C2003/1863, Transcript of Proceedings [2003] AIRCTrans 1627 (30 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS

O/N VT2343
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2003/1863

NATIONAL UNION OF WORKERS

and

CRYOVAC AUSTRALIA PTY LIMITED

Application under section 170LW of the Act
for settlement of dispute concerning the
issuing of written warnings to 12-hour shift
workers regarding daylight-saving shift

MELBOURNE

12.33 PM, WEDNESDAY, 16 APRIL 2003

PN1

MR A. THOW: I appear on behalf of the National Union of Workers and appearing with me today is MR M. KILKENNY, Organiser, from the site.

PN2

MR T. BOURKE: I appear for the Australian Industry Group and at the bar table is MR W. HARBOR from Cryovac.

PN3

THE COMMISSIONER: Mr Thow.

PN4

MR THOW: Thank you, Commissioner. As you would see from the notice of listing today's dispute concerns the issuing of written warnings to 12 hour shift workers regarding a daylight-saving shift that was worked - what was Sunday, 30 March. What I might do is just hand up a bundle of material to you because I would like to just go through the relevant clauses in the enterprise agreement and the warnings and proceed that way, if you wish, Commissioner.

PN5

THE COMMISSIONER: Thank you.

PN6

MR THOW: Thank you. Just before I refer to those materials, Commissioner. By way of background, Cryovac Australia is a manufacturer of vacuum sealed plastic bags. They could certainly describe their work far better than I. But they run a 12 hour continuous shift operation and I think it is important to understand that it is not a regular 8 hour shift where you would have a day, afternoon and night and in this particular instance with the workers that we are talking about, they are on a 12 hour rotating shift basis.

PN7

The warning concerns members of ours leaving their shift after 12 hours and the warning identifies that according to the company they should have stayed for 13 hours. The clause itself is clause 33.1.8 from the Rubber, Plastics and Cable Making Award which is the first document that is in front of you. Now, I think this is obviously a clause from the Commission and from the award but it is written in language that I think anyone would describe as difficult. I would suggest that it is very hard for the average member to understand completely what is referred to there but, effectively, my interpretation of it, Commissioner, is you are paid by the clock.

PN8

If you work an 8 hour shift, for argument's sake, when daylight saving is first implemented in summer time the clock goes back one hour, therefore, you get paid for the 7 hours that you have actually worked. In the event that you are on a shift where the clocks go forward - sorry, I misinterpret. Can I start again, Commissioner? I have confused myself there for a minute. I think the way that the clause is written into the agreement is you are paid by the clock. So it doesn't matter whether you work 7 hours or doesn't matter whether you work 9 hours, you get paid by what the clock says at the end of your shift, which is 8 hours. That is my interpretation of how this daylight-saving clause has been applied in the past.

PN9

It fits nicely within a scenario whereby it is a non-rotating shift. So that the person who works when the clocks go forward also works when the clocks go backwards. So that over the average you don't lose any pay. To explain how that would apply in our scenario where there is a 12 hour shift operation at Cryovac let us assume that when the clocks go backwards you work 11 hours but you are paid for 12 because that is the way the clock operates. And, equally, when you work 13 hours when the clocks go backwards you are paid for 12, and so it is averaged out. So you have worked 24 hours, you have been paid for 24 hours and it has been averaged and that is - - -

PN10

THE COMMISSIONER: So if you start at midnight and you work a 12 hour shift you are supposed to finish at midday?

PN11

MR THOW: Yes.

PN12

THE COMMISSIONER: But because the clock changes at 3 o'clock - 3 am - - -

PN13

MR THOW: am, yes.

PN14

THE COMMISSIONER: And if the clock goes forward in daylight saving you lose an hour's sleep. I know this, because my kids complain.

PN15

MR THOW: All right. Good. Yes, I am with you.

PN16

THE COMMISSIONER: You lose an hour's sleep. So you finish still at midday but you have only worked 11 hours.

PN17

MR THOW: That is correct, yes.

PN18

THE COMMISSIONER: Yes. So when daylight finishes, if you start at midnight, because it goes back at 3 o'clock to 2 o'clock, you work 13 hours because you are still finishing at midday. So it balances out.

