C2003/6179, Transcript of Proceedings [2003] AIRCTrans 5190 (25 November 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C2003/6179

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING
AND KINDRED INDUSTRIES UNION

and

KINKOS INTERNATIONAL (AUSTRALIA) PTY LIMITED

Application under section 170LW of the Act
for settlement of dispute re implementation of
Company image policy

SYDNEY

12.04 PM, WEDNESDAY, 29 OCTOBER 2003

PN1

MR M. WEST: I appear for AMWU and with me is MR M. LOWE and MS M. DANGLMAIER.

PN2

MS E. ALLEN: From the Printing Industries Association of Australia on behalf of member company, Kinkos Australia. With me I also have MR GIBBS, Managing Director of Kinkos and MR CARTER, New South Wales Manager of Kinkos.

PN3

THE COMMISSIONER: Thank you, Ms Allen. Thank you, Mr West. The matter before the Commission is an application file by the AMWU pursuant to section 170LW of the Workplace Relations Act. In the application the AMWU seeks the Commission's assistance in the settlement of the dispute under the dispute settling procedure of the parties certified agreement. The matter is said to relate to an alleged harsh and reasonable implementation of the company's image policy. The steps follow in accordance with the dispute settlement procedure as set out in the notification. Mr West, it is your application, what is it all about?

PN4

MR WEST: Thank you, Commissioner. Very gratefully, Commissioner, the dispute arises from a change in an existing company policy about grooming and company image. The company has had such a policy for a good many years but in September this year it announced to employees that that policy was being amended or added to with effect from 1 October. The new policy enforced a blanket ban on the wearing of body piercing jewellery such as, nose rings, I think multiple ear-rings and other visible jewellery as well as some other dress regulations.

PN5

In this instance the person raising the grievance is our member, Melissa but there are a number of other staff members who are unhappy about the policy change and its implementation. Our assertion about the - or our problem with the policy is that there are a number. Firstly, we believe it is inappropriate of the company or a company in the business such as Kinkos is in, to intrude to the extent that it is done into the personal affairs of employees. We accept that it is appropriate for the company to have a reasonable policy on appearance as it is I think with any company but to enforce a blanket ban on a particular type of jewellery and in this day and age, we believe it is inappropriate.

PN6

We also think that a blanket ban like that does not take into account individual circumstances or the circumstances in which individuals work and it could very easily become an issue of discrimination where there are various groups around the place who have religious or cultural reasons stipulate the wearing of various types of body jewellery or taking the issue one step further tattoos and so on.

PN7

THE COMMISSIONER: Is there any issue of religious or cultural impact at the moment?

PN8

MR WEST: In this case not so much, Commissioner, although I think the wearing of jewellery and dress codes and so on is always a cultural issue.

PN9

THE COMMISSIONER: Well, that might be your view but I don't need to hear your view, I need to know what the issue is that relates to the application of the certified agreement that I can apply my mind to.

PN10

MR WEST: Yes, I understand. Thank you, Commissioner. Now, Ms Danglmaier's particular case there are a couple of issues I think that are pertinent. She has worked for Kinkos for 2 years and for that whole time she has worn the offending piece of jewellery.

PN11

THE COMMISSIONER: Well, what is the offending piece of jewellery? Am I suppose to sort of guess what you are talking about?

PN12

MR WEST: It is a nose-ring or nose-stud, Commissioner.

PN13

THE COMMISSIONER: Yes.

PN14

MR WEST: Over that time there have no complaints from customers or from management.

PN15

THE COMMISSIONER: No complaints from customers or management.

PN16

MR WEST: No, until the introduction of this addendum, addendum to the policy.

PN17

THE COMMISSIONER: Yes.

PN18

MR WEST: Then the complaint was from management. She works in the Kinkos on Broadway which is slap-bang in the middle between Sydney University and the University of Technology and I suppose you would call that educational precinct. There is also some private colleges up in Ultimo as well and there are a lot of young people in the area, a lot of younger customers use the store many of whom themselves wear similar jewellery.

