C2004/4047, Transcript of Proceedings [2004] AIRCTrans 2292 (21 June 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
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 7424
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/4047

THE LIQUOR, HOSPITALITY
AND MISCELLANEOUS WORKERS' UNION

and

HILTON ON THE PARK HOTEL

Notification pursuant to section 99 of the Act
of a dispute re alleged change of pay periods
without consultation

MELBOURNE

2.03 PM, WEDNESDAY, 9 JUNE 2004

PN1

MS V. ILIAS: I appear on behalf of the LHMU along with MR S. YIANNI, Organiser that looks after the Hilton on the Park.

PN2

MR C. BREHAS: I appear on behalf of the respondent, Hilton on the Park Melbourne, and together with me I have MS T. NEAL, Human Resources Manager of the Hilton. Thank you.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Brehas. Yes, Ms Ilias.

PN4

MS ILIAS: Thank you, your Honour. The union has notified an industrial dispute with the Commission on an issue that has been ongoing for a period of time. This issue goes to the employer changing the pay period from a fortnightly pay to a weekly pay with little or no consultation with the employees that it affects. Currently, there is an EBA process with another union on the site which was a minority of employees who, through their log of claims with the EBA process, had put a claim on the hotel for weekly pays. I have been informed that it was agreed that there would be a change for those employees to weekly pays and as subsequently from that the flow-on has been that our members at the hotel are therefore subjected to the same change with little or no consultation.

PN5

My understanding, your Honour, is that the issue was raised at a consultative committee level with the hotel which, at that time, had no union representation with the union organiser, Mr Yianni, being involved. The role and the function of the consultative committee, your Honour, is at 39.1 of the consultative committee clause in the current agreement which was certified by this Commission on 23 January 2003. At 39.1 it says what the functions of the committee are and I may just quote this for the record, your Honour:

PN6

The committee will have the following functions to (a) Identifying, implements to workplace efficiency and arrangements to enhance productivity. (b) Considering programs to implement meaningful workplace change. And (c) To meet three months prior to the end of the term of this agreement to consider making a new agreement.

PN7

It is not the role or the design of the committee to implement without proper consultation of all employees. The role is to design and discuss implementation of more efficient practices within the hotel. The union, through the organiser, raised this matter with the weekly pays - sorry, with the fortnightly pays being changed and actually had this discussion with Ms Neal, I believe. And there was no real information that was divulged to the organiser other than that they had and quoted that they had spoken to most of the employees but was not prepared to divulge to Mr Yianni the numbers that they had spoken to.

PN8

My understanding, your Honour, is there is 200 some plus employees who work at the Hilton on various shifts, various classifications of employment. Mr Yianni was informed also that there was a letter that had been sent to the employees regarding the change from a fortnightly to a weekly pay but it was not through a consultation process, it was more: This change is going to happen. And the change did occur, your Honour.

PN9

The union had suggested and recommended as late as Tuesday of this week that a survey be distributed to all employees to discuss this possible change to survey and make sure that they were accepting of it but as of late Tuesday when I spoke to Mr Brehas that was still refused, the hotel was of the opinion that it did not need to comply. The current agreement at clause 37, your Honour, which refers to the entire agreement, it says that:

PN10

During the term of the agreement there shall be no extra claims made in relation to any matter whether that matter is covered by this agreement or not. This means that there will be no change to your conditions of employment or any further wage increases granted to you other than as detailed in clause 12.

PN11

Clause 12, your Honour, is the rates of pay clause. And also, your Honour, clause 8 of the agreement clearly states that full-time employees will be paid on a fortnightly basis as well as part-time employees. The LHMU, on behalf of the members at the Hilton on the Park, says that this is an additional claim made by the hotel with a change that has been forced upon them due to another minority of employees through their enterprise bargaining process. It is clear to the LHMU and the employees that the employer has failed to properly discuss this issue with them and consult as would be their duty.

