C2002/773, Transcript of Proceedings [2002] AIRCTrans 484 (18 February 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


O/N VT02305

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2002/773

THE SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION

and

FRANKLINS LIMITED AND OTHERS

Notification pursuant to section 99 of the Act
of an industrial dispute re alleged non-payment
of sick leave entitlements from previous employers

MELBOURNE

10.01AM, THURSDAY, 31 JANUARY 2001

PN1

MR B. JOHNSON: I appear for the SDA.

PN2

MR D. COTTER: I appear for Sims, the supermarkets.

PN3

MS J. FLANAGAN: I appear for Master Grocers Association.

PN4

MS L. ROBERTSON: I appear for FAIS.

PN5

MR C. HARTIGAN: I seek leave to appear on behalf of Franklins Limited.

PN6

THE DEPUTY PRESIDENT: Any objection to leave? Leave is granted.

PN7

MR HARTIGAN: Thank you, your Honour.

PN8

THE DEPUTY PRESIDENT: Yes, Mr Johnson?

PN9

MR JOHNSON: Thank you, Deputy President. We appreciate this matter being brought on so quickly, and the reason we have requested it to be brought on quickly is because of Franklins decision to withdraw from it's Australian operations and commence a sell down process of it's stores, which - which commenced late last year. We are aware of Franklins' intention to depart the country in the near future, and that is why we sought this matter to be brought on quickly. As you can see from the notification of this dispute, there are a considerable number of parties involved in the process, and there are varying issues in relation to each respondent.

PN10

However, the similarity between each of them is revolving around the transfer of entitlements, namely, sick leave, annual leave and long service leave, the accrued entitlements of the employees from the Franklins entity to the new owners of each relevant supermarket. When the stores were transferred to the new owners, the - the company Franklins transmitted the records of those entitlements to the new employers, however, what has come to the attention of the union is the differences that have existed between the records that were transmitted to the new owners, and the records that actually existed in the store.

PN11

Now, that has caused some significant problems in relation to employees wishing to claim their entitlements, such as sick leave and annual leave - - -

PN12

THE DEPUTY PRESIDENT: I am sorry, Mr Johnson, just let me clarify that; this is - these are both records of Franklins - records of Franklins, presumably head office records versus more local records that you are talking about?

PN13

MR JOHNSON: That is correct, Deputy President. And that problem has meant when an employee has sought to claim an entitlement, that - that they have been denied that entitlement by the new employer, who believes that they don't have an entitlement to claim. Now, what - what I will outline today is - is a proposed process to deal with those sorts of disputes. And, because it does relate to not just an individual store, but a number of stores. And where we can go from there. Now, we have requested copies of records from Franklins for the employees of various stores, however, Franklins have declined to provide those records, and instead, referred us to the new owners of the stores.

PN14

And that - that hasn't helped in attempted to resolve these issues. And, as a result, some of our members have still not received payment for entitlements that they have claimed; a good example is - is a member at one of the stores we cover, Andrew Campbell, he works at Sims Supermarket in Geelong West, which was previously a Franklins store. Mr Campbell believes that he has 39 hours of sick leave available to him, according to the in-store records, and sought payment for 23_ hours of sick leave from early December 2001.

PN15

Now, the store records apparently showed he had leave available to him, but the records, apparently, transferred from Franklins to Sims indicated that he did not have sufficient leave available to cover the period. And our subsequent discussions with the owners of Sims have not proved fruitful as yet in this matter, and the member hasn't received payment for those hours. Another example is - is the store's transfer to Foodway Fresh Pty Limited, a company operated by Trevor Dance, which is also a member of the Master Grocers Association of Victoria.

PN16

Now, there has - has been a refusal in this instance, of the company to acknowledge the transmission of the Franklins agreement, which has then cast doubt over the capacity of the employees of that company to access their sick leave and annual leave on a timely basis. This example is - is representative of many other stores that have been transferred to new owners. And, as yet, it is really only the independent stores that these sorts of problems have arisen from, the major - the companies of - of Safeway, Coles and Bi-Lo haven't - we haven't had these issues arise from those sorts of companies that have had the Franklin stores transferred to them.

PN17

Deputy President, in our notification, we identified other stores such as the Myrtleford store which was transferred to FAIS Pty Limited. This issue is - is a relatively simple one and it is much easier to resolve as it involves either the new company or Franklins merely providing an updated schedule of entitlements - of accrued entitlements to the employees, as the schedule that was provided to employees was to 8 August, whereas the actual transfer date that occurred was 10 December. And our - our members would be satisfied by simply receiving an updated schedule to the actual date of the transfer.

PN18

Now, the - the type of schedule that I am talking about just outlines the entitlements that have accrued; I might hand that up to the Commission, just as an example.

