C2004/3607, Transcript of Proceedings [2004] AIRCTrans 2669 (14 July 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 7706

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

C2004/3607
C2004/3608

TEXTILE, CLOTHING AND FOOTWEAR UNION
OF AUSTRALIA

and

BRUCK TEXTILES PTY LIMITED

Notification pursuant to section 99 of the
Act of a dispute re classification levels

Application under section 170LW of the Act
for settlement of dispute re shift allowance

MELBOURNE

10.37 AM, FRIDAY, 2 JULY 2004

PN1

MR T. BORGEEST: I appear for the TCFUA and, with MS M. O'NEIL the Branch Secretary, and MS J. CREWSHALL the Assistant Secretary, and shop stewards MR A. BENNETT, MR D. MARSH and P. GLADSTONE.

PN2

MR R. MARASCO: I appear for the Australian Industry Group acting on behalf of our member company Bruck Textiles and, with MR J. WATLING from the Australian Industry Group, and at the bar table MS G. LEE, the Business Services Manager and MS L. CLARK, the Human Resources Coordinator.

PN3

THE SENIOR DEPUTY PRESIDENT: Well, the matter is listed for report and a possible conciliation. What is the position of these matters, Mr Borgeest?

PN4

MR BORGEEST: Senior Deputy President, all of the matters that have been in dispute were intended to be the subject of a private conference between the parties on 17 June, and that conference was cancelled by the company and so that conference did not occur. As far as matter 3607 is concerned and the classification levels, the union and its members are in dispute with the company concerning the skill level classification of Tow Motor Operators and Wrappers. As far as the Tow Motor Operators are concerned, we have received no offer from the company to resolve that matter. We have sought pay records and information to particularise the claim in relation to that, and in relation to the Wrappers, and I will come to that in a moment.

PN5

As far as the Wrappers are concerned, some offers have been made by the company directly to the workers concerned, and those offers contain some calculations of what the company say are the relevant underpayments for periods of time. We have been seeking, for some time, some precise information about the pay records of those workers. Those requests have been going since November of last year, at least. Most recently on 17 June, we wrote again and said this is what we need, we have pressed them again in recent days, and only yesterday there have been some pay records provided, but they only related to a very limited period of time in 2002 whereas the request relates to a period going back to 1996.

PN6

And so the position we are in, Senior Deputy President, is that offers have been made and we wish to be able to discuss them with our members so that those can be assessed, but there is no information yet provided by the company that can provide a point of comparison. Senior Deputy President, with respect to matter 3608, the shift allowances matter, Bruck has offered to settle on the basis of three different amounts; $70 to one category of employees; employees working on rotating shifts, $105 to employees on permanent afternoon shifts, and $210 to employees on permanent night shifts. That offer was described to us in a letter of 23 June. The union has done calculations for the very large number of employees that this claim relates to and provided those calculations to the company.

PN7

But the difficulty we have is that the way that the company has made its offer is by reference to employees who work on particular shifts, and we don't know which employees that offer relates to and so when we want to discuss with our members what the offer means for them individually, compared with the calculations that have been performed by us about the scope of their claim. There is a gap in the information there and we don't know which of the persons referred to on our list of calculations are the employees to which a particular offer has been made. And so we requested of the company that they provide us a list of each group of employees to which their three different offers relate.

PN8

We made that request on Wednesday of this week, the 30th, and yesterday we received a letter in which Bruck simply restated the terms of the offer but did not comment upon address, let alone comply with our request for a list of the three different sets of employees. Where we want to take this, the shift allowances matter, is to be able to discuss the offer with the employees, and we have nominated some dates when we wish to come to the premises to discuss it with them. But it can't be done unless we know which offer relates to which person. One other matter we understand from the company is that they are making offers to existing employees, and they are not offering the back pay for the shift allowances for persons who have left employment. Those members - - -

PN9

THE SENIOR DEPUTY PRESIDENT: To persons who have left the employment, did you say?

