C2003/4733, Transcript of Proceedings [2003] AIRCTrans 3312 (6 August 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 10480
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2003/4733

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Coles Myer Logistics Pty Ltd and Another
for an order to stop or prevent industrial
action at the Hampton Park Distribution Centre

MELBOURNE

2.20 PM, TUESDAY, 22 JULY 2003

PN1

MR S. WOOD: I seek leave to appear for Coles Myer Logistics Pty Ltd.

PN2

MR J. BORNSTEIN: I seek leave to appear on behalf of the SDA and I do so with MR A. BURKE from the union.

PN3

THE DEPUTY PRESIDENT: Is this a new tactic for the SDA to usurp the right-hand end of the bar table, is it, Mr Bornstein? It happened the other day.

PN4

MR BORNSTEIN: I took direction from your Associate if the truth be known, your Honour.

PN5

THE DEPUTY PRESIDENT: Right. Yes, I assume there is no objection to leave in either case? Leave is granted. Yes, Mr Bornstein. Sorry, yes, it was the - - -

PN6

MR WOOD: Mr Bornstein is very used to getting his way in the Commission so it is - - -

PN7

THE DEPUTY PRESIDENT: Yes, it would be - yes. I don't think it was your application after all, Mr Bornstein.

PN8

MR BORNSTEIN: Not this time, your Honour.

PN9

MR WOOD: No. We thank the Commission for the time because Mr Bornstein and I have been able to have a discussion, Deputy President, about ways to move forward in this matter and we think that a conference chaired by you might be the most appropriate way to resolve the matter between us. Before we do that I will just deal with some housekeeping matters and just give to your Associate the order that we seek in these proceedings and I will hand that up now. I will hand a copy to Mr Bornstein.

PN10

The reason I do that, Deputy President, is that you will see that the order that we seek is slightly different to the order that we - to the application and it is different in this regard, in that the order we sought in the application was against the union and the employees, that is the day shift employees, and the only order we seek is in relation to the day shift employees who are set out in the schedule to this order. That is the day shift employees who were there this morning that were told about this application. We gave them a copy of the draft order or something very close to the draft order that you have and that those are the people who I understand Mr Bornstein represents today.

PN11

The reason that we are proceeding against the employees is that we understand that the union does not support the action taken by the employees - I don't want to verbal Mr Bornstein. If he wants to put it a different way then - I am trying to summarise what we understand to be the union's position. So we have decided to proceed against the employees and as you will be aware the Tenix case last year said that service on a union was sufficient for service on the members of the union. Now there has been changes to the rules which require us to serve on individual employees who are going to be subject to the order.

PN12

We have done that in a de facto sense this morning but I don't think I need to take you through all those rules about service or about the proceeding other than to say that we are hopeful that it can be resolved in conference. If it can't be then we would hope to have the matter brought back before you very early tomorrow, depending on your availability, Deputy President, but that is probably all I need to say in opening.

PN13

THE DEPUTY PRESIDENT: Did you wish to tender this draft, Mr Wood?

PN14

MR WOOD: Yes, Deputy President.

EXHIBIT #A1 DRAFT ORDER

PN15

THE DEPUTY PRESIDENT: Yes, thank you, Mr Wood. Mr Bornstein.

PN16

MR BORNSTEIN: Yes, thank you, your Honour. Just briefly can I address a couple of matters that have arisen from my friend's opening. Today I am instructed by the SDA, not any individual employees. I wasn't aware that there has been an attempt to serve either properly or de facto individual employees and I now have heard what Mr Wood has said but I haven't been instructed by any individual employees today. I don't concede anything on service - - -

PN17

MR WOOD: I apologise for that. I thought that was the position, but that had been communicated second or third hand. So I didn't mean to verbal Mr Bornstein.

PN18

MR BORNSTEIN: Okay. Your Honour, I don't object to the matter going into conference but before it does can I just say a few things about some of the underlying issues in relation to this matter. This matter has, I think, been precipitated by a sequence of events relating to changes by the company to its sickness and overtime policy. Back in 1996 a policy was adopted in relation to that matter. I can hand you this and it may assist you in conference to actually have a copy of it. I have got one spare copy. I apologise at the moment - I might be able to produce another for my friend but there is one - - -

PN19

MR WOOD: We have got a copy.