PN12

The union would be seeking a commitment from the hotel through this process today, your Honour, which says that a comprehensive survey of all staff be distributed to gauge the feedback on the issue. That on a specific date to be agreed upon that the union and the employer will sit down and go through the results of that survey. That from that, on reaching a result, whether it is from a fortnightly pay to a weekly pay or whether employees would prefer to stay at a fortnightly pay, that the parties will agree on an implementation process and how that would be best achieved without impacting on the staff. Now, I understand, your Honour, that the change has already been made, that they have gone from a fortnightly to a weekly pay but - - -

PN13

THE SENIOR DEPUTY PRESIDENT: What is the effect of that on employees?

PN14

MS ILIAS: The effect on that, your Honour, is that some people prefer to maintain a fortnightly pay due to commitments that they have with their financial institution and paying off their accounts and bills. So, in a sense, your Honour, it is a total lifestyle change for those employees which - they have to make changes. Now, my understanding is that most people haven't made changes with their banking institutions for certain reasons but the issue for most of the employees at the site, your Honour, is that this has happened after the enterprise bargaining process has been finished. The agreement has been certified. It is in operation until 2005. That the hotel has made a claim against them without proper consultation, no bargaining period has been entered into.

PN15

We say that they have gone outside of what has been agreed in the enterprise agreement. We say by making that change they effectively make the agreement - and excuse the term your Honour - a joke. That we go through a process of negotiating with an employer and it is all in good faith. We agree on a clause which says there will be no additional claims throughout the life of the agreement but yet because of a minority of employees who would request a weekly pay due to their enterprise agreement negotiations our members have basically been forced to accept a condition which is not one that they negotiated themselves.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. Is there any effect on, apart from it being fortnightly or weekly, when employees get paid? Does the fortnightly involve some element of payment in advance or?

PN17

MS ILIAS: I am not - not that I am aware of at this point, your Honour. I would have to seek some advice on that.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN19

MS ILIAS: Those are my submissions, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Brehas.

PN21

MR BREHAS: Your Honour, the respondent's position is that there is no industrial dispute in this matter because, first of all, there was consultation with both the employees and the union. I think the facts that have been - or the allegations that have been presented today have not totally been represented in their correct light. These negotiations and consultation took place before the change was implemented and it took place by way of the hotel circulating a letter together with the pay slips of all of the employees advising them that this change will take place on 3 May. And that letter was circulated on 14 April of this year.

PN22

THE SENIOR DEPUTY PRESIDENT: When did the change occur?

PN23

MR BREHAS: On 3 May this year. It is also the respondent's position that the union was aware of these changes and in fact, impliedly, consented to the changes and I will go onto those issues shortly. And that in fact those changes were brought about at the request of the LHMU and the employees that it represents pursuant to negotiations as far back as 2002. The respondent's position, further, is that there is no prejudice to any of the employees as a result of this change, there is merely an improvement as to the frequency of their wage payments from a fortnightly to a weekly basis. And that this can be compared to a situation where the employer decides to increase the wages of those employees it cannot be said that every time any additional entitlements are given that the respondent would be breaching the terms of the enterprise bargaining agreement.

PN24

Secondly, if the Commission does in fact find that there is a dispute in this matter, which the respondent denies, the respondent says that it has followed the dispute resolution procedure, as specified in clause 35, but the LHMU has not, it hasn't actually fully followed that process and as such this application is premature, nor has the LHMU made any demands of the respondent prior to bringing this application.

PN25

The issue of the discussions between myself and Veronica Ilias on Tuesday emanated from a call that I made to the union in order to discuss exactly what it is that they are seeking and it was indicated to me that they sought that the employees be canvassed regarding their views. There was an acknowledgment that this issue was trivial but they were in fact concerned that they felt they weren't adequately consulted. Not just only the fact that, as I understand it at the time, the representative, Veronica, just didn't have full instructions on those issues.

PN26

So if I can just briefly go through the chronology of events which will give the Commission background regarding this matter. In 2002 there was a re-negotiation of the enterprise bargaining agreement and I have before me a copy of a newsletter from the union where one of the issues that had been addressed is the payment of wages on a weekly basis and I can tender that in evidence if the Commission pleases.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, if you wish.

