C2002/2671, Transcript of Proceedings [2003] AIRCTrans 1285 (9 April 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2002/2671

MEDIA, ENTERTAINMENT AND ARTS ALLIANCE

and

CHANNEL SEVEN NETWORK

Notification pursuant to section 99 of the Act
of an industrial dispute re breaches of agreement
relating to hours of work and rates of pay

SYDNEY

10.03 AM, WEDNESDAY, 26 MARCH 2003

Continued from 9.8.02

PN30

THE SENIOR DEPUTY PRESIDENT: Are there any changes to the appearances in this matter? No. I thought we would start on transcript and then probably shortly after adjourn into conference. I don't know where this matter has got to, it's been on again and off again for some time, but I think the reason we are here today is because of a request from Mr Peacock to have the matter relisted as significance new information has come to light. We might start with you, Mr Ryan.

PN31

MR RYAN: Thank you, your Honour. You may recall on 20 December last year you brought down a recommendation following a private conference before you which dealt with the treatment of the then forthcoming public holidays, Boxing Day, Proclamation Day, New Years Day, 27 December in New South Wales which is the eleventh public holiday under this award, and Australia Day. The upshot was that those days would be given in addition to the normal two rostered days off.

PN32

The matter has been relisted because as you may be aware quite recently it was in Labour Day in Victoria, a public holiday, and our members and subsequently ourselves became aware that Mr Blakeman who is head of Seven Network Human Resources had issued a proclamation to his under managers that if people were given a day off it was to be debited as zero hours for that particular day. They weren't required to go to work, they were given their two rostered days off and if they didn't go to work on the public holiday that was to be treated as zero hours.

PN33

The fact is that Mr Blakeman has created a new creature of leave without pay on a public holiday and that is why we are here, because in effect that means that people are getting a 20 per cent pay cut in a week in which the company doesn't require them to work on a public holiday, which is at odds with the recommendation in our discussion before you.

PN34

Your Honour, not only does it concern our members directly, I also believe it has been making a bit of a mockery of the process we sought to undertake with your assistance to solve this issue when we can all walk away just before Christmas in the knowledge that certain public holidays coming up would be dealt with appropriately, then Mr Blakeman issues an edict which comes from nowhere, has no basis either under the award or our certified agreement as to how to treat people who the company doesn't require to come to work on a public holiday and on that basis they are docked one day's pay. That is why we sought to have the matter relisted.

PN35

We wrote to the company concerning the matter on 17 March. We haven't had a response to that letter, hence the matter has been brought back on at your convenience following the matter not being able to proceed last time because we thought we had it sorted.

PN36

THE SENIOR DEPUTY PRESIDENT: How were the enterprise bargaining negotiations for the replacement agreement going?

PN37

MR RYAN: Going, going poorly, but we are before Commissioner Larkin this afternoon seeking her assistance in relation to what we see as some of the outstanding issues.

PN38

THE SENIOR DEPUTY PRESIDENT: All right. Now, remind me again. You say the impact of the recommendation was that if there is a public holiday - - -

PN39

MR RYAN: It was restricted.

PN40

THE SENIOR DEPUTY PRESIDENT: I know it was restricted but what do you say about how it worked?

PN41

MR RYAN: What happened was, well, let us take Australia Day as an example of the national holiday. If members were not required to work on Australia Day - - -

PN42

THE SENIOR DEPUTY PRESIDENT: If not required to work.

PN43

MR RYAN: If not required to work on Australia Day then they got that day off on normal pay in addition to their two other days off.

PN44

THE SENIOR DEPUTY PRESIDENT: Their two RDOs whenever they were - - -

PN45

MR RYAN: They were required to work because people are entitled to six weeks annual leave under the agreement, your Honour, so it is just treated as a normal working day and paid as such.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes, and when they were not required to work, at what level were they paid for the day?

PN47

MR RYAN: Just a normal day's pay.

PN48

THE SENIOR DEPUTY PRESIDENT: A normal day's pay, all right. Now, what do you understand happened in relation to the Labour Day holiday this year in Victoria?

PN49

MR RYAN: Those people who were not required to work, they were to be given zero hours for that day.

PN50

THE SENIOR DEPUTY PRESIDENT: Not paid at all.

PN51

MR RYAN: They were not paid.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes. I just don't understand the terminology zero hours.