EXHIBIT #A1 SCHEDULE OUTLINING ENTITLEMENTS (EXAMPLE)

PN19

MR JOHNSON: As you can see, Deputy President, this schedule, it is obviously prepared by Franklins, or a company operating on behalf of Franklins, and it outlines all of the entitlements that - that had accrued up to the date of the preparation of the document. It is this sort of document that we would like to see prepared for each of the independent stores where it has not previously been done, up to the date of the actual transmission of those stores. And, we would like to see that provided by Franklins for the independent stores that had transferred from its ownership.

PN20

The process that we would see occurring from there would be that each of the employees in those stores would then check off against that schedule the entitlements that are stated, and if they are correct, then no further action would be required. If there is an anomaly, or a disagreement over any of the entitlements, then we would see the employee just go - notifying their employer of that, and attempting to resolve at the - in the first instance. If that is not successful, then we would see a role for the SDA, and a body like the Master Grocers Association, to have negotiations and discussions over the issue.

PN21

And, if - if we are unable to resolve that dispute at that level, then we would see a role for having it referred back to the Commission for resolution. We see that as a sensible, sort of approach, to take as these issues will come up from time to time when employees actually attempt to access their entitlements; they may not be aware, as they - as many employees have not received a schedule of their entitlements.

PN22

THE DEPUTY PRESIDENT: Mr Johnson, what level of discussion has taken place to date with - with respect to these issues with, for example, Master Grocers, and Franklins themselves?

PN23

MR JOHNSON: In relation to the Master Grocers Association, we have had discussions over the last couple of days about the proposed process that we are looking at, and as I understand it, the Master Grocers are quite willing to go through that process and support that process. In relation to Franklins, we have had on-going negotiations and discussions with Franklins over the sell down process of their stores. In relation to the records and the transfer of entitlements, there is a history of correspondence, there is two letters which I would like to tender at this stage, if I may?

EXHIBIT #A2 SDA LETTER

EXHIBIT #A3 FRANKLINS LETTER

PN24

MR JOHNSON: As you can see, Deputy President, on 20 December we wrote a letter to Mr Brad Eiffe, the national human resources director, seeking records of entitlements including the transfer amounts for all leave purposes for the Myrtleford employees. An employee at Airport West - that matter has since been resolved. An employee at Gladstone Park, two employees at Gladstone Park. The letter in response from Franklins, dated 17 January, was forwarded to us after several discussions between Garry Ward, the Assistant Secretary of the SDA, and Mr Eiffe.

PN25

And, as you can see, Mr Eiffe suggests that we pursue those records with - with the new employer of each of the transferred employees. So there is - there seems to be some reluctance on behalf of Franklins to provide us with records of the transferred entitlements. We don't see any good reason why that should be the case. These are entitlements that - that these employees should be able to access, and - and should have the knowledge of what is transmitted from one employer to the next. It is - it should be a simple process of - of providing these schedules.

PN26

If they didn't feel comfortable providing them to the SDA, then we would suggest that they could be provided to the Master Grocers Association, and the issue of the records being provided across all the independent stores was raised with - with Brad Eiffe, and the companies representatives in late November. Now, we were constantly told, well, look, we will consider that. Look could you - would you put your request in writing? Which we did subsequently, late December. But, from an early basis - from an early stage we were requesting the - the full records of the transfers.

PN27

Now, in terms of the proposed resolution of these issues, we - we see Franklins provision of these records is - has been relatively central to the process. And, they are required, in any event, to keep these records for up to 7 years for taxation purpose. They should exist, and they should exist in an orderly state, which would make it easy to - to pass them across to us. Deputy President, we believe this proposal has the support of the Master Grocers Association of Victoria, and we see it as a sensible proposal. What we would seek is to have - have this proposal adopted as a recommendation by the Commission, which the parties, hopefully, agree to, if the Commission pleases.

PN28

THE DEPUTY PRESIDENT: Thanks, Mr Johnson. Look, I might hear from Mr Hartigan, actually, in response - in the first instance.

PN29

MR HARTIGAN: Thank you, your Honour. Your Honour, I only have limited instructions in relation to this matter; Mr Eiffe is the general manager of human resources for Franklins, nationally, and if I can give you just a little bit of background of Franklins, I am not sure that you are aware of what has gone on. But, the process - Mr Johnson suggested that the process had started late last year. It in fact began in April of last year, where there was public announcements that there would be a sell down of the stores. Now, Franklins employed 25,000 people, most of them who were employees of the SDA. So, from April through - - -

PN30

THE DEPUTY PRESIDENT: I am sorry? Most of them were members of the SDA?

PN31

MR HARTIGAN: Most of them were members of the SDA.

PN32

THE DEPUTY PRESIDENT: I think you said employees.

