C2004/2125, Transcript of Proceedings [2004] AIRCTrans 1159 (26 March 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL O/N 10079

RELATIONS COMMISSION

COMMISSIONER CARGILL

C2004/2125

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

and

YORK LININGS INTERNATIONAL PTY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re alleged non-payment
of living away from home allowance

SYDNEY

2.23 PM, TUESDAY, 16 MARCH 2004

PN1

MR A. FOSTER: I appear on behalf of York Linings, and with me, MR S. McNICOLL, from the company.

PN2

THE COMMISSIONER: Thank you. I note for the record there is no appearance from the AMWU at the point. We have attempted to contact Mr Phillips and he apparently left a message some few minutes ago saying he was near the building. I don't know whether he is or isn't. So have you had any discussions with him prior to today, Mr Foster?

PN3

MR FOSTER: No, we haven't, Commissioner.

PN4

THE COMMISSIONER: What about the company?

PN5

MR FOSTER: The company hasn't either, Commissioner.

PN6

THE COMMISSIONER: At all, or just about this issue?

PN7

MR FOSTER: All they have received, to my understanding - I will take some instructions from Mr McNicoll. Sorry, I retract that, Commissioner. Mr McNicoll has had some brief conversations and just generally as to the subject with no real detail and other than that there was only one item of correspondence that I'm aware of.

PN8

THE COMMISSIONER: From the union to the company.

PN9

MR FOSTER: Yes.

PN10

THE COMMISSIONER: Do you have a copy of that? The other thing I just wanted to clarify, Mr Foster, the union said that the matter was in relation to a particular agreement and you would have got that in the notification presumably.

PN11

MR FOSTER: Yes.

PN12

THE COMMISSIONER: I've had a look at that agreement and is it the relevant one because it seems to be dealing with some plant up at Gladstone?

PN13

MR FOSTER: That's correct, Commissioner, it is.

PN14

THE COMMISSIONER: It is the right one.

PN15

MR FOSTER: I will say yes, it is the York Linings International Proprietary Limited Calciner Construction Project Certified Agreement 2001.

PN16

THE COMMISSIONER: So that is the one.

PN17

MR FOSTER: Yes.

PN18

MR McNICOLL: It is for work that was performed in Gladstone.

PN19

THE COMMISSIONER: Right, okay and is there provision in - I know that it's not your client, Mr Foster, but is there provision in that agreement for living away from home allowance?

PN20

MR FOSTER: There is a provision for a project allowance.

PN21

THE COMMISSIONER: I mean, a project allowance normally applies to everyone who is working.

PN22

MR FOSTER: Yes, I was coming to that.

PN23

THE COMMISSIONER: Are you Mr Phillips, are you?

PN24

MR W. PHILLIPS: Yes, Commissioner.

PN25

THE COMMISSIONER: Yes, well we have already started. You were supposed to here 25 minutes ago, Mr Phillips.

PN26

MR PHILLIPS: Yes, I apologise, Commissioner. I've actually been about half a K up the road there not being able to get through.

PN27

THE COMMISSIONER: Well, do you want to put your appearance on the record?

PN28

MR PHILLIPS: Yes. I appear on behalf of the Australian Manufacturing Workers' Union.

PN29

THE COMMISSIONER: Well, it's your claim, Mr Phillips. I was just trying to find out something about the matter from Mr Foster. Although obviously it's not his matter. So maybe could you fill us in on what it's about, please?

PN30

MR FOSTER: Yes, Commissioner. The matter involves a member of our union who was employed by York Linings on a project in Queensland. It was up near Gladstone and the project required our member, Mr Pennie, to work - travel to and work and live in Queensland. It was the Tees Proprietary Limited Calciner Construction Project.

PN31

Mr Pennie was employed under the agreement that applied on the site at that time. However, there has been a problem and a claim go in from us that Mr Pennie should have received some sort of living away from home allowance. Mr Pennie does reside in Albion Park, which is just south of Wollongong and in fact gave that as his home address on his application whilst working up there. Mr Pennie finished there some time ago. However, he has asked us to continue on his pursuit of living away from home.

PN32

THE COMMISSIONER: So he is not an employee at the moment.

PN33

MR PHILLIPS: Not at the moment, no. Now, I spoke very briefly to - I can't remember who it was, someone from York Linings - a number of months ago on the issue. At that stage I was advised that Mr Pennie was employed for the project up there. I've got a copy of the enterprise agreement - certified agreement - that applied on the site and Mr Pennie did ask us on his behalf to continue, as I said.

PN34

Currently Mr Pennie is unavailable. He is in one of the construction sites over in Western Australia somewhere. The agreement itself does not indicate that living away from home as a clause in the certified agreement is available. However, we are aware that there are, or have been, a number of employees who did receive an allowance, even though the agreement specifically does not mention it and what we would be seeking is that, with the assistance of the Commission preferably in private discussions, if that can be arranged, to either come to some agreement for Mr Pennie, that he be - some arrangement entered into that he receive some assistance for the 3-odd months that he was up there, or the length of time that he was up there, or at least we get the matter resolved one way or the other.

PN35

THE COMMISSIONER: Right, thank you, Mr Phillips. Mr Foster.

PN36

MR FOSTER: Thank you, Commissioner. Commissioner, we've got a number of problems with this application and I do take Mr Phillips' suggestion that perhaps if we could go into private conference we might be able to air those a little fuller but from the outset, Commissioner, Mr Pennie was engaged in Gladstone. His residence was in Gladstone at the time. We actually have some statutory declarations in that matter.

PN37

In addition Mr McNicoll here engaged Mr Pennie at the time and it was made quite clear he was being engaged as a resident from Gladstone. We also do have some question marks in relation to the metalworkers being involved. If we could just go to clause 17.1, union representation. It is our understanding, Commissioner, that Mr Pennie was engaged as a scaffolder and as such under the agreement he would be a member of the AWU and be covered by them, not by the AMWU. So we would raise some objections on those parts, but perhaps taking Mr Phillips' suggestion, perhaps if we went into private conciliation it might help.

PN38

THE COMMISSIONER: Right, thank you. We might go off the record and into conference.

OFF THE RECORD

RESUMED [2.54pm]

PN39

THE COMMISSIONER: There has been some discussion between the parties and separately with the parties off record and I think now, Mr Foster, you were going to put something upon the record.

PN40

MR FOSTER: Yes, thank you, Commissioner. Commissioner, what we would say in this matter, that Mr Pennie has no rights under the agreement to a travelling allowance. Mr Phillips has, in conference, discussed the possibility of a travelling allowance and raised the issue of some employees who, he believes, were paid. There were some specialist employees flown in by the company and obviously that travelling was paid but they were only specialist employees flown in for a specialist part of the project and they were subject to another industrial instrument.

PN41

THE COMMISSIONER: Thank you, Mr Foster. Mr Phillips, is there anything you wanted to put on the record?

PN42

MR PHILLIPS: Yes, just I understand what the company has said, Commissioner. It would have been nice to reach some sort of an agreement but I understand the company's position and took the opportunity in conference to have that explained.

PN43

THE COMMISSIONER: Thank you. I might just add for the record too that certainly my perusal of the agreement leads me to conclude that the company is right in the sense that there doesn't appear to be any entitlement under the agreement for any living away from home allowance for someone in Mr Pennie's position. So I think we will just have to leave the matter at that. So thank you for all attending today. The matter is now adjourned generally.

ADJOURNED INDEFINITELY [2.56pm]