PN28

MR BREHAS: Thank you.

PN29

THE SENIOR DEPUTY PRESIDENT: I will mark that - - -

PN30

MR BREHAS: There are also other minutes but I won't burden the Commission with those issues at this stage.

EXHIBIT #H1 COPY OF NEWSLETTER FROM LHMU

PN31

THE SENIOR DEPUTY PRESIDENT: Do you have a copy for Ms Ilias?

PN32

MR BREHAS: Unfortunately, not, this is just information I have just received a few minutes ago and - - -

PN33

THE SENIOR DEPUTY PRESIDENT: Yes. I will make it available. And what point are you making out of this?

PN34

MR BREHAS: There is a section there where it refers - no, on the page that you have just turned around - to payment on a 38-hour week basis. I think in the third last square from the bottom of that newsletter.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes.

PN36

MR BREHAS: And I do also have some other minutes as well which I can also produce which - - -

PN37

THE SENIOR DEPUTY PRESIDENT: I will provide that to Ms Ilias. But the ultimate agreement is the relevant issue, isn't it, and clause 8 provides that employees will be paid fortnightly?

PN38

MR BREHAS: Excuse me, your Honour?

PN39

THE SENIOR DEPUTY PRESIDENT: The agreement provides that employees will be paid fortnightly?

PN40

MR BREHAS: Yes, it does. Ultimately that was the agreement that was entered into and the reason why that was entered into is because at the time the respondent didn't have the requisite facilities, the soft ware facilities, and the systems in place in order to arrange for a weekly payment basis. Since then it has managed to upgrade its systems, it has managed to arrange those facilities, and as such it has implemented this change which ultimately is of benefit to all of the employees. On 14 April, as I mentioned previously, this letter was sent to the employees advising them of the change with effect from 3 May.

PN41

We received a query from one employee exactly, and that query was addressed to the employee's satisfaction. On 19 April the hotel received a call from Mr Steve Yianni, the union representative, advising that he had received a phone call from members over the weekend and he wouldn't specify how many members had made these phone calls though and he wanted to know what the real reason was for changing the payment system to a weekly payment system. The Human Resources Manager, Theresa Neal, informed him that they had been discussing weekly payments since the negotiations in respect of the enterprise bargaining agreement began right at the outset.

PN42

And also one of the consultative committee members had raised this issue and that there was nothing sinister in this. There was consultation with the consultative committee members regarding those issues, there was a request to also advise them of any employees who may have objected to those changes. We also were notified and received a notice of entry by Mr Steve Yianni on three days, 21, 22 and 23 April, for the purposes of canvassing those employees who had been affected by these changes before they were implemented, but he never attended these meetings. On 21 April Mr Yianni indicated to Theresa Neal - - -

PN43

THE SENIOR DEPUTY PRESIDENT: Sorry, what was the date of the meetings?

PN44

MR BREHAS: They were meant to have taken place on 21, 22 and 23 April, we received notifications in that regard for the purposes of holding discussions with the employees, but those meetings never took place. On 21 April Mr Yianni informed Theresa Neal that if the majority of employees agreed to the changes it would be fine, and he undertook to revert to her if there were any issues in respect of this matter required further discussion. So accordingly the implication was if you did not revert to him the change would be in order.

PN45

He was well aware of the fact that this change was to occur on 3 May. On 28 April there was a meeting with union officers and the union representative, the Human Resource Manager of the hotel, regarding employment of indigenous employees, an unrelated issue. There was no mention of the weekly payroll matter. There was a further consultation on 29 and 30 April with the consultative committee members, specifically they were asked if there were any objections to these changes and informed the Human Resources Manager there were no objections.

PN46

And on 2 May the change was implemented as we had not heard from the union. So the respondent's case is that this is not an additional claim, and even if it was it has ultimately occurred with the consent of the employees and the union.