PN19

THE COMMISSIONER: Not concerned the slightest bit about the customers.

PN20

MR WEST: Well, I think that is part of the dispute.

PN21

THE COMMISSIONER: I don't even regard it as being relevant. This is an application pursuant to section 170LW about the application of the certified agreement, some dispute about the application of the certified agreement that is what I am trying to get you to come to. What is the issue that I can assist with?

PN22

MR WEST: The issues that we are seeking the Commission's assistance in, the agreement itself provides that terminations will not be harsh, unfair or unreasonable.

PN23

THE COMMISSIONER: Whereabouts is that in the agreement? I have a copy of the agreement in front of me. Is this an issue that concerns termination of employment?

PN24

MR WEST: It could well be, because Ms Danglmaier has been told that if she does not remove the nose ring that she will be terminated. The section I'm referring to Commissioner is part 2(3)(g).

PN25

THE COMMISSIONER: I'm sorry, what was that?

PN26

MR WEST: Part 2(3)(g).

PN27

THE COMMISSIONER: Contract of employment? 2.3 contract of employment?

PN28

MR WEST: That is correct.

PN29

THE COMMISSIONER: I'm still not following you. 2.3 relates to the contract of employment.

PN30

MR WEST: Right and paragraph (g) in that section says: termination of employment by Kinkos will not be harsh, unjust or unreasonable.

PN31

THE COMMISSIONER: Ms Danglmaier, you say, has been threatened with termination?

PN32

MR WEST: Yes, she has.

PN33

THE COMMISSIONER: Right.

PN34

MR WEST: She has also been sent home from work on one occasion for wearing the nose ring and not paid for that time. Now, there is no provision for that within the agreement so that is also an issue.

PN35

THE COMMISSIONER: What no provision for suspension, is that what you are saying?

PN36

MR WEST: That is correct, yes. And finally, Commissioner, under the dispute settlement procedure, section 2.5 of the agreement, it allows employees to raise any grievance and have that dealt with under the procedure.

PN37

THE COMMISSIONER: I think your notification to me indicated to me that procedures had been followed to date.

PN38

MR WEST: That is correct and we are -

PN39

THE COMMISSIONER: I note that the notice under the dispute settling procedure includes the following and I quote:

PN40

The following steps of the disputes settling procedure have been taken. Employee has spoken to supervisor. Employee has spoken to branch manager. Employee union representative has raised the matter with Kinko's head office.

PN41

MR WEST: That is correct. So the issue of the application of the company policy is a real issue in the stores. I am not - I think it can be resolved but I think we also need assistance of the Commission to get there, quite frankly Commissioner.

PN42

THE COMMISSIONER: But I don't see how this relates to the application of the certified agreement. You are seeking the Commission's assistance concerning the application of the company's policy and quite frankly, the company's policy is none of my business and if the boot was on the other foot on another day you would probably tell me to keep my nose out of it.

PN43

MR WEST: Except that there is an agreement, Commissioner.

PN44

THE COMMISSIONER: Yes, I am aware of that.

PN45

MR WEST: And grievances - there is a procedure for dealing with grievances.

PN46

THE COMMISSIONER: Right.

PN47

MR WEST: And there are items in the certified agreement that refer specifically to termination and I believe that the issue of suspension that is not provided for in the agreement is also something that - - -

PN48

THE COMMISSIONER: All right, is there anything further at this stage?

PN49

MR WEST: No, thank you, Commissioner.

PN50

THE COMMISSIONER: Ms Allen, what is the other side of the story?

PN51

MS ALLEN: Commissioner, regarding the enterprise agreement and the dispute relating to the enterprise agreement there certainly is an issue as to whether this is a grievance related to the interpretation of that enterprise agreement. However, should it assist both parties today, both the applicant and the respondent are certainly seeking to enter into a conference to try and see if this matter can be resolved in any way but in response to the claims put forward today, the reason why the company has for a long time had a number of policies in place.

PN52

The applicant is a part time employee employed on weekends and she has been so since a period of around July 2002. Back in August 2001 the company first started implementing company policies regarding dress codes and that policy did apply to all employees back then. It is correct to say that the policy was revised in 2003. The reason that the company has given for revising those dress codes is a change in the focus of the business. It tends to be focussing more recently more of a commercial sector.

PN53

It does still have people that do generally walk off the street but in focussing more on the commercial sector of the industry, the company felt that it be necessary to concentrate on the customer service component in an effort to improve the business. So, in an effort to improve that business they sought a review of their company policies, one of them being the dress code policy or the image policy is referred to as well. That policy was designed as well as a communication mechanism to the employees to present a guide as to what the company's expectations would be and the consequences should those expectations not be followed.

PN54

There was a grace period that was given to the employee in this circumstance of a month. There have been no reasons as to why the employee cannot perform or conform to the policy and as such we have a concern that should the company make provisions for one employee then they would be required to make provisions or allowances for other employees and the company's policy would therefore have no stance in the future whatsoever. From here on it is probably a recommendation should the other side consent to move into conference to see if the parties can come to some sort of agreed position.

PN55

THE COMMISSIONER: Mr West, what is your view about that?

PN56

MR WEST: We are happy to go into conference, sir.

PN57

THE COMMISSIONER: All right. Well I will adjourn the proceedings now into private conference.

SHORT ADJOURNMENT [12.20pm]

RESUMED [1.15pm]

PN58

THE COMMISSIONER: We are back on the record following an adjournment during which the parties were to confer separately and together. Is there something for the public record at this time? Mr West?

PN59

MR WEST: Thank you, Commissioner. The parties have agreed to a period of grace during which time Ms Danglmaier will take annual leave or leave without pay while we seek to resolve the issue. There are a number of questions that need to be addressed and I think both parties are agreed to do that as quickly as possible.

PN60

THE COMMISSIONER: What is your understanding of how the matter will be resolved? Are you seeking any sort of Commission involvement in that process?

PN61

MR WEST: I think I will be seeking the involvement of the Commission. I understand there may be some jurisdictional arguments but we have also been talking about some direct discussions between ourselves and company representatives as soon as possible.

PN62

THE COMMISSIONER: What, do you propose that these discussions take place first and then you will advise me as to what if any further assistance you seek of the Commission?

PN63

MR WEST: Yes, would that be - - -

PN64

MS ALLEN: Commissioner, it was my understanding that it is the intention to for the union on behalf of the employee to exhaust the provisions of the grievance handling procedure and therefore seek arbitration on the matter in which case the company has consented to the employee taking a limited period of annual leave and leave without pay but it was the understanding that while those provisions are exhausted, whether it be jurisdictional argument or not, so it is just a period of now while the employee can exhaust the provisions of the grievance handling procedure even those there may be a jurisdictional objection.

PN65

THE COMMISSIONER: Well, what are the next steps? This is your agreement. Your dispute settling procedure. I understood you had reached a stage of grievance procedure item 2.5 subparagraph (d). What happens next?

PN66

MR WEST: Over the next couple of days we will be seeking talks with the company. This time we are looking to proceed to arbitration.

PN67

THE COMMISSIONER: Well, what I would require from you, Mr West, is you exhaust your negotiations with the employer and then if in fact as they notify, you seek arbitration of the matter, what I would require from you then is, what is it you want arbitrated? You need to be quite specific as to what it is that you seek to have arbitrated. You need to notify me of that and also with an appropriate copy to the respondent employer so that everybody knows what it is that the union is seeking. You also need to clarify to me whether in fact you seek Commission assistance by the Commission as presently constituted or by another member of the Commission, so those matters rest with you and I'll await to hear what you have to say.

PN68

MR WEST: Yes.

PN69

THE COMMISSIONER: All right. Well, in those circumstances I only need to adjourn these proceedings to a time and date to be fixed. That concludes the matter today.

ADJOURNED INDEFINITELY [1.20pm]