C2003/1952, Transcript of Proceedings [2003] AIRCTrans 1678 (2 May 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT2375

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2003/1952

FINANCE SECTOR UNION OF AUSTRALIA -
COMMONWEALTH BANK OFFICERS SECTION
VICTORIAN BRANCH

and

COMMONWEALTH BANK OF AUSTRALIA

Application under section 170LW of
the Act for settlement of dispute
re hours of work for employees
undertaking trial of weekend work

MELBOURNE

2.05 PM, THURSDAY, 17 APRIL 2003

PN1

MR D. MARTIN: I appear on behalf the Finance Sector Union of Australia. Appearing with me is MS M. MALONEY.

PN2

MR G. DAVIS: I appear on behalf of the Commonwealth Bank of Australia. Appearing with me today is MR. T. MAROUN, also from the Commonwealth Bank.

PN3

THE COMMISSIONER: Mr Martin? How can we assist?

PN4

MR MARTIN: If the Commission pleases. Firstly, Commissioner, I would like to thank you for bringing this matter on as a matter of urgency, and given the pending Easter vacation that the Union certainly appreciates you bringing the matter on today. As you are aware it is a section 170LW notice under the disputes settling procedure in an agreement. The matter before you relates to hours of work for employees currently undertaking a trial of weekend trading at two branches here in Victoria, namely Chadstone and Fountain Gate.

PN5

The Victorian government has recently proclaimed Easter Sunday as a non-trading day. Although the employees are willing and able to work on Easter Sunday they are unable to do so because of that government legislation. The Bank has informed our members that it will not pay them for Easter Sunday. The FSU believes that decision of the Bank not to pay members on Easter Sunday is contrary to provisions of the certified agreement. I am obviously aware, Commissioner, of recent panel changes. I am not aware if you have actually dealt with any FSU CBA matters. I am happy to furnish a copy of the certified agreement that we would be referring to today.

PN6

THE COMMISSIONER: I have got a copy of the certified agreement. What clause do you say it is? This is the one certified by SDP Duncan?

PN7

MR MARTIN: That is correct. 2002.

PN8

THE COMMISSIONER: Yes. 9 August?

PN9

MR MARTIN: Correct, your Honour.

PN10

THE COMMISSIONER: Yes.

PN11

MR MARTIN: Commissioner, the specific clause that we would be referring to today, and we are quite happy to provide a brief outline leading up to the dispute and then move into conciliation, but the clause we would be referring to today, Commissioner, is clause 26. Page 31.

PN12

THE COMMISSIONER: Yes.

PN13

MR MARTIN: Entitled "Weekend Work". Just by way of some brief background, Commissioner, the Commonwealth Bank announced at the commencement of the year that it would be commencing a six month pilot on seven day trading at two Victorian sites, namely Chadstone and Fountain Gate Shopping Centres. The trial formally kicked off on 1 February 2003 for a period of six months. We would say that the pilot has been, and is continuing to run according to clause 26, Weekend Work, and just quickly taking you through the provisions of that particular clause, Commissioner, and the operation of the pilot has been the focus of dialogue between the Union and the Bank, and would be continuing ongoing dialogue up until the end of the pilot, and obviously some appraisal as to how it has travelled, and the future roll-out of weekend work across the Bank.

PN14

In accordance with the provisions under 26.1.1 employees' ordinary hours were varied by written agreement between the Bank and the employees to accommodate Saturday and Sunday work. There is no contention that the employees, at the beginning of the trial, genuinely volunteered for the work. In fact, our belief is, enthusiastically so. They did nominate points of representation which in this case was fairly easy, as there are only two sites actually pertaining to the pilot. Over the page at 2, there is the scope for employees who are working Saturday and Sunday work to revert to their original hours on one month's written notice.

PN15

The rest of the clause is basically taken up by how individual employees are treated under the terms of the Weekend Work, such as penalty rates and the like, and at point 6 there is obviously the ongoing dialogue between the FSU and the Bank to monitor the particular process. With the nature of the trial and the six months pilot, Commissioner, there was a certain staffing mix which took place. A bit different to the usual. I mean, obviously with volunteers expressing interest, some of those people are located already at those particular branches. Others are travelling in from alternative branches. There are people who are part-time.

