C2003/4432, Transcript of Proceedings [2003] AIRCTrans 3255 (1 August 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 3753

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2003/4432

AUSTRALIAN LIQUOR, HOSPITALITY AND
MISCELLANEOUS WORKERS UNION and OTHERS

and

EMERGENCY COMMUNICATIONS VICTORIA

Application under section 170LW of
the Act for settlement of a dispute
re back payment of wages

MELBOURNE

10.03 AM, THURSDAY, 17 JULY 2003

PN1

MR L. COOPER: I am from the CEPU.

PN2

MS B. FORBATH: I am from the Australian Liquor, Hospitality and Miscellaneous Workers' Union.

PN3

MR H. MITCHELL: I appear on behalf of the United Firefighters Union of Australia, Victorian Branch.

PN4

MR N. HENDERSON: I appear for the Australian Services Union. With me is MR J. HARRIS.

PN5

MR P. COULTER: I appear for ECV. With me is MR M. WERLE.

PN6

THE COMMISSIONER: Yes, well I gather that what this is all about is a question of payments due under an agreement, is that right?

PN7

MS FORBATH: Commissioner, yes. Well, as the Commission is well aware the enterprise agreement - interim enterprise agreement for Emergency Communications Victoria was certified on 12 June, but of course your decision, Commissioner, on the interim shift penalty - as such the $1.50 per hour - was made on 7 May and then reasons for your decision were issued on 27 May. So it has been well known for some time that the $1.50 an hour for shift penalties would apply and the four per cent wage increase was never in doubt.

PN8

What we have been concerned to discover, from our members, is that while the four per cent wage increase was paid recently there is still no back payment of that four per cent wage increase to 1 October 2002 and, as the application to the Commission states in a recent company newsletter, there has been every indication that the company does not intend to pay the four per cent back pay until 22 August. And I will just hand that up, Commissioner, for you.

EXHIBIT #M1 COMPANY NEWSLETTER

PN9

MS FORBATH: As that document states, and this is the company newsletter to their staff - payment of back pay - that the back pay will not be paid until 22 August. We believe that that is just totally unreasonable. It is a huge delay in back payment, given that it is a fairly straight forward calculation for around 300 employees on all their earnings from 1 October last year. It should not be too difficult to calculate. We have also raised the issue of both the payment of the shift penalty and the back payment of the shift penalty to December last year.

PN10

THE COMMISSIONER: Is there a relevant award provision that applies to this?

PN11

MS FORBATH: Is there, sorry?

PN12

THE COMMISSIONER: Is there a relevant award provision that applies to this?

PN13

MS FORBATH: Well, there is the provision in the enterprise agreement that applies.

PN14

THE COMMISSIONER: Prescribes the payment?

PN15

MS FORBATH: That describes the payment of the - - -

PN16

THE COMMISSIONER: Yes, no. Perhaps I need to be a little clearer. I have to say I have just forgotten the intricacies of the agreement. Does it have any award relationship?

PN17

MS FORBATH: It does not. I am sorry, I am not quite sure what you mean, Commissioner?

PN18

THE COMMISSIONER: Well, does the agreement, for instance, prescribe that it operates in conjunction with an award and to the extent of any inconsistency, the agreement over-rides the award?

PN19

MR HENDERSON: Sorry, Commissioner. I was trying to tell Ms Forbath, it is the Intergraph award but there is no provision in that award that relates to the payment of wages. I think that is what you were - - -

PN20

THE COMMISSIONER: Yes, that is right. So as I say I was not quite sure on how the award articulated its relationship with - I am sorry, how the agreement articulated its relationship with the award and my recollection was that the agreement did not actually have any specific terms as to the payment of wages. It only prescribes the amounts of wages to be paid so is there any other consideration? Is there statutory or other consideration as to the payment of wages?

PN21

MS FORBATH: Well the issue is this, that the enterprise agreement provides for the back pay quite clearly - - -

PN22

THE COMMISSIONER: Yes, well I do not think that there is any question that the liability arises - the real issue that we are dealing with here is the question of what the liability - the collateral liability is in terms of the timing of any payments which are due under the terms of the agreement.

PN23

MS FORBATH: Well, it does not specifically say that they have to pay the - - -

PN24

THE COMMISSIONER: That is right. That is what I thought, but you know - - -

PN25

MS FORBATH: - - - the back pay within two weeks or one week or whatever.

PN26

THE COMMISSIONER: Yes, we need to establish that, yes, because - - -

PN27

MS FORBATH: It does not state that but of course the issue, from our point of view, is that we have members who have met their side of the bargain so to speak - - -

PN28

THE COMMISSIONER: Yes, look I do not think you need to explain to me the merits of people being paid what they are entitled to.