PN33

MR HARTIGAN: Yes, yes; members of the SDA, and there extensive consultation, and there were extensive hearings in this place in relation to matters such as termination payments and consultation and - that - that I was involved in. It went on over months and months and months. What Franklins attempted to do was to get as many of these people jobs, as possible. It was not, it might be said, assisted by the ACCC, that it restricted where it could sell various stores to, and said, no, well, you can't sell all of them to a particular owner, because that will upset competition law.

PN34

So, what has happened is that big chunks of stores have been sold to Coles, Bi-Lo, a related company; other chunks of stores have been sold to Woolworths, and then there is a whole series of other stores that the ACCC, in essence, required to be sold to independent owners to break up the competition issues. The SDA knew all of that for eight months, last year, it was on the front page of the paper. It was well known. Now, in that process, there were some redundancies, but out of the 25,000 there are a very limited number of redundancies.

PN35

There are only, from my understanding, some hundreds of people who did not get transferred across. So, Franklins at great expense to itself, kept the stores running to get transfers over. Now, my understanding of what the dispute was that some individuals in some stores, Myrtleford or where-ever, had claimed that they were not paid an entitlement. I hear from Mr Johnson, now, this suggestion of a proposal of, as I understand it, Franklins handing over it's records of employee entitlements of some thousands of people - I don't know how many, in Victoria, could be 5000 people - to the union, so it can liaise with it's members about entitlements.

PN36

That is the first time we have heard it. My initial reaction to that is, well, first of all, Franklins - my instructions were, yesterday I asked, well, how many stores are left in Franklins' control? I think, as of this week, my instructions were there were six stores, and as of next week, there will be no stores left that will be owned, controlled by Franklins, in Australia. Today, Mr Eiffe can't be here because he is in the process of the last employees in the national head office are being terminated, in Sydney; so, in my understanding there would be virtually no-one left, employed by Franklins, at this time.

PN37

So, in terms of going through some big exercise of organising documents for thousands of people, there will be no employees left at Franklins in Australia, at all. Franklins is a subsidiary of a Hong Kong based company. The other thing, from what I hear, and I certainly don't claim any expertise in this area, but it would seem to me that the proposal on its face would constitute a breach of privacy obligations that Franklins has with regard to its employee entitlements. The proposition that it could hand over employee records to the union for its liaising with its members would seem to me on its face to be something that is not allowed.

PN38

That is a preliminary view, and I would have to go away and - and look at that issue. But, I mean, the whole point is - of the privacy legislation is, with your employees there are only certain things you are allowed to do with them, and that would seem to constitute exactly the sort of thing you are not allowed to do.

PN39

THE DEPUTY PRESIDENT: As you say, I think - I think that would have to be looked at in more detail.

PN40

MR HARTIGAN: Absolutely. Absolutely, even - on any - before we got anywhere. As - as I understand it, in terms of, as I understand it, the - the first exhibit was what Franklins did provide people, was a - when they were employed by Franklins, for their own records. And it indicated a statement of entitlements. So, they were actually provided with a statement, as individuals, as I understand Mr Johnson. And, I don't know whether I heard him correctly, but I understand that the people in Myrtleford aren't claiming that they haven't been paid, they would just like some other statement to be provided, or something as of the end of December.

PN41

Because, the problem with all of that is that now we are in February, or nearly in February, any such statement of that kind would be out of date. Because if they have now been employed - because the stores went over in varying times; there wasn't one point when they went over. So, there wasn't one point they stopped being Franklins. So there might be, you know, hundreds of different dates that would have to be identified, all of which are redundant because the issues that are referred to here, for example, pro rata, annual leave, long service leave - and I believe these are in hours - would all have changed by now.

PN42

Annual leave, sick leave, long service leave. So, any such document would be out of place. It would seem - so, that is the other problem I have with regard to that proposal. I suppose, in general, Franklins position as I understand and my instructions are that their current employers now have that responsibility in terms of communicating with their employees about what the level of entitlements are. It sounds like there have been one or two different disputes, with one or two individuals, about how many hours are there; these disputes arise with every employer all the time - - -

PN43

THE DEPUTY PRESIDENT: Yes. But it would seem, would it not, Mr Hartigan, that in the absence of some co-operation from Franklins, in the instance of a disputed entitlement, the current employer is stuck with what they have been provided with by Franklins? If the employee has a different view of the world in the absence of co-operation, then it becomes a very hard matter to resolve.

PN44

MR HARTIGAN: But - see, I don't think we know enough about these disputes to understand what they are about. I mean, there - there is one person in Geelong West has a different view about what their sick leave was, well, that doesn't necessarily relate to the suggestion of whether the wrong records came across.

