C2004/2221, Transcript of Proceedings [2004] AIRCTrans 1506 (19 April 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6713
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2004/2220
C2004/2221

NATIONAL UNION OF WORKERS

and

SKILLED ENGINEERING LIMITED
and ANOTHER

Applications under section 170LW of the Act
for settlement of dispute re long service
leave

MELBOURNE

4.39 PM, WEDNESDAY, 7 APRIL 2004

PN1

MS S. ALLISON: I appear with MR R. WIGG on behalf of the National Union of Workers.

PN2

MR R. MARASCO: I am from the Australian Industry Group acting on behalf of our member company Skilled Engineering and with me is MR. P. BOROBOKAS.

PN3

MR D. MARKS: I seek leave to appear for Terminals Pty Ltd and I have with me MR C. FASCLINO from the company.

PN4

THE SENIOR DEPUTY PRESIDENT: Ms Allison, do you have any objection to Mr Marks having leave to appear?

PN5

MS ALLISON: No objection, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Marks. Thank you.

PN7

MR MARKS: Thank you, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, do you want to tell me what it is about?

PN9

MS ALLISON: Your Honour, the union seeks the Commission's assistance in resolving a dispute between the parties concerning the long service leave entitlements of eight employees. Simply put, the employees were initially employed at Terminals. They were then re-employed by Skilled Engineering in the same capacity and then re-employed again by Terminals and somewhere along the way, approximately four years of accrued long service leave has disappeared.

PN10

THE SENIOR DEPUTY PRESIDENT: Sorry, four years did you say?

PN11

MS ALLISON: That is approximately. It differs depending on the employee.

PN12

THE SENIOR DEPUTY PRESIDENT: At what rate per year?

PN13

MS ALLISON: Sorry, your Honour, I have just been informed that some of them are five years.

PN14

THE SENIOR DEPUTY PRESIDENT: At what rate per year does the long service leave accrue?

PN15

MS ALLISON: The rate per year was covered by an agreement between Terminals and the National Union of Workers and that was a rate of 13 weeks after 10 years with pro rota after five years.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN17

MS ALLISON: So the employees were initially employed by Terminals. Their terms and conditions are covered both by an enterprise agreement and the agreement that I referred regarding long service leave between the union and Terminals. In the late 90s Skilled Engineering commenced taking over the employment of a number of employees. It wasn't just the eight, it was broader than that and the employees basically recommenced work on the understanding it would be the same terms and conditions.

PN18

They did receive redundancy packages finishing with Terminals at that point but it certainly was the intention of the parties that they would recommence employment on the same terms and conditions. To that effect, and I apologise to Skilled because I wasn't aware I was going to be referring to this at the time, but the 1999 enterprise agreement between Skilled and the National Union of Workers reads that:

PN19

The agreement shall be read in conjunction with the Terminals Pty Ltd Coode Island Agreement, the Storeman and Packers Award and all previous enterprise agreements ...(reads)... Terminals Pty Ltd.

PN20

And the employees also received a letter to the same effect saying that they would be covered by the same terms and conditions under Terminals agreement. In November last year eight employees were re-employed by Terminals in exactly the same role as they have performed with Skilled and previously to that with Terminals. This time no redundancy package was paid, although annual leave was paid out. Long service leave - - -

PN21

THE SENIOR DEPUTY PRESIDENT: How long had they been with Skilled?

PN22

MS ALLISON: That is the four to five years.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes. Sorry, go on.

PN24

MS ALLISON: Your Honour, we can clarify that for each employee the date.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes.

PN26

MS ALLISON: So at that point no long service leave was paid out, however at the same time Terminals is not recognising any long service leave for the period served with Skilled. Terminals say they will commence the long service leave from the date that the employees recommenced with Terminals and so the situation where there is a period of time when the employees have worked exactly in the same role, in the same position from one week to the next, it is the same position but in the second week they no longer had their accrued long service leave entitlements.

PN27

When our organiser approached Terminals State Manager he was told that Terminals had nothing to do with the issue, that our dispute should be Skilled and that they wouldn't enter into discussions regarding it. When we have approached Skilled we have had a similar response. Your Honour, we suggest that it might be appropriate to go into conference to try to resolve this matter.