PN16

There are even some people who are on extended leave at the moment who have availed themselves of picking up some work on a Saturday and Sunday. So it is not a cut and dried situation of where the employees are coming from, and the nature of their employment, but they have all certainly volunteered for the work involved, and as I already indicated, up to now they have all been enthusiastic about the ongoing success of the pilot, even though our feedback is that the success if patchy at best, and certainly not going too well on Sundays, and maybe that has got a bit to do with the position adopted by the Bank today. I am not sure.

PN17

As I have indicated, the Victorian government recently proclaimed Easter Sunday as a non-trading day. As a result of that the Union became aware earlier in April that individuals were being informed that the Bank's position as a result of that legislation being proclaimed, that no employee would be rostered for Easter Sunday, and as a result they wouldn't be paid. The Bank did undertake and provide individual employees the opportunity to avail themselves of extra work days somewhere into the future, to try and re-compensate them for the financial impact of not working on Easter Sunday. We have advised the Bank on a number of occasions, we have tried to take the matter up at local and State and national jurisdictions to address our concerns over, I guess, the roll-out of the information provided to the individual employees, the nature of the impact on those employees, and really the inability of employees who, in a number of occasions, who have taken up the work on weekends for family reasons and the like, who would find it impractical or damn near impossible to accommodate the extra work being provided by the Bank given childcare issues and the like, particularly at a time of vacation. Most importantly we don't believe the Bank has the ability to alter our members' hours of work regarding this particular weekend trial, as it is proposing to do.

PN18

Now, the Bank will try and indicate it has given people options, but we don't believe that they are options that we are able to - our members are able to avail themselves to. They are ready, willing and able to work Easter Sunday, and in just quickly going back to the points under clause 26, we would say nowhere in the body of that clause does the Bank have the ability or facilitation to be able to alter our members' hour working arrangements for this upcoming weekend in the way that it is proposing to do. I probably can leave it there, Commissioner, and - - -

PN19

THE COMMISSIONER: All right, and then you are happy to go into conference.

PN20

MR MARTIN: Happy to go into conference.

PN21

THE COMMISSIONER: All right. Thanks very much, Mr Martin. Mr Davis?

PN22

MR DAVIS: Thank you, Commissioner. Consistent, Commissioner, with the FSUs application under clause 39 of the Bank's relevant EBA, if this dispute remains unresolved within a reasonable time it may be referred to the Australian Industrial Relations Commission by either party. Consistent with this clause it provides either party to seek the assistance of the Australian Industrial Relations Commission in relation to the dispute by way of conciliation.

PN23

THE COMMISSIONER: Where does it say that? Just as a matter of interest.

PN24

MR DAVIS: Yes. Sorry.

PN25

THE COMMISSIONER: Sorry.

PN26

MR DAVIS: Clause 39 I am referring to.

PN27

THE COMMISSIONER: 39.2.3.

PN28

MR DAVIS: That is right.

PN29

THE COMMISSIONER: But - - -

PN30

MR DAVIS: It doesn't expressly state refer to conciliation.

PN31

THE COMMISSIONER: Yes, that is what I was more interested in.

PN32

MR DAVIS: Yes, sorry. Sorry.

PN33

THE COMMISSIONER: That is all right. Just wondered where that was stated.

PN34

MR DAVIS: Yes. That is right.

PN35

THE COMMISSIONER: It is not.

PN36

MR DAVIS: Yes, but in custom and practice has been and the intention of the parties that it is referred to conciliation.

PN37

THE COMMISSIONER: Only?

PN38

MR DAVIS: Yes. That is correct.

PN39

THE COMMISSIONER: Is that right.

PN40

MR DAVIS: Yes.

PN41

THE COMMISSIONER: Doesn't say that, does it?

PN42

MR DAVIS: No, it is silent in its absence, Commissioner.

PN43

THE COMMISSIONER: Yes.

PN44

MR DAVIS: But that is the practice, and the FSU are well aware of the practice as well. That we refer the - we do not refer these matters to arbitration. We do refer them to conciliation, and seek the assistance of - - -

PN45

THE COMMISSIONER: Well, I go by what the words say.