PN45

THE DEPUTY PRESIDENT: No. But it would in the instance that there is a record from a Franklins store that differs from a record from Franklins head office, in respect of that employee. And, in the absence of - of any co-operation by Franklins to come to a view as to which is the - is the correct records, then it is impossible, really, for the parties to resolve, is it not?

PN46

MR HARTIGAN: Well - well, I - I understand the point. I - I heard that allegation, I don't know that there is any basis for the suggestion that there was a difference between head office and the local store.

PN47

THE DEPUTY PRESIDENT: No. Well, I mean, neither do I at this stage other than the fact that Mr Johnson has put that forward in his submission; I mean - and I take that at face value at the moment. So to the extent that there is a dispute between an employer - well, a current employer and that employer's employee about a carried over entitlement, and to the extent that that current employer is working on advice from Franklins as to what that entitlement was, then if the employee has a different view of the world based on whatever evidence, I just find it very difficult to see how that matter can be resolved to the satisfaction of the parties in the absence of the co-operation by Franklins.

PN48

MR HARTIGAN: Well, that may be case, your Honour. It seems to me that there might need - as in individual disputes - it seems like the SDA has set this up as some sort of omnibus vehicle for a grand scheme; if there is an individual dispute, maybe the individual owners can be asked, well, what do your records show? I mean, there may be a very simple answer to these things without saying, okay, we will tie together a few people here and then say - Mr Johnson made some very broad suggestions. I mean, is he saying there is a problem in Victoria - is it a problem across the whole of Australia?

PN49

You know, there is - we have - they have known for eight or nine months that the stores were being sold across, and as I said, like, literally, you know, the last body standing, today, is going out the door.

PN50

THE DEPUTY PRESIDENT: But am I to take it, at this point in time from the instructions that you have, that - that Franklins is not going to co-operate, regardless of the circumstances? Or that Franklins is open to some level of co-operation in respect of resolving these issues, given some more specifics as to the extent of the issues?

PN51

MR HARTIGAN: Well, this - this suggestion about we will set up a process and hand over all of Franklins records to the Master Grocers, and do all that - the first I have heard about it is now - - -

PN52

THE DEPUTY PRESIDENT: Right.

PN53

MR HARTIGAN: - - - and I think it would come as some surprise to my client. My client's initial view was surely the union should try and attempt to resolve the problems with the individual employers. I am not clear from what the SDA says here about whether the objective is to sort out the individual disputes or to set up some master scheme if - - -

PN54

THE DEPUTY PRESIDENT: It is something we might be able to canvass a little bit in conference.

PN55

MR HARTIGAN: Yes.

PN56

THE DEPUTY PRESIDENT: Yes. Did you have anything further you wanted to put?

PN57

MR HARTIGAN: Not at this time.

PN58

THE DEPUTY PRESIDENT: Thank you, Mr Hartigan. I will hear from Mr Cotter.

PN59

MR COTTER: I represent Sims Supermarkets and we bought a store from Franklins around October. We are in dispute with one of the employees, at least one of the employees over entitlements. We have asked Franklins various times for the entitlements at settlement date and we received those and we believe from the staff and the union that there were not correct as to what the store level had so we rang a lady named May, I think it was, at Sydney who ran basically this side of things when the transfer happened.

PN60

She supplied up with an update. We followed the update. We showed the people at the store the update. There was a dispute again with one or two employees, I couldn't tell you, I think there is one, at least two, I am not sure. We are happy to follow what Franklins pass over as entitlements. We rang Franklins again, said we are in dispute again and the union also rang Franklins, said there is a dispute. They sent us I think a third copy of the entitlements and we are following those at the moment and we are still in dispute.

PN61

THE DEPUTY PRESIDENT: Now this matter, Mr Cotter, is in relation to the named employee in the application. Is that correct?

PN62

MR JOHNSON: That is correct.

PN63

THE DEPUTY PRESIDENT: Thank you, Mr Johnson. So this is the person who has claimed 23 I think or thereabouts hours of sick leave.

PN64

MR COTTER: Yes.

PN65

THE DEPUTY PRESIDENT: Your advice from Franklins consistently has been that that entitlement doesn't exist.

PN66

MR COTTER: Their advice from the information they send down on the spreadsheet from Sydney is that he had so many hours, I think it might have been 10 or 20.

PN67

THE DEPUTY PRESIDENT: Right.

PN68

MR COTTER: He had sick of about say 30 hours. We paid him the entitlements that we got from Sydney.

PN69

THE DEPUTY PRESIDENT: Right.

PN70

MR COTTER: He said from a store level the entitlements were more and we said to him we are following the entitlements that are passed over from

PN71

Sydney, from Franklins to us because we don't know, we are in dispute with Franklins too, we don't which entitlements are correct. Are the Head Office entitlements correct? Are the store entitlements correct?