PN28

THE SENIOR DEPUTY PRESIDENT: Just before we do that, is the claim then that because of a successorship or transmission from Skilled to Terminals in 2003 the employees are entitled to have the accrued long service leave for the period that they were with Skilled credited to them in Terminals, is that what the argument is?

PN29

MS ALLISON: Yes, your Honour. It is either that it needs to be recognised that that long service leave that has accrued needs to be recognised, or in the alternative, there needs to be some form of redundancy pay out or pay out of entitlements.

PN30

THE SENIOR DEPUTY PRESIDENT: What about the prior service with Terminals, is that not a matter of relevance in these proceedings or is it?

PN31

MS ALLISON: Excuse me for a moment, your Honour. Yes, it is not in terms - they were made redundant after their first - - -

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MS ALLISON: They received a redundancy package so the accruement of entitlements isn't relevant to that previous Terminals - - -

PN34

THE SENIOR DEPUTY PRESIDENT: So your only point there is that because there was a redundancy payment there was no accrued long service leave taken on by Skilled but when Terminals took over the role of Skilled again there was no redundancy payment and therefore there should be a transmission of long service leave accruals?

PN35

MS ALLISON: That is right, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: All right. Well, I will just hear what the other parties have to say before I adjourn into conference. Mr Marasco.

PN37

MR MARASCO: Yes, your Honour. The position of Skilled would be to dispute the employees are entitled to long service leave and also a question about the jurisdiction of the Commission as well, your Honour, under section 170LW. I will say at the outset we don't object to going into conciliation in an attempt to ventilate what the NUWs claim actually is but if I understand Ms Allison correctly there is two alternative arguments. Firstly, that long service leave needs to be recognised. That is a matter for Terminals, if they are going to re-employed at Terminals which is occurring, it is a matter for Terminals and a dispute with Terminals as to whether the service with Skilled for that four to five year period counts towards long service leave.

PN38

The second proposition Ms Allison put was that there had to be a pay out of entitlements. I assume if there was a pay out of entitlements that be done by Skilled, but we seek clarification of Ms Allison under what provision of the enterprise agreement which does refer to long service leave does she claim that Skilled would be liable to pay out long service leave, but that would basically be the position of Skilled. If the Commission pleases.

PN39

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Marasco. Mr Marks.

PN40

MR MARKS: Your Honour, if I could just go back half a step, we sent correspondence dated 17 March 2004 to Mr Donnelly, Secretary of the National Union of Workers and we also copied the Commission, in particular Senior Deputy President Harrison and that was sent to Sydney, so I am not certain whether your Honour would have - - -

PN41

THE SENIOR DEPUTY PRESIDENT: I don't think that has reached me.

PN42

MR MARKS: I am quite happy to table that if that assists you. But prior to that we simply put to the NUW at that point that with regard to their notification, because I must admit at that stage my clients were mystified, your Honour, to the extent that it understood primarily that the dispute really from our perspective seemed to lie with Skilled Engineering.

PN43

THE SENIOR DEPUTY PRESIDENT: Well, Skilled says it lies with you.

PN44

MR MARKS: Absolutely, I hear this. But in terms of the logic of the fact, the issue that we certainly had was that - and I would have to take issue with my friend in that I think she made reference to some consultation or something being put to the State, I think she said - yes, the State Manager. Now, one of our issues in relation to this whole matter is that we simply say we haven't been consulted and that there in fact has been no addressing of - up to a particular point we weren't even certain as to what the particular issue supposedly in dispute was.

PN45

THE SENIOR DEPUTY PRESIDENT: So you haven't received a claim that these employees are entitled to credit for their four to five years service with Skilled?

PN46

MR MARKS: We have received no claim, your Honour. All we have received is the R47 form that came in with the notification insofar as the matter relates long service leave and in particular where it states:

PN47

All steps of the dispute settlement procedure have occurred without the issue being resolved.