PN20

MR BORNSTEIN: You have a copy?

PN21

MR WOOD: Yes.

PN22

MR BORNSTEIN: Excellent. Now your Honour will see that the document is on the subject of sickness and overtime policy. It applies to Coles supermarkets at Hampton Park which is the site we are concerned with today and it is a memo, if you like, from the company to delegates of the SDA and others relating to this subject matter and under the first heading it says:

PN23

If an employee was ill and unable to work either the full day or part thereof the day which immediately precedes a day in which overtime was to be worked then the employee was disqualified from working overtime regardless of whether they are fit to work. Given this was the case it is not an appropriate method of addressing what essentially would be an absenteeism and/or performance issue.

PN24

Under the heading of the solution:

PN25

As from 26 April 1996 for those areas it has not been operating those employees who are ill prior to the allocation of overtime will be considered eligible for overtime on the proviso that they are fit to work and their particular skills are required. This reflects what in practice should be occurring across all three shifts.

PN26

Now as I am instructed that policy, formulated in 1996, has continued without controversy. What has sparked some controversy is, I am instructed, earlier this month that policy was changed and the policy shift has meant that the company has adopted an approach whereby employees who are away on leave are disqualified automatically upon return to work from being considered for overtime. The policy change apparently occurred without much involvement - in fact, any involvement or knowledge of either the union or any of the employees.

PN27

It became apparent to everyone when an individual who had been ill presented for work ready willing and able to do so and was then told he was not able to be considered for overtime and after further questioning and discussions it transpired that the company had in fact changed its policy. That, of course, triggered a sequence of events and we are here today. But certainly it is the union's position that it would have been a far better approach had the company, one, spoken to the union about changing the policy and perhaps consulted the union and, of course, the employees.

PN28

Now we don't want to say too much more at this stage but we do want the Commission to understand that is one of the fundamental issues which underlies the current situation. We do support a process of perhaps going into conference with a view to seeing whether we can further resolve these issues. Those are my submissions.

PN29

THE DEPUTY PRESIDENT: Yes. Is this the only issue between the parties?

PN30

MR BORNSTEIN: I wouldn't say it is the only issue but I think it is the underlying issue which has triggered a whole sequence of events.

PN31

THE DEPUTY PRESIDENT: Right.

PN32

MR BORNSTEIN: And I think it is very important that the Commission is aware of it. I think there are further issues which have since arisen.

PN33

THE DEPUTY PRESIDENT: Yes, okay. Thank you. Is there anything further, Mr Wood?

PN34

MR WOOD: I don't think so, Deputy President. We can say what we want to say about that issue in conference.

PN35

THE DEPUTY PRESIDENT: Yes. I will go off the record, thank you.

OFF THE RECORD

PN36

THE DEPUTY PRESIDENT: Yes. We have had substantial discussions off the record in this matter in an attempt to reach some settlement between the parties and to avoid the need to hear formal submissions in respect of the extant application. I intend to make a recommendation to the parties and the recommendation is as follows. That each of the employees who normally work or are rostered to work on the day shift at the Hampton Park Distribution Centre perform their work as normal from 23 July 2003 or as rostered without any ban or limitation on the performance of such work.

PN37

Any unresolved issues will be addressed in accordance with clause 41 of the current certified agreement. The Commission notes that the Workplace Relations Act at subsection 187AA prevents any payment being made in relation to wages lost as a result of industrial action. I say finally should my recommendation not be followed the company's application for orders against relevant day shift employees will be brought on immediately. That recommendation in written form will issue from my Chambers this afternoon to both the parties and I commend it accordingly. Is there anything that the parties wish to add at this point?

PN38

MR BORNSTEIN: No thanks, your Honour.

PN39

THE DEPUTY PRESIDENT: The matter is adjourned. Thank you.

ADJOURNED INDEFINITELY [3.16pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 DRAFT ORDER PN15