C2002/1321, Transcript of Proceedings [2003] AIRCTrans 1220 (4 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2002/1321

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

MINING AND MAINTENANCE
SUPPORT PTY LTD

Notification pursuant to section 99 of the Act
of a dispute re requirement to attend induction
training and re-induction training without payment

SYDNEY

11.00 AM, WEDNESDAY, 19 MARCH 2003

Continued from 13.3.03

Adjourned sine die

PN47

THE COMMISSIONER: I take it your appearance is still standing, Mr Endacott?

PN48

MR K. ENDACOTT: Yes, they are.

PN49

THE COMMISSIONER: I call for appearances from the company.

PN50

MS V. PAUL: I am from the Australian Industry Group appearing for the company and with me is MR G. CLEMENTS.

PN51

THE COMMISSIONER: Yes, thank you. Mr Endacott?

PN52

MR ENDACOTT: Thank you, Commissioner. At the end of the proceedings that occurred last Thursday, 13 March, there was the phone conversation between myself and Mr Walters in which we took the opportunity to go over their position on the issues in dispute and basically they were the issues that had been set out in our correspondence that's now marked exhibit A1, the three pieces of correspondence marked exhibit A1, that can be accurately described as payment for future inductions and the payment of inductions that have been attended by employees at the request of the company and are not paid for.

PN53

THE COMMISSIONER: Ms Paul, are you aware of the documents that are being referred to?

PN54

MS PAUL: Yes, sir, we actually do - I'm not sure whether this is the appropriate time - but we actually do have an objection to the jurisdiction of this matter but what we're proposing, sir, is we'd seek to break into conference. I received the documentation yesterday from my members.

PN55

THE COMMISSIONER: My question was simpler than that. Are you are aware of the exhibits in the previous case?

PN56

MS PAUL: I'm not sure they are the same letters they are all I have at the moment with the documentation.

PN57

THE COMMISSIONER: You might like to just take a note of what they are so it will help you while Mr Endacott's addressing me. Exhibit A1, consists of two letters, a letter from Mr Endacott to Mr Eason dated 24 February 2003, and another letter from Mr Endacott to Mr Eason dated 5 March 2003.

PN58

MS PAUL: Sorry, but I don't have the 24 February document.

PN59

THE COMMISSIONER: Mr Endacott, will no doubt be able to show it to you. Exhibit A2, consists of a letter dated 12 March 2003 from Mr Endacott to Mr Eason. The second part of A2 is a letter from Mr Les Walters to a Mr Ted Neate, dated 6 February 2003, and the last document that forms part of A2 is an operated time sheet from Mining and Maintenance Support Pty Limited, and I'm sure Mr Endacott would be happy to pass those across to you some that you're not privy to at the moment. Mr Endacott?

PN60

MR ENDACOTT: At the conclusion of that telephone conversation I was of the view, Commissioner, that the company had agreed, or they said they had agreed that they would pay for the inductions that had been recently inducted and they would pay for future inductions and the company was to send this correspondence which reflected that position. I do note there was a position discussed at which we would inform the company of the people that believed they weren't paid and when those inductions occurred which is not problem about that should the company agree to back pay the whole right to all our members and ask them to send me through their details so I can give them to the company in a list, and then should the company obviously believe that any of them were paid or that they didn't attend at the request of the employer then they can be discussed once the list if provided. But I think the principle of whether or not they should be paid is one that can readily agreed before that had happened.

PN61

Now the company sent me a letter on 13 March 2002, that essentially read and sent the Commission a copy as well, that the Commission also forwarded to myself that basically set out what was the same terminology as the letter in exhibit A2, to Mr Neate, and that is that:

PN62

Mining and Maintenance Pty Ltd will pay employees four hours pay calculated normal day shift rate for ...(reads)... with them.

PN63

And then gave the contact details. Now I would ask that that document be marked into evidence and I understand the Commission already has a copy of it.

PN64

THE COMMISSIONER: Well, initially we'll mark into evidence your letter, Mr Endacott, of 13 March 2003 addressed to Messrs Eason and Walters which becomes exhibit A3 in these proceedings. The reply also dated 13 March 2003 from Mr Walters becomes exhibit A4.

PN65

MR ENDACOTT: I would note, Commissioner, that the 13th correspondence from Mr Walters to myself was received before I sent my correspondence. So it is 13 March, A3 is a response from the union to the company to what is now exhibit A4.

PN66

THE COMMISSIONER: Well, lets reverse the order of the exhibits and we'll mark the letter from Mining and Maintenance, exhibit A3, and we'll mark the response from the union exhibit A4.

