C2003/135, Transcript of Proceedings [2003] AIRCTrans 2345 (13 June 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 2910

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2003/135

UNION OF CHRISTMAS ISLAND
WORKERS

and

CHRISTMAS ISLAND ADMINISTRATION

Notification pursuant to section 99 of the Act
of a dispute re implementation of a split shift

MELBOURNE

12.05 PM, WEDNESDAY, 28 MAY 2003

Continued from 14.5.03

THESE PROCEEDINGS WERE RECORDED VIA VIDEO CONFERENCE AND TELEPHONE HOOK-UP

PN66

THE SENIOR DEPUTY PRESIDENT: Good morning. Any change in appearances?

PN67

MR G. McCORRY: Graham McCorry for the Minister.

PN68

THE SENIOR DEPUTY PRESIDENT: Mr Thomson. Mr Thomson, can you hear me? Just a moment, Mr McCorry. Mr Thomson, are you there. We seem to have lost Mr Thomson, Mr McCorry.

PN69

MR McCORRY: I was getting a very faint or distorted voice over, your Honour.

PN70

THE SENIOR DEPUTY PRESIDENT: In your location, were you? I will stand the matter down while we have the connection fixed up, Mr McCorry.

PN71

MR McCORRY: Certainly, your Honour.

SHORT ADJOURNMENT [12.06pm]

RESUMED [12.11pm]

PN72

THE SENIOR DEPUTY PRESIDENT: Are you there, Mr Thomson.

PN73

MR THOMSON: Yes, sir.

PN74

THE SENIOR DEPUTY PRESIDENT: We are doing a bit better on take 2. We lost you before.

PN75

MR THOMSON: Are we?

PN76

THE SENIOR DEPUTY PRESIDENT: What is the situation now with the dispute?

PN77

MR THOMSON: The employer is maintaining a very unreasonable position in our opinion, your Honour, and I would like to address those points.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes.

PN79

MR THOMSON: Is Mr McCorry there?

PN80

THE SENIOR DEPUTY PRESIDENT: He is, sorry. He announced his appearance when you were not on the line.

PN81

MR THOMSON: Right, thank you very much. Look, the employer in our view is taking a very provocative stance on the question of the rostering arrangements. In this case the paid meal break for shift workers is in dispute. The paid meal break for shift workers has been a condition of employment at the hospital for 20 years or more. It is our view that the paid break for shift workers at the hospital has become a term implied in the contract of employment by a longstanding conduct over those 20 years.

PN82

MR McCORRY: Your Honour, I can interrupt there for a moment because I can't hear what Gordon is saying clearly.

PN83

THE SENIOR DEPUTY PRESIDENT: Mr Thomson, Mr McCorry can't hear you so I will just repeat what you have said, that the employer is being unreasonable in relation to the paid meal breaks for shift workers and that that issue is in dispute. There has been a tradition over the past 20 years of paying the paid meal breaks and you say it has now become an implied term of the contract of employment. Is that right?

PN84

MR THOMSON: That is correct, and is - - -

PN85

THE SENIOR DEPUTY PRESIDENT: Did you hear that, Mr McCorry.

PN86

MR McCORRY: Yes. Yes, thank you, your Honour.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes, go on.

PN88

MR THOMSON: In order to remove this condition the EBA would have to condone a provision which expressly abolishes that condition. The certified agreement does not contain such a provision.

PN89

MR McCORRY: I am sorry, your Honour, I can't hear that.

PN90

THE SENIOR DEPUTY PRESIDENT: All right, Mr McCorry, I will just hear what else Mr Thomson has to say and then I will perhaps - - -

PN91

MR THOMSON: Well, I will do it - I am used to doing things in translation, your Honour, so that second point is that the EBA, in order to abolish that condition of employment, the EBA would have to contain a specific provision abolishing that condition and it does not.

PN92

THE SENIOR DEPUTY PRESIDENT: Yes. Mr McCorry, Mr Thomson says that in order to remove the implied term of paid meal breaks as a condition the EBA would need to expressly exclude the condition.

PN93

MR McCORRY: Thank you, your Honour.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Thomson.

PN95

MR THOMSON: The third point is that the EBA does contain provisions for productivity efficiency and cost saving initiatives. At schedule F of the certified agreement there are specific measures which are nominated and there is nothing about abolishing paid meal breaks. That is the third point.

PN96

THE SENIOR DEPUTY PRESIDENT: Just a moment, Mr Thomson. Mr McCorry, do you have anybody from the registry there?

PN97

MR McCORRY: No, your Honour.

