C2003/1250, Transcript of Proceedings [2003] AIRCTrans 1246 (7 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N VT10282
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2003/1250

SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION

and

LEFAN NOMINEES PTY LIMITED

Notification pursuant to section 99 of the Act
of a dispute re the alleged failure of the
company to recognise the part-time status
of an employee

MELBOURNE

10.00 AM, FRIDAY, 21 MARCH 2003

PN1

MR M. GALBRAITH: With me is union organiser, MS K. BIDDLESTON, and the member involved in the dispute, MS S. PAGLIA, for the SDA.

PN2

MR J. BATES: I appear for the Victorian Employers Chamber of Commerce and Industry and with me is MR J. HYAMS and MS R. CALLEGARI, who are with the company, Lefan Nominees Proprietary Limited trading as Petra Hair Care.

PN3

THE COMMISSIONER: This is a notification of dispute under section 99 of the Workplace Relations Act. It affects an individual member of the Shop, Distributive and Allied Employees Association who is employed by Petra Hair Care and it relates to an alleged failure of the company to recognise the part-time status of the employee. Mr Biddleston, it is - Mr Galbraith, sorry, it is your application so perhaps you could start, please.

PN4

What I would like the parties to do if they would is just give us an outline at this stage of what the situation is and then I will ask the question as to whether it is useful to go into some amount of conciliation in the matter otherwise we will treat it as an arbitration.

PN5

MR GALBRAITH: Certainly, Commissioner. Thank you for listing this matter. The nature of this dispute relates to the failure of the company, Petra Hair Care, to recognise the part-time status of our member, Ms Sylvia Paglia. The company suggests that Ms Paglia is a casual employee. Petra Hair Care is a respondent to the Hairdressing and Beauty Services - Victoria - Interim Award 1996. Ms Paglia was initially employed by Petra as a full-time manager in September 1998. She initially worked in the Bourke Street store in the city and then transferred to the Altona store.

PN6

Ms Paglia started maternity leave in June 1992. In November 1992 Ms Paglia was contacted by the management of Petra Hair who requested that she return to work. Ms Paglia agreed to return to work on a part-time basis. She indicated to the company that she could work Thursday and Friday nights and all day Saturday. Ms Paglia received anywhere from zero to 8-1/2 hours per week. However, at that stage her hours were fairly regular.

PN7

In April 1999 Ms Paglia commenced her second maternity leave. She returned to Petra in April 2000. After her return to work in April 2000 Ms Paglia's shifts became even fewer. In 2002 Ms Paglia received four shifts only. In December of last year Ms Paglia asked management for more shifts and - - -

PN8

THE COMMISSIONER: Mr Galbraith, just to get that clear. She received four shifts per week only?

PN9

MR GALBRAITH: Four shifts in the year of 2002.

PN10

THE COMMISSIONER: In the year of?

PN11

MR GALBRAITH: That is right. In January, Commissioner, Ms Paglia also questioned the company practice of rostering staff for 2-1/2 hour shifts. She checked the award and found that the minimum payment for a shift is for 3 hours for a full or part-time employee. The minimum engagement for a casual is 2 hours. The company at this stage did not refer to Ms Paglia as a casual employee, rather they accepted her advice and rostered her for a minimum of 3 hours.

PN12

Commissioner, it is perhaps useful at this point to emphasise that the first time the company ever referred to Ms Paglia as a casual employee was at a meeting held between the company and the union on 30 January this year. We believe that the company now refer to Ms Paglia as a casual employee purely out of expediency. Commissioner, despite the company trying to classify Ms Paglia as a casual there is ample evidence to suggest that she was indeed a part-time - or is indeed a part-time employee. Being able to classify Ms Paglia as a casual no doubt suits the company, particularly in the way that they have rostered her and continue to roster other staff.

PN13

However, at no time in her employment has Ms Paglia been referred to as a casual by her employers. In fact all documents and correspondence refer to Ms Paglia as a part-time employee. Ms Paglia is of the understanding that Petra does not have any employees classified as casual. She has never referred to herself as casual, nor has she ever heard anyone else at Petra refer to themselves as casuals. The reasons that Ms Paglia is in fact a part-time employee are as follows.

PN14

Firstly, Ms Paglia has been paid on a part-time manager's rate, not a casual rate. And if it pleases the Commission, I would like to tender the appropriate wages bulletin and a copy of a recent wages slip. Sorry, Commissioner, I don't have a copy of the wages slip but I do have a copy of the bulletin.