PN72

THE DEPUTY PRESIDENT: Have you receive copies of both? Is there any - - -

PN73

MR COTTER: We have got copies of both.

PN74

THE DEPUTY PRESIDENT: So this employee has provided you with a copy of his entitlements from the store?

PN75

MR COTTER: Yes. We own the store and we took over - they left a folder there.

PN76

THE DEPUTY PRESIDENT: I see. So the records are there?

PN77

MR COTTER: We are not sure why the store would have entitlements anyway because we run four stores which is not 200 stores but had a Head Office, we don't leave records at store level, we just leave everything at Head Office level. Access for everyone there but we don't understand why they had a Head Office with records there and why there would have records at the store.

PN78

THE DEPUTY PRESIDENT: So the records at the store regardless of why they were there, they do support the fact that the employee has that entitlement?

PN79

MR COTTER: They - yes.

PN80

THE DEPUTY PRESIDENT: Yes.

PN81

MR COTTER: But the SDA made the - yes.

PN82

THE DEPUTY PRESIDENT: Thank you. All right.

PN83

MR COTTER: Is that all?

PN84

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Cotter. Yes. Ms Flanagan.

PN85

MS FLANAGAN: Deputy President, the Master Grocers support the SDA application to establish some sort of process to clarify the situation. I would say we are talking about eight or nine stores in Victoria that are members of the Master Grocers Association that were sold from Franklins to independent store owners. They are all members of the Master Grocers with the exception of Myrtleford at the moment. We are concerned - there would probably up to 100 staff in most of these stores and we are concerned that there are of these issues that are yet to surface because some of the staff are not aware of their entitlements whereas the employer assumes that the entitlements that they have been given are correct and that is why we are keen to see a process established to clear this out.

PN86

In respect to the Privacy legislation the current employer can by all means go to the employees and say these are the entitlements we were given by Franklins, do you agree with this or do you disagree with that and that will flush out any sort of problems that we have across those eight or nine stores and if we moved on that very quickly I could get my stores, if they chose not to, well then it is on their own head but I could get them to move on that very quickly and we could establish - - -

PN87

THE DEPUTY PRESIDENT: If the employee choses not to?

PN88

MS FLANAGAN: If the employer choses not to got through a process of clarifying the situation with the employees they took over, well then so be it, that is an issue for later on but in this instance I would like to work with the SDA to clarify that because once Franklins leave and these records are not available to us and we don't have anybody to turn to then the SDA and the Master Grocers Association are left with the disputes and a lot of unhappy employees if amongst those thousand or so employees there is discrepancies in their clause.

PN89

THE DEPUTY PRESIDENT: Yes but it would seem, would it not, in respect of at least the named individual in the application that what we have is an anomaly between some internal records of Franklins which would only be resolved presumably by Franklins themselves?

PN90

MS FLANAGAN: That is right. We can only resolve with access to the correct records in the first place and the problems that we have seen, we have been called in to help David Cotter with his stores and also Trevor Dance with his problems. He had a problem with I think it was long service leave accruals, wasn't it? They are very unclear. They are very hard to decipher, some of the records and sometimes when there is more than one version, they don't match so we are left with the employer saying well at transmission of business this is the figure that I was given and an employee saying that is not what I recall as being the accurate figure.

PN91

THE DEPUTY PRESIDENT: And the process that you envisage would attempt to reconcile presumably within Franklins own internal records. If Franklins have got records that were kept at store level and were also kept at some Head Office level and there is a discrepancy between the two, then there has to be some - presumably some reconciliation done there in respect of accessing of leave that people have done, when and where they have accessed it, what support there is for it, etcetera which seems to quite a large task to take on.

PN92

MS FLANAGAN: Well I would not like to take it on for every employee, that is why I would like to encourage our members, the Master Grocers members, the employers, to go through a process of ascertaining with their staff that each staff member is comfortable and happy and accepts the accruals that they have not got on record. That way we define it and we only deal with the dispute instances, rather than dealing with the whole 1011 staff that maybe involved.

[10.35am]

PN93

THE DEPUTY PRESIDENT: Right, thanks, Ms Flanagan. Ms Robertson.

PN94

MS ROBERTSON: I think we are in the unique position that we were the previous owners, and then transferred to Franklins for a couple of years. We have very good relationships in a small country town with the people who actually write the figures in the store, and we're happy and they're happy with those figures. But because when we were transferring to Franklins, there was some grey areas. We made absolutely certain, with every member of staff, that they were to check their records.

