commission and even inquire about if they provide any substantial information about this matter which I was told no, the only things we have is what you get exactly, so I am here now to find a resolution for any issue and resolve it if I can, so it is this matter is the first time come to my attention and I seek the attention of the representative by writing to her once I get the facts from the Commission.

PN39

THE COMMISSIONER: Mr Hamza, you have heard Ms Ilias say that there have been, apparently, according to the union, there have been some direct discussions with yourself concerning the employment status of - how do you pronounce it?

PN40

MS SCAMANGAS: Scamangas.

PN41

THE COMMISSIONER: Scamangas, thanks - concerning Ms Scamangas and some of those discussions go to the issue of split shifts, transfer and her employment status as a full-time or permanent part-time and her classification. Now on each one of those issues, say for instance the issue of classification, if the union alleges that there has just simply been a general classification put forward, Ms Scamangas when she was employed had no idea of the employment status of herself in terms of classification, that she was employed as full-time and it appears from the union that you have made a unilateral decision to alter her employment status from full-time to part-time - permanent part-time.

PN42

It says that she was told that she was to be on a traineeship but no such documents have appeared and in fact there is no traineeship at all. The union alleges that documents were forward to the ATO where her employment status was changed unilaterally, again by yourself, without the authority of Ms Scamangas. It has been said that you intend to transfer Ms Scamangas to another one of your facilities, the inference is without her authority, that you have applied split shifts whereas Ms Scamangas would work some hours, go home, then come back and work the balance of hours and there is no such provision nor entitlement for you to do so under the award.

PN43

Now the union says that all these issues were raised with yourself directly on more than one occasion and there has been no response or the response has been to the extent "I will do what I like". Now what do you say about that?

PN44

MR HAMZA: Okay. If you take the matter of apprenticeship, of traineeship, we deny completely. We didn't promise or didn't, you know, since she start with us and we didn't actually promise or highlight to Lana that we were going to put her in a traineeship and I did highlight it to them. We cannot really have more than two, according to the award, and we cannot really put Lana in a traineeship.

PN45

On the meeting with Lana, and I told her that the split shift is needed, she always doing the split shift since she started and the sign on record indicate that and even she started in St Albans and always she was in St Albans until we put her to Caroline Springs.

PN46

THE COMMISSIONER: The union says there is no provision for such a thing as a split shift in the award.

PN47

MR HAMZA: Well if the person starts at 7.30 or 9.30 it is up to her if she wants to carry on to 2 o'clock she can carry on to 2 o'clock.

PN48

THE COMMISSIONER: No, no. No, no, that is not right. It is not up to the employee. The employee and the employer cannot go outside the award unless they go outside the award by way of a certified agreement.

PN49

MR HAMZA: Exactly.

PN50

THE COMMISSIONER: Is there a certified agreement.

PN51

MR HAMZA: Is no certified agreement. It is agreement between me and the employees.

PN52

THE COMMISSIONER: Okay, so there is no provision for a split shift.

PN53

MR HAMZA: What is split shift, I mean? She worked from 7.30 to - - -

PN54

THE COMMISSIONER: That is a split shift, where someone works a certain part of their shift at a certain time, up to a certain time, stops, goes home, comes back and works the balance of their shift. That is a split shift. That is not - you are not entitled to do that, nor is Ms Scamangas entitled to agree to that if it is not provided for.

PN55

MR HAMZA: It doesn't say in the award you are not entitled for to have a split shift. I mean it doesn't say - - -

PN56

THE COMMISSIONER: Does the award provide for a split shift?

PN57

MR HAMZA: It doesn't say split shift as a split shift.

PN58

THE COMMISSIONER: No.

PN59

MR HAMZA: It doesn't say - it just say full-time and part-time.

PN60

THE COMMISSIONER: Right, so it doesn't provide for a split shift. The award doesn't say that you can operate a split shift.

PN61

MR HAMZA: No, not clearly.

PN62

THE COMMISSIONER: So you can't do it.

PN63

MR HAMZA: Yes, I can do it. I mean cannot do it. If you say I cannot do it, I cannot do it.

PN64

THE COMMISSIONER: Okay, so then there is an argument then - - -

PN65

MR HAMZA: Yes, I mean we can sit down and resolve this resolution.

PN66

THE COMMISSIONER: No, hang on, there is an argument then - and it would be a very interesting legal argument, as to whether or not the time that Ms Scamangas finished one part of the shift, went home and came back to finish the second part of the shift, which she was not entitled to do and the employer was not entitled to impose upon her - - -

PN67

MR HAMZA: I don't impose upon her.

PN68

THE COMMISSIONER: Well, you must have, because even if she agreed to it, she is not entitled to.

PN69

MR HAMZA: Okay. Properly I was not aware of - - -

PN70

THE COMMISSIONER: Listen to the point I am making.

PN71

MR HAMZA: Yes, I was not aware if allowed or not allowed. We have been - - -

PN72

THE COMMISSIONER: Are you a member of any employer organisation? Do you get any advice at all?

