C2004/2006, Transcript of Proceedings [2004] AIRCTrans 1906 (25 May 2004)

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 7043
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2004/2006

NATIONAL UNION OF WORKERS

and

SPL GROUP LTD

Application under section 170LW of the Act
for settlement of dispute re alleged failure
to comply with clause 15.3.2 and 15.3.3 of the
agreement

MELBOURNE

10.18 AM, WEDNESDAY, 12 MAY 2004

PN1

MR T. LYONS: I appear for the National Union of Workers. Appearing with me, your Honour, is MR M. COLE.

PN2

THE DEPUTY PRESIDENT: Yes. And I note for the purposes of the record we have no appearance from the respondent despite being notified of the hearing time. Yes, Mr Lyons, how did you want to proceed?

PN3

MR LYONS: Thank you, your Honour. As I indicated to your associate, despite the lack of an appearance from the employer, we sought an opportunity, very briefly, just to place on the record for your Honour the subject matter of this dispute so we can at least inform the Commission of that.

PN4

THE DEPUTY PRESIDENT: Yes.

PN5

MR LYONS: And we say the proper course would be then for the matter to be relisted. I know in fact that this matter has been stood over at least once before - - -

PN6

THE DEPUTY PRESIDENT: Yes.

PN7

MR LYONS: - - - on the request of the employer and when I explain the subject matter your Honour will appreciate the matter is of some moment. Your Honour, we have notified a dispute pursuant to the disputes procedure of the SPL Group Ltd - Victoria - National Union of Workers Comprehensive Enterprise Agreement 2002. The subject matter of that dispute as we indicated in the notice is the operation of the casual employment clause.

PN8

If I can provide the Commission with an extract of the agreement and its predecessor agreements. These - - -

PN9

THE DEPUTY PRESIDENT: Do you wish to have these marked Mr Lyons? I do not normally mark documents of the Commission but this appears to be simply extracts so - - -

PN10

MR LYONS: Yes. There is a calculation on the back, your Honour, which goes to - on the final page which goes to, so in the absence of my friend perhaps if it is just MFI1 potentially given - - -

PN11

THE DEPUTY PRESIDENT: Yes. Yes, I will - - -

PN12

MR LYONS: There is no-one here to say whether or not it - - -

PN13

THE DEPUTY PRESIDENT: There is an objection to it.

PN14

MR LYONS: - - - goes in or not.

EXHIBIT #MFI1 EXTRACTS OF CERTIFIED AGREEMENT AND PREDECESSOR AGREEMENTS

PN15

MR LYONS: Thank you, your Honour. MFI1 is an extract of the casual provision of the existing agreement, the predecessor agreement, that is the 2002 agreement; the 1999 agreement, the 1998 agreement and a reference to the agreements that applied before that time, although a clause dealing with casual employment was only included in the agreements that were made after the 1998 agreement and following. In short, your Honour, the casual employment provision provides in each case at 15.3.2 of the agreements that, and I quote:

PN16

Casual work shall be paid for at the ordinary wage rate with an addition of 33 1/3 per cent.

PN17

Elsewhere in the agreements, your Honour, there is a table of permanent wage rates. In each case the permanent wage rates in that table, which is at clause 18.1 of each of the agreements, provides for very substantial over-award payment of the order of 30 odd per cent. It has come to the attention of the union late last year that the employer was paying casual employees within its own employ, that is direct hire casuals, only the award wage rate plus 33 1/3 per cent.

PN18

That is, it was not providing the ordinary wage rate specified by the agreement plus 33 1/3 per cent which we say they have been obligated to do since at least the making of the 1998 agreement. In respect of the earlier agreements, that is the 1996 and 1994 agreements, there is no specific casual provision but the agreements were not comprehensive in form, your Honour, and simply adopted the terms of the award except where inconsistent.

PN19

They did contain wage rate tables. And so it would be our view that the company has been obligated since at least the making of the '94 agreement, bearing in mind of course that in some senses when I come to our claim we are already outside the statute of limitations for part of this, but nevertheless they have been obligated to pay the site rates contained for the classification in the agreement plus 33 1/3 per cent.

PN20

The final page, your Honour, to give you an indication of the scale of the issue. I have extracted a sample calculation and what I have done there is, based on my instructions, either all or almost all of the employees perform grade 3 duties and are paid as such. That is whether they are casual or not, your Honour. And we have extracted a calculation which demonstrates the casual rate provided for grade 3 under the award after the safety net adjustment that was applicable from 12 June of last year and compared that to the EBA pay rate that had applied from the November before. And there was then a further increase, your Honour, in November of 2003. But for that period the hourly rate differential, we say, amounted to some $4.59 per hour.

PN21

I am instructed that where casuals were employed, and there were a substantial number of casuals, that they generally worked a full week. That is, they were not a day here and a day there, your Honour. When you were on the books you generally got either a full week or approaching a full week.

PN22

In line with what one might describe as normal practice in the modern era most of the permanent employees, or in fact, I think, all of the permanent employees, originally commenced in the business as casuals and were then put on the books as a sort of period of extended probation which your Honour will appreciate is a not uncommon practice. It is our submission that the company owes a very significant amount of back pay to members of ours who are employed in the business who were casual employees over the life of these agreements, both existing and former agreements.

PN23

THE DEPUTY PRESIDENT: Can I just, Mr Lyons, is this simply a matter of enforcement or is this a dispute between the union and the company about the meaning of ordinary wage rate or don't we know?