PN29

MS FORBATH: Yes.

PN30

THE COMMISSIONER: You know, you would have to be a pretty slow old coach sitting up here not to get the point. And no doubt I will hear from ECV as to the practicalities of the payment because that is what is foreshadowed in M1 isn't it, that the basis for the non-payment is about the processing - - -

PN31

MS FORBATH: Yes, there is - the most recent bulletin that went out regarding the shift penalty - perhaps I can hand that up - this has just come out recently and if - Commissioner, I tender that but the payment of the back pay if you have a look at that paragraph indication there is that every effort is being made to pay the four per cent back pay - - -

PN32

THE COMMISSIONER: That will be M2.

EXHIBIT #M2 COMPANY BULLETIN REGARDING SHIFT PENALTY

PN33

THE COMMISSIONER: So, what you have been told is that this is really a delay caused by the administrative requirements of the payment?

PN34

MS FORBATH: Yes.

PN35

THE COMMISSIONER: In both cases?

PN36

MS FORBATH: That is right. I both cases the - I mean the shift penalty is not being paid at all, let alone the back payment. Now, of course from an employee's perspective they believe they have an entitlement and while they have been reasonably patient we think in waiting for the payment to appear in their wage packets it is not happening and there is just this indefinite delay which is just unacceptable and it creates an environment that is very difficult for us to control, where people feel that they want to take industrial action, because they are not getting or receiving their end of the bargain.

PN37

Now we are - have spoken to, and written to, ECV about the issue. We discussed it at length with them on Friday, the 11th, at a meeting we had about the - about enterprise bargaining. They cannot give us anything more specific. What we would like to see coming out of this Commission and that is that there are orders from the Commission. The orders that we would be seeking are as follows and that - - -

PN38

THE COMMISSIONER: Well just before you go to outcomes I think we need to be a little bit clearer on process. Could you just be kind enough to tender the agreement. I do not think my associate has another engagement, and I am being assisted by another associate this morning, and I do not think I have got the agreement on the file. So has somebody just got a copy of the agreement there please because this is - what you are seeking is an outcome based on the disputes settlement procedure.

PN39

MS FORBATH: Yes. It is. We have made the application under section - - -

PN40

THE COMMISSIONER: I just to have a look - I just want you to refer to the disputes settlement procedure and first of all outline to me why it is you say the outcomes you seek are available under the procedure.

PN41

MS FORBATH: Yes. The - we have made the application pursuant to section 170LW and under the interim agreement there is that provision for us to come back to the Commission in regard to both conciliation and arbitration of outstanding disputes and this is a dispute in that sense that the employer is not meeting - - -

PN42

THE COMMISSIONER: Yes, but don't you think that I am obliged to conduct conciliation proceedings under the - - -

PN43

MS FORBATH: Well, if there is - if there is a possibility of a conciliated outcome certainly we would - we would - - -

PN44

THE COMMISSIONER: Well, I do not know that that is actually the correct characterisation of what is required, with all due respect. I do not think it is a matter for me to make a judgment about whether or not conciliation proceedings are appropriate. I think applying the terms of the disputes settlement procedure, I am obliged to conduct conciliation proceedings and that is because what the parties agreed to is that if the dispute remains unresolved - and this is a dispute about the application of the terms of the agreement, there is no question about that and it is within the scope of section 170LW in my mind.

PN45

I mean I have not heard any objection to that yet but it may arise, but it seems pretty clear that the terms of the agreement are what is in question and the application of them is the issue in dispute so that if the matter is within 170LW and the settlement of disputes procedure the way I am required to proceed is as set out in this procedure and all of the power that I exercise arises out of that. Now, in clause 11.2 what is said is that the dispute when it is unresolved shall be referred to the Australian Industrial Relations Commission for conciliation and, where appropriate, arbitration.

PN46

So clearly, what the parties agreed to was that there must be conciliation, in my view. It is not a matter where the Commission says, "Well, I know that is what it says there, but I do not care, I am just going to go ahead and arbitrate without doing any conciliation". All right - that is unless you have a different point of view which you want to put to me I think that that is the appropriate construction of the agreement.

PN47

MS FORBATH: We are perfectly happy to try and abide by that provision at 11.2.

PN48

THE COMMISSIONER: All right. It is just that you went straight to the idea that I would start issuing orders against the - against the company and I just think that that would not be strictly in accordance with the disputes settlement procedure. I think the conciliation process would need to occur and then I would have to make a decision that it was appropriate to arbitrate, hear the parties and if I considered it the correct approach, to exercise whatever powers were necessary in order to produce a settlement. That is my thinking on the process.

PN49

MS FORBATH: Yes, Commissioner. I have nothing further to say. I think you understand the breadth of the issue and we will hear what ECV have to say.