PN10

MR BORGEEST: Who have left employment, and so one of the things we are seeking today is agreement that whatever offer is to be put, is to be extended equally to people who have that entitlement regardless of whether or not they happened to have ceased employment at some recent time. And as far as the union's position is concerned the offers, as far as we can assess them without being able to compare employee by employee, what is being offered, the offers to appear to us to be inadequate. And our position is the payments that should be made are those set out in our calculations which include amounts calculated for penalty interest. And we have provided those calculations to the company and we seek their agreement on that basis.

PN11

I mentioned earlier, Senior Deputy President, that we had requested, or we had suggested dates for meetings with these employees to occur next week, and put them to the company. The company has not indicated a position about that suggestion, and said that any arrangements about meetings can be finalised arising out of today's conference. We are aware of some confusion amongst employees about which offer relates to them, and this relates to the point I make about us seeking a list of people in each category. We consider that the employer should give each individual employee a document saying, "This is what we are offering you". All that has happened is that there is a statement, "This much money for this category of employees", and there is for a number of employees, there is a bit of confusion about whether they fall within those different categories, and to resolve that confusion we think that it would assist if the company did make that clear to each individual by writing.

PN12

THE SENIOR DEPUTY PRESIDENT: The offer that is made, you said; $70, $105, and $210, in the sense that it is made, what does it made - is it a prospective weekly payment that is going to be made, or is proposed to be made? Or is it something for payment for the past?

PN13

MR BORGEEST: Well we haven't had any discussions with the company about precisely what is the answer to that question, but our understanding is it is for past underpayments.

PN14

THE SENIOR DEPUTY PRESIDENT: And is it meant to be a total amount, that that is what is being paid?

PN15

MR BORGEEST: Yes.

PN16

THE SENIOR DEPUTY PRESIDENT: Or is it $70 for every week?

PN17

MR BORGEEST: No, Senior Deputy President, it is a global payment is what we understand it to represent.

PN18

THE SENIOR DEPUTY PRESIDENT: Well, has there been any proposal made in relation to what is to happen from now. Because as I recall it, and I may be wrong, there was an argument over how the allowance - the clause was to be applied. And is this only in relation to a period that is in the past, or is it in relation to the current agreement as well?

PN19

MR BORGEEST: Senior Deputy President, the position now is resolved by the current certified agreement, and that is clear. The dispute relates to what should have been paid under the earlier one.

PN20

THE SENIOR DEPUTY PRESIDENT: Up until the current agreement coming into effect?

PN21

MR BORGEEST: That is correct.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, I see.

PN23

MR BORGEEST: Senior Deputy President, I do wish to mention some matters concerning right of entry. The Commission made an order by consent at the end of May, on 26 May, and since that time there have been difficulties, to put it mildly. There was a set of meetings that were sought to be conducted by the branch secretary and assistant secretary on 1st and 2 June, and those meetings occurred. However the way that the company arranged for people to be - to put it neutrally, to come to those meetings, was by requiring individual employees to say to the company that they wished to attend. Some of that by writing their names on a list on a noticeboard in their section. Others were asked individually by their managers, or by other representatives of the company, "Do you want to go to this meeting?".

PN24

And that, on its face, Commissioner, we think raises concerns arising from point 4 of the order; that it is the union that is entitled - the TCFUA is able to meet with its members for the purposes that that point relates to. It is, on its face, it is an intimidating procedure and we say designed to undermine the entitlement of the union to meet with its members, and the entitlement of the workers to have access to these meetings; for them to have step through the filter, to jump the hurdle of putting up their hand to the company and saying, "Yes I am going to the union meeting". On its face it appears that way, and we have been told by a number of the people who did want to go to meetings, that they did feel intimidated and felt the pressure not to go to the meetings by having to nominate their wish to the employer.

PN25

The appropriate way to give life to the orders that the Commission made by consent, we say that the section should be stopped. If the meeting is to be with a section of workers, and if individual members do not wish to come to the meeting, then they can tell the union representatives that. There has been a second attempt to make - to give life to these orders and to the right of entry procedure. Last week two representatives of the union attended the workplace having given notice of their intention to meet with members in their normal break areas and venues. That is clearly the entitlement under clause 5 of the order. What in fact occurred is that the company purported to nominate a subset of those areas. They chose four break or lunch areas, and said "That is where you will meet members and conduct your meeting".