PN53

MR RYAN: Nor do we, your Honour, it's a concept alien to my experience, but if I could tender an email from one of our delegates which contains a memo to Mr Craig Bodner who is one of the managers at Seven Network. It sets out the treatment.

PN54

THE SENIOR DEPUTY PRESIDENT: Are you familiar with what document this is, Mr Blakeman?

PN55

MR BLAKEMAN: Yes, your Honour.

PN56

MR RYAN: It starts with "Hello" half way down the page, your Honour.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes. It's really just the email you are interested in, the other is just an acknowledgment, is it?

PN58

MR RYAN: It's just from our delegate to myself and Mr Peacock saying here is a copy of an email. The vice is in the last paragraph of that first page. As you rightly point out, zero days is an unfamiliar term.

PN59

THE SENIOR DEPUTY PRESIDENT: All right. Mr Blakeman?

PN60

MR BLAKEMAN: Thank you, your Honour, yes, that edict did go out, it would seem it's becoming apparent on a number of other issues that are before Commissioner Larkin that because the current agreement is silent in so many ways, as I think you alluded to when this matter originally came before you. It would seem that the union are making their own version of events as we proceed too and if it doesn't actually suit them or in fact their members we find ourselves before the Commission. Under the agreement an employee has to work either 152 or 180 hours in a four-week cycle. As a part of the trade-off for working public holidays staff were given an additional two weeks which made their leave six weeks, as I think we discussed last time. What we agreed to last time is that they would be given a day off in addition to their two RDOs.

PN61

What the union are now seeking is equivalent to nearly eight weeks holiday a year for people if in fact they are not required to work. Now, that was never the intention of the agreement, it has never been discussed, it is yet again the union's swayed version of events. Therefore, if someone is not required that day is given off in addition to the two RDOs as we agreed but it is treated for accumulation of hours as zero. They work 180 or 152 a cycle, they are paid for it. Whether they work it or not, they are paid for it. What the union is saying is, hey, let's keep whacking all these extra days on, we'll end up paying for 200 and something hours when they have actually probably worked less than 180 or 162.

PN62

It's not as if they are not being paid, they are getting paid for what they work, what they are working. They are either working 152 depending on their roster, depending on their classification in the agreement, or they are working 180, which are those staff who have had seven hours a week overtime. What the union is now seeking is to get all these public holidays paid plus the benefit of the initial two weeks. It's what I would see as double dipping.

PN63

THE SENIOR DEPUTY PRESIDENT: I just don't understand enough about this, I need to have examples in front of me. It is not a practice that is consistent with that which was the subject of a recommendation last year.

PN64

MR BLAKEMAN: It actually didn't ever get discussed.

PN65

THE SENIOR DEPUTY PRESIDENT: I wasn't suggesting it was contrary to the recommendation. The recommendation related to a procedure that would be adopted in the case of identified public holidays.

PN66

MR BLAKEMAN: The recommendation basically outlined misdemeanours that had happened in previous public holidays and requested the unions in 1.2 and 1.3 to provide information. We are still waiting on that information, albeit we have credited those people back those days.

PN67

THE SENIOR DEPUTY PRESIDENT: All right. What then happened on Victoria in relation to Labour Day was inconsistent, was not consistent with the recommendation.

PN68

MR BLAKEMAN: Wasn't consistent, wasn't inconsistent.

PN69

THE SENIOR DEPUTY PRESIDENT: I don't suggest that the recommendation was - well, indeed it just didn't mention it.

PN70

MR BLAKEMAN: That's correct.

PN71

THE SENIOR DEPUTY PRESIDENT: All right. Well, why wouldn't you do it the same way? Why wouldn't you do it the same way?

PN72

MR BLAKEMAN: Because there's two issues here, there's historical stuff which is pre-public holidays pre that hearing date of which we said, okay, we'll credit it back because this has come to a head now. But moving forward if people aren't required to work and they are getting their two days off I said zero hours for that day they have still got to work 180, 152, so there were two issues and was a pre-issue and a post-issue.

PN73

THE SENIOR DEPUTY PRESIDENT: I have to have rosters and day in front of me to be able to comprehend all of this but, yes, all right and tell me this. What do you rely upon to say that what you're doing is consistent with the EBA.

PN74

MR BLAKEMAN: Our interpretation of the agreement, as is the union's interpretation its silent in the agreement that that part of the agreement was defective and you know the company is moving to remedy that albeit it as a slow process because we're being laboured by the union's rejections in certain things.