EXHIBIT #G1 WAGES BULLETIN

PN15

MR GALBRAITH: Commissioner, I apologise for not having the wages slip, that is an oversight. However, Ms Paglia has been paid at $16.7114 per hour. Now, that $16.7114 per hour is made up of a hairdresser/technician rate of $15.96 plus 5 per cent for being a manager grade 1. And that comes to a total of $16.75. Now, the casual rate for a hairdresser is $17.28 and for a hairdresser/technician is $19.95. Now, there is some confusion as to Ms Paglia's classification regarding her position and the dispute is over hairdresser/technician versus hairdresser. However, either way Ms Paglia was not paid as a casual.

PN16

THE COMMISSIONER: And the hourly rate again, please, Mr Galbraith, she was paid?

PN17

MR GALBRAITH: The hourly rate that Ms Paglia was paid was $16.7114 per hour.

PN18

THE COMMISSIONER: Thank you.

PN19

MR GALBRAITH: Secondly, Commissioner, in correspondence sent to Ms Paglia in September 2000, Ms Paglia is referred to as a part-timer and I would like to tender a copy of that letter.

EXHIBIT #G2 LETTER TO MS PAGLIA DATED SEPTEMBER 2000

PN20

MR GALBRAITH: Somewhat confusingly, Commissioner, the final paragraph - sorry, Commissioner, I would like to first refer you to the last sentence of the second paragraph which clearly refers to Ms Paglia as a part-timer. And somewhat confusingly the final paragraph states:

PN21

Remember, we have always had a policy of not guaranteeing hours.

PN22

Commissioner, the company pays its employees - - -

PN23

THE COMMISSIONER: What do we read into that, Mr Galbraith?

PN24

MR GALBRAITH: Well, that it is a breach of the award, Commissioner, in that part-time employees should have regular hours and a regular roster. The company pays its employees as part-timers but expects them to work as casuals. I also have a copy of a phone list which, again, refers to Ms Paglia as a part-timer. Thirdly, Commissioner, Ms Paglia has received entitlements in keeping with her status as a part-time employee. If it pleases the Commission, I would like to tender a copy of Ms Paglia's employee entitlement report.

EXHIBIT #G3 EMPLOYEE ENTITLEMENT REPORT - MS S. PAGLIA

PN25

MR GALBRAITH: This document clearly identifies that Ms Paglia has accrued annual leave and long service leave. Ms Paglia has also accrued sick leave and has also received maternity leave. These entitlements are not normally accrued by casual employees. Clause 11.3.3 of the Hairdressers Award makes it clear an employer's obligations relating to part-time employees. Commissioner, I would like to tender a copy of - - -

PN26

THE COMMISSIONER: I have a copy of the award in front of me.

PN27

MR GALBRAITH: You do, all right.

PN28

THE COMMISSIONER: So if you just want to refer to the clause I can - - -

PN29

MR GALBRAITH: All right. So that is 11.3.3, Commissioner. This clause states that the employee will agree in writing on a regular pattern of work specifying, amongst other things, the hours worked each day, which day of the week to be worked, the starting and finishing times of each day. And the company has breached the award by not doing these things.

PN30

THE COMMISSIONER: Now, Mr Galbraith, I did say I had a copy of the award but I have a copy of the Hairdressing and Beauty Services - Victoria - Interim Award 1996 which may not be the document that you are referring to because I can't pick it up from the reference you have given me.

PN31

MR GALBRAITH: Commissioner, I do have a photocopy here which might make it clearer.

PN32

THE COMMISSIONER: Is that the award you are referring to, the Hairdressing and Beauty Services Award?

PN33

MR GALBRAITH: It is the award, 11.3.3.

PN34

THE COMMISSIONER: Unless there is another 11.3 here which I don't think there is, no. My copy of the award in paragraph 11 just goes to 11.1.3 and it talks about additional employee duties. And the section which defines part-time employment is actually 13.2. But perhaps if I get your document, that will help us out.

EXHIBIT #G4 COPY OF CLAUSE 11.2 OF THE HAIRDRESSING AND BEAUTY SERVICES - VICTORIA - INTERIM AWARD 1996

PN35

MR GALBRAITH: Commissioner, when Ms Paglia returned from maternity leave in April 2000 the number of shifts she was offered became even fewer and we believe that the parental leave clause is unambiguous in this situation and I am assuming that we may have the same problem again if the clauses are out of sync. But the clause I am referring to is 35.9.2.

PN36

THE COMMISSIONER: Yes. I will just go to that and I want to come back to this - 35.9.2, I will go to that first. No, my 35 only goes up to 35.5. But before we go onto that, my award which we have obtained from the registry, in the definition of full-time employment it says:

PN37

A full-time employee is an employee who is an employee who is ready, willing and available to work an average of 38 hours per week.