PN95

I knew they were checking them in August, but when I started in November, I said, I want them checked, go up to the office, go on bended knees to just about everyone of them and said, make absolutely certain that when I transfer this to Franklins that I have the right figures. Now, a couple of them had written off in August and had their's reply, and they had - - -

PN96

THE DEPUTY PRESIDENT: Sorry, just to interrupt you for a second, could you just enlighten me about the history of - you actually transferred to Franklins in the first instance, so - - -

PN97

MS ROBERTSON: Yes, my husband's family has run this as a small country store - - -

PN98

THE DEPUTY PRESIDENT: Right.

PN99

MS ROBERTSON: - - - through to a large supermarket over 130 years.

PN100

THE DEPUTY PRESIDENT: Right.

PN101

MS ROBERTSON: We thought we would like a rest. And we transferred to Franklins. Now, we went through the process of going through this the other way.

PN102

THE DEPUTY PRESIDENT: Yes, and this happened - - -

PN103

MS ROBERTSON: So we were making absolutely certain - - -

PN104

THE DEPUTY PRESIDENT: And this happened when?

PN105

MS ROBERTSON: Three years ago.

PN106

THE DEPUTY PRESIDENT: Okay, so there was records transferred to Franklins?

PN107

MS ROBERTSON: There were and we kept - - -

PN108

THE DEPUTY PRESIDENT: Franklins are now, as I understand it, transferring their records to another purchaser - - -

PN109

MS ROBERTSON: Me.

PN110

THE DEPUTY PRESIDENT: - - - and what we are trying to ascertain here is whether your records were right in the first instance; is that correct?

PN111

MS ROBERTSON: No. No, I don't think that they're worrying about my records in the first place. They accepted those. Our staff accepted them. In August they were double checked.

PN112

THE DEPUTY PRESIDENT: Yes.

PN113

MS ROBERTSON: We were not a prospective buyer in August. But once we became prospective buyer, I - these are very well known friends of ours - and they - I said be very, very careful, I want it right. And we had - we did not settle with Franklins until it is right. And so I held off 'til today, in case anything arose out of this. But every one I've checked has been correct. Now, we had two. We sent them to Franklins head office, they came back and they adjusted the settlement. Yes, we were right.

PN114

One, they said, no, they didn't accept her case, and I explained to her why it was that she didn't accept the case. And we have possible employees that I can think of, 'cause one girl thinks she's on RDOs since last July. Our office, which is the home record, believes she took them on the end of her annual leave, and therefore she's got so many days left. And that corresponds to the Franklins' records. But Franklins records are equal to - - -

PN115

THE DEPUTY PRESIDENT: Sorry, sorry, Ms Robertson, you are confusing me a little - - -

PN116

MS ROBERTSON: No.

PN117

THE DEPUTY PRESIDENT: - - - because I'm not as au fait obviously with the whole background as you obviously are.

PN118

MS ROBERTSON: Okay, I will slow down.

PN119

THE DEPUTY PRESIDENT: Now, I am starting to get the drift. You were original owner, you transferred to Franklins, and you are now a prospective purchaser.

PN120

MS ROBERTSON: I've already purchased.

PN121

THE DEPUTY PRESIDENT: You've already purchased.

PN122

MS ROBERTSON: But not the final settlement. We've paid for it.

PN123

THE DEPUTY PRESIDENT: Okay, but the issue from your point of view is what?

PN124

MS ROBERTSON: Well, I feel that today seems to be a harassment to us in particular, and we've hd problems in the past with this particular officer of the SDA, and none other. And secondly, the first time I heard that there was any dispute was the day before yesterday. I rang him up all day, could not get a reply, so finally I faxed. I rang this lady to see - although we're not a member of - I said, look you're listed on this, you're the only person I can get on the phone. He rang me and offered to drop my part of the case if I - and I've got the fax back - if I agree to provide an up-dated entitlement schedule to the people.

PN125

Now, I would have been quite prepared to do that, and that is the law anyway. And if he were to come up, as he did, and interviewed all our staff at the local Italian Club, all he would have had to do is give notice that he was coming, and our records are sitting there for all the world to see. That is the people who are entitled to it in our office. I haven't really read them. I'm perfectly happy with the pay officer, who is still the same pay officer, and her records are those records.

PN126

All I've done is check them against what Franklins have given to me. And it isn't easy, because theirs are in hours, and we have to get it in money. And every person is paid a different number. But the first I heard of it was two days ago. And I believe in the time that has been elapsed from 10 December, I've had one call from - not this gentleman, but another older one, and I said, look, we're hammered under this. We have got - we took it over at five days' notice, and we have to get it back running, it's the 10 December, could you leave it a couple of weeks.

PN127

Well, a couple of weeks happened to be Christmas Eve, and I have not heard from that gentleman ever since. And he did come up, because he spoke to some people at the Italian Club when he was up. But he didn't ring. He didn't make an appointment. And those records are there. And every member of our staff has been invited and asked and begged to check them. And the only people I can get to is this - some people have very bad memories. And this lady who believes, and I am sure she's not the person who is complaining, if there is a member that's complaining, we'll get to that in a minute.