PN75

THE SENIOR DEPUTY PRESIDENT: It just seems to me if its silent, and both of you are adopting an interpretation that is consistent with the end view you wish to achieve, why will you logically, at least on this matter in relation to one day go the same way as the December recommendation, why would you do something different.

PN76

MR BLAKEMAN: Because the December recommendation referred to - there were two issues as I previously said public holidays that had taken place - so people who had either been told if you want the day off and you are not required, well, you are going to take it as an annual leave, now that was incorrect, we've remedied that and we've credited that back. This is a completely different issue whereas people who aren't required, well, they are not required they are getting their two RDOs as previously and before that hearing they weren't they were getting a public holiday as an RDO and we've said, okay, we'll give you your two RDOs still but if you're not required in that public holiday it will be zero hours unless its Christmas Day or Good Friday because you're still only working from 150 to 180 hours in a cycle.

PN77

THE SENIOR DEPUTY PRESIDENT: Right, well, I don't know. Am I going to now get myself into asking for the rosters and looking and trying to figure everything out myself when at the end of the day it might be that there's nothing that suggests to me in the award or the agreement as to how you would paid, paid not paid, credited not credited, and then I have to come up with what another recommendation. Yes, Mr Ingwersen?

PN78

MR INGWERSEN: Your Honour, I think the agreement does actually deal with this matter. Mr Blakeman is suggesting that the union is making this up as we go along and providing our own interpretation but under the agreement at clause 12.7, public holidays, it talks about:

PN79

Under the total hours of the concept of this agreement the company may require employees to work on public holidays.

PN80

That is accepted

PN81

The company will only require work on public holidays where the needs of the business make such commitment necessary.

PN82

Now, Mr Blakeman, was suggesting that if employees were given a day off on a public holiday with payment for the hours, and effectively they might be accruing up to eight weeks and effectively annual leave in a year. Now, that's clearly not the case because a substantial number of the employees are required to work on each of the public holidays.

PN83

MR BLAKEMAN: That's not correct, your Honour. That is not correct, Mr Ingwersen.

PN84

MR INGWERSEN: That is correct employees working on public holidays.

PN85

MR BLAKEMAN: Paul, please again you have fabricated.

PN86

THE SENIOR DEPUTY PRESIDENT: Let me just understand what you say is in the words of the EBA that supports the position you put.

PN87

MR BLAKEMAN: Are you talking to Mr Ingwersen or myself, your Honour.

PN88

THE SENIOR DEPUTY PRESIDENT: Mr Ingwersen, I'm still looking at 12.7.

PN89

MR INGWERSEN: Yes, in terms of the words there what it says is that the company will only require work on public holidays where the needs of the business makes such commitment necessary. So where the needs of the business don't require the work that day would be provided off. Now, that day would be in addition to the rostered days off in any particular week.

PN90

MR BLAKEMAN: It doesn't say that.

PN91

THE SENIOR DEPUTY PRESIDENT: So you say that that's what you infer from this but there's no words that say that, I take it.

PN92

MR INGWERSEN: The words that's in the agreement provides for six weeks of annual leave. Now, that was in recognition under the TVI award there were four weeks of annual leave as a base, there were eleven public holidays in a year and there was up to a fifth week of annual leave on top of that in recognition of working public holidays and Sundays.

PN93

So the overall number of days off was effectively reduced down to six weeks straight. The recognition was that you would work a number of your public holidays and you would have a number of your public holidays off and in terms of I suppose evening out over the year you would receive effectively an equivalent number of days as to what you would have previously received.

PN94

Now, there is absolutely no reference anywhere in the agreement to zero hour days or would have been given three RDOs off in a week and a third day not counting towards the hours there. I mean, I think the company has extended any possible interpretation of the agreement to come up with the concept of zero hours so we can have a day off but you're going to have to make up those hours elsewhere within a four weekly roster cycle and that clearly is not the case, it hasn't been applied previously and should not be applied in the future and really should applied in line with the recommendation that covered the holidays around the Christmas period.

PN95

THE SENIOR DEPUTY PRESIDENT: Now, putting that recommendation to one side what do you mean when you say it hasn't applied previously, I would presume that its back to a situation that has arisen some time last year.

PN96

MR INGWERSEN: In terms of the zero hours day.

PN97

THE SENIOR DEPUTY PRESIDENT: No, but the same situation, the situation of an employee not being required to work on a public holiday.

PN98

MR INGWERSEN: That's correct.