PN46

MR DAVIS: Well, that is correct, Commissioner.

PN47

THE COMMISSIONER: Yes. That is all. People are grown-ups. They make agreements. I am sure they know what they mean.

PN48

MR DAVIS: That is correct, Commissioner.

PN49

THE COMMISSIONER: Yes.

PN50

MR DAVIS: At this juncture the Bank reserves its right in relation to jurisdictional arguments that might be raised with respect to the matter before the Commission.

PN51

THE COMMISSIONER: Sure.

PN52

MR DAVIS: These are matters which the Bank will address you fully on should the need arise.

PN53

THE COMMISSIONER: Yes.

PN54

MR DAVIS: Commissioner, prior to entering into conference there are some notable points in respect of this matter which I wish to bring to your attention.

PN55

THE COMMISSIONER: Yes.

PN56

MR DAVIS: I will just reiterate what the FSU have just stated, that as you would be aware the Victorian State government has recently announced that the following trading arrangements for the Easter trading period are Easter Saturday, public holiday, Easter Sunday, non-trading day. The announcement of a non-trading day for Easter Sunday prevents retail outlets and banks from trading on that day, unless an exemption has been provided. In this regard, Commissioner, the Bank and large retailers do not have an exemption allowing them to trade on Easter Sunday.

PN57

As a consequence of this decision, as soon as the Bank became aware of the government's decision it undertook to provide notice to those employees affected, and my instructions are, or that I have been made aware of, Commission, is 18 in total, advising them of arrangements for Easter Sunday, and if I can hand up a copy of that to the Commission.

PN58

THE COMMISSIONER: Thank you.

PN59

MR DAVIS: If I may, at this juncture, Commissioner, refer to a letter dated 9 April 2003 to Terry Mason, who is the Head of retail banking services and the Human Resources Manager for that section.

PN60

THE COMMISSIONER: Yes.

PN61

MR DAVIS: If I just may refer the Commission to the highlighted section there on the 9 April letter from Ms Lisa Thomas of the FSU where she states:

PN62

The FSU is of the belief that the approach adopted by the bank is quite unreasonable ...(reads)... prohibited from doing so because of government legislation.

PN63

Commissioner, there are two key points in this paragraph that I wish to bring to the attention of the Commission. Firstly, the reference to "prohibited by government legislation". In essence we agree with Ms Thomas on this point, where she states "prohibited from doing so because of government legislation". The decision to make Easter Sunday a non-trading day was not a matter of choice for the Bank, and had Easter Sunday not been declared as a non-trading day or public holiday, both Chadstone and Fountain Gate branches would have been open. In this regard we believe that it would be unfair to expect to the Bank to pay staff on this day, when staff are not rostered to work on this day, when the day is not a public holiday, and when the Bank is prevented by legislation to trade on this day.

PN64

THE COMMISSIONER: Does fairness enter into it? The agreement will either mean something or it won't. It is not - and if I take your step further about arbitration, which you say I haven't got, LWs don't deal with fairness, do they? They just deal with what the agreement says. It may be fair, it may be unfair.

PN65

MR DAVIS: That is - you are referring to clause 26 of the - - -

PN66

THE COMMISSIONER: Yes.

PN67

MR DAVIS: Yes.

PN68

THE COMMISSIONER: Yes.

PN69

MR DAVIS: Can I - - -

PN70

THE COMMISSIONER: You see, for example, if this went to the Court - - -

PN71

MR DAVIS: That is right.

PN72

THE COMMISSIONER: - - - it wouldn't matter whether it was fair or unfair, would it?

PN73

MR DAVIS: Well, that is correct, Commissioner.

PN74

THE COMMISSIONER: It would just be what the agreement says.

PN75

MR DAVIS: If I can refer to the clause 26 - - -

PN76

THE COMMISSIONER: Yes.

PN77

MR DAVIS: - - - this is the first that we have become aware of clause 26, and that there might possibly be a breach of clause 26. The FSU haven't advised us of it to this day. This is the first that we have become aware of it.

PN78

THE COMMISSIONER: I see.

PN79

MR DAVIS: So - - -

PN80

THE COMMISSIONER: In terms of - well, I can only assume that that is the clause under which these employment arrangements are being undertaken. Is that not the clause?