PN128

She doesn't think she's had any RDOs since July. Our office say she took them on the end of her holidays, and they've got it all written down. It agrees with Franklins. So we can probably solve that dispute but the girl will think she's got a dispute, if she ever comes to claim her RDOs. We didn't even be aware that there were RDOs, she's the only person on the list that has RDOs, because somehow or other she runs a 40 hour week. Now, Franklins' records show that she's 38, but she's paid 38 presumably, but has these two hours a week, RDOs, which adds up quite a bit.

PN129

But the thing I have as a question for Mr Johnson, is that I have approached - as soon as I got this I went down to the back door and said to the union girl, have you heard of anybody that's had a dispute with us about anything at all? She said, no, and I said, well go 'round and ask everybody, because I don't know anybody either, I think we haven't had any disputes, but I want to know pretty soon. And then I rang all day. But yesterday I asked him, and I said, do you know, do we have anybody, I've heard here twice referred to,the people who are in dispute at Myrtleford.

PN130

I don't believe there are any, and I would very much like to know who, because the process should be that they go to their union rep, they then come to us, we try to resolve it. If we then can't, we then see the union, and then we end up in the Industrial Relations Commission, which has never happened in the whole history of Robertsons existence. And one of the reasons that we sold to Franklins was that we were having problems with the Butchers Unions at the time. We only had the one man, and he came up and didn't do all the things they were supposed to do.

PN131

THE DEPUTY PRESIDENT: Yes, well, I am not sure that is relevant, Ms Robertson.

PN132

MS ROBERTSON: All right, so we ended up selling to Franklins. And it must be no secret that Coles and Woolworths will buy the sorts of stores like ours, within 12 months, unless we, the independent owners get some support, not harassment, from the SDA.

PN133

THE DEPUTY PRESIDENT: Thank you, Ms Robertson. Mr Johnson.

PN134

MR JOHNSON: Thank you, Deputy President. Well, first of all, it is probably worth going through the stores that were transferred to new owners from Franklins, 22 - there were 58 stores - - -

PN135

MS ROBERTSON: Excuse me, could I have my question answered?

PN136

THE DEPUTY PRESIDENT: Look, we will get to - - -

PN137

MS ROBERTSON: All right.

PN138

THE DEPUTY PRESIDENT: - - - that, Ms Robertson, at some point in time.

PN139

MR JOHNSON: There were 58 stores that were part of the sell-down process. Twenty-two of those stores were transferred to Safeway. Nine stores were closed, so far, and seven stores were transferred to Bi-Lo, two stores were transferred to Coles. One store is in doubt, we believe that is the Ballarat store. And 17 stores were transferred to independents. Now, within those independents, four were transferred to Sims, and three to Maxi Foods.

PN140

So the number of stores that we are talking about in terms of dealing with this process, is relatively small, compared to the potentially larger scale. And what we are seeking for the stores that are - that were transferred to independent owners, is exactly the same process that was conducted with the stores that were transferred to Safeway and Coles, in particular. And that is, the schedule 9, which we have submitted as SDA1. Now, as far as we are aware, in most instances for the independent stores that schedule was not provided to employees. And that is merely what we are seeking.

PN141

To have that schedule provided to those employees and have them tick off "yes, that is correct", or "no, there is an anomaly there." Let us address it now, rather than six months down the track when I wish to claim my entitlement, but will be prevented from doing so. That is a simple process that we are looking at. The statement that we would be wanting would be from the date of transfer, as opposed to today, because it is the date of transfer which Franklins will have the records for, as opposed to any operations that are - that were going on, post transfer.

PN142

And so that is why the date would be relevant as a transfer date. Now, in relation to Ms Robertson, there was a discussion between herself and Mr Gary Ward, the Assistant Secretary of the SDA, in late December 2001. And he attempted - well, he was on the phone to her for about an hour, going through the issue of the transfer of entitlements. He did attempt to set up a meeting with Ms Robertson, but was refused that opportunity. So, in terms of Ms Robertson attending today, it has been instructive, and potentially useful, because we have had some insight into the internal operations of the records, of the store.

PN143

Now, what we would be seeking is, if there is agreement from the parties, that the proposal which we have put forward has a process to resolve these issues. We would seek to have that adopted as a recommendation - - -

PN144

THE DEPUTY PRESIDENT: Could you just go through that proposal with me, slowly and in detail?

PN145

MR JOHNSON: It is in several steps. The first step would be for Franklins to provide the records of accrued entitlements, which we would be happy, in the form of the schedule, which was submitted as SDA1.

PN146

THE DEPUTY PRESIDENT: For?

