C2003/5577, Transcript of Proceedings [2003] AIRCTrans 4482 (8 October 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 4777
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2003/5577

SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION -
VICTORIAN BRANCH

and

AMALGAMATED FOOD AND POULTRY PTY
LTD TRADING AS RED ROOSTER FOODS

Application under section 170LW of the
Act for settlement of a dispute re roster
in relation to SDA member, Ms Nicole Huybers

MELBOURNE

2.02 PM, MONDAY, 22 SEPTEMBER 2003

PN1

MR A. CURTAIN: I appear on behalf of the Shop, Distribute and Allied Employees Association with MS N. MURDOCH; our SDA organiser, MS L. VALLARO and our member, MS N. HUYBERS.

PN2

MS A. TEMEKONIDIS: I am the Human Resources Manager for Red Rooster and I am representing the company today.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Curtain.

PN4

MR CURTAIN: Thank you, Senior Deputy President, for listing this matter. The matter concerns today, your Honour, a roster dispute under the Red Rooster Foods Agreement 2000, in particular clause 14.5 of the grievance procedure. Your Honour, for 11 years Nicole has worked for Red Rooster and she enjoys her job. She has had an unblemished record, with no warnings or counselling. She considers herself to be a dedicated and loyal employee to the company, but she has no desire to move up the ladder so to speak, or to take on a managerial position.

PN5

Your Honour, this dispute may simply centre around a misunderstanding. At issue here, your Honour, is a roster dispute. Look, I would like to, if I could, tender a document to the Commission.

PN6

THE SENIOR DEPUTY PRESIDENT: If you could just describe the document I will mark it SDA1. What is it, Mr Curtain?

PN7

MR CURTAIN: Thank you, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: It is a table setting out a variety of rosters, is that the position.

PN9

MR CURTAIN: That is correct.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes.

PN11

MR CURTAIN: I will get to that, your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you.

EXHIBIT #SDA1 TABLE SETTING OUT A VARIETY OF ROSTERS

PN13

MR CURTAIN: On 8 August 2003 a meeting was held with our member, Nicole; SDA organiser, Ms Lorraine Vallaro; our SDA senior organiser, Mr Dennis Parker and two company representatives, Mr Chatziopoulos and Ms Tatum Harris. At this meeting a compromise roster was suggested. That is the bottom roster on the list before you. Now, your Honour, I have made a bit of a mistake there, I have crossed out what - I had actually put it was 11.30 pm to 8 pm on the Wednesday to Thursday; I have crossed that out, it is 12 pm to 8 pm. Now, this compromise roster, your Honour, Mr Chatziopoulos put to Nicole that if accepted this was the roster that was to take effect on 18 August 2003.

PN14

Now, from 11 August to 15 August a number of attempts were made between the company and the union to attempt to contact one another; however, these were unsuccessful. There was a conversation that took place between our SDA organiser, Ms Lorraine Vallaro, and Mr Chatziopoulos on 15 August. We believe that this seemed to settle the issue as far as the union was concerned. It seemed to us that Ms Vallaro had reminded Mr Chatziopoulos of the agreed compromise roster which was agreed to on 8 August for Nicole and the matter was settled.

PN15

However on 18 August - this is the Monday after - Nicole began to work what was the compromise roster, but Ms Vallaro received a call from Ms Harris, who informed our SDA organiser that even though Nicole was working the compromise roster it was the union that had said that this compromise roster was unacceptable and that we were going to the Commission. Well, we dispute this, Senior Deputy President. The union believed then, as it does now, that the compromise roster was agreed and Nicole was happy to work this roster, having worked only one roster for 11 years, which is the original roster at the top there. She had been working that roster for 11 years.

PN16

Now, unfortunately the matter was not resolved. Ms Vallaro and Mr Parker met with the state manager, Ms Jill Matthews, who made it very clear that Nicole would work on Friday nights and that this was simply not negotiable. Senior Deputy President, we seek your assistance in order to resolve this understanding. We believe an offer was made, a compromise was found and in good faith our member and the company agreed to that compromise. We are simply requesting that after working the one set roster for 11 years that our member either has her original roster reinstated, or as agreed with respect to the company's compromised agreement, our member works that comprise roster.

PN17

We seek assistance from the Commission to either support our submission that Nicole go back and work her original roster, which would be the ideal, or that this compromise roster be the one that our member continues to work. It has been a very difficult couple of weeks for our member with this and the union seems a bit confused. We have attempted to follow the grievance procedure and speak to the company. We think there seems to be an internal misunderstanding with the company. We seek your assistance and we hope that a decision can be made today, your Honour. We are happy to go into conference and discuss the matter. If the Commission pleases.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Temekonidis.

PN19

MS TEMEKONIDIS: Thank you, Senior Deputy President Watson. Before I go into our submission I just wanted to draw your attention to just a few basic facts. Firstly, Ms Huybers has been employed by Red Rooster for approximately nine years and she is currently what is called a full-time level 2 service assistant. The actual store is made up of - is employed by level 1 either food preparation assistants or customer service assistants. Level 2 service assistants can do both. That is they can do the food prep out the back; they can also do the customer service out the front. And then you have got your management team which is headed up by your store manager and then your assistant manager.

