C2004/5404, Transcript of Proceedings [2004] AIRCTrans 3646 (14 September 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 11085
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2004/5404

THE AUSTRALIAN WORKERS' UNION

and

LE PINE FUNERAL SERVICES

Notification pursuant to section 99 of the Act
of a dispute re alleged harassment of an
employee

MELBOURNE

11.02 AM, FRIDAY, 3 SEPTEMBER 2004

PN1

THE COMMISSIONER: Could I have appearances, please.

PN2

MS T. STEVENS: I appear for the AWU and with me is MS K. WILLIAMSON our shop steward from the site.

PN3

THE COMMISSIONER: Thank you, Ms Stevens.

PN4

MR G. NELSON: I seek leave to appear in this matter on behalf of the respondent and with me I have MR FOWLER who is the General Manager for Victoria for the respondent.

PN5

THE COMMISSIONER: Thank you, Mr Nelson. Any objections to the appearance of Mr Nelson? I hope not, Ms Stevens.

PN6

MS STEVENS: No, we will let him go today.

PN7

THE COMMISSIONER: Good, thank you.

PN8

MR NELSON: I am grateful to my friend, Commissioner.

PN9

THE COMMISSIONER: I am sure he is relieved by that. Good. Leave to appear is granted, Mr Nelson. This is a notification from the Australian Workers' Union in relation to the employer Le Pine Funeral Services alleging harassment of an employee. Ms Stevens, perhaps you can give us an outline of - on the record of your concerns. And Mr Nelson you might give us an outline of your response - of a response on behalf of the employer and then we will go into conference.

PN10

MR NELSON: Yes, if the Commission pleases. My only concern, Commissioner, is that the way that this matter was notified there is no specificity about it at all.

PN11

THE COMMISSIONER: Well, it is not unusual Mr Nelson, as you probably are aware - and it annoys me as well I must say. I think there should be a requirement - - -

PN12

MR NELSON: Yes.

PN13

THE COMMISSIONER: - - - for a party notifying a dispute to set out the - some degree of specificity of the issue because I am totally unaware of just how serious or otherwise this matter might be from the notification which is quite typical I might say of notifications from either unions or employers.

PN14

MR NELSON: Yes.

PN15

THE COMMISSIONER: But you have said that and if you would just be patient for one second I am sure Ms Stevens will give us some - - -

PN16

MR NELSON: If I could just have the Commissioner's indulgence for about another ten seconds.

PN17

THE COMMISSIONER: Yes.

PN18

MR NELSON: Because I had a discussion with Mr Eagles about this matter, who is a very senior official with the AWU, and he told me it referred to a matter relating to a Mr Anstis.

PN19

THE COMMISSIONER: Yes.

PN20

MR NELSON: And it is on that basis that, I believe, that we have got this dispute today. Now, if it is about some other matter - - -

PN21

THE COMMISSIONER: It may be. Yes.

PN22

MR NELSON: - - - I would like to have been informed about it and as I say, just for a matter of tidiness I have put it on the record - - -

PN23

THE COMMISSIONER: Having said that Mr Nelson - - -

PN24

MR NELSON: I am grateful to the commission.

PN25

THE COMMISSIONER: - - - could I ask you to stand on your feet for another ten seconds, did you jump on the telephone and say to anybody from the Australian Workers' Union, what is this matter all about?

PN26

MR NELSON: Yes I did. I had the discussion with Mr Eagles about it.

PN27

THE COMMISSIONER: Mr Eagles.

PN28

MR NELSON: I also had a discussion with my friend Ms Stevens about it who told me that it was about Mr Anstis. I also had a discussion with her about the possibility of another issue to do with a Mr Cooper and her discussion with me was that that matter wouldn't be raised today. So that is why - - -

PN29

MS STEVENS: That is not true. This is a broad context.

PN30

MR NELSON: No, in the agreement between the - - -

PN31

MS STEVENS: You will hear when I make my submission.

PN32

THE COMMISSIONER: But my particular question, Mr Nelson, was did you jump on the telephone?

PN33

MR NELSON: Yes I did.

PN34

THE COMMISSIONER: Your answer is you did.

PN35

MR NELSON: Yes.

PN36

THE COMMISSIONER: And you are still at a bit of a loss as to what it is all about. Is that right?

PN37

MR NELSON: I am. I am because I believe that there are probably at least two or three separate issues and if - - -

PN38

THE COMMISSIONER: All right.

PN39

MR NELSON: You understand where I am coming from, Commissioner, I am sure.

PN40

THE COMMISSIONER: Yes, I think I do, Mr Nelson. Well, Ms Stevens, can you help us as to what the matter is all about and I just might point out to the parties too that I have another matter listed at 11.30 because this was originally listed earlier and then there was a suggestion we might have postponed it and then it came back on and - good, Ms Stevens.

PN41

MS STEVENS: Okay, thank you, Commissioner. I will happily reveal to Mr Nelson the broad scope of our issue here. Because while it principally is about the harassment of an employee I think it is going to paint the picture of a broader syndrome that is common and widespread within the company. We did file today on behalf of Mr Anstis - - -

PN42

THE COMMISSIONER: What is the basis of the harassment, Ms Stevens? Is it sexual? Is it in relation to union matters?

PN43

MS STEVENS: It - it is - - -

PN44

THE COMMISSIONER: Is it in relation to a race matter? What is it?

PN45

MS STEVENS: It has been constant, constant harassment by Mr Anstis by a manager and I will outline some of it. I might just point out - - -

PN46

THE COMMISSIONER: Mr Anstis being - - - ?

PN47

MS STEVENS: Mr Phillip Anstis.