PN38

And this is quite different from 11.2 in the page you have handed up. Now, I just want to make sure which award - - -

PN39

MR GALBRAITH: Commissioner, perhaps if I hand up the award. I only have one copy of this but this is the award that I have been using. Well, referring to the title of the award it would appear as though they are the same document but the one I have here - oh, yes, maybe it is the result of award simplification.

PN40

MR GALBRAITH: It may be.

PN41

THE COMMISSIONER: Because the one I have is the one dated 22 May 1997 and your award is 2001 under Giudice J which is simplified, quite probably.

PN42

MR GALBRAITH: I think it would be, Commissioner.

PN43

THE COMMISSIONER: All right. Well, we will work from your hand-outs thanks, Mr Galbraith. I will put the unsimplified award to the side. So we have got to G4, I understand, which was the clause 11.2 and then you referred me to clause - - -

PN44

MR GALBRAITH: 11.3.3.

PN45

THE COMMISSIONER: Yes.

PN46

MR GALBRAITH: Commissioner, that clause states that an employee will agree in writing on a regular pattern of work, the hours worked each day, which day of the week to be worked and the starting and finishing times of each day.

PN47

THE COMMISSIONER: And this is headed up, Regular Part-time Employees.

PN48

MR GALBRAITH: That is right.

PN49

THE COMMISSIONER: Is there another clause which is other than Regular Part-time Employees? Is the word "regular" there of any significance?

PN50

MR GALBRAITH: Regular, I assume, Commissioner, would refer to a regular pattern of work.

PN51

THE COMMISSIONER: Yes.

PN52

MR GALBRAITH: I suppose the three classifications are full-time, regular part-time and casual. Commissioner, is your question whether there is another clause part-time only?

PN53

THE COMMISSIONER: Yes.

PN54

MR GALBRAITH: I don't believe so, Commissioner, I will check in a moment.

PN55

THE COMMISSIONER: Which is other than regular?

PN56

MR GALBRAITH: No, I believe that the only part-time employee is categorised as regular part-time employee.

PN57

THE COMMISSIONER: Thank you. And does something turn on this word "regular" in this matter?

PN58

MR GALBRAITH: Well, I suppose, Commissioner, maybe that some awards and agreement refer to regular part-time employees and others just refer to part-time, but I suppose within the definition of regular part-time it implies regular by, I suppose, in 11.3.3 in the first paragraph, "will agree in writing on a regular pattern of work". I think that implies the regularity of that kind of roster.

PN59

THE COMMISSIONER: Yes. And in regard to your member, was there an agreement consistent with 11.3.3 at any time?

PN60

MR GALBRAITH: No, there weren't. Our member, Commissioner, began on a full-time basis with a regular roster in return for maternity leave.

PN61

THE COMMISSIONER: Yes, and then following maternity leave undertook part-time work?

PN62

MR GALBRAITH: That is right. She was classified as a part-time and paid as a part-time, however, never received the regular roster that we believe she was entitled to. Now, she was unaware at that stage that she was entitled to regular hours and she has established that only recently but her desire was always to have regular hours. Commissioner, when Ms Paglia returned from maternity leave, April 2000, the number of shifts she was offered became even fewer and we believe the parental clause is unambiguous in this situation and, Commissioner, I would like to tender a copy of clause 35.9.2 of the award.

EXHIBIT #G5 COPY OF CLAUSE 35.9.2 OF THE HAIRDRESSING AND BEAUTY SERVICES AWARD

PN63

MR GALBRAITH: Commissioner, this clause states that an employee is entitled to the position which they held immediately before their parental leave. Now, Ms Paglia's position is considerably different to the one she enjoyed before her maternity leave. Ms Paglia agreed to work fewer hours but did not agree to casual status. She went from a permanent full-time position to a position where her hours were not guaranteed. Now, the company did not formally inform Ms Paglia of her change in employment status.

PN64

Commissioner, Ms Paglia is keen to work under a regular roster which we believe she is entitled to. She wishes to work the roster she indicated after her return from maternity leave and this roster is Thursday nights, 5.30 to 9 pm; Friday nights, 5.30 to 9; Saturday, from 9 am to 5 pm. And Ms Paglia is also happy to work one or two Sundays per month should she be required. Ms Paglia has also suffered considerable financial loss over the last few years. I mentioned that in 2002 Ms Paglia received only 4 shifts. We have calculated that Ms Paglia should have received approximately 144 shifts which is calculated by 3 shifts per week for 48 weeks at 3 hours per shift, which is the minimum. And this amounts to a loss of over $7000 which we believe that Ms Paglia is entitled to.