PN26

Now the company is attending to restrict the exercise of rights in a way that is just not permitted by the Act or by the order. And we are entitled to nominate the areas in which these meetings occur, as long as they are normal break areas and venues. Now, we won't - it is not going to be the case that on every occasion we wish to exercise rights under 285C, that we will need to nominate every area, and that is something that can be assessed from time to time, depending on the particular reason for the exercise of those rights. But, Commissioner, the company cannot, we say, restrict our rights under clause 5 by nominating the areas they say that we can meet in, when the other areas are available to us under that order. And in relation to that, we seek through conciliation that those points be clarified so that the order can continue to have the desire effect.

PN27

Lastly, Commissioner, I just did want to indicate, on the record, just some concerns about three other matters. The first is that in relation to future Enterprise Bargaining, the company has been promoting the concept of grandfathering; naming that their position would be to extend certain entitlements, or proposals for certain entitlements, only to existing employees, and that the future agreement would not flow through to new employees. And that proposal has been communicated to members on the basis that they are going to have to agree to that to ensure their job security. In the absence of agreement to that concept, there may well be a range of redundancies. Now we just wanted to flag it very clearly that we consider that to be inappropriate, coercive conduct.

PN28

There has also been instances of a representative being harassed in the workplace in a very aggressive manner such that he has had to leave, and we don't seek any specific orders in relation to that matter at this time, but we do wish to flag that that as a matter that we may have to take further elsewhere. Lastly, Senior Deputy President, and as I mentioned at the opening, there has been a consistent refusal to meet with the union. The clearest example related to 17 June meeting which was cancelled without reasonable notice or explanation, but consistently throughout all of these matters that we are raising, there has been some information provided directly to employees and not to the union which means we cannot test it, evaluate it, and explain its significance to the people who are directly affected, all in the context of just a complete refusal to engage with the union.

PN29

Lastly, Senior Deputy President, when we were last in the Commission; on the very day of the hearing, redundancies were announced in the workplace. And the information that is provided to the union has completely failed to meet the requirements of the instruments which require proper consultation, information, opportunities for the union to propose alternatives or to examine the circumstances. The employer has completely failed to comply with its obligations to consult and discuss in the circumstances of redundancy. That is an overview of some of the other live matters between the union and the company that we wish to place on the record. If the Commission pleases.

[11.00am]

PN30

THE SENIOR DEPUTY PRESIDENT: And what are you seeking? To go into conference today to deal with some of the outstanding matters other than the matters that you have just outlined in relation to - you expressed as additional concerns?

PN31

MR BORGEEST: We would seek just a formal response from the company as to, firstly, whether there is an offer to be made in relation to the Tow Motor Operators. And we seek their commitment to provide us in a timely way with all of the information in the pay records requested in our letter of 17 June which applies, equally, to the Wrappers. As far as the shift allowance is concerned we are seeking a response from the company to our calculations. We say that the offer they should be making are those amounts specified in our spreadsheet inclusive of the interest component that is nominated.

PN32

We seek their commitment to extend the offer to former employees who fall within the scope of that dispute. And we need to understand their offer as it is at the moment. That is the offer that - if the voting changed the mode of an offer - they maintain this offer in three categories, then we will certainly need to see the employees receive a letter individually confirming which offer applies to them and lists of those three categories. And, lastly, we seek a formal response from the company that they will commit to adhere to the order that was made by the Commission on 26 May and discuss, in conciliation, the precise concerns we raised earlier. And, yes, we do wish to proceed into conciliation, thank you.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Marasco.

PN34

MR MARASCO: Thank you, your Honour. At the outset can I say the company doesn't object to going into conciliation to discuss those issues that the union has raised. Perhaps, though, just in response on the record I can outline a couple of things. Firstly, in relation to the classification dispute, it is correct that with the Wrappers offers were made to settle that dispute, there was four Wrappers involved and two of the Wrappers have accepted the company's offer to settle.