PN48

And we simply say, well, thank you very much for telling us but what are we talking about, what are the issues here, what is the claim and when was it addressed to us. So really, apart from what you have heard, we are somewhat in the dark. We don't take any issue in terms of the facts as they have been put to you with regard to the actual periods that initially these people were with us, they then went to Skilled, but at that point of time, as the submission has been made to you, those people were, as I understand it, paid out.

PN49

They then reverted and reverted again and as far as we are concerned, that at each point of time that their employment was terminated by Terminals their full entitlements were addressed and they were paid out accordingly.

PN50

THE SENIOR DEPUTY PRESIDENT: But they have only been - well, their employment has only been terminated by Terminals on one occasion, hasn't it?

PN51

MR MARKS: Yes, that is correct and that was in - - -

PN52

THE SENIOR DEPUTY PRESIDENT: 1999.

PN53

MR MARKS: That was 1999. Thank you, your Honour. We say that at that point of time, as I say, entitlements were paid and apart from the issue of what we are in dispute about and what the claim is, as I have said to you, we are somewhat in the dark but our view would be that all entitlements owing have been paid and that obligation has been discharged.

PN54

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Marks. Ms Allison, how can you be in dispute with Terminals if there has been no prior claim made in relation to these issues?

PN55

MS ALLISON: Your Honour, we would dispute that. Certainly the delegate has spoken to the company and as I have said previously, the organiser has spoken to Mr Peter Larose who my understanding was the State Manager and at that time we got a blanket we are not talking about this, it is not our issue, it is an issue to do with Skilled.

PN56

THE SENIOR DEPUTY PRESIDENT: But in any event then, leaving aside the question of whether or not there is a dispute and whether or not the dispute settlement procedures have been followed, Mr Marasco's characterisation of the dispute seems fairly accurate, doesn't it? If there is a dispute at all about transmission of the long service leave accruals that would be a dispute with Terminals and if there is a dispute about whether they have an entitlement to a redundancy benefit, or any other termination benefit, that would be a dispute with Skilled, is that right?

PN57

MS ALLISON: Your Honour, I think from our point of view at the employees - if the company would come back and say, well, your long service leave is recognised as either as a pay out of entitlement or as a recognition - - -

PN58

THE SENIOR DEPUTY PRESIDENT: Yes, but Skilled can't give you that benefit in any event because it can't say that the long service accruals during employment with Skilled is an entitlement they have with Terminals, can they? Skilled can't accede to that demand.

PN59

MS ALLISON: I am not sure if I am clear with you, your Honour, but what we would be saying is either Skilled has the obligation to make some pay out of a redundancy package recognising the pay out of entitlements or Terminals needs to recognise the long service leave entitlements. It is either/or and as I said - and I should also bring into the picture that it is our view that Terminals and Skilled were in full discussion and consultation prior to the employees from Skilled to Terminals and on that basis that is a reason we thought it will be appropriate to bring all parties together to work out the way to resolve this and ensure that the employees get their just entitlements.

PN60

THE SENIOR DEPUTY PRESIDENT: The eight employees, is that the total complement of the employment?

PN61

MS ALLISON: That is the number. There is still some employees that have remained with Skilled, but that that is the number of employees who had been re-employed by Terminals at this date.

PN62

THE SENIOR DEPUTY PRESIDENT: All right. Well, subject to either Skilled or Terminals having something further to say I propose to adjourn the matter into conference.

PN63

MR MARKS: I would only want to say for the record that I have with me the State Manager that is being referred to and that is Mr Fasclino and it is not the individual that I understand was Mr Larose who was referred to and so I mean we are quite happy to go into conference and you can address that question directly with Mr Fasclino. But insofar as we are concerned on the record we deny that there has been and as per our submission, your Honour, we say that in terms of clause 5.2 it hasn't been initiated let alone not followed through.

PN64

THE SENIOR DEPUTY PRESIDENT: All right.

PN65

MR MARASCO: There is just one final point too that I think I should make for the purposes of the record, your Honour, and that is the eight employees in question I understand that they did resign their employment from Skilled and to be re-employed by Terminals. If the Commission pleases.

PN66

THE SENIOR DEPUTY PRESIDENT: Thank you. All right, well, I will adjourn the matter into conference. Thank you.

NO FURTHER PROCEEDINGS RECORDED