PN99

THE SENIOR DEPUTY PRESIDENT: What happened in the past?

PN100

MR INGWERSEN: What happened in the past was that the company debited it as an annual leave day or the company handled it as one of the rostered days off in that week.

PN101

THE SENIOR DEPUTY PRESIDENT: The situation the subject of the recommendation.

PN102

MR INGWERSEN: That's correct, and the company since the recommendation has taken the approach that, okay, we'll give a day off but we will count it as basically zero hours. So if in that week you have to work 40 hours you will then have to work the 40 hours over the four days rather than over the five days.

PN103

THE SENIOR DEPUTY PRESIDENT: Yes, I think I'm starting to understand it, but all right, so what do you want me to do. Mr Ryan or Mr Ingwersen?

PN104

MR RYAN: I think another recommendation based on the principle adopted for the Christmas and January public holidays would be satisfactory from our point of view.

PN105

THE SENIOR DEPUTY PRESIDENT: Is this going to arise again in the near future before hopefully you have another EBA in place.

PN106

MR RYAN: I think Easter will be the next occasion although Good Friday is treated differently under the agreement.

PN107

THE SENIOR DEPUTY PRESIDENT: Yes, I noticed that.

PN108

MR RYAN: The only possibility would be Easter Saturday which has a small number of people working on an Easter Saturday and Easter Monday.

PN109

THE SENIOR DEPUTY PRESIDENT: Mr Blakeman, anything else you want to say?

PN110

MR BLAKEMAN: Commissioner, I can stand before you and give you my interpretation too and under that clause it doesn't say anything about not being able to take the public holidays as the RDO. Now, we've accepted that in the recommendation, as you said it was silent, and you would make a ruling where you make a recommendation. The company didn't agree with the recommendation but we adopted it but yet again the union come back with their, you know, swayed version of events and tried to doubled it yet again.

PN111

Now, if that's the way we've got to keep going in then we might as well get this whole agreement voided because every time that something happens they don't agree with they drag it back in here it doesn't say it, if you look at clause C, it says:

PN112

Work on public holidays is compensated by the salary structure.

PN113

What they have negated to tell you, Commissioner, is that people who work shifts already receive a 30 and 60 percent loading on their base salary which is part of the buy out of public holidays, that's all I've got to add. I mean, I can stand before you and give you a 20 minute dissertation of my version and read my version into as well like they do that as in their version it doesn't stand on its grounds because it is not worded its silent.

PN114

THE SENIOR DEPUTY PRESIDENT: I don't think either version is soundly based on any words I can find in the EBA. Why wouldn't I indicate, Mr Blakeman, in relation to the Victorian public holiday, Labor Day, that has occurred this year that we treat it in a manner consistent with those days that I identified in my recommendation.

PN115

MR BLAKEMAN: Because again, Commissioner, the hearing before you on the 19th was about people who had been told those public holidays had to be an annual leave, were either an annual leave day or an RDO. Now, we didn't agree with that recommendation but we took it on board and we've delivered that back but again we are being asked to put our hand in our pocket yet again and hand up another day its just totally unfair.

PN116

THE SENIOR DEPUTY PRESIDENT: Yes, but the position I find myself in is that neither of you are able to satisfy me that the words in the agreement make it crystal clear the position for which you contend is right. I then start to look at how this particular matter can be resolved and I wonder why logically it isn't resolved in a manner consistent with the recommendation I made in December, albeit the reason the issue comes before now is I accept is slightly different but it can be resolved that way it relates to one day and that's I think - - -

PN117

MR BLAKEMAN: But again at the cost to the company and then we'll be back in here again at Easter when people aren't required to work.

PN118

THE SENIOR DEPUTY PRESIDENT: I don't know, I'm not too sure. I see in the listings before Commissioner Larkin both of your names a lot but I don't keep sort of a blow by blow account as to what's going on but I had rather hoped that a new EBA might be up and running

PN119

MR BLAKEMAN: We had two, your Honour, but it doesn't seem to be progressing as quick as we'd like it either so we've got another alternative we'll be seeking and looking -

PN120

THE SENIOR DEPUTY PRESIDENT: All right. That's the recommendation I make, Mr Blakeman.

PN121

MR BLAKEMAN: Well, the company accepts it but doesn't agree with it.

PN122

THE SENIOR DEPUTY PRESIDENT: I understand. That's as far as we go this morning. The Commission now adjourns.

ADJOURNED INDEFINITELY [10.24am]