PN147

MR JOHNSON: For the employees that were transferred to independent owners. The new owners of each of those supermarkets would then provide to each employee transmitted from Franklins, that schedule, and ask them to verify the accuracy of it. The employees would then be given a reasonable amount of time to confirm that these details are correct, and to identify any problems with their employer. Where a problem is identified, the parties at that store would confer, and attempt to resolve the issue.

PN148

If it is not resolved at the store level, then the SDA and the MGAV, or the relevant party, would become involved, if required, in an attempt to resolve the issue. And if those negotiations were unsuccessful, then we would see a role for the matter being referred back to the Commission for resolution.

PN149

THE DEPUTY PRESIDENT: Now presumably you are talking, Mr Johnson, about all records, that is, the Franklins records from the head office, and the stores' records, so that - I mean, I am not quite sure how what you are suggesting resolves the problem in relation to the specific individual that you have named. Assuming that that is a problem that goes beyond just that individual.

PN150

MR JOHNSON: As far as I am aware, Deputy President, the records at the store level would be made available by the existing employers. It is the - - -

PN151

THE DEPUTY PRESIDENT: Okay. So they are there, in effect - - -

PN152

MR JOHNSON: As I understand it.

PN153

THE DEPUTY PRESIDENT: Yes, all right.

PN154

MR JOHNSON: And we see that as being a sensible proposal. We would seek the support of the parties, and - in that process.

PN155

THE DEPUTY PRESIDENT: So what do you say to Ms Robertson when she, as she claims, as I at least understood her to claim, that that process has, in effect, been carried out? With her employees.

PN156

MR JOHNSON: The employees at the Myrtleford store had a meeting with the union in early December, it was around 10 December. And at that meeting they expressed their dissatisfaction with having the schedule up to 8 August as opposed to 10 December - sorry. The actual transfer date. And they requested that we attempt to - - -

PN157

THE DEPUTY PRESIDENT: Right.

PN158

MR JOHNSON: - - - obtain the updated schedule for them. So that is where this process has begun.

PN159

THE DEPUTY PRESIDENT: Okay. All right. Thanks, Mr Johnson. Look, I think that we might adjourn into conference, if none of the parties object to that process, because it might serve the purposes of resolution by doing that. So I will adjourn until 11 am, and we will re-convene, in conference, back in here at 11 am.

SHORT ADJOURNMENT [10.50am]

RESUMED [12.05pm]

PN160

THE DEPUTY PRESIDENT: Well, we have had significant discussion in conference with respect to this matter, and if not a partial settlement then at least, I think, a partial process has been agreed with - that has the potential to settle the matter. That process consists, to the extent that it is agreed, of a reconciliation of employees' entitlements being attempted, under the auspices of the Master Grocers Association, in negotiation with the new employers of the transferred employees, in an attempt to provide those employees with a statement of their entitlements as at the date of transfer, and to enable them to check those entitlements, and to see if there is an agreement with them.

PN161

That process will be supported by the union. The partial - the part, I am sorry, of the process that is not yet agreed is that to the extent that that reconciliation throws up conflicts in terms of what ought to be the entitlements of employees, and what employees claim to be their entitlements, and to the extent that that involves access to prior records of Franklins, at this stage there is no agreement from Franklins to co-operate with that process. It would be my strong recommendation that Franklins do co-operate with that process.

PN162

And to that end there will be - it has been agreed that there will be discussions during the next, or hopefully during the next seven days, but we will leave the file open for a period of 14 days for those discussions to take place between the parties, in an attempt to find some common ground between the union, the Master Grocers, and Franklins as to how the issue of conflicts in what appear to be the entitlements of people of what they claim to be their entitlements, can be resolved.

PN163

I certainly wouldn't see any cause for Franklins to become involved in issues of conflict that obviously don't concern them, but to the extent that Franklins retain records of people, as they are required to do, and to the extent that access to those records and a search of those records is necessary, as I say, I would strongly recommend that Franklins support the process. For my part, I will hold the file open, as I have said, for a period of 14 days. At the end of that 14 day period I will close the file if I have had no notification from the parties, but during that period it will be open to the parties to call the matter back on again for further discussion, and if necessary and appropriate, determination here.

PN164

I would also ask, if that is - if that does become necessary, that we call the matter back on, that there could be somebody from Franklins present at that point in time who is in a position to make decisions with respect to what Franklins may or may not be prepared to do. On that basis I will adjourn today's proceedings. Thank you.

ADJOURNED INDEFINITELY [12.10pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 SCHEDULE OUTLINING ENTITLEMENTS (EXAMPLE) PN19
EXHIBIT #A2 SDA LETTER PN24
EXHIBIT #A3 FRANKLINS LETTER PN24