PN24

MR LYONS: Well, I - we are not certain about that your Honour.

PN25

THE DEPUTY PRESIDENT: Yes.

PN26

MR LYONS: It appears that - we do not think there should be a dispute because it appears clear on its face. There is a provision that says this is the casual loading. There is a provision that says this is the wage rate. And a much simpler issue of interpretation than some of these matters.

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

MR LYONS: We have been attempting to pin the company down in relation to that matter and we are not even sure, for example, for certain that they have now commenced paying the correct rate. I can inform, your Honour, however that a fairly substantial number of people were made permanent in the latter part of last year and as a result of that there is a lot fewer casuals than there were, for example, in the middle of 2003. So it may well be that the problems have become smaller in terms of the ongoing issue but we are not at this point convinced that there is no ongoing problem. That is, the problem is not continuing to get worse. Your Honour is right, it is fundamentally an issue of - well, are they doing the right thing going forward and have they done the right thing in the past.

PN29

THE DEPUTY PRESIDENT: Yes. What I was really getting at is have they acknowledged that, at any point in time, that their activities as far as the correct payment for casuals have been incorrect in the past? Or they have not acknowledged anything at this stage?

PN30

MR LYONS: I may just seek to confirm my instructions on that your Honour.

PN31

THE DEPUTY PRESIDENT: Yes.

PN32

MR LYONS: I am instructed that what is likely to be said by the employer is that they had the consent of the union to pay it in the way that they were paying it but that from discussions in November on they acknowledged a responsibility to pay in accordance with the characterisation of the agreement I put to you now.

PN33

THE DEPUTY PRESIDENT: Right. Well, in that case Mr Lyons might not this be, as I said at the outset, a simple matter of enforcement which would be not within the jurisdiction of this Commission?

PN34

MR LYONS: Well, it may - well, it certainly - - -

PN35

THE DEPUTY PRESIDENT: I know you are not in a position to really answer that categorically at this stage in the absence of any submissions from the employer but based upon your understandings of what discussions have taken place between the company and the union.

PN36

MR LYONS: Yes. Well, I think your Honour is right that it is certainly a matter which would be capable of, I hesitate to use the word simple but section 179 proceedings and away we go. The union, as in all of these matters, your Honour, is keen to have a quick and low cost method of dispute resolution if possible.

PN37

THE DEPUTY PRESIDENT: Yes.

PN38

MR LYONS: And we do seek the assistance of the Commission. In any case, your Honour, the disputes procedure is a comprehensive one and it is at clause 12 of the agreement and is in a form with which you are familiar from previous matters, given it is some model words the NUW uses and it does refer to any dispute or claim as to wages and conditions of employment of any of the employees. And does provide for arbitration.

PN39

Now we say the issue of whether or not there was an underpayment is a dispute or claim. I accept that that would go beyond the strict letter of 170LW in terms of being a dispute over the application of the agreement subject to what they may have to say about the proper characterisation of the agreement. But it would, in our submission, be a dispute which would be capable of resolution by determination in appropriate circumstances.

PN40

THE DEPUTY PRESIDENT: Yes. Okay.

PN41

MR LYONS: We are keen to avoid court proceedings your Honour. We understand that some members of ours have sought independent legal advice to - - -

PN42

THE DEPUTY PRESIDENT: I was not encouraging any of that Mr Lyons - - -

PN43

MR LYONS: Yes.

PN44

THE DEPUTY PRESIDENT: - - - I just wanted to know - - -

PN45

MR LYONS: No. No. I appreciate that your Honour.

PN46

THE DEPUTY PRESIDENT: - - - where you were at really with discussions and - yes.

PN47

MR LYONS: I am not sure I can take the matter much further your Honour. But we are keen to - this is a very substantial amount of money.

PN48

THE DEPUTY PRESIDENT: Yes.

PN49

MR LYONS: Some of our casual members were employed between sort of six and up to periods of 18 months for consistent patterns of hours so - - -

PN50

THE DEPUTY PRESIDENT: Presumably you have documentation from all of those members about hours that they have worked, when they have worked them, etcetera.

PN51

MR LYONS: We certainly have documentary evidence that we can present - - -

PN52

THE DEPUTY PRESIDENT: Yes.

PN53

MR LYONS: - - - at the appropriate time about the periods of service and their recollections of the hours that they worked. But it is a simple matter for us to conduct a time and motion inspection - - -

PN54

THE DEPUTY PRESIDENT: Time and motion.

PN55

MR LYONS: - - - if necessary.

PN56

THE DEPUTY PRESIDENT: Yes. Okay.

PN57

MR LYONS: But certainly at an appropriate time your Honour, yes, we would be required to go chapter and verse to the hours that were worked.

PN58

THE DEPUTY PRESIDENT: Okay. Well, as you say we probably cannot go much further at this stage Mr Lyons. I will have my associate contact the respondent company and find out what has happened with respect to today's hearing and having spoken to them then we will get back to you with another hearing date.

PN59

MR LYONS: If the Commission pleases.

PN60

THE DEPUTY PRESIDENT: Yes. On that basis I will adjourn.

PN61

MR LYONS: Thank you for your time, your Honour.

PN62

THE DEPUTY PRESIDENT: Thank you.

ADJOURNED ACCORDINGLY [10.30am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MFI1 EXTRACTS OF CERTIFIED AGREEMENT AND PREDECESSOR AGREEMENTS PN15