PN19

MR THOW: Correct. And I think that was the intent of the clause when it was drafted that you balanced out. And most workers at the time were probably on fixed shifts so they wouldn't change between the time the clocks go forward and the time the clocks go backwards. What has - - -

PN20

THE COMMISSIONER: So how long has Cryovac been operating 24 hour shifts, rotating shifts, 12 hour shifts?

PN21

MR THOW: Quite a number of years. Yes, two years.

PN22

THE COMMISSIONER: So last summer the employees would have done exactly what should have occurred this time. They work 11 hours when the clock goes forward and they work 13 hours when the clock goes back.

PN23

MR THOW: Well, this is where the point of difference has arisen. We have been instructed by our members that what has occurred in the past is you were paid for the hours worked. So if you worked 11 hours you were paid 11 and if you worked 13 hours, when the clocks go back, you got paid 13 hours which is different to how the award is envisaged - how the award envisaged it would operate. So if I could just go back a step.

PN24

THE COMMISSIONER: But what is the issue? Were the workers told - I mean, let us cut to the chase. Were the workers told that when the clock went backwards it meant that they would have had to work 13 hours, they were only going to be paid for 12? Is that what it meant?

PN25

MR THOW: Can I just go back one step, Commissioner? This shift, this 12 hour shift did not work when the clocks went backwards.

PN26

MR BOURKE: Commissioner, I may be of some assistance here because there are pay records to indicate that these people did work in October and that they did work 11 hours and they were paid 12.

PN27

MR THOW: Well, thank you for that. But I am only going on my instructions at the moment. The company may have some material that demonstrates otherwise and I am certainly open to that but at this stage we can only go on what we have been informed. It is our understanding that what occurred when the barrier department decided to continue working was that the practice had always been to get paid for the hours that you worked and the company decided, no, that you were going to be paid for 12 hours even though you have worked 13.

PN28

So our delegates raised this matter with their shift supervisors because they saw that there had been a change in practice. If you can see in front of you there was a notice that was placed on the board - there are two notices there that I have photocopied for your assistance and I think it does refer to the issue. It talks about:

PN29

In compliance with the Victorian Summer Time Act employees work by the clock and are paid accordingly.

PN30

So it refers to that interpretation. But this was the first time our people were aware of this and they raised the issue with their supervisor. Now, what seems to have occurred when our delegates mentioned this to the supervisor is the supervisors were very confused about what should occur and what had occurred in the past. When our delegates raised the issue of working the 12 hours which was their normal shift and getting paid for those 12 hours the supervisor did not object to that option occurring. He certainly said these words:

PN31

You can work 12 hours and get paid 11, or you can work 13 hours and get paid 12, the choice is yours.

PN32

And he put that to our employees. He said, "The choice is up to you". Certainly, our members elected to work 12 hours and then depart. And then the warnings were issued. As you can see in the material you have a copy of the warnings that have been faxed to Mr Kilkenny and it is just a standard copy of the warnings that were issued which talk about breaching the contracts, the award and failing to follow a lawful instruction. It was certainly our view of our members that there was never a lawful instruction given to them to say, "You must stay for the 13 hours". And in fact the supervisors had really confused the situation by not giving a lawful instruction.

PN33

I think we can get into the nitty gritty maybe in conference if you think that is appropriate. I certainly would think that that would be a productive way forward. But from our view the whole procedure has been handled poorly. I don't believe the notice adequately explains the obligations of employees. As I have said, we have been instructed that the employees did not work the shift when summer time was first introduced and that - were only worked at the tail end and therefore the hours have not balanced out. And the fact that no supervisor has really given a clear guideline of what our members' obligations are we think it is harsh that warnings have been issued after our members had said they were going to work 12 and the supervisor did not expressly say that they couldn't do that.

PN34

On the following Monday there was an investigation of the incident and certainly the investigation process consisted of managers interviewing supervisors and not interviewing all employees on the floor. We have been instructed that not all employees gave their version of events and we say that is also an issue that we are very concerned about, we think that warnings should only be issued once all relevant parties have an opportunity to respond to allegations put to them. So there are a few points of concern for us. That is all I would like to put on the record at the moment, Commissioner, but we would welcome a conference with your assistance to maybe try and resolve this issue.