PN98

THE SENIOR DEPUTY PRESIDENT: So there is nothing you can do to adjust the sound so that you get a better - - -

PN99

MR McCORRY: I could if your Honour - I could call someone and see if I can do it because it is just upstairs.

PN100

THE SENIOR DEPUTY PRESIDENT: Have you got a phone there or is it just a - - -

PN101

MR McCORRY: I have got my mobile with me.

PN102

THE SENIOR DEPUTY PRESIDENT: No, sorry, I meant have you got one of the speaker phones?

PN103

MR McCORRY: Speaker phones? It is on the desk, your Honour, but I don't know whether it is connected or not.

PN104

THE SENIOR DEPUTY PRESIDENT: Yes. No, well, my associate will contact the registry in Perth by telephone to arrange someone to come up and see what they can do about that.

PN105

MR McCORRY: Thank you, your Honour.

PN106

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Thomson. You say schedule F has no provision relating to the abolition of paid meal breaks shift workers, is that right?

PN107

MR THOMSON: That is correct, but it does contain those provisions which are to be implemented. So the argument is that there is a mechanism for - - -

PN108

THE SENIOR DEPUTY PRESIDENT: When you say it does contain provisions that are to be implemented - - -

PN109

MR THOMSON: Yes, it does.

PN110

THE SENIOR DEPUTY PRESIDENT: - - - you mean vary what has been the situation in the past, do you?

PN111

MR THOMSON: The schedule F contains all of those measures which it is agreed be implemented as productivity initiatives or cost savings and it contains a further provision which deals with the mechanism for implementing other initiatives. Now, what I am saying here is that not only is there no provision for the abolition of this entitlement but there is a provision which lists those things which are to be implemented. So it is not as if there is an absence of issues or matters to be implemented for the purposes of improving efficiency and productivity.

PN112

We do have a list of issues. Abolition of the meal allowance isn't on that list and there is a mechanism attached to the productivity initiatives where you are able to introduce new matters for implementation by agreement and a case in point, your Honour, is the decision you have recently released in relation to the productivity initiatives, the new productivity initiative at the school. So we have a list of productivity initiatives in schedule F. We have a mechanism for dealing with new proposals for productivity gains, which we have used and which have led a 1 per cent wage increase for all employees.

PN113

So there is no reason whatsoever for the employer to come along in this hand fisted thuggish way to take away employees conditions. If they want to do it there is a way to do it and they haven't followed it. Instead they claim that this condition doesn't exist and that is fine.

PN114

THE SENIOR DEPUTY PRESIDENT: Yes. I will just see if Mr McCorry is getting any of that. Mr McCorry, are you hearing anything of what Mr - - -

PN115

MR McCORRY: I heard some of it, your Honour. I didn't catch just the last few words that Gordon said.

PN116

THE SENIOR DEPUTY PRESIDENT: He said that there is no reason for the employer to take away the employees conditions, that there are devices or mechanisms within the schedule to implement other initiatives such as productivity initiatives or cost savings, but there is no provision in the schedule to remove paid meal breaks. Yes, Mr Thomson.

PN117

MR THOMSON: I think your summation is as far as we need to go.

PN118

THE SENIOR DEPUTY PRESIDENT: All right.

PN119

MR THOMSON: ..... case is there, it is quite clear. They can't remove a condition that has been in place for 20 years. It is an implied condition of the contract of employment. It is simply not available to the employer to come along in a ..... way and say this no longer exists, you know.

PN120

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Thomson, can you hear Mr McCorry by the way?

PN121

MR THOMSON: No. I can hear a muffled shuffle of words but, you know, that is not new.

PN122

THE SENIOR DEPUTY PRESIDENT: Mr McCorry, can you hear Mr Thomson yet?

PN123

MR McCORRY: I can hear him but it is very faint and some of the words are blurred towards the end. I have the person from the registry office here, your Honour.

PN124

THE SENIOR DEPUTY PRESIDENT: Yes. Would they like to have a look at the system and see if they can fix it up.

PN125

MR THOMSON: It would be a productivity initiative, you know.

PN126

THE SENIOR DEPUTY PRESIDENT: Just wait a moment, Mr Thomson. You can't hear Mr McCorry at all, Mr Thomson?

PN127

MR THOMSON: No, not - there is something coming through but I can't distinguish the words, no.

PN128

THE SENIOR DEPUTY PRESIDENT: He said he can hear something coming through but he can't make out the words.

PN129

MR THOMSON: White noise I think it is called.

PN130

MR McCORRY: Perhaps we can just go to audio, your Honour, and try it that way, rather than the video. It may be the technology.

PN131

THE SENIOR DEPUTY PRESIDENT: What, take you off video you mean?