PN65

Commissioner, as we see it, the company want the best of both worlds. They expect their staff to be on unpaid stand-by. These staff, I imagine, hope that they will be offered a shift but these staff are paid as part-time employees, not casuals. Like part-time and full-time employees these so-called casual employees must apply for annual leave 4 weeks in advance. We believe that casual workers shouldn't have to apply for annual leave. And we believe the appropriate remedy, Commissioner, for this dispute is a regular roster and compensation for the hours that should have been available to Ms Paglia. If it pleases the Commission.

PN66

THE COMMISSIONER: Thanks, Mr Galbraith. Mr Galbraith - sorry, Mr Bates, before you start - so what turns on this? If your proposition is accepted you would say that your member, Ms Paglia, should be regularly employed in her hairdressing position?

PN67

MR GALBRAITH: That is right.

PN68

THE COMMISSIONER: She should have regular rostered shifts?

PN69

MR GALBRAITH: That is right.

PN70

THE COMMISSIONER: And she should be paid and treated as a part-time employee not a casual employee?

PN71

MR GALBRAITH: That is correct, Commissioner.

PN72

THE COMMISSIONER: Okay. And at the moment in your discussions with the representatives of the employer, who I know can be very difficult at times, what has been their response to that? Is the employer, Petra Hair Care, is the employer able to provide these shifts in the normal way or is the employer saying: Look, we just don't have the work for Ms Paglia?

PN73

MR GALBRAITH: Commissioner, the company have shown a reluctance to give Ms Paglia regular hours. Perhaps, with all due respect, Commissioner, if you could ask the company that question - - -

PN74

THE COMMISSIONER: I certainly will.

PN75

MR GALBRAITH: We believe that there is the work there for Ms Paglia on the roster that we indicated, but we are keen to have Ms Paglia given a regular roster and it is the work structure that she desires.

PN76

THE COMMISSIONER: Good. Thank you, Mr Galbraith. Mr Bates.

[10.23am]

PN77

MR BATES: Thank you, Commissioner.

PN78

THE COMMISSIONER: Do you expect to take very long, Mr Bates, or is this going to be one of your long submissions, or not?

PN79

MR BATES: Commissioner, it is not going to be terribly long, because I think - and I am not sure - - -

PN80

THE COMMISSIONER: I think the SDA has put a very strong case forward, Mr Bates. You are going to be struggling today, I think.

PN81

MR BATES: I wouldn't think so, Commissioner. I will come up with a very inventive submission, I am sure. I would just address firstly, in terms of the length of my submission, Commissioner, the fact that you did mention earlier that it might be appropriate to go into private conference.

PN82

THE COMMISSIONER: Yes.

PN83

MR BATES: Now, we have no objection to that. I think that is probably a sensible notion. And for that reason I don't intend to put forward prolonged submissions at this stage. However, I will give you a thumbnail sketch of what those submissions will be.

PN84

THE COMMISSIONER: That would be good, Mr Bates.

PN85

MR BATES: And the attitude that the Company has taken. Firstly, I suppose it will come as no surprise that the submission made by my friend from the SDA, we dispute. And we say that the circumstances are somewhat different to what have been suggested. I will clear one thing up. The award to which my friend has been referring to, we also agree that what he has submitted is the correct award. The employer became respondent to that award in 1999. Anything prior to 1999 was subject to one of those sectoral orders of the Commission relating to certain categories of employment in Victoria, as a result of what happened to the previously existing awards that were all got rid of.

PN86

So the actual respondency to this award did not commence until 1999. And the relevance of that, I think, will be apparent as things emerge. The situation with Ms Paglia, she has been employed by the Company on and off for quite a period of time. Ms Paglia has had absences on account of maternity on two occasions, one in the early 1990s and as my friend said, one again, from which she was able to want - to seek work after the last occasion, which I think was early 2000. From the period - after the first period of maternity leave in the early 1990s, Ms Paglia has not worked on a regular pattern of work. And indeed, whilst may be referred to as a regular part-time employee, I don't think the word, regular, was particularly used by the company.

PN87

If you have a look at the exhibits that the union has referred to, I will just find the relevant one, as a part-time, the word, regular, has never been used, because the employment has been anything but regular. The issue of whether there is an entitlement to work or not, I don't really want to offend the Commission, but any breach of award, this is probably not the jurisdiction for it to be dealt in, and certainly we would be opposing it being dealt with, if that is something the SDA wish to pursue.

PN88

THE COMMISSIONER: So any claim for previous entitlements, Mr Bates, your view is it should be dealt with elsewhere?