PN50

THE COMMISSIONER: Thank you. Thank you, Ms Forbath. Now I will take it that they are the submissions on behalf of the union so unless anybody wants to add anything - very well. Thank you, Mr Coulter.

PN51

MR COULTER: Commissioner, I should say at the outset that there has been no intent of ours not to pay the back pay.

PN52

THE COMMISSIONER: I do not think that is challenged.

PN53

MR COULTER: No, I just wanted to mention it however, and also in the context that there is no intent for us to delay payment either, any more than is necessary and the issue as far as we are concerned is the administrative work that is required to actually effect the payment. We have always been very careful to ensure that we do not lock ourselves into a date that is not achievable. We give people expectations and we can easily be crucified for not achieving those, whereas the best will in the world may prevent things from happening.

PN54

THE COMMISSIONER: I think what I would like to hear from you is what is the nature, in specific terms, of the effort being made to meet the liabilities under the agreement.

PN55

MR COULTER: Yes, I can do better than that in fact, Commissioner.

PN56

COMMISSIONER: All right.

PN57

MR COULTER: After we had a representation from the joint unions on the 9th of this month and discussions with them last Friday I did send out a note to all the staff, which is the second exhibit you have, which indicated that we would do our best to speed up the process as far as we possibly could. And we tried to explain, as clearly as we could, that the issue of payment of the back pay, because of the nature of our pay system and the way it must operate, it is a system issuing not anything else but is a one person job - only one person can input. There is a huge amount of manual input even for the four per cent to be paid.

PN58

We have, since our meeting last week, the person who is our payroll officer has worked literally day and night and I am able to say now that we are, in accordance with the commitment I made, able to do better than 22 August that I initially indicated would be achieved. I am now able to say that we will have the four per cent in pay of all employees by next pay, which is 29 July and it is not possible to do any better than that, given that there is no pay between now and then.

PN59

THE COMMISSIONER: Well, that is the next pay so I could not imagine that, even if I had you know gone directly to the suggestion of any coerced outcome if you like, for want of a better word, that the Commission would contemplate anything earlier than the next pay. But that deals with the question of the back pay for wages, doesn't it?

PN60

MR COULTER: It does and - - -

PN61

THE COMMISSIONER: Now the outstanding issue is the $1.50 an hour isn't it?

PN62

MR COULTER: Yes, the $1.50 is a more difficult issue. Payment of the $1.50 requires the examination and calculation made on every individual pay sheet from the first pay after 23 December last year until now.

PN63

THE COMMISSIONER: Could I just ask you - I do not know why, but perhaps I have been intoxicated by all of those supplements to the daily newspapers about whizz bang software and the like but it does seem a rather perhaps slightly surprising proposition that you have to look at people's pay sheets - - -

PN64

MR COULTER: But we do not have, unfortunately, an automated process.

PN65

THE COMMISSIONER: I see. So Intergraph did not have - - -

PN66

MR COULTER: We inherited a system which we knew was, for want of better words, somewhat antiquated. We are committed to do that because - - -

PN67

THE COMMISSIONER: But it sounds almost Dickensian.

PN68

MR COULTER: Almost. Almost. But we recognise that and we are committed to the arrangement for 12 months. Part of ECVs arrangements in bringing over a whole range of contracts that is applicable - - -

PN69

THE COMMISSIONER: So you are going to remedy this are you?

PN70

MR COULTER: Yes. I have to add that it is not an easy task to select an appropriate system to make sure we are getting what we need, but within that process a better system will be used.

PN71

THE COMMISSIONER: Well, all right. Let me just go back to the unions for a moment. If the - - -

PN72

MR COULTER: Could I just - - -

PN73

THE COMMISSIONER: Sorry, could I just go back to the unions for a moment. I will come back to you in due course, but I just quickly want to go back to the unions to just ask this. If that is met, could we re-visit the question of the $1.50 after the payment is made? In other words, my suggestion very, very expeditiously is that we await performance of this undertaking and I will list the matter very close to, but after 27 July - the pay period - - -

PN74

MR COULTER: If the Commission pleases I could add a little bit more that may - may help that process along.

PN75

THE COMMISSIONER: All right. There is some good news is there?

PN76

MR COULTER: As they say - but wait - but wait. There are no ..... ..... but nevertheless we have more and I cannot make an absolute commitment in this regard. I can say that we would expect, at this time, to be able to actually include in people's pay of 12 August, which is the following pay, calculation of the $1.50 based on their current shifts and all being well to pay the back pay by the pay following that. As I say I hope we are able to achieve, it is not a commitment I am prepared to make absolutely but I am prepared to say we will endeavour, and there is a reasonable expectation that we would be able to meet that time frame.