PN132

MR McCORRY: And just go to audio as well.

PN133

THE SENIOR DEPUTY PRESIDENT: Well, we can try that. We might lose everything. Is the registry staff there able to do that?

PN134

MR McCORRY: No, your Honour. The registry officer indicates she doesn't know what to do about it.

PN135

THE SENIOR DEPUTY PRESIDENT: Well, it is not very satisfactory I don't think if the parties can't hear each other and I have to keep conveying what is being said from one party to the other. I will stand the matter down and see if we can't arrange for somebody to attend there in the court room and fix up the problem there.

PN136

MR McCORRY: Yes, I believe that would be appropriate, your Honour, thank you.

PN137

THE SENIOR DEPUTY PRESIDENT: Do we stand by, your Honour?

PN138

THE SENIOR DEPUTY PRESIDENT: Sorry, what was that, Mr McCorry?

PN139

MR McCORRY: I think that would be appropriate, your Honour, thank you.

PN140

THE SENIOR DEPUTY PRESIDENT: What did you say, Mr Thomson?

PN141

MR THOMSON: Do you want us to stand by, your Honour?

PN142

THE SENIOR DEPUTY PRESIDENT: Yes, please.

PN143

MR THOMSON: Okay, thank you.

PN144

THE SENIOR DEPUTY PRESIDENT: We will keep you connected on the link though, Mr Thomson, and see if we can organise or fix up the problem in Perth. All right.

PN145

MR THOMSON: Thank you.

SHORT ADJOURNMENT [12.22pm]

RESUMED [12.29pm]

PN146

THE SENIOR DEPUTY PRESIDENT: I am back. Can you both hear me?

PN147

MR McCORRY: Yes, your Honour, and we can hear each other too.

PN148

THE SENIOR DEPUTY PRESIDENT: Good. Now, did you want to respond to what Mr Thomson said, Mr McCorry?

PN149

MR McCORRY: Yes, if I can, your Honour.

PN150

THE SENIOR DEPUTY PRESIDENT: Yes.

PN151

MR McCORRY: Firstly, this is not a question of the employer taking away some condition that they have actually had because it has never been a condition of their employment that people get paid meal breaks and although it may have been something that has been in practice for a long time it is certainly nothing that I knew about and it is nothing that the Commonwealth would endorse. In relation to Mr Thomson's ..... implied term in the contract of employment, we say it doesn't even meet the test in BP Westernport v Shire of Hastings of the implication of an implied term, and in any case, it was expressly rejected by a vote of the members when they voted for the EBA.

PN152

THE SENIOR DEPUTY PRESIDENT: What was expressly rejected?

PN153

MR McCORRY: Well, clause 626.6 of the agreement, your Honour, makes it clear that unpaid meal breaks of 30 minutes are to be taken. Now, I was there when all the employees voted on it. There was 70 plus people there. Only one person voted against the agreement. There were three abstention and none of the people who voted against it, or none of the person voted or abstained were the nurses. So they would have, if there was any such implied term, agreed to vary it.

PN154

Gordon made the point that schedule F has no provision for the abolition of paid meal breaks, or doesn't have them because it was never considered to be a productivity measure that was going to be traded off for a wage increase and we say that the current situation is not possible. You can't have people being paid for taking meal breaks when on the figures that I have got the hospital only has the patients in it 15 per cent of the time. This is not something where the majority of the time people simply cannot take meal breaks of the operational requirement of the business and in any case, the administration's view is that on evening and night shift and on weekends when there is only one or two nurses on duty and it is not practicable to leave the hospital when there is a patient in there, then if - let me deal with the situation when there is no patients in there.

PN155

There is nothing to stop the nurses leaving the hospital at that time to go to a meal break. God knows where they would go, but there is nothing to stop them doing it. So there is no reason for them to stay there and there is no call for them to be paid. When there is a patient in there the administration says they can't leave the hospital because somebody has to be there to care of the patients if they are called. In those circumstances the administration says the restriction duty provisions in clause 32 of the agreement would apply during the meal break, where they are required to remain on the premises they would be paid the restriction duty allowance and if for any reason they were recalled during that meal break, then they would be paid overtime in accordance with the restriction duty clause.

PN156

There is simply no foundation for the union to claim that all meal breaks should be paid. Now, I note that this is being dealt with only in relation to the nurses but it also appears that the cleaners and the domestic staff have been claiming - - -

PN157

MR THOMSON: For heaven's sake, the cleaners.

PN158

THE SENIOR DEPUTY PRESIDENT: Mr Thomson - - -

PN159

MR McCORRY: And we would say that there is no foundation for it.