EXHIBIT #A3 LETTER FROM MINING AND MAINTENANCE

EXHIBIT #A4 RESPONSE FROM THE UNION

PN67

MR ENDACOTT: You will see, Commissioner, that the company wrote to the union as requested by the Commission and the union wrote a response, which is A4, indicating what we understood to be the result of conversation which is basically set out in three parts, you would pay your employees for attending inductions, you would pay your employees for attending future inductions and you would back pay persons who had attended these inductions who had not previously been paid.

PN68

Then I note the paragraph that explains what was discussed with respect to the third point, we were to inform you of the inductions that employees or ex-employees had previously attended for which they believe they had not been paid, and we've got no problem with doing that and should the company agree to back pay then we'll send a list through forthwith at once and we'll write a letter to our members informing them of what's the outcome of the proceedings and what information they require should they believe they haven't been paid for inductions they have previously attended.

PN69

I also note at this point, in the correspondence exhibit A4, your correspondence does not reflect that which I've just mentioned. Further, the most recent re-induction went for 6½ hours not for the four hours you say you were going to pay for attending the re-induction. You have that time sheet of Mr Neate that's attached to exhibit A2 that clearly establishes that he attended for 6½ hours and I note that that time sheet has been signed off by an appropriate supervisor confirming that's how long it went for. Then basically the correspondence goes on and says:

PN70

Contrary to the assertions that were set out in your correspondence it is the union that is representing ...(reads)... of this correspondence.

PN71

Now I haven't had a response to that correspondence and I further wrote to the company on 18 March, and I provide a copy of that to the Commission.

PN72

THE COMMISSIONER: Are you tendering the letter?

PN73

MR ENDACOTT: Yes, I am.

PN74

THE COMMISSIONER: Letter from Mr Endacott to the company dated 18 March 2003 becomes exhibit A5 in these proceedings.

EXHIBIT #A5 LETTER FROM ENDACOTT TO THE COMPANY DATED 18/03/2003

PN75

THE COMMISSIONER: Yes, Mr Endacott?

PN76

MR ENDACOTT: This goes to two parts essentially, Commissioner. One is that we hadn't had a response to our 13 March correspondence and further, which is the second point, is that Mr Neate was required to attend the proceedings. The Commission on the last occasion said that if the company didn't show that we haven't been prepared to go to hearing I was intending to use, should that happen, Mr Neate as a witness, and Mr Neate also informed the contractor he was working for, Hunter Valley, that he wouldn't be able to attend, just so there can be no confusion about when Mr Neate was required.

PN77

THE COMMISSIONER: I did make a note at the last proceedings that if the company did not attend I'd require sworn evidence from Mr Neate, yes.

PN78

MR ENDACOTT: So there's those issues. From our perspective, Commissioner, this dispute is one that shouldn't have had to come to this stage. I believe the company should have been able to agree in writing what we assert that they pay those amounts. It's quite simple. We submit, if you attend for training, you attend for work at the request of your employer. That employer is going to be making a profit off you or hopefully making a profit off you attending that training at their request and performing the work, then you get paid.

PN79

It's simply work. In the case of these inductions, like I said, you can't enter the mine site unless the employer's inducted you, had you inducted so you can enter those mine sites for very important reasons.

PN80

THE COMMISSIONER: I think your stand on this is fairly simple.

PN81

MR ENDACOTT: Yes, and I make no further submission than -

PN82

THE COMMISSIONER: Perhaps at this stage, I'll hear from Ms Paul and we can go back to further submissions a bit later if necessary.

PN83

MR ENDACOTT: Thank you, Commissioner.

PN84

THE COMMISSIONER: Ms Paul?

PN85

MS PAUL: Sir, if I may. We received instructions yesterday with respect to this matter and hence I apologise for not putting in a notice of appearance to that end. We note, sir, that we do reserve our rights to raise a jurisdictional issue insofar as our member is not a party to the award and in fact, there is no dispute under this award that can be raised. In saying that, we recognise that there is an issue and we would like to resolve that issue and would seek to resolve that issue in conference, obviously reserving our rights with respect to whether or not there is an jurisdiction to determine this matter and seek, therefore, that if it is unable to be resolved that we set some time to be able to deal with that issue separately.

PN86

To deal with a couple of points which I would like to put on record which has been raised by my friend, certainly there's been a wealth of correspondence on this from the union. The employer has at no point agreed. My instructions are there's been no agreement verbally and certainly none in writing to indicate that they would back pay, they would pay the employees for attending future or pay employees for attending inductions in that general sense.

PN87

What has been agreed is that they would pay 4-1/2 hours for attending inductions for any future, inductions that would - - -

PN88

THE COMMISSIONER: I take it that's what's been offered rather than what's been agreed, isn't it?