PN89

MR BATES: Correct, Commissioner. And we would propose it being dealt with by the Commission as currently constituted. The issue of the hours worked since 1999, and more particularly since 2000, has not been a matter of not being offered work. Work has been offered on a number of occasions to which Ms Paglia has been unable to accept. To try and resolve the issue, last year the Company wrote a letter to Ms Paglia, to try and sort out the working hours situation. There was no intention of the Company wanting to not offer Ms Paglia work, and - however, what they did want was some commitment to being available for work where it arose on certain times.

PN90

Now, what the Company was hoping to do was to have Ms Paglia available to be rostered for work if it were in the offing and that was Thursdays - nine - sorry, 5.30 pm to 9.00 pm, Fridays 5.30 pm to 9.00 pm, Saturdays and Sundays. But it was on the qualification, as it had been for the last number of years, that Petra Hair Care would endeavour to provide work during those times. However, this might not always be possible. Now, that was because of the operational requirements of the company.

PN91

And we say that when that offer was made to Ms Paglia, and it was made in writing, the terms of whether it be casual or whatever, were not articulated in that letter, but what the company wanted was a commitment from Ms Paglia to be available on those times. Now, Ms Paglia did not sign that letter and return it, and accept that, so there was an offer, and consideration, but there was no acceptance. Now, I would like to hand a copy of that up to the Commission.

EXHIBIT #B1 LETTER OF OFFER

PN92

MR BATES: Now, I would also like to make the Commission aware that when these issues were raised by the SDA, there have been a number of discussions between the employer and the SDA. The issue of the type of employment was only one of the issues that were raised by the SDA. And I can inform the Commission that, just by way of understanding how this dispute over Ms Paglia's terms has been resolved in part.

PN93

Firstly there was the issue relating to the Company requiring people to undertake training. And that training being unpaid. Now, the SDA submitted to the company that that was a breach of the award and that if training did occur that it should be paid, or at the very leas,t not be mandatory for people to attend. Now, the company has never made it mandatory for people to attend, but those people who did attend did not get paid. Now, the company has said that in future if anyone undertakes such training it will be paid. So that issue was resolved on the raising of the issue by the SDA.

PN94

Another issue related to Ms Paglia's entitlement to long service leave. The company believes - or believed, that the Victorian Long Service Act did not give her an entitlement. The SDA believed that it did. That one has been resolved so far in terms that the company has accepted, in principle, that long service leave is relevant, and the only issue remaining to be resolved between the company and the SDA on Ms Paglia's behalf is the basis of how that is calculated.

PN95

So we got rid of two of those issues. The issue of looking at whether the - if the employment were casual, it is quite clear that that - and we don't dispute it, that Ms Paglia would have been underpaid since the award became relevant in 1999, and on our calculations Ms Paglia would have been underpaid around $310. Now, the company - - -

PN96

THE COMMISSIONER: Sorry, can I have that again, Mr Bates, please?

PN97

MR BATES: The company, in looking at the claim, and the type of employment, if the employment were casual, as we can say it can only be, then there would be an underpayment prima facie of $310 for the period from when they were roped into the award in question, up until the current period. Now, the other question, of course, there is which classification would apply. Now the SDA says that it is a Hairdresser/Technician, and we say, well, it is not, it is a Hairdresser.

PN98

So there is not merely a dispute left to be resolved over whether the person is regular part-time or casual. There is also a dispute over which classification level it would be. I might also add that if the SDA is correct, which we say it isn't, then that calculated underpayment of $310 will be considerably more. But I have no calculation at this point, because - - -

PN99

THE COMMISSIONER: There is a significant difference in remuneration, of course, on the weekly rate. It is $525 as against $606, which is - - -

PN100

MR BATES: Correct.

PN101

THE COMMISSIONER: - - - eighty-one dollars.

PN102

MR BATES: Correct, Commissioner. And therefore, on the basis of what we are looking at, the amount would be somewhat - a lot more than the $310 we say that is the based on the hairdresser's rate. That takes me to - - -

PN103

THE COMMISSIONER: Mr Bates, are you aware of whether there is any documentation at any time between the parties on the proper classification?

PN104

MR BATES: There is none, Commissioner. Part of the problem, I think here, in my assessment is that when the company was roped into the Federal award, that wasn't clarified. So the company became overnight a respondent to an award where no action was taken as a result of that, and where certain practices that occurred in the past, rightly or wrongly, and we say, rightly, under the old industrial regulation, it wasn't addressed as to how that may properly apply from the time they were roped in.

PN105

THE COMMISSIONER: And the company, in making its assessment that Ms Paglia is a hairdresser, rather than a hairdressing technician, has it referred to both the qualifications held, and the work which is expected of the member?