PN35

THE COMMISSIONER: The letter to Mr Kilkenny indicates, though, that one of the reasons why management didn't talk to individuals because it would appear, according to the letter, that a Mr Nixon, the current shop steward:

PN36

...advised us that he would not allow such individual meetings to take place.

PN37

MR THOW: Yes. My understanding is Mr Nixon is a delegate on one of the shifts concerned. There are two shifts - barriers and laminates. I am not aware of whether that was the approach that Mr Nixon took. However, if an individual delegate or an individual person is obstructing a proper investigation I would say the proper course of conduct would be to involve the union directly, to involve the organiser, Mr Kilkenny, who is very familiar with the site and its operations and to, I think, guide the appropriate shop steward about the proper investigation that needs to occur and how people should participate in it.

PN38

THE COMMISSIONER: Well, that is probably right but, I mean, shop stewards need to understand that management have the right to talk to their employees. They have a right to talk to them individually or collectively. Equally, the employee, if they require to have somebody with them, is entitled to have a shop steward with them but no shop steward is entitled to say to management, you shall not talk to individuals, or you shall not talk to your employees.

PN39

MR THOW: Yes, Commissioner, and I certainly wouldn't disagree with any of the comments you have just made. I think if there was a confusion about how the investigation should occur and there seemed to be some disruption, the most appropriate course of conduct would be to involve the organiser through the disputes procedure to sort that out and to ensure that interviews could occur and if those people in those interviews wanted representation from the union they could request that.

PN40

THE COMMISSIONER: All right. Thank you.

PN41

MR THOW: Did you have any other specific questions at the moment?

PN42

THE COMMISSIONER: No, no, not at this point.

PN43

MR THOW: Thank you, Commissioner.

PN44

THE COMMISSIONER: Thanks, Mr Thow. Mr Bourke.

PN45

MR BOURKE: Thanks, Commissioner. I think it is fair to say, Commissioner, that the only confusion is how to make this appalling behaviour by employees and shop stewards something that can be given half-rational and legitimate cover. Commissioner, there are two departments involved in this that work the 7 day roster in barrier and laminates, as has been mentioned. And they work a, I believe, 5 day on, 5 day off roster. It is a fixed roster. There may be some confusion from the earlier comments about whether it is fixed or rotating, but they work a fixed roster and, as I will indicate later, these employees were employed both on the short - the 11 hour shift in October and the 13 hour shift in March.

PN46

There is another 12 hour roster that was in place at the time in the stores and my understanding is that the employees in there, although they are working 6 to 6 rather than 7 to 7, they work through in accordance with the company requirements and the standards that have been in place, I suppose, for 20 to 30 years since daylight saving first started. Commissioner, the issue seems to have arisen as a direct concern the previous day when the shift supervisor in laminates was, in fact, asked about the 13 hour requirement and its legitimacy was queried. As you are aware the notice was put up early that week and had been up for four or five days by that stage. And at that point in time he contacted - this is Michael Sebelin, the supervisor, contacted Wayne Harbor for clarification and that was confirmed to the employees on the previous day.

PN47

On the night in question, the Saturday night, there was a whisper around about 1 o'clock in the morning that there were a few people who were going to leave early and Michael checked with the union rep, I believe was Ivan Mundar, and at 1 o'clock in the evening - sorry, 1 o'clock in the morning Michael confirmed that the award requirement was, as everyone understands it to be, that at the end of daylight saving you work the 13 hours. And Michael's view at that point in time was that there was no problem.

PN48

At 3 am he was confronted with the news that everyone is leaving at 6. It is a 7 to 7, 12 hour shift, and he was confronted with that ultimatum and that was going - that was the end of it. He told everybody, he went around individually and told people that they were to work by the clock which meant that they were to work through to 7. And he contradicted any information they may have been given to the contrary, told them what was in the award, what they were expected to do and the end result of that was that they still all left at 6.