PN47

THE SENIOR DEPUTY PRESIDENT: If it is inconsistent with the agreement clause 8, which arguably it is, it would require a variation of the agreement approved by the relevant employees or a majority of the relevant employees would it not?

PN48

MR BREHAS: Well, if it was regarded as an additional claim then - - -

PN49

THE SENIOR DEPUTY PRESIDENT: Well, if it was required - the point I am making there is if the agreement is read to oblige the hotel to provide fortnightly pays - - -

PN50

MR BREHAS: Yes.

PN51

THE SENIOR DEPUTY PRESIDENT: - - - it is arguable that movement to weekly pays is a breach of the agreement. Now if the parties are quite content to move to weekly pay then that would require a variation of the agreement, would it not, to that effect - - -

PN52

MR BREHAS: Well - - -

PN53

THE SENIOR DEPUTY PRESIDENT: - - - and approval by a valid majority of employees?

PN54

MR BREHAS: Well, as I said at the outset, it really depends on how this issue is considered. We don't regard this as a variation of the existing agreement, they are still getting payment on a fortnightly basis, it is just being paid more regularly, so they are getting paid every week as opposed to every second week. As I said at the outset, if the employer decided to increase the minimum wages, or increasing the other entitlements that they may have in terms of this enterprise bargaining agreement, it wouldn't necessarily result in a variation or need for an application to this Commission.

PN55

THE SENIOR DEPUTY PRESIDENT: No, as long as you are not breaching the agreement. But it might be argued that when will wages be paid they will be paid fortnightly constitutes an obligation to pay people on that basis.

PN56

MR BREHAS: Yes, that is if ultimately it is regarded as an industrial dispute and that is an additional claim. And in any event, even if it is - - -

PN57

THE SENIOR DEPUTY PRESIDENT: Well, it wouldn't be a matter of that, it would be a matter of enforcement of the agreement, so somewhere else presumably not here.

PN58

MR BREHAS: Yes.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes.

PN60

MR BREHAS: Well, that is the respondent's case, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, very well, thank you for that. Anything further, Ms Ilias, before we adjourn into conference?

PN62

MS ILIAS: Yes, your Honour, I just want to make a couple of quick comments into some of the submissions that have been made by Mr Brehas. He refers to the discussion that I had with him on Tuesday, and I have been quoted as calling it quite trivial. I said it may seem quite trivial the issue but I don't believe in the context that it was intended was that if the union had made an additional claim against the hotel for something that was already covered by the agreement I believe that the hotel would close the door very quickly on the union.

PN63

Also Mr Brehas has sort of made it clear that Mr Yianni put in three right of entries for 21st, 22nd and 23rd and then it has been purported that he never turned up. Mr Yianni has informed me that he did turn up. There has been some issues in relation with our members who would prefer not to meet Mr Yianni in the lunch room when he attends, they feel that that doesn't deal with the issues for them because they feel that they are being watched, so they meet him in other areas, whether it be outside of the hotel during their lunch period.

PN64

So, your Honour, Mr Yianni, when putting in his right of entries, does turn up to the site. In relation to the consultative committee meetings that have been called, it is my understanding that the union doesn't actually receive notification of when those committee meetings take place, so it is very hard for us to make our concerns known directly to the committee when we are not actually aware of when it takes place. Your Honour, we still stand firm that there is an additional claim made by the hotel. The agreement allows for the employer to raise the minimum wage or the agreed wage through the enterprise agreement if it falls below that of the current award, which I believe is at 37 as well of the agreement so - - -

PN65

THE SENIOR DEPUTY PRESIDENT: The agreement allows the employer to pay anything beyond the agreement, the issue is whether move from fortnightly to weekly is in breach of an obligation under the award and in effect - well Mr Brehas would characterise it as an improvement, an over agreement improvement - whereas it might be characterised as a breach of the obligations under the award. It could go either way.

PN66

MS ILIAS: Yes, your Honour. I have nothing further, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes, very well, I will adjourn into conference at this stage.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #H1 COPY OF NEWSLETTER FROM LHMU PN31