PN106

MR BATES: That is correct, Commissioner. That is how they have arrived at that situation. So - - -

PN107

THE COMMISSIONER: But that is in dispute between the two parties.

PN108

MR BATES: That is in dispute, yes. The other issue that was suggested by the SDA, that they are only regular part-time employees or full-time employees, I have to put to the Commission that they are not in a position to know that. It is not the case, but they are not in a position to know, nor is Ms Paglia in a position to know what the terms of employment of other employees of Petra Health Care are, in our submission.

PN109

The matter, I think, hinges on two things and I would not wish to say any more than there is some confusion or we wouldn't be here today. There is a situation where we have an issue that does need to be cleared up because it is something that has arisen only as a result of the amount of work that has been involved. What I do intend to do, Commissioner, is hand you up a copy of the relevant parts of the award that I intend to quote from and also copies of the records of Ms Paglia's employment since she came back to work in 2000 which clearly show a number of things.

EXHIBIT #B2 COPY OF RELEVANT PARTS OF THE AWARD TOGETHER WITH COPIES OF RECORDS OF MS PAGLIA'S EMPLOYMENT FROM YEAR 2000

PN110

MR BATES: And the wages records are attached to the back. Unfortunately, in photo copying them, I don't know what I did but I got them slightly out of order so you will have to take that into account when you read them. But what it does show - - -

PN111

THE COMMISSIONER: I don't see any page numbers on here, Mr Bates. I am a big one on page numbering. You might remember that for the future.

PN112

MR BATES: I will. Although the copies of the pages extracted from the VECCI loose leaf copy of the award are numbered, certainly the pay records are not numbered. But what they do clearly show is that the employment was not regular, there were gaps and, as I have said earlier, it wasn't a question of whether the work was available, Ms Paglia was offered shifts that she was unable - or to do or declined. So it is not as simple as not being offered work. Work was offered and on many occasions declined. I won't go into the detail of that at this point but that is an issue that I would need to address if we have to go there.

PN113

THE COMMISSIONER: Just quickly looking at it, Mr Bates. The pay periods I notice here, they are not necessarily following each other are they? There might be one pay period, then there might be a break then another pay period?

PN114

MR BATES: Correct. That is true, Commissioner.

PN115

THE COMMISSIONER: So I shouldn't read this as though it is - - -

PN116

MR BATES: It is every pay period, no.

PN117

THE COMMISSIONER: It is every fortnight or whatever?

PN118

MR BATES: Correct. There are numbers of - I think it is done by the week? Yes, it is done weekly.

PN119

THE COMMISSIONER: It is a weekly, okay.

PN120

MR BATES: Yes, that is true, there are numbers of weeks where there was no work at all.

PN121

THE COMMISSIONER: So if I look at 2002 and I see there is one, two, three, four - there is about five weeks in which - it is actually five weeks in which payment was made. That indicates there is only five weeks work has been offered and accepted in 2002.

PN122

MR BATES: That means that there are only five weeks that were offered and accepted. It doesn't mean that was all the work that was offered.

PN123

THE COMMISSIONER: No. Offered and accepted, yes.

PN124

MR BATES: That is true, Commissioner. Now, if I take you to the front part of that.

PN125

THE COMMISSIONER: Sorry, Mr Bates, just before you lead that again. I notice in 2001 there is considerably more work undertaken. In 2000 it appears there was considerably more work undertaken as well. Was there any significant reason for that as to why there was quite a lot of work done in 2001 and then drop right away in 2002?

PN126

MR BATES: I will have to seek advice, Commissioner. Just putting it in a general sense, what it reflects are two things. Number one, where work was available it would have been offered. And number two, whether Ms Paglia was available or not. Now, beyond that it is very hard to go any further with it.

PN127

THE COMMISSIONER: Yes, thank you.

PN128

MR BATES: Commissioner, I would like to take you to clause 11.1 of the award. And what it has there are three categories of employment, as full-time employees, regular part-time employees or casual employees. Now, when you get to regular part-time employees you get to 11.3 and that sort of tells you the basis of the hours of work and I quote in particular from 11.3.2:

PN129

A regular part-time employee is an employee who -

PN130

11.3.2(a) work less than full-time hours of 38 hours a week, and

PN131

(b) has reasonably predictable hours of work.

PN132

Then it goes on in 11.3.3 to further qualify that and it says:

PN133

At the time of first being employed the employer and the regular part-time employee will agree in writing on a regular pattern of work specifying at least the hours worked each day, which days of the week the employee will work, the actual starting and finishing times of each day. Variation to that must be in writing. Minimum daily employment is 3 hours.