PN49

There was one employee - I am not sure if this is of any relevance to anything but just to complete the loop. There was one employee in laminates who had asked for and had been granted approval to leave one hour early. So he is not a part of this, to any extent. There was an investigation after that, starting on the Monday. Martin Kilkenny was contacted almost immediately and informed what had happened and my information is that he clearly indicated what was in the award and confirmed that it did require them to work.

PN50

The investigation clarified what information had been given to the employees. The supervisors had contacted Wayne Harbor again at the last minute to confirm the information that had been given. So there clearly was no misunderstanding amongst the supervisors or amongst any of the management people involved. As a result of the investigation and going through the information that had been given to them the company decided that a warning was appropriate. Again, Martin Kilkenny was contacted and it was confirmed in writing, as you have alluded to, and again my information is that he had no complaint with the outcome of the process that the company had followed.

PN51

THE COMMISSIONER: How long does the warning remain in place?

PN52

MR BOURKE: Sorry?

PN53

THE COMMISSIONER: How long does the warning - - -

PN54

MR BOURKE: There is a company policy, Commissioner, which says that warnings remain in place for six months, I assume, if no further incidents occur. But certainly the reference is six months. The rest of it really doesn't need to be gone over again I don't think. Mr Thow has gone through it. Clearly, the shop steward prevented employees being spoken to. Employees refused to be interviewed and I certainly concur with the comments you made earlier in that regard.

PN55

But here we have got a company where there has been a history of employees effectively taking things into their own hands. Sometimes the union has supported it, sometimes less so. But there have been a couple of trips to this place over what the company believes is minor issues and it has really got to the stage where there is a significant amount of evidence which indicates that the employees seem to think - or some employees seem to think that they do things their way or no way. And I think it is not stretching things to say that even in this case where the union accepts that they are in the wrong that they won't accept this. It has really got to the stage where the company can't put up with it.

PN56

The result of the 1 hour leaving early was lost production. It took about 4 hours to get the lines going again and as part of that there was an excess amount of waste which was generated. Look, I know Mr Thow talked about the award provision for some time. Frankly, I would put it on the record to say that everybody knows how this operates. There can be no misunderstanding. It is consistent over virtually every award and the whole thing has been unchanged for many, many years.

PN57

THE COMMISSIONER: Have you got the letter of warning, please? Put your hand down. If you wish to say something you go through your delegate - the advocate at the table. Okay?

PN58

MR THOW: Commissioner, if I could be of assistance?

PN59

THE COMMISSIONER: Yes.

PN60

MR THOW: My understanding is that - - -

PN61

THE COMMISSIONER: I have got the letter to Mr Kilkenny but it doesn't say anything about a warning.

PN62

MR THOW: I think that is a copy, a pro forma copy of the warnings that were issued to the individual employees. So it says, "Dear Martin" - or is it - no. No, it is not, sorry. You are correct. I thought that that is what the company had set forward. No, you are absolutely right, Commissioner.

PN63

THE COMMISSIONER: Okay.

PN64

MR THOW: I don't have a copy of the actual warning, sorry. Confused you there.

PN65

THE COMMISSIONER: Okay. Thank you.

PN66

MR BOURKE: No, I don't have a copy of the warning letter either, Commissioner, but - - -

PN67

THE COMMISSIONER: That is all right. You say that they are fixed shifts and these employees were there in October.

PN68

MR BOURKE: I don't have copies of this, Commissioner, but I am happy to let you and Mr Thow look at it.

PN69

THE COMMISSIONER: So they are - - -

PN70

MR BOURKE: The employees concerned are actually the highlighted ones and you will see that it talks about 26-27 October.

PN71

THE COMMISSIONER: Right.

PN72

MR BOURKE: And the fact that they were paid for 12 hours.

PN73

THE COMMISSIONER: And they worked 11 and paid for 12, right. And how long has that been going on?

PN74

MR BOURKE: Well, at Cryovac - - -

PN75

THE COMMISSIONER: How many of these employees, right, that walked out. How many of those have been there more than one summer season?