PN89

MS PAUL: Yes, agreed, sir, and all I'm trying to say, sir, there's been agreement. The company's position is that all they ever saw was there has been 4-1/2 hours. The union's position is obviously there was some other agreement. There may have been some confusion in the discussions and what had occurred. I've certainly had some long discussions with my member and we would believe it's more appropriate to go into conference and see if we can possibly resolve it.

PN90

THE COMMISSIONER: Well, let's do that.

PN91

MS PAUL: Thank you, sir.

PN92

THE COMMISSIONER: We'll adjourn into conference.

OFF THE RECORD [11.13am]

RESUMES [12.11pm]

PN93

THE COMMISSIONER: Mr Endacott, do you wish to go first?

PN94

MR ENDACOTT: Well, only to report that there's been some conciliation and aspects of the conciliation have certainly resolved in progression of a resolution of this dispute, even though it doesn't finalise resolution of the dispute. My friend here appearing for the employees might want to outline their position. I indicate it's not a position in the sense of being agreed. It's a position in the sense the company is saying, that's what we're prepared to do and we're prepared to work within that framework to try and progress resolution of the dispute. My friend may wish to report - - -

PN95

THE COMMISSIONER: Perhaps we'll find out what the company says and then you can respond to that.

PN96

MR ENDACOTT: Thank you.

PN97

MS PAUL: Sir, if I may. As indicated by my friend, there's been obviously some discussions. The company's position and what the company will do is as follows. We will pay all employees for all employer approved induction and that means the company will pay for the time spent in the induction and the cost of the actual induction subject to the induction being approved and obviously subject to time sheets being provided and signed.

PN98

What the company will also do and this is on a without any admission of liability aspect, the company will back pay all employer approved induction again for the time they spent in the induction as well as the cost of the induction and the back pay shall be for a date no earlier than 1 January 2002. The company will back pay, therefore, to 1 January 2002 and this is subject to obviously appropriate signed time sheets being provided to prove that the attendance was required etcetera.

PN99

The offer in what the company will do with respect to back pay is not in any way to be interpreted as being an admission that the company believes that it is liable to pay any back pay.

PN100

THE COMMISSIONER: I've received the message loud and clear, you make no admissions.

PN101

MS PAUL: Sorry, sir, we just thought we'd clarify that.

PN102

MR ENDACOTT: Thank you, Commissioner. At the risk of reducing our own position, I don't know if my friend said that that offer of back pay was for only current employees which they've stressed to me repeatedly. In all fairness, I think that is my friend's position.

PN103

THE COMMISSIONER: Is that correct, Ms Paul?

PN104

MS PAUL: Sorry, sir, I'll just clarify that. We will be only making that back pay to current employees.

PN105

MR ENDACOTT: The situation is, Commissioner, that the issue in dispute goes further than as has been put by the employer. It also involves the back payment for all persons that attended inductions, even ex employees and from any induction they attended going back from the time that they were informed that they had the job but I don't think that should put a stop to progressing possible resolution of the dispute and this is what we suggest is that we will write to our members, ask our members as I indicated earlier, could you indicate when you believed you've had inductions that you weren't paid for and then we would provide that to the company.

PN106

I've indicated this to the company. We would then propose to meet any people that may be pre January 2002 or ex employees we can sit down and try and sort that out. Where it can't be sorted out, we would propose that it be open that we come to this Commission again just to see if we can sort those issues out.

PN107

Certainly, I mean, if it can't be resolved then, our options are open to say well, they're still entitled to payment that was not paid under their contract of employment and seek to enforce it but it's this union's experience at this Commission, as has been achieved today, is extremely helpful in resolving disputes between the parties and that that avenue should be left open before we need to resort to possibly going to the court for what will now only be a small number of incidents, we believe. If the Commission pleases.

PN108

THE COMMISSIONER: Well, that seems fair enough to me, Ms Paul. Are you happy with that?

PN109

MS PAUL: Sir, we would be happy with the matter being left open.

PN110

THE COMMISSIONER: Yes. Well, the file will remain open. Leave is reserved to either party to seek its re-activation. I would be appreciative if at some stage the matter is settled, I can be advised so I can close the file. That being said, we're adjourned until a date to be fixed.

ADJOURNED INDEFINITELY [12.15pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A3 LETTER FROM MINING AND MAINTENANCE PN67
EXHIBIT #A4 RESPONSE FROM THE UNION PN67
EXHIBIT #A5 LETTER FROM ENDACOTT TO THE COMPANY DATED 18/03/2003 PN75