PN134

Now, I take that to mean, myself, that if they are rostered for 2-1/2 hours the minimum payment is 3:

PN135

All time worked in excess of agreed hours is paid at overtime rate. And the time of taking and the duration of meal breaks.

PN136

It then goes on to say:

PN137

Any agreement to vary the regular pattern of work must be made in writing before the variation occurs. The agreement and variation to it must be retained by the employer to the employee. An employer is required to roster a regular part-time employee for a minimum of 3 consecutive hours on any shift. And an employee who does not meet the definition of a regular part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with 11.4.

PN138

Now, when you get to 11.4 it stipulates the conditions under which a casual employment person shall be engaged and it says - I quote 11.4.1:

PN139

A casual employee is an employee engaged as such and who does not have an entitlement to reasonably predictable hours of work.

PN140

Commissioner, when you look at the terms of Ms Paglia's employment regardless of what it might have been called, there are a number of inescapable observations that one can make. Firstly, the employment was able to be offered by the employer and was able to be not taken by the employee. There was no regular hours worked each day. There were no days of the week stipulated for week. There were no actual starting and finishing times stipulated. There was nothing committed to writing.

PN141

Therefore, the first part of the requirement to be employed as a regular part-time employee, well, we say that there weren't the hours. Number two, there was nothing in writing on the regular pattern of hours required by the award. And in the absence of all of that and the other conditions that are there the inescapable conclusion is that it is casual employment. You can't conclude it any other way. Now, what we say in that regard is that you can't contract out of the award, there is no doubt about that. And therefore whatever you call the employment it can't be seen or categorised in any sense as regular part-time employment.

PN142

It might have been some years ago, between the time when Ms Paglia came back from her first absence on maternity, however, I should point out and remind the Commission that at that point they weren't respondent to the award and since becoming a respondent to the award there was absolutely no agreement in writing to the type of employment. You can only make the judgment on the basis of what the employment has been.

PN143

Now, I don't want to go through the total argument because I don't wish to take up the Commission's time but what I will say is that from our position we would like to see the matter cleared up. We are open to seeing resolution. We are also open, if the matter can't be resolved in conciliation, to having the Commission make a recommendation and we are prepared to accept that recommendation with the qualification that it doesn't cover any alleged under payments because we believe that the Commission can't deal with that anyway.

PN144

However, if the Commission were mindful to assist us in resolving this matter then, of course, we are open to looking at that in terms of reaching an agreement on how it will be resolved. I should say that that particular matter I refer to which is part of B1 in terms of the hours that were - the employer was looking to have Ms Paglia available if the work was there, and I should say that there is work and the employer wants to continue using Ms Paglia and there is no suggestion that we want to cease that arrangement; I should make that clear. So at this point, as I say again, we are prepared to seek the Commission's assistance in trying to resolve it in conciliation. If the Commission pleases.

PN145

THE COMMISSIONER: Thanks, Mr Bates. Mr Bates, just before you sit down, just one question. When, in the employer's view, did the nature of employment of Ms Paglia change from being a full-time employee/part-time employee to a casual employee? Is there a view on that?

PN146

MR BATES: I will just see if I can establish that, Commissioner.

PN147

THE COMMISSIONER: I am not looking for a precise date, I am simply looking for: Well, it would have been around about 1993 or whatever.

PN148

MR BATES: Look, without going into the detail of it, the nature of Ms Paglia's employment certainly altered after she returned from her first maternity period.

PN149

THE COMMISSIONER: From her first maternity leave period?

PN150

MR BATES: Yes. Which I think was around - - -

PN151

THE COMMISSIONER: Was 1992, I think.

PN152

MR BATES: '92 or '93, yes, Commissioner.

PN153

THE COMMISSIONER: So around about that time?

PN154

MR BATES: Correct. I mean, it is - the records are all available to show that the work pattern has changed significantly and that is probably understandable in the circumstances that were there. So that is when we say that the change started.

PN155

THE COMMISSIONER: Good. Thanks, Mr Bates. Mr Galbraith, do you have anything to say at this stage, otherwise I am - - -

PN156

MR GALBRAITH: Commissioner, I would like to say a few things. I will be brief.

PN157

THE COMMISSIONER: Yes, I would like you to keep it fairly brief if you could - - -

PN158

MR GALBRAITH: I will be brief, Commissioner.

PN159

THE COMMISSIONER: - - - because I am not sure there is a great deal to be gained from, sort of, "He said this and I said that", on the record at this point, but go ahead.