PN76

MR BOURKE: I suspect that it has only been going for three and the answer to your question is a vast majority.

PN77

THE COMMISSIONER: And there has been no difficulties in the past about the 11 in daylight saving and 13?

PN78

MR BOURKE: Certainly not to my knowledge.

PN79

THE COMMISSIONER: No, okay. Okay, thanks. Nothing else?

PN80

MR BOURKE: Just to say, Commissioner, that the company believes its actions are totally warranted and that it certainly is not looking at going back on them in any way.

PN81

THE COMMISSIONER: Yes, thanks.

PN82

MR BOURKE: Thank you, Commissioner.

PN83

THE COMMISSIONER: Mr Turner - Thow, sorry.

PN84

MR THOW: Thank you, Commissioner. I just wanted to put one major point on the record. We can confirm that the company contacted Mr Kilkenny and what was referred to him was this, the company was ringing to let him know that warnings were about to be issued. So that was said to him. It wasn't as if they were seeking endorsement of Mr Kilkenny and certainly Mr Kilkenny did not give any endorsement of any warnings. And there was a discussion about what was in the award and how it could be interpreted but that should not be taken as being support for the actions of the company in any way.

PN85

So I think it is important we put that on the record. And Mr Mundar has given me a copy of a warning which I would like to hand up.

PN86

THE COMMISSIONER: Okay. Could I look at that please? Thanks.

PN87

MR THOW: Thank you.

PN88

THE COMMISSIONER: Thank you. The company says that about 95 percent of the current employees who worked that shift have worked two or three, at least two or three, summer seasons where the same principle is applied. They work 11 at the beginning of daylight saving, they are paid for 12, and they work 13 at the end of daylight saving and get paid for 12. Is that right?

PN89

MR THOW: That is not my instructions, Commissioner.

PN90

THE COMMISSIONER: How many?

PN91

MR THOW: Well, I don't - - -

PN92

THE COMMISSIONER: How long has the shop steward been there?

PN93

MR THOW: I think the various shop stewards have been shop stewards for quite a period of time, I think.

PN94

THE COMMISSIONER: And they would have worked the summer.

PN95

MR THOW: I assume so. I am only assuming.

PN96

THE COMMISSIONER: Yes.

PN97

MR THOW: I am not clear on those facts. It may be appropriate for us to seek some guidance from our delegates who are here today.

PN98

THE COMMISSIONER: Right.

PN99

MR THOW: Or maybe we can do that in conference with your assistance.

PN100

THE COMMISSIONER: I am not quite sure what you intend to achieve out of conference, you see. Because prima facie it seems to the Commission, let me preface this by saying, if you have got a case, the Commission will give you all the leeway possible.

PN101

MR THOW: Sure.

PN102

THE COMMISSIONER: Whether it is the employer, whether it is the union. If you haven't got a case, I won't sit here and listen to bullshit. Okay, it is as simple as that. If you have got members of your union that have worked at least one prior to the current daylight saving period, they have at least one, know that the process is you work 11 hours at the beginning of daylight saving, you get paid for 12 hours, you work 13 hours at the end, you get paid for 12 hours, it balances out. And for some reason they have decided this time not to do the same, then they are stringing the employer along and by coming to the Commission expecting some favourable comment from the Commission, they are not going to get it.

PN103

If the warning is on their record for six months, then so be it, they deserve it. If that is what they have done, they deserve it. And they should understand, and so should your delegates, that under no circumstances, first thing you understand the comments made by the Commission about stopping an employer from talking to their employees, understand that employees have rights to have somebody with them if they wish. But if you have got delegates that have experienced this process before and then decide to do something different this season than, although they might be shop stewards, they are still subject to the same requirements as any other employee in terms of abiding by company policies and abiding by the award and abiding by the Act.

PN104

Simply because they are a shop steward doesn't give them exemption from company policies, particularly if those policies have been in place for some time. They are still an employee. Give some protection in terms of being victimised as a shop steward, of course it does, the Act says that. But if a shop steward has gone around and taken it upon themselves to interpret something differently to what has occurred in the past and that has been accepted, then they leave themselves open. Okay?

