C2003/1318, Transcript of Proceedings [2003] AIRCTrans 1116 (31 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

C2003/1318

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING AND
ALLIED SERVICES UNION OF AUSTRALIA

and

FAIRFAX PRINTERS PTY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re overtime etcetera

C2003/1409

FAIRFAX PRINTERS PTY LIMITED

and

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION AND
ANOTHER

Application under section 170LW of the Act
for settlement of dispute re hours of work -
flexible hours

SYDNEY

10.00 AM, THURSDAY, 13 MARCH 2003

PN1

THE COMMISSIONER: Could I have the appearances, please.

PN2

MR M. McCANN: If the Commission pleases, I appear for the CEPU and with me I have MR G. LANE, MR D. CLARK and MR P. HOWARTH, of Fairfax Printers.

PN3

MR I. MORRISON: If the Commission pleases, I appear on behalf of the Australian Manufacturing Workers Union in this matter.

PN4

MS M. IRWIN: Commissioner, I seek to appear today and with me is MS A. WOOD.

PN5

THE COMMISSIONER: Thank you, Miss Irwin. Is there any objection to Ms Irwin being given leave. Mr McCann, first.

PN6

MR McCANN: No, Commissioner.

PN7

THE COMMISSIONER: Mr Morrison?

PN8

MR MORRISON No, Commissioner. In that case leave is granted.

PN9

THE COMMISSIONER: Now, there are two applications before me at the moment with one being the applicant in one and the other side being the applicant in the other, have you given any thought as to who is going first.

PN10

Do you have any objection, Ms Irwin, is we perhaps get the union to go first, is there any objection.

PN11

MS IRWIN: I have no objection, Commissioner.

PN12

THE COMMISSIONER: I just think it would be easier if we perhaps deal with them together, it seems from the applications that they are dealing with the same issue. So are you going first, Mr McCann?

PN13

MR McCANN: Commissioner, a ballpark synopsis of the dispute, to settle the dispute here. We've got a situation where the maintenance workers in the electrical department at Fairfax Printers are on an annualised salary arrangement and there is an allowance in our enterprise agreement for a payment for overtime in excess of the average hours that has been agreed to in the enterprise agreement, they are supposed to work and roster 44 hours a week and there is an allowance for an extra hour a week for management issues like training, meetings and some call ins, and we have a situation where four electrical workers have reached or worked in excess of their average hour and the company is refusing to pay those workers in accordance with their enterprise agreement. I have a copy of the clause 31, overtime payments, and I'd like to hand that up.

PN14

THE COMMISSIONER: I've got the agreement here it is best if I just look at that, the 31 did you say?

PN15

MR McCANN: Clause 31 on page 18. The company has agreed to in their enterprise agreement paying in two options, either double the hours or time off in lieu or double the hours, 58 percent of the annualised rate there's a calculation formula and how its worked out, and at this stage the company is refusing to pay the four electrical workers they feel that they are being discriminated against as other maintenance workers who have been deemed to be over their cap hours have been paid and I had a meeting on 10 February at Fairfax Printers, 10 February this year, and in that meeting there was Mr Stuart Shirvington, Ms Helena Misa, myself, David Clark and Greg Lane and we were told at that meeting that if we pursued the payment in accordance with the overtime clause, clause 31, that they would then be receiving a disciplinary notice under the performance and conduct clause in the EBA for not managing their hours.

PN16

We feel that there are a lot of issues that we need to talk about and I would be seeking that we go off record to discuss a lot of these issues as its quite involved and intricate with the history of some of these clauses and the actual nitty gritty, if you like, of the hours and how they have been accumulated and how they have tried to manage their hours.

PN17

THE COMMISSIONER: Thank you. Mr Morrison?

PN18

MR MORRISON: All I would like to add, Commissioner, is that the AMWU supports Mr McCann's submissions and while no AMWU members have similar complaints we do have a concern over what we say is an inappropriate use of disciplinary procedures against workers and we would be very wary of that matter perhaps coming down the track at our members. So we would also seek that emphasising the importance of that matter being addressed here today as well, so we also support Mr McCann's submission that this matter best stand off record with your assistance in conference.

PN19

THE COMMISSIONER: Thank you. Ms Irwin?

PN20

MS IRWIN: Commissioner, I start off by saying that Fairfax Printers appears conditionally in relation to the section 99 dispute. The matters in dispute arise from the provisions of the certified agreement as had been indicated by my friend. The applicable agreement of course has a dispute settlement procedure as required by 170LT(8) of the Act and up until the dispute notification, I think it was 3 March, that a section 99 was lodged and until that point the parties had been complying with a grievance settlement procedure contained in the agreement.

PN21

As illustrated by our notice provided to you on 10th, the parties have actively been attempting to resolve this grievance for a period now or since 3 October 2002. The initial grievance was notified by Mr David Clark, and I've got a copy of that initial grievance notification if you require it, Commissioner. On 24 February, Fairfax Printers wrote to the secretary of the CEPU in accordance with the grievance settlement procedure advising that they wished to move to that stage where the state secretary involvement was required and no response was received to that letter and the section 99 dispute notification was received.