PN73

MR HAMZA: Okay, we had this letter from the union here. I can pass it, your Honour. Where actually if they have an issue, like say for example in June, in May, in April - - -

PN74

MS ILIAS: Commissioner, can I interrupt. Mr Hamza wants to divert today to something that happened some time ago.

PN75

MR HAMZA: Well, it is just - I am just trying to indicate - - -

PN76

THE COMMISSIONER: No, no, look. Just listen to me. When I talk, you keep quiet, okay? There is a couple of things. Do you get any advice at all from any employer organisation on how to operate under the award?

PN77

MR HAMZA: Well I read the award and I comply with the award.

PN78

THE COMMISSIONER: Well you are not. You are not complying with the award. Now let me get back to the first point I was making. There is a very good argument that could say that Ms Scamangas, in the time that she finished one part of her shift went home and came back to finish the second part of her shift was still in the employment and was still in the hours of the employer and could therefore legally claim, in my view, payment for that time that she was actually at home because you introduced something and you did something that you were not entitled to do under the award because you don't have a certified agreement that says something different.

PN79

Something has occurred that you are not entitled to do and neither is Ms Scamangas entitled to do so there might be an argument that she is entitled to the payment for the period when she was actually at home. That is the difficulty. Now you say that you are complying with the award. It is obvious that you are not and my question to you is do you get any advice from an employer organisation, and there are a number of them in this area, about how the award should work. Do you get any advice at all?

PN80

MR HAMZA: No.

PN81

THE COMMISSIONER: Can I suggest to you that maybe you should.

PN82

MR HAMZA: Yes.

PN83

THE COMMISSIONER: Because I think what is happening is on very, very dangerous grounds in terms of being prosecuted for breach of an award and not only might you be prosecuted and there might be an entitlement to moneys on the part of - it may not only be Ms Scamangas but maybe other employees if these things are happening. And there could also be a financial penalty to you and not only may there be a financial penalty to you in terms of a fine by the Courts, but there may even be an issue of accreditation that affects your licensing in terms of operating centres. I mean all that has very serious consequences for yourself and for your employees. Now that is a real worry. Now it is said that Ms Scamangas started and worked several months as a full-time employee, 38 hours a week. Is that true?

PN84

MR HAMZA: I am surprised, I mean, today, but I can provide to the Court what hours she been working. I mean she started as voluntary work and we put her as - offer her employment and been transferred to Caroline Springs and she been working at Caroline Springs for a while.

PN85

THE COMMISSIONER: But when she started work, was she - - -

PN86

MR HAMZA: As far as I know, is it April, I think?

PN87

THE COMMISSIONER: And the union says it was April. Was she a full-time employee?

PN88

MR HAMZA: Part-time employee and we have a sign on record of that.

PN89

THE COMMISSIONER: Where is that? Have you got that with you?

PN90

MR HAMZA: I am surprised about what is happening today and this my first time here to know about the issue. The issues of the roster, I don't know, do I have a roster or not have roster? The issue today, I tried to gather some information. I didn't get any until today. This hearing, the union or the Commission didn't provide me with any.

PN91

THE COMMISSIONER: Well the Commission is not - all the Commission has to do is provide you with the listing setting out the time and place in which this matter is to be dealt with. You have the notification, the same notification that the Commission has as to what the issue is about from the union so the Commission operates on the same grounds as you do - well, maybe I will find out the detail when I get here. I have less far to come than you, I must say.

PN92

MR HAMZA: That is what happen exactly. I was surprised with the details when I came here. If the union provide me with a list of what is their demand, what is the issues and we can respond to the resolution to - I am just surprised. I try to write to them. She didn't responds to my query so I am just here to see what this is all about.

PN93

THE COMMISSIONER: Hang on just a minute. Can we just go off transcript for a minute?

OFF THE RECORD

RESUMED [12.10pm]

PN94

THE COMMISSIONER: The Commission has had an opportunity to just have a brief discussion with the parties. It is very clear to the Commission, and it has suggested very strongly to Mr Hamza that he needs to seek advice from an employer organisation about operating within the award or what appears to be in this instance him not operating within the award. The Commission has suggested that if Mr Hamza does make contact with an employer organisation, seeks some advice, they may then contact the union, Ms Ilias from the union, on Mr Hamza's behalf and try and resolve the issues through that process.

PN95

The Commission will actually set a report back date to see what progress, if any, has been made. If the parties believe that progress is being made and it is a bit premature to come back to the Commission, then the Commission is more than happy to adjourn to a date to be fixed. What the Commission will do is set down Tuesday 15th. Is that a convenient day?

PN96

MS ILIAS: It will be, Commissioner.

PN97

MR HAMZA: Yes, sir.

PN98

THE COMMISSIONER: It will set Tuesday 15th at 11.30 for a report back and we will see what progress. If, as I said, either party believes that there are fruitful discussions occurring and they believe that they would like that extended to another time and date, then the Commission will entertain that.

ADJOURNED UNTIL TUESDAY, 15 OCTOBER 2002 [12.12pm]