PN20

So Ms Huybers is the only full-time level 2 assistant that we have at the moment at the Gladstone Park Store where she works. The other one is currently on parental leave and the rest of the staff is basically made up of part-time and casual staff ranging in experience from three months right up to approximately four years experience of part-timers and casuals. The references to the agreement that I would like to point out are firstly clause 11.5.3, whereby Ms Huybers is - well, it basically excludes Ms Huybers from being forced to work on a weekend and also clause 29, which is a rostering guideline, which states that rosters can be changed by seven days written notice by the company.

PN21

I just - basically as far as the submission goes I just want to go through a few key dates and what took place on those dates. There was a meeting - actually on 2 June 2003 the area manager, Mr Chatziopoulos, attended the store and he offered Ms Huybers a management position to which she had refused it at that point and basically said - the reasons stated were that she didn't want to work evenings and weekends but, nevertheless, Mr Chatziopoulos still gave her four weeks to think about it and he also advised her at that point that her roster still may change with seven days notice as a result of a directive that has come from senior management regarding the more effective utilisation of senior staff during peak times - peak periods.

PN22

On 29 July, which was the next visit to the store, Mr Chatziopoulos again asked Ms Huybers if she wanted to take on the management position, to which she declined and it was on that day that she was given one week's notice of the change of her roster, which involved some night duties. Now, I believe that that roster is the one which is headed the company roster. Is that right?

PN23

MR CHATZIOPOULOS: No, it is a little bit different to that.

PN24

MS TEMEKONIDIS: It basically involved five closes during the week, which means that the shifts would have been finishing 9.30; is that correct?

PN25

MR CHATZIOPOULOS: 12 till 9.30 Monday and Tuesday; 12 till 8 Wednesday, Thursday and 9 till 2 on Friday.

PN26

MS TEMEKONIDIS: Sorry. Yes, it basically involved five closes. So at that point Ms Huybers disputed it, claiming that she was being asked to work these shifts because of the cost saving to the business, and in fact the changing in rostering added 18 hours and $390 per week to the store remuneration costs, but the change was necessary, as I mentioned before, in order to have a more effective utilisation over the peak trading periods, them being lunch time and dinner time. At that point Ms Huybers stated that she was unable to work Friday nights because she had to babysit her niece and then she subsequently lodged a dispute with the SDA. There was a meeting held on 8 August 2003 between the SDA.

PN27

Mr Dennis Parker and Ms Lorraine Vallaro were present, as well as Mr Alex Chatziopoulos, the area manager, and Tatum Harris, who is the HR consultant that works at Red Rooster, as well as Ms Huybers. Now, that initial roster that was proposed was negotiated down to what is referred to on this sheet as the compromise roster. Now, this was always pending the state manager's approval, so it wasn't actually approved at that meeting. Basically what Ms Huybers wanted was no closure, which meant that she could only work the day shifts, and her reason for this was that she claimed that she had a better day doing preparation in the morning - preparing all the rolls and the food for the day's trading because she felt more organised because she is not walking into a mess in the middle of somebody else's roster or somebody else's - during the middle of the trading day.

PN28

She was subsequently offered a position at the Bourke Street Store where we could offer her day shifts only, but again she refused that. On 15 August there was a conversation between Ms Harris and Ms Vallaro and it was basically confirmed in that conversation that the roster that was proposed was still pending the state manager's approval. But in the interim the area manager had rostered her on those proposed hours and she has in fact, I believe, been working those hours since 18 August.

PN29

THE SENIOR DEPUTY PRESIDENT: That is the compromise roster?

PN30

MS TEMEKONIDIS: That is right. Now, on 19 August, when Mr Chatziopoulos had a chance to meet with the state manager and discuss the proposal, it was rejected and as a result of that - basically what the state manager wanted was for Ms Huybers to work the five closes. As a result of that Ms Harris rang - I think it was Ms Vallaro to arrange another meeting with Ms Huybers, Wednesday, 27 August to talk it further through. Now, at the meeting on 27 August we had the state manager present, Jill Matthews, we had Ms Harris, who is the HR consultant; Ms Vallaro and Mr Parker from the SDA, but Ms Huybers did not attend the meeting. I am told she refused to attend the meeting. I don't know if that is correct.

PN31

And alternative offer was put to the SDA and that was working Mondays, Tuesdays and Wednesday 12 till 7.30; Thursdays and Fridays 12 till 10.30. That way, again, she can be utilised over those peak trading periods. The roster on the Friday, being the close, was not negotiable because the needs of the business are paramount and that was expressed at the meeting. Now, at - just after the meeting the union had rung and advised Ms Huybers and she wasn't happy with that and another meeting was arranged for 4 September. Now, at this meeting on 4 September was Ms Vallaro, Ms Huybers and also Ms Matthews, who is the state manager.