PN160

THE SENIOR DEPUTY PRESIDENT: We are on record here and I will give you an opportunity to speak after Mr McCorry is finished.

PN161

MR McCORRY: But those are my submissions on that issue, your Honour. But what we are saying is that the provision in relation to rostering are dealt with in clause 30.2 of the agreement. The manager provides a draft roster and subject to the requirement of that ..... not inconsistent, is required to endeavour to implement employees preferred working arrangements. Now, I can quite understand why employees would prefer to have their meal breaks paid, but we would say that that is not an interpretation that could properly be put upon that.

PN162

Preferred working arrangements would be whether or not people have rostered days off, when those rostered days off have occurred, what the starting and finishing times of shifts would be and we would say that the claim by the UCIW for a continuation of something which should never have been in place in the first place is simply not reasonable and is not something that could be accepted. Those are my submissions on that issue, your Honour.

PN163

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Thomson, what do you say?

PN164

MR THOMSON: Just that workers are not electric current, your Honour. You can't turn them on and off at will and what an abuse, what a total abuse of the agreement it is to say that nurses can take meal breaks and be on restriction duty. That is not the intent of the restriction provision. The call back provision has to do with people who have left work for the day. It has nothing to do with people who are on a meal break during the course of their daily hours of work. It is a total perversion of all that is just and sensible about industrial relations to argue in the manner that Mr McCorry has.

PN165

I am not familiar with the BP Westernport v Shire of Hastings test case of implied conditions of employment so I can't address that question. I maintain that the conditions that has operated for the past 20 years is an implied condition of contract of employment. There is nothing that Mr McCorry has said that encourages us to think that there is any decent motivation in what the employer is doing. There is no disguising of the fact that the employer is intent upon removing this condition established by custom and practice over 20 years.

PN166

THE SENIOR DEPUTY PRESIDENT: But what do you say Mr McCorry - - -

PN167

MR THOMSON: It is a - - -

PN168

THE SENIOR DEPUTY PRESIDENT: Mr Thomson, what do you say to Mr McCorry's proposition that the employees have had an opportunity to vote on the agreement and the agreement contains a provision that does not allow for paid meal breaks?

PN169

MR THOMSON: The provision that Mr McCorry refers to is in the hours of work, overtime, emergency duty and shift work. What the agreement does, and I must say this agreement Mr McCorry was most keen to have a minimalist sort of document and simplicity was the cry and ever persuasive, Mr McCorry had his way. Now, one of the shocking revelations of this dispute is that the industrial officer, who lives in Perth and makes three or four trips to Christmas Island each year, if the industrial officer doesn't know about a condition it is not a valid condition.

PN170

Now, what I have to say about what Mr McCorry says about the people voting on an agreement in this, his view that people voted for an agreement that contained a provision that said there shall be a meal break of an unpaid meal break of not less than 30 minutes and not more than 60 minutes, I mean you put that in the same category of his comment about he didn't know about it therefore it doesn't exist. Now, I am not a great believer in Gods but I understand the Omni present God is the only being in human knowledge and faith and belief in which is invested this Omni present knowledge, on the presence - you know, knowing all, seeing all, that is the realm of the Gods and Mr McCorry ain't no God of mine.

PN171

Because he didn't know about it, it doesn't exist. Well, Mr McCorry, the workers didn't know that you didn't know about the meal break, so your lack of knowledge doesn't exist to them. They assume that you came to those negotiations knowing everything and if you didn't know that is your problem. You should know. Because you didn't know that condition existed, it doesn't exist any more, is the most shocking argument I have ever encountered.

PN172

THE SENIOR DEPUTY PRESIDENT: How many employees are affected by the paid meal break provision?

PN173

MR THOMSON: There are two nurses per shift and one cleaner per shift on two out of three shifts a day and the cook who does a split shift also get a paid meal break.

PN174

THE SENIOR DEPUTY PRESIDENT: So we are talking about how many paid meal breaks altogether?

PN175

MR THOMSON: Your Honour, I think we should be dealing with this on the point of view of principle.

PN176

THE SENIOR DEPUTY PRESIDENT: Yes, but just let me get an idea about what we are talking about here first of all. There is seven paid meal breaks, is it? My accounting is not too good.

PN177

MR THOMSON: No, at the moment we are talking about all shift workers who on a shift roster get a paid meal break. Registered nurse, enrolled nurse, cleaner and cook. One cook, three cleaners, 10 nurses in total. Ten nurses.

PN178

THE SENIOR DEPUTY PRESIDENT: Ten nurses.