PN160

MR GALBRAITH: I will keep it brief, Commissioner. Look, we do agree with a large percentage of Mr Bates' submission that the hours were not regular. Our argument is the hours should have been regular. We believe that Mr Bates and Petra Hair Care are putting the cart before the horse. They are saying that because they have moved Ms Paglia from permanent - from regular shifts to irregular shifts that she is therefore a casual. Now, I believe that is fuzzy logic. I believe that she was a regular part-timer, is still categorised as a regular part-timer and the casual hours - the way the company roster her is completely inappropriate. Now, we were given a letter, B1 - now, we are quite confused, Commissioner, because in the first paragraph:

PN161

Here is a summary of your new terms and conditions as agreed upon during our recent telephone conversation.

PN162

The letter is dated 29 October 2002. The conversation was held on 6 January 2003. So this letter, referring to the conversation, appears to be written before the conversation. Now, we - - -

PN163

THE COMMISSIONER: There could be some confusion on that, Mr Galbraith, I think.

PN164

MR GALBRAITH: Commissioner, the reason - - -

PN165

THE COMMISSIONER: The letter is suggesting, if the date is correct and I assume it is, the letter is suggesting there was a conversation prior to the letter being sent. Are you saying there was no conversation?

PN166

MR GALBRAITH: I am saying there was a conversation and that conversation was on 6 January 2003.

PN167

THE COMMISSIONER: So you are saying there was no conversation prior to 29 October?

PN168

MR GALBRAITH: That is right. Now, our member remembers that quite clearly because 6 January is her birthday. So she is associating her birthday with that telephone call - - -

PN169

THE COMMISSIONER: When she turned 25.

PN170

MR GALBRAITH: Exactly.

PN171

THE COMMISSIONER: Yes, okay.

PN172

MR GALBRAITH: Commissioner, the reason we believe Ms Paglia was a hair technician is because that was the way she was paid from the beginning of her employment back in 1988. Now, as for the decrease in hours. Coincidentally they coincided with when she disputed unpaid training. She believed the training should be paid. She raised that with the company and her hours fell after that. During 2002 she rang every week for shifts and got four shifts. So we also dispute the fact that the work wasn't there and that she didn't indicate that she was available. She was available and she indicated that. Commissioner, I am happy to go into conference.

PN173

THE COMMISSIONER: Okay. Thanks, Mr Galbraith. The matter is adjourned at this stage and we will go into conference. I expect we will be approximately one hour.

OFF THE RECORD

PN174

THE COMMISSIONER: The parties in this matter have engaged in a conciliation proceeding assisted by the Commission and the Commission now wishes to make a recommendation based on the outcome of those proceedings and the recommendation is as follows. It relates to the dispute notified by the Shop, Distributive and Allied Employees Association and Petra Hair Care. The recommendation is as follows.

PN175

Ms Paglia is employed by Petra Hair Care in its Altona store. The Shop, Distributive Association notified a dispute to the Commission regarding Ms Paglia's employment status and working hours. Following submissions by both parties and conciliation proceedings I make the following recommendation in regard to Ms Paglia:

PN176

(1) that the minimum weekly rostered hours for Ms Paglia be two shifts and at least 3.5 hours;

PN177

(2) that Ms Paglia be accepted as a regular, part-time employee as per the terms of the Hairdressing and Beauty Services Award - Victoria - 2001;

PN178

(3) that the remuneration arrangements put in place for Ms Paglia following her return from maternity leave be continued;

PN179

(4) that this recommendation be regarded as resolving all outstanding remuneration related matters between Ms Paglia and Petra Hair Care relating to her employment since 1992;

PN180

End of recommendation. And I make that recommendation to the parties for each party to consider. I would ask that Mr Bates and Mr Galbraith notify the Commission of the outcome of that consideration in due course. This matter is now adjourned.

ADJOURNED INDEFINITELY [12.38pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #G1 WAGES BULLETIN PN15
EXHIBIT #G2 LETTER TO MS PAGLIA DATED SEPTEMBER 2000 PN20
EXHIBIT #G3 EMPLOYEE ENTITLEMENT REPORT - MS S. PAGLIA PN25
EXHIBIT #G4 COPY OF CLAUSE 11.2 OF THE HAIRDRESSING AND BEAUTY SERVICES - VICTORIA - INTERIM AWARD 1996 PN35
EXHIBIT #G5 COPY OF CLAUSE 35.9.2 OF THE HAIRDRESSING AND BEAUTY SERVICES AWARD PN63
EXHIBIT #B1 LETTER OF OFFER PN92
EXHIBIT #B2 COPY OF RELEVANT PARTS OF THE AWARD TOGETHER WITH COPIES OF RECORDS OF MS PAGLIA'S EMPLOYMENT FROM YEAR 2000 PN110