PN35

In relation to the Tow Motor Operators no offers of settlement have been made by the company. I am instructed that the company is till collating relevant information but should be in a position to make a settlement proposal shortly. In relation to the shift allowance dispute it should be noted that the company has made those offers, three separate payments, depending on the type of shift. That offer of settlement goes with a complete denial of liability.

PN36

The company's position has always been that it has interpreted the agreement correctly by saying that that extra payment is not payable and the company doesn't have a liability for it. What the union is seeking is every cent under that shift allowance including penalty interest. The union hasn't been prepared to compromise in relation to that claim which doesn't really leave the company far to go. The company is prepared to try to reach some resolution even though it denies the moneys - payment at all. And the reason it is not offering back payment to ex-employees is because they are no longer on the payroll, they may not have up-to-date addresses for those individuals.

PN37

Just in relation to the right of entry issue - - -

PN38

THE SENIOR DEPUTY PRESIDENT: Why would that be a reason?

PN39

MR MARASCO: That is what I am instructed, your Honour. We are happy to discuss that further in conciliation. And I am also instructed there was a vote of the employees in relation to that shift allowance issue. A proposal was put to employees whether they would accept those payments, those three tiers of payments, if you like, and 72 per cent of the employees voted to accept the company's offer.

PN40

THE SENIOR DEPUTY PRESIDENT: Who put that vote to the employees, on your instructions?

PN41

MR MARASCO: It was the company that put the vote. Yes, I am also instructed it was by a secret ballot, but the company representative can provide you further information in conciliation, if your Honour would require that. Then, in relation to the right of entry, the company's position is that it is complying with the consent orders that were made when we were last before you last time. I note, your Honour, that clause 5 of that consent order said that:

PN42

The union will advise Bruck of the time of notifying right of entry, the normal break areas/venues it intends to visit.

PN43

Your Honour will recall that last time we were before you I may have handed up to you, your Honour, in conciliation, just a chart of an outline of the work premises which indicate the 14 formal lunchrooms and the 17 informal lunchrooms. And part of the discussion we had - I am not sure whether your Honour recalls - - -

PN44

THE SENIOR DEPUTY PRESIDENT: I don't think I actually received a copy of that but go ahead.

PN45

MR MARASCO: Yes, certainly. But in any event, part of the company's concern was that it didn't want the union notifying, saying: We are coming to visit lunchrooms, and use that as an excuse to conduct a walk through. We note, again, that there are 14 formal and 17 informal lunchrooms. It would be impossible for union representatives to actually go to each of those areas. So part of the reasoning behind the consent order was so it could be done in a practical way, the union could nominate which lunchrooms it would actually be going to. So the company could know where the union meetings would actually be held.

PN46

Your Honour was copied into a letter dated 21 June 2004 to the company, signed by Jenny Crewshall, the Assistant Secretary. And the letter states:

PN47

Beth and I intend to visit all formal areas as time allows and if we are asked to visit outside informal meal areas by delegates, then we intend to visit those as well.

PN48

And we say that saying that is clearly in breach of clause 5 of that order, but we are happy to discuss that further in conciliation as well. The company certainly does respect the rights of the union under the Act and the order to have right of entry but it must be done in a practical way that balances the rights of the business as well as the union to visit members.

PN49

In relation to the other issues, your Honour, that Mr Borgeest raised about an individual being harassed and grandfathering issues, I don't have instructions on those issues but I am sure if the union wish to give us further detail about those matters I believe the company would be happy to discuss them further. And unless your Honour has any further questions for me at this stage that would conclude my submission.

PN50

THE SENIOR DEPUTY PRESIDENT: Well, just for the record, Mr Marasco, the reference at the outset to a conference that was scheduled for 17 June being cancelled. As I apprehend it, Mr Borgeest says that it was cancelled at the instance of the company and the union hasn't received any - either explanation or reasonable explanation for the cancellation. Do you have any instructions in relation to that?

PN51

MR MARASCO: My only instructions are, your Honour, that the meeting - the company has had extensive meetings with all of the employees in relation to the issues in dispute. The union, we understand, represents about 53 per cent of the workforce and the company respects the union's right to represent those employees, but the company, since we were last before you, has had many meetings with the employees to discuss those issues in dispute, and as I mentioned to you, had the vote to see whether the company would accept - the employees would accept the company's proposal to resolve one of those disputes, namely, the shift allowance dispute. So I am instructed that the company didn't see it necessary to come to Melbourne to meet with the union when they had been making progress with the employees directly.