PN179

MR THOMSON: This is over a seven day week. Then nurses, three cleaners, one cook. So 14 personnel who do rostered work.

PN180

THE SENIOR DEPUTY PRESIDENT: Yes, but they are not all rostered on the same time. But you are saying that everybody - - -

PN181

MR THOMSON: At any time the night shift, there will be two nurses on the night shift. On the afternoon shift there will be two nurses and a cleaner until 7 pm. So from 7 am to 7 pm you have got the cleaners working on a roster and 24 hours a day nurses. The cleaners and the nurses are called upon to perform work as required. That is, a person coming to the emergency door doesn't have to wait till the nurses have finished their meal before they get attended to. A cleaner can be called upon to clean up mess at any time and does frequently get interrupted.

PN182

THE SENIOR DEPUTY PRESIDENT: So again what I am trying to work out, Mr Thomson, is how many paid meal breaks there is in the course of one day. If there is two on the night shift, so you have got two for each night. You have got two on the afternoon shift plus the cleaner, so that is five per day, is it, plus the cook?

PN183

MR THOMSON: No, no, the day shift - day, afternoon, night, they all get the breaks. So you have got eight nurses - sorry, sorry. Eight people.

PN184

THE SENIOR DEPUTY PRESIDENT: Per day?

PN185

MR THOMSON: Yes, there is six, two cleaners, plus the cook, nine. There is nine five days a week and eight on the other two.

PN186

THE SENIOR DEPUTY PRESIDENT: And what is the value of the meal break?

PN187

MR THOMSON: Half an hour. Average $17 an hour. The average is around about $17 an hour. So $8.50 per person. I mean members think that the employer is looking for a fight. You know, there is no sense. Paid meal break provision, your Honour, in our opinion is a device that suits the employer and we intend to prove that point if the employer persists in this campaign to remove this condition. because the nurses will be leaving the hospital to take their meal.

PN188

THE SENIOR DEPUTY PRESIDENT: What are you asking the Commission to do?

PN189

MR THOMSON: Well, I am asking the Commission to rule that the entitlement to the paid meal break remains an entitlement by virtue of the longstanding conduct. It is a condition, an implied condition of the contract of employment. How can you remove or pretend a condition doesn't exist? I would like to see Mr McCorry go to the hospital in any case, but I would like to see him turn up at the hospital with a case of scabies and they say we can't see it, we didn't know about it, it doesn't exist. Come on. This is fantasy land stuff. There has been a condition for 20 years.

PN190

Now, is there a justice in this situation? Is there any justice in the way we deal with these issues? I suggest that we have been able to find it in the past and that justice demands that everybody recognise and record our recognition that this condition does exist, it continues to exist until such time as there is an agreement to abolish it. That is what agreement making is about.

PN191

THE SENIOR DEPUTY PRESIDENT: All right. Mr McCorry, you say that there is no contractual entitlement to the paid meal break and I understand your point about that, but do you dispute the fact that these people have been receiving a paid meal break over the last 20 years?

PN192

MR McCORRY: I have no information at all, your Honour. I only recently found out that they were getting paid meal breaks at all. I don't know how long it has been going on for and I would say there is certainly no justification for it given the volume and the workload at the hospital. I would doubt whether it has been going on for as long as Mr Thomson says because as I - - -

PN193

MR THOMSON: Well, I take exception to that comment, Graham.

PN194

MR McCORRY: I am merely saying I doubt it because it has only been - - -

PN195

MR THOMSON: I take exception to that comment. I mean I don't like being called a liar in any shape or form.

PN196

MR McCORRY: I am not suggesting that you are, Gordon.

PN197

MR THOMSON: I have got people here and, your Honour, I don't think we - I did tell somebody down there that I have people in the room with me.

PN198

THE SENIOR DEPUTY PRESIDENT: Yes.

PN199

MR THOMSON: Graham is aware of it. Nora Cowe, Willy Hughes and Laurie - sorry, Laurie - Laurie Hitchcock. Nora Cowe has been at the hospital for in excess of 20 years

PN200

THE SENIOR DEPUTY PRESIDENT: Mr Thomson, we are in fact in a formal hearing and you are on the record and you each have your opportunity to put your points of view. What I might do is adjourn the matter into conference. Would you have any objection to that, Mr McCorry?

PN201

MR McCORRY: No, your Honour.

PN202

THE SENIOR DEPUTY PRESIDENT: Mr Thomson.

PN203

MR THOMSON: No, your Honour.

PN204

THE SENIOR DEPUTY PRESIDENT: Very well. The matter is now adjourned into conference.

NO FURTHER PROCEEDINGS RECORDED