PN77

THE COMMISSIONER: So the $1.50 has not actually been paid at all?

PN78

MR COULTER: No.

PN79

THE COMMISSIONER: Is there a reason for that? Couldn't the pay system have factored that amount in after the decision had been issued?

PN80

MR COULTER: It could have been. Unfortunately the end of the year gobbles up a lot of time in terms of doing group certificates and a whole range of reconciling and - - -

PN81

THE COMMISSIONER: Right. It was just the timing of the task was - - -

PN82

MR COULTER: It gets back, Commissioner, to the nature of the pay system. One which we do not particularly like but unfortunately one which we are stuck with.

PN83

THE COMMISSIONER: Well, I still think that perhaps the best course of action is actually to perhaps list the matter around - 2 July is a Sunday - you said 29th - I beg your pardon. I will list the matter around the 30th. That might present a problem, I have just had a diary issue arise in that respect.

PN84

MR HENDERSON: If I might indicate, Commissioner, I think we are here on the 30th.

PN85

MR COOPER: Yes, I think we are, yes.

PN86

THE COMMISSIONER: Maybe that is the diary problem. All right. Well that seems to be a very convenient date to re-visit this subject and I would have thought that the substantive amount of money that is outstanding to the employees is the back pay of the four per cent wage increase of October 2002, and that they may be satisfied, if that payment is made as undertaken today, in the next pay to wait a little longer for the computation of the $1.50 an hour for the reasons which have been outlined by ECV and I do not think that that is an entirely unreasonable scenario of what Mr Coulter has told me about the inheritance of the administration systems from Intergraph .

PN87

I thought - I seem to recall publicity about Intergraph referring to words like, "World class", and their business rhetoric of the - of the epoch concerned, but it seems a rather unfortunate situation that in an Emergency Services Organisation where systems and expedition are a key factor of success in an organisation that that back office has been neglected by the previous operator of the business to this degree. But I think, in the circumstances, ECV has to be allowed some tolerance for this inheritance particularly as I am informed by Mr Coulter that it is intended that a contemporary electronic system will be introduced in due course. Is that right?

PN88

MR COULTER: That is correct.

PN89

THE COMMISSIONER: What is the - what is the time frame for that - do you have one?

PN90

MR COULTER: I do not know. These things take - - -

PN91

THE COMMISSIONER: It might be useful if that could be reported on the 30th because no doubt the parties are well aware, but the Commission is also aware of the fact that this agreement is rapidly approaching its expiry date. There is another matter that I anticipate that may well return to the Commission - well, will return to the Commission particularly having regard to the evidence exhibited today, for determination, and it is likely that having regard to my interim decision possibly more complex considerations might arise in relation to payment. And no doubt there will also be, having regard to the terms of the certified agreement on my recollection, some retrospective of any operation in that respect.

PN92

So we are coming up to a situation where there is going to be another collision with the person who I am rapidly developing an enormous sympathy for and the demands for payment of the employees, namely the payroll officer whose industrial health and sanity needs to be taken into consideration, given what is looming on the horizon which is another arbitral fixation - potentially of a much more complex remunerative system and the negotiation of a new enterprise bargaining agreement no doubt with potential wage increases and possibly other outcomes affecting for instance the pattern of working hours which will interact with all of these other variables and variances that are likely to arise during the latter half of 2003 and early in 2004.

PN93

So maybe some prudent consideration needs to be given to the fact that this particular problem in the system is going to be re-visited again - inevitably, in the near future and perhaps steps could be taken in anticipation which would prevent a recurrence of this event - or this type of event where there are unfortunate, but not necessarily unavoidable, but problematic delays caused by the inheritance of the old Intergraph quill and ink system of payroll administration. So I wonder if, on the 30th, Mr Coulter you might be in a position to address yourself to that as well as report on the effecting the undertaking. Because I think on that day the plan is that I am going to be considering proposed changes to the remuneration system which will have effect from on my recollection 1 April, is it not?

PN94

MR COULTER: That is correct.

PN95

THE COMMISSIONER: And that I have already foreshadowed that it will not be a straight-forward $1 number outcome per hour. So I think that that is essential that, in the interests of good industrial relations, particularly leading up to the re-negotiation of the agreement in order to fulfil the long term strategy of developing another two or three year agreement that there is not a group of unhappy employees, not due to anything connected with the negotiations but simply because they are in a bad mood because they are not receiving what they think they are entitled - what they are entitled to, under the existing instruments. All right. I will adjourn this until the 30th, and I will look forward to your report on that day.

ADJOURNED UNTIL WEDNESDAY, 30 JULY 2003 [10.30am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 COMPANY NEWSLETTER PN9
EXHIBIT #M2 COMPANY BULLETIN REGARDING SHIFT PENALTY PN33