PN52

THE SENIOR DEPUTY PRESIDENT: So in other words, the company's proposals is that it would deal with the employees and bypass the union.

PN53

MR MARASCO: Well, I don't think it wanted to bypass, it has been - - -

PN54

THE SENIOR DEPUTY PRESIDENT: Well, why didn't it have the meeting?

PN55

MR MARASCO: Well, I am instructed that they were happy with how things were going with the employees.

PN56

THE SENIOR DEPUTY PRESIDENT: And they bypassed the union, is that correct?

PN57

MR MARASCO: Well, they still exchanged ..... bypassing.

PN58

THE SENIOR DEPUTY PRESIDENT: There was a meeting arranged with the union.

PN59

MR MARASCO: That is correct, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: The company had meetings with the employees - - -

PN61

MR MARASCO: Yes.

PN62

THE SENIOR DEPUTY PRESIDENT: - - - and for that reason, you just said, did not go ahead with the meeting with the union.

PN63

MR MARASCO: That is correct, your Honour.

PN64

THE SENIOR DEPUTY PRESIDENT: Did not feel it was necessary to do so.

PN65

MR MARASCO: That is correct, your Honour.

PN66

THE SENIOR DEPUTY PRESIDENT: What would you call it? Because, quite frankly, any member of this Commission would call it bypassing. And for the record that should be made quite clear that if what your instructions are, are as you have just outlined them, then it is obvious that the company has bypassed or attempted to bypass the union, particularly in relation to the matter you just referred to, the shift allowance matter. It talked directly to the employees, not withstanding the fact that it recognises the union, it accepts the union represents the majority of employees, but it talked to the employees - which I don't say it is not entitled to do - but in the circumstances of these matters, what has been going on in this Commission as well as on the ground, without any explanation until today apparently, the company cancels a meeting because it is dealing with the employees. Can you put anything to me which would convince me, or seek to convince me that that is not, in relation to that issue, bypassing the union?

PN67

MR MARASCO: There has been the exchange of correspondence with the union. I mean, it is not as if the company has had no communication whatsoever with the union, there has been exchange of documents and provision of information to the union as well that they requested.

PN68

THE SENIOR DEPUTY PRESIDENT: Well, you can send all sorts of things through the ether and through the post, but face-to-face discussions are probably more productive than sending off either missives or missiles to one another through other means. And when a meeting is arranged for a specific purpose, cancelled at short notice without explanation until today, and cancelled for the explanation that has been given today, it doesn't show an excess of good faith on behalf of the employer.

PN69

Now, I think that was a matter that needed to be said on the record and I am happy to have a conference with the parties about all these matters that need to be discussed today and see if we can't get some progress to this because I am not sure that it seems to have progressed all that far since it was last before me. But having said that, is there anything else that you want to put on the record at this stage?

PN70

MR MARASCO: Just one moment, your Honour. No, there are no other matters, your Honour.

PN71

THE SENIOR DEPUTY PRESIDENT: Thank you. Is there anything else, Mr Borgeest, before we go into conference?

PN72

MR BORGEEST: Just, lastly, to emphasise the point about the value of meeting. There has been exchanges of correspondence but it is a very unsatisfactory exchange indeed. I mentioned that our request for employment records has gone back since November and only yesterday we get some records that are just a tiny portion of what we had asked for. And we just do not understand whether there is a misunderstanding at the company's level about what our letter said. We have requested meetings in writing and they write back and say: Well, let's talk about that at the conciliation conference.

PN73

The correspondence that we have been receiving back is, with respect, just unresponsive and it is a matter of great concern to us that we don't have opportunities to sit down with this employer. Thank you, Commissioner.

PN74

THE SENIOR DEPUTY PRESIDENT: The Commission will adjourn into conference. If necessary, we will go back on transcript at the end of that conference.

NO FURTHER PROCEEDINGS RECORDED [11.15am]