PN105

If what is being said, and there doesn't appear to be any dispute, it just might be an issue about the number of employees that have worked previous seasons, but there have been employees that have done it, they have got the benefit of the beginning of daylight saving, at the end, all right, they work an extra hour. But it balances up at the beginning because they work an hour less and still get 12 hours pay.

PN106

MR THOW: I think, Commissioner, that is the key, the last point that you have made. I have been instructed that this process, the way that the company has handled it hasn't been what has occurred in the past. I have been given some material by Mr Bourke that he says demonstrates that it has been what has occurred and he has also further said that those who worked on the shift that has just occurred also worked when daylight savings was introduced. So that is new to me and I think what I need to do is take some time with our delegates to establish if that is in fact the case.

PN107

Now if it is not the case, I think that we do have an argument about, you know, whether the company was correct in the way that it communicated how daylight saving was going to operate on the shift. But if it - - -

PN108

THE COMMISSIONER: Well, I am prepared to give the parties time to confirm.

PN109

MR THOW: Yes.

PN110

THE COMMISSIONER: By way of whatever material is available to confirm whether or not a number of employees worked previous daylight saving periods and worked the 11-13. If they do, and including the shop stewards, if they did, they knew the process. If something is put to you that is different and that can be substantiated, and through discussions between the parties and yourselves you are unable to resolve the differences, more than happy to have you come back. However, if at the end of the day the material overwhelmingly says that this has been the past practice and this is what has happened this time, I don't expect the matter to be called on.

PN111

MR THOW: Okay. So you would suggest, Commissioner, I think it is a proper course of conduct that we investigate the facts.

PN112

THE COMMISSIONER: Yes.

PN113

MR THOW: Establish whether this has been an established pattern of working daylight savings.

PN114

THE COMMISSIONER: Yes.

PN115

MR THOW: If that is the case, then - - -

[1.02pm]

PN116

THE COMMISSIONER: The warning will stay on their file for six months.

PN117

MR THOW: Yes. But if it can be demonstrated that it wasn't the case, there may be reason to bring it back to this forum.

PN118

THE COMMISSIONER: Absolutely. Yes. Happy for that course.

PN119

MR THOW: Okay. I think that is a sensible approach.

PN120

THE COMMISSIONER: Okay.

PN121

MR THOW: Did you want the parties to try and have a discussion about it now, and then maybe we can recall you if there is a some difficulties. I think this is something that we can establish fairly quickly.

PN122

THE COMMISSIONER: Is that available to you, Mr Bourke?

PN123

MR BOURKE: Certainly no in principle objection to that, but we have now given the yearly shift roster, we have given the pay records from six months ago. What more do they want?

PN124

MR THOW: Well, to be fair, I haven't had an opportunity to look at this.

PN125

THE COMMISSIONER: Right.

PN126

MR THOW: And I certainly haven't had an opportunity to talk to our shop floor representatives who are here.

PN127

THE COMMISSIONER: Right.

PN128

MR THOW: And just by giving them to me doesn't mean I have looked at them and assessed them and I - yes.

PN129

THE COMMISSIONER: No, that is fine. The only issue, Mr Thow, would be that I have to leave at 2, so if you could maybe have some discussions in between - - -

PN130

MR THOW: Yes.

PN131

THE COMMISSIONER: Now, I am happy to leave now and allow you to do that.

PN132

MR THOW: Yes.

PN133

THE COMMISSIONER: But if it looks like going after 2 o'clock, then I will have to get you back at some other time, if there is still some disagreement.

PN134

MR THOW: Certainly.

PN135

THE COMMISSIONER: Okay?

PN136

MR THOW: Well I think, Commissioner, we should be able to meet that time line and - - -

PN137

THE COMMISSIONER: Right.

PN138

MR THOW: - - - maybe if we, through your Associate, can get your extension.

PN139

THE COMMISSIONER: Okay. Is that all right with you, Mr Bourke?

PN140

MR BOURKE: Yes, certainly.

PN141

THE COMMISSIONER: Okay. All right. The Commission will stand adjourned thanks.

NO FURTHER PROCEEDINGS RECORDED