PN22

We assume that the CEPU have mistakenly notified the dispute to the Commission under section 99 rather than using the form R47 and rule 66 provision, but if we're wrong in our assumption then a host of jurisdictional issues arise which I hope I won't need to address, might I just at this point seek some clarification, Commissioner, as to whether the matter is to be heard as part of the dispute settlement procedure or as a section 99 dispute rather than - - -

PN23

THE COMMISSIONER: From me or from the union? We'll they are both listed and if there are jurisdictional objections and I mean the unions are seeking to go into conference so I don't think it will really matter for that purpose what we're going under. There may very well you realise there will be some jurisdictional issues about even the agreement itself about whether what powers it actually gives this Commission in relation to the matter. So maybe we can deal with jurisdictional arguments down the track if they become necessary.

PN24

MS IRWIN: I just note that for the record at this point, going to the heart of the grievance, it does relate to the working hours provision which is clause 18 of the agreement. Clause 18A requires that full time team members work an average of 44 hours per week and team members are required to roster and work an average of 44 hours per week and Fairfax Printers is able to utilise an additional hour each week for flexible purposes such as training and meetings etcetera.

PN25

Annualised hours accrued from midnight 31 December until midnight 31 December of the following year and the annualised hours salary provides that employees receive a 22 percent loading for overtime that's built into the annualised salary. Clause 18HI defines working hours as when a team member is required to attend work, the number of hours actually worked are recorded at time worked, that is working hours to be debited from annualised hours are deemed to be those hours where a team member is required to attend work.

PN26

In clause 18B, as I said, requires the team members roster and work on average a 44 annualised hours a week. Accordingly, any hours rostered and worked by an employee beyond an average of 44 hours a week which are not required by Fairfax are not working hours and should not be debited from annualised hours. So what's happened with this grievance is employees have received warnings from Fairfax or have had discussions with their team leader and managers about the fact that they're beginning to accrue more than an average of 44 hours per week.

PN27

For example, I think in September last year Mr David Clark who was the initial aggrieved employee was party to a meeting where he was advised that we're approaching 31 December and we've looked at your average hours and you're above 44 hours a week so we'd like you to reduce the number of hours you're coming in to work.

PN28

When Fairfax asked an employee to reduce his hours the effect of this is Fairfax saying, please don't come into work, you will be paid the same annualised weekly salary as if you attend work but because you are working more than the average hours required under the agreement and we don't require you to be here, take time off. What has happened is, when Fairfax has requested that aggrieved employees don't come into work, although they will receive their annualised weekly pay, employees are saying no, I am coming in, I've got the right to come in.

PN29

Last year over a three to four months period Fairfax went through a process where it requested aggrieved employees not to work hours which were not required, they proposed to employees specific days where they didn't need to come into work and asked them not to come in. They suggested shorter working days for the employees in order to assist them to meet their average of 44 hours per week and towards the end of the year they drafted guidelines to help employees understand their obligations under the agreement. They put those guidelines to the consultative committee that they have there which they call the JCT, a joint consultative team, with a view to establishing a common understanding regarding working hours.

PN30

In the guidelines that Fairfax has prepared and provided to the joint consultative team they listed the following obligations, that management would provide employees with tools to monitor their hours, that managers would discuss hours progress with employees in the last quarter of each calendar year so that employees get fair warning if they appear to be exceeding the number of hours they are required to work, that management propose specific solutions to work and to reduce hours, and they also offered to allocate a buffer to employees to allow them some flexibility with regard to management of their hours.

PN31

In return, management asked employees, please use the tools we are giving you to manage your hours, consult with your management if you have any issue about your hours, having regard to your requirement to meet the hours contained in the agreement. They also asked the employees to participate in discussions with management about hours. What happened is that the aggrieved employees rejected these overtures. As a consequence, they continued to accrue additional hours and worked hours beyond the average of 45 hours per week. When it got to 31 December they now claim they are entitled to overtime payments.

PN32

Commissioner, we are in a position where Fairfax believes it is entitled to direct employees not to attend work where such attendance means that the employees will be working more than an average of 44 hours per week, which is what they are paid to work, and their attendance is not required, provided that the employees receive their normal annualised pay. Further, we submit that if we ask an employee over a three or four months period to take steps to reduce the hours of working and the employee refuses outright to do so and works additional hours in breach of the certified agreement, then it is appropriate that Fairfax commences a performance management program with that employee. That is the background to our view of this grievance, Commissioner, and with that we are happy to move into conciliation.

PN33

THE COMMISSIONER: Thank you, Ms Irwin. Mr McCann, do you want to put anything more on the record before we go into conference?

PN34

MR McCANN: Not at this stage, Commissioner.

PN35

THE COMMISSIONER: Mr Morrison?

PN36

MR MORRISON: No, thank you, Commissioner.

PN37

THE COMMISSIONER: In that case we will go into conference.

NO FURTHER PROCEEDINGS RECORDED