PN81

MR DAVIS: Can we just have a quick conference on this? Sorry, Commissioner.

PN82

THE COMMISSIONER: Yes, of course you may. Yes. Thank you.

PN83

MR DAVIS: If I may, Commissioner, I would wish to go into conference if I could.

PN84

THE COMMISSIONER: Yes, that is fine.

PN85

MR DAVIS: Just to speak to the subject matter experts.

PN86

THE COMMISSIONER: Yes. No, that is fine.

PN87

MR DAVIS: There was a separate letter that the 18 employees actually signed.

PN88

THE COMMISSIONER: I would imagine consistent with clause 26. That is what I would imagine.

PN89

MR DAVIS: Yes, consistent with clause 26. That is correct.

PN90

THE COMMISSIONER: Yes.

PN91

MR DAVIS: Yes.

PN92

THE COMMISSIONER: Yes.

PN93

MR DAVIS: But as I stated, this is the first that we have become aware of clause 26, and the FSU believe that it might be a breach of the EBA in that respect.

PN94

THE COMMISSIONER: Well, they have foreshadowed it in their - but they haven't mentioned clause 26, and they should have - they should have served you with the notice, while I am on that point.

PN95

MR DAVIS: Yes, that is correct.

PN96

THE COMMISSIONER: It is consistent with the rules for them to do that.

PN97

MR DAVIS: Well, it usually is consistent, Commissioner.

PN98

THE COMMISSIONER: Yes.

PN99

MR DAVIS: We usually do get something which states clause such - whatever it may be.

PN100

THE COMMISSIONER: I see. All right. Thanks.

PN101

MR DAVIS: Just moving on from there, Commissioner, if I may now turn to the FSU statement where they believe the Bank is quite unreasonable. Obviously we agree this has implications for staff, naturally, and they are affected, and those who are normally rostered to work on a Sunday, and because of the government's decision will not work nor be paid for Easter Sunday. In this regard, Commissioner, the Bank has decided to offer employees the option of being able to work an additional two days which they could work so that lost income can be recouped. We believe the Bank's offer is quite generous and flexible in its approach to assisting them.

PN102

This is simply an offer in recognition that staff will receive less pay for the fortnight, and it is over and above actual staffing needs for the sites. The Bank's offer is voluntary, and it is to assist affected staff make up earnings that they would have received on the Sunday. There is no set time frame when this offer needs to be taken up, and it is suggested that managers and the individuals concerned negotiate a date which is suitable. I also note that the FSU also indicated in their letter, 9 April 2003, that a number of members would be unable to work additional days during the week due to childcare and family commitments. I would like to go into this in conference further, Commissioner.

PN103

THE COMMISSIONER: Yes, of course.

PN104

MR DAVIS: Just to demonstrate what the Bank is doing in this respect and that it is well aware of the commitments that the employees have got as far as family and childcare responsibilities are concerned. In relation to this point, as stated, the option to make up earnings has no set time frame. When the officer needs, or needs to take up - needs to be taken up, this provides employees affected the flexibility to make up as much time, and in some cases more money, by working additional days as negotiated at a time convenient and agreed with their manager.

PN105

In closing, Commissioner, we believe the Bank has been more than reasonable. As previously stated, the decision to make Easter Sunday a non-trading day was not a matter of choice for the Bank. With this, Commissioner, the Bank's decision to offer employees the option of choosing to work an additional two days only highlights the fact that the Bank is being quite generous and flexible in its approach to assisting them. In this regard we believe the Bank is being more than reasonable, and I just wish to note, as I stated, Commissioner, the reference to clause 26 is the first that we have heard of it today. If it please the Commission.

PN106

THE COMMISSIONER: Yes, all right. You are happy to go to conference to see whether we can resolve this, are you?

PN107

MR DAVIS: We are happy to seek the Commission's assistance by conciliation.

PN108

THE COMMISSIONER: All right. Thank you very much.

PN109

MR DAVIS: Thanks, Commissioner.

PN110

THE COMMISSIONER: Do you want to say anything in response before we go into conference?

PN111

MR MARTIN: Not at this stage thank you, Commissioner.

PN112

THE COMMISSIONER: All right. We will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED