C2003/634, Transcript of Proceedings [2003] AIRCTrans 583 (24 February 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2003/634

FINANCE SECTOR UNION OF AUSTRALIA

and

WESTPAC BANKING CORPORATION

Notification pursuant to section 99 of the Act
of an industrial dispute re payment of overtime
for part time employees at the J.T. Walker and
Lanston Call Centres

SYDNEY

2.02 PM, THURSDAY, 6 FEBRUARY 2003

PN1

THE SENIOR DEPUTY PRESIDENT: This is the first time the matter has been before the Commission so I'll take appearances.

PN2

MS A. MEARS: If it pleases the Commission, I appear for the Finance Sector Union of Australia and with me today is MS R. KERLIN, also of the FSU.

PN3

MS A. CROMPTON: Your Honour, I'm appearing on behalf of Westpac.

PN4

THE SENIOR DEPUTY PRESIDENT: Thanks, Ms Crompton. Well, what's the position?

PN5

MS MEARS: Your Honour, the matter in dispute is over the payment of additional hours worked by part time employees in the shift environment at the J.T. Walker and the Lanston call centres. These are the two names given to the call centres that are located in the same building at Epping. Before I proceed to outline the main points of the matter and if it pleases the Commission, I have a copy of the Westpac award and convenient purposes can also provide you with a document that contains the relevant award clauses in the order to which I refer to throughout my submission.

PN6

THE SENIOR DEPUTY PRESIDENT: Very well. So there's a complete copy of the award and extracts.

PN7

MS MEARS: That's right, just for your convenience.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN9

MS MEARS: Thank you, your Honour. This dispute started in 1999 and has been the subject of numerous correspondence between the parties. At this stage I do not intend to present this correspondence but your Honour may find it useful at a later stage. It is common practice that employees in these centres, both full and part time work in excess of their ordinary rostered hours either voluntarily or at the request of management and it is the treatment that these excess hours for part time employees which gives rise to the dispute.

PN10

Your Honour, at this point, can I take you to the definition of a part time employee. Referring to the relevant clauses document, your Honour, you will see at 8.3.1 that a part time employee is defined as an employee who is employed to work on a regular basis an average of less than 38 hours per week. It is the FSUs contention that these excess hours worked by part time employees are ad hoc hours and in addition to ordinary hours and should be paid as overtime.

PN11

The FSUs position is based on the following assertions. Firstly, the hours are in addition to ordinary hours and working these hours does not lead to a change in the ordinary hour shift roster. Your Honour, if I can refer you again to the relevant clauses document and the definition of ordinary hours which can be found at 6.9 which states:

PN12

Ordinary hours means the regular number of hours you work excluding any overtime or if you are a part time employee any ad hoc hours you may work in a particular four week cycle.

PN13

Secondly, the hours are ad hoc by their very nature as they are determined by business needs and may vary in timing and quantum from one roster to another. For example, high call volumes may lead to the requirement for additional staff or if there are a high number of staff on annual leave and again if there are anticipated high call volumes, there also may be the requirement for additional staff.

PN14

So while employees may regularly work such additional hours, the hours themselves do not fall into any particular pattern of times or of days nor are they in any way guaranteed to continue. Further, as I stated earlier, these excess hours do not result in a formal change to the ordinary hours shift roster. Finally, we contend that payment for excess hours is contained in clause 13.5.1. Again, this is noted in the relevant clauses document and it states:

PN15

If you are on shift work but not exempted under 13.2.1, you will be paid overtime when you work in excess of your rostered ordinary hours or at the direction of your manager.

PN16

Clause 13.2.1, your Honour, refers to staff that have accepted a remuneration package and they are not eligible to be paid overtime and no such employees form the basis of this dispute. Further to this, overtime is paid in accordance with clause 1.1. As your Honour can see in the relevant clauses document, overtime that is worked Monday to Friday is at the rate of time and a half for the first three hours and double time thereafter calculated weekly.

PN17

For overtime worked on weekends and time away days, the rate is double time. For public holidays, the rate is either double time or double time and a half. I should just make the note here, your Honour, that prior to 2002 award variation, all public holidays attract the overtime rate of double time. Now, as your Honour can see, state based public holidays attract a payment of double time and a half.

PN18

When this issue has been raised with Westpac, their primary contention is to rely on clause 8.6.3 which again is noted in the relevant clauses document and it states:

PN19

Westpac must give you at least one weeks notice of transfer from one pattern of shift work to another pattern of shift work unless such transfer is due to an emergency or the absence of another employee.

PN20

The FSU contends this provision deals with the transfer of an employee from one pattern of shift work to another pattern of shift work. The word "pattern" is defined in the Concise Oxford Dictionary as regular form or order and therefore suggest some consistency in hours as opposed to additional ad hoc hours. If clause 8.6.3 is properly used, a regular order of hours must transfer in some permanent capacity to another regular form of hours.

PN21

The practice referred to in the J.T. Walker and Lanston Call Centres does not constitute a new pattern and it does not constitute a transfer. In addition, the bank has claimed that clause 8.6.3 allows for these hours to be paid at single time or at single time plus any applicable shift loadings. The FSU states this cannot be the case as clause 8.6.3 deals with notice and does not deal with the rate of pay. Payment of excess hours is as previously stated governed by clause 13.5.1.

PN22

Your Honour, that is the basic outline of the dispute in which we seek your assistance and we would be happy to proceed to conference at this stage. Can I just note, your Honour, given this dispute has been ongoing since 1999 and may be ongoing, we would ask that the Commission direct a copy of the transcript be provided to the parties. If it please the Commission.

PN23

THE SENIOR DEPUTY PRESIDENT: I'll do that, Ms Mears.

PN24

MS MEARS: Thank you, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: Well, that was succinct. Ms Crompton?

PN26

MS CROMPTON: Your Honour, may we go off the record for a moment please?

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, we'll go off the record.

OFF THE RECORD [2.10pm]

RESUMES [2.11pm]

PN28

MS CROMPTON: Your Honour, this dispute has been notified under section 99. As you've heard, it's an award interpretation dispute and our position is that the Commission would not have jurisdiction to hear this matter under section 99 as there isn't an industrial dispute within the meaning of the act because this dispute relates only to two call centres in New South Wales and therefore lacks the necessary interstate element.

PN29

However, Westpac is willing to enter into conference to discuss the dispute and I would be grateful if we could go into conference straight away rather than going through our arguments now. If it please the Commission.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, I think I understand that. All right, we shall go into conference.

PN31

MS CROMPTON: Thank you, your Honour.

NO FURTHER PROCEEDINGS RECORDED [2.15pm]