PN32

Now, the state manager made it quite clear to Ms Huybers of the company's position, what the needs of the business are and what the alternatives that were offered to her were and it was also again explained to her that the roster - the initial roster was subject to her being - the state manager's approval and at this point - and this was actually, I am told, agreed by the union - confirmed by the union at that meeting that it was, in fact, still subject to the state manager's approval. Now, at that meeting again Ms Huybers was advised that the offer of the revised roster that I just mentioned was open until close of business that day, otherwise she would be rostered on for five closes because that is what the company, in fact, really needs her to be working.

PN33

At this point Ms Huybers refused and said that she would lodge a dispute, so that is what brings us here today. So I guess in summary from our point of view Ms Huybers was offered an alternative roster that was acceptable to the company, but not to her. She was offered a position at the Bourke Street Store where she could work the sort of hours that she wants to work and she refused that. She didn't attend a meeting on 27 August to try and resolve the dispute for an unknown reason. And I guess an additional point is that the roster may need to change yet again when there are changes in trading hours due to daylight saving. So as far as the reasons for the change in rosters there are quite a number of business reasons for that.

PN34

Firstly, the store is an under-performing store that is under constant review to remain open and one of the ways we measure the performance of the store is speed of service and at night that happens to be very poor for the store, speed of service being the amount of time it takes to fill an order for a customer. So if customers aren't - if customers' orders aren't filled quickly, then customers aren't happy, they don't come back basically. Now, the peak periods of the store, being lunch and dinner, can't be covered if Ms Huybers is only working 9 till 5.30 and I guess it is important to be using somebody that is multi-skilled like her because she can be utilised both back and front of store.

PN35

So if it gets busy out the back in the kitchen she can go and work in the kitchen. If it gets busy out the front she can always go out the front and work out the front. So she is in fact a valued member of the team, being very, very experienced and the most experienced staff member at the store. Obviously, Red Rooster wants to get the best value for money that it can out of its staff and I guess by her refusing to work these evening shifts it actually means that other staff have to always work the weekends and the evenings in order to cover for her. So I guess in conclusion Red Rooster is complying with the agreement regarding notification of roster changes. Red Rooster is trying to exercise its rights to change rosters where and when the business needs it.

PN36

We are operators in the fast food industry which is a seven day a week business. We need to be able to operate so that we are profitable and if Ms Huybers wins the case today I believe that there is damaging repercussions for the business because that will basically open the floodgates to other staff telling us when they can work. At the end of the day most staff don't want to work evenings and weekends but they have to do that because the business requires it.

PN37

THE SENIOR DEPUTY PRESIDENT: Is there a single rate, no penalties or are there penalty payments?

PN38

MS TEMEKONIDIS: I am not - it is a single rate I am told.

PN39

THE SENIOR DEPUTY PRESIDENT: And the provision you took me to earlier which protects existing employees, where is that to be found?

PN40

MR CURTAIN: There is a memorandum of understanding at the end of the agreement, your Honour, which talks about existing employees.

PN41

THE SENIOR DEPUTY PRESIDENT: Which is clause what?

PN42

MR CURTAIN: It is a letter attached to the end of the agreement.

PN43

THE SENIOR DEPUTY PRESIDENT: Ms Temekonidis took me to a particular provision - rostering provision, was it?

PN44

MS TEMEKONIDIS: Clause 29 relates to the rostering provision.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes.

PN46

MR CURTAIN: Sorry, your Honour, their ..... provisions was 11.5.3, which is alluded to earlier I think.

PN47

THE SENIOR DEPUTY PRESIDENT: 11.5.3.

PN48

MR CURTAIN: Yes.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I see. Very well. The company is happy to go into conference to see whether we can work this out.

PN50

MS TEMEKONIDIS: Yes, we are.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you.

PN52

MR CURTAIN: Sorry, could I just reply, your Honour, to some of the things that were mentioned earlier?

PN53

THE SENIOR DEPUTY PRESIDENT: Yes.

PN54

MR CURTAIN: Firstly, your Honour, under clause 29, which was alluded to by the Human Resources Manger, it does say there at 29.6.3:

PN55

At shorter notice by mutual consent.

PN56

We would just bring that to the Commission's attention. Also, your Honour, we - and I am guided by the company and yourself if I have made a mistake here, but I can't see anywhere in the EBA that says that it needs to be written agreement approved by the state manager in relation to a roster change. As I said earlier, we are of the opinion that the company had agreed to the change and who went with the changes based on the compromise. I just bring that to your attention.

PN57

In relation to under-performing, the company has been advertising for new staff for the previous three weeks; the signs came down last week. We are not here - there is no sort of win or lose in the Commission, your Honour. I don't see this as an adversarial system. We just seek a compromise if we can to try and resolve this issue. Thank you.

PN58

THE SENIOR DEPUTY PRESIDENT: All right, well, I will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SDA1 TABLE SETTING OUT A VARIETY OF ROSTERS PN13