PN48

THE COMMISSIONER: - - - a person who is employed where?

PN49

MS STEVENS: Mr Anstis is an FDA with Le Pine Funeral Services. An FDA being a Funeral Director's Assistant who carries out a number of tasks which I think Ms Williamson will happily explain to you when we go in to conference. The nature of the harassment was indeed serious because he ended up having to go off on stress leave, Commissioner. It was constant questioning over lunch breaks which is a common problem. I think it is fair to say a lot of our employees aren't getting lunch breaks and the Manager Mr Paul Penleigh actually got quite aggressive about it.

PN50

He was once on a very long road trip, Geelong Ballarat Daylesford and got told, well, just pull over and have your lunch break in the car on the side of the road when he actually had bodies in the back of the car. I think you will agree that that is an entirely unacceptable situation and when he said he would actually like to stop off and have an hour he was told, well, that will put you into overtime and we can't have that.

PN51

He has been accused of faking illness, of being disrespectful to his employer and at a time when his wife became ill he rang coordination explaining that that was the situation and was then abused by Mr Penleigh, told do not ring coordination and do not call John Fowler by the way. He was constantly being told do not inform Mr Fowler, do not bring him into his. It got to the point where along with his wife's illness Mr Anstis had to take sick leave.

PN52

What I would like to do is table to you, Commissioner, a diary that Mr Anstis kept because this problem has constantly been widespread we have had to say to our members please keep diaries.

PN53

THE COMMISSIONER: Now are you saying, Ms Stevens, that this is a widespread problem inside the company - - -

PN54

MS STEVENS: I am indeed - - -

PN55

THE COMMISSIONER: - - - of Le Pines?

PN56

MS STEVENS: - - - and I will go into that - - -

PN57

THE COMMISSIONER: Is it - does it go to - - -

PN58

MS STEVENS: - - - in my submission.

PN59

THE COMMISSIONER: - - - a particular manager, more than one manager?

PN60

MS STEVENS: It - - -

PN61

THE COMMISSIONER: Now, what I am wanting you to do here, by the way, is not give us a chapter and verse on this - - -

PN62

MS STEVENS: Okay.

PN63

THE COMMISSIONER: - - - but rather give me an outline and then we will go into conference and see if we can - - -

PN64

MS STEVENS: Okay. The - - -

PN65

THE COMMISSIONER: - - - help the situation.

PN66

MS STEVENS: The problem seems to be inconsistent management. We have - how many - - -

PN67

THE COMMISSIONER: Perhaps, now I have interrupted you with your diary. Let me put that on the record - - -

PN68

MS STEVENS: Okay.

PN69

THE COMMISSIONER: - - - before we go further.

PN70

MS STEVENS: Mr Anstis kept a diary. It is quite a private diary and it is actually a diary of a man with a lot of anguish. He has agreed for us to table this to you today, Commissioner. However, he is not comfortable - - -

PN71

THE COMMISSIONER: Now, he can't table to me without tabling it to the employer.

PN72

MS STEVENS: I have done it in the past.

PN73

THE COMMISSIONER: Well, I think it is quite unusual to ask - - -

PN74

MS STEVENS: He is not comfortable with the employer - - -

PN75

THE COMMISSIONER: If it is going to go on the record I think it has got to be an exhibit and the employer should receive it. Now, if there are concerns about that.

PN76

MS STEVENS: There are definite concerns so I will - - -

PN77

THE COMMISSIONER: I - well, I think it would be better not to put it forward at this stage.

PN78

MS STEVENS: Okay.

PN79

THE COMMISSIONER: What we can do is refer - you could refer generally to it if you wish. And - - -

PN80

MS STEVENS: But it is long and it is quite intricate. It refers a lot to the matters I have already referred to but it goes more into depth, I guess, about the feeling within the company and back to your question, the problem seems to be inconsistent management across the branches. We have an agreement that is complicated to interpret in part and we have managers that perhaps a) misinterpret it either deliberately or because they are ignorant. We have managers that like to perhaps victimise a certain amount of employees and if I might foreshadow a future hearing Mr Alan Cooper, you did raise that, and I would like to bring up the victimisation of Alan Cooper as well. I think he has also had to take some kind of leave.

PN81

What we are seeking from you, Commissioner, is assistance. There is one problem that is causing our employees a lot of stress is a night van. That is a night - the night van that goes out and transfers and picks up the deceased. When we certified the agreement it was agreed that it would remain on call, it would not be a shift and we were guaranteed in good faith, we took it on board, that the duties would not change. What is happening on the night van is that people's overtime are being cut during the day and everything is being left to the night van that when - by the end of a week, when our employees come off the night van they are totally exhausted, - - -

PN82

MS STEVENS: - - - completely stressed.

PN83

THE COMMISSIONER: So they are on call and they are called to pick up the deceased after hours when in some cases that would have been done on regular overtime?

PN84

MS STEVENS: They start at 10 and are supposed to - - -

PN85

THE COMMISSIONER: 10 pm?

PN86

MS STEVENS: 10 pm, sorry, and are supposed to conclude at eight. And while they get calls out from deceased there seems to be a lot of work such as delivering CDs, dressing bodies etc left over for them as well. So, they never know how many calls they are going to get in a night and by the time management - some management leave all the work left over from the day for them and they attend to the call-outs that occur on the evening, they are worked constantly. Some of them don't get a break.

PN87

THE COMMISSIONER: But doesn't your agreement have a provision in it that says if a person is called out and is working for X number of hours they do not resume normal day duty until they have a break of some kind?

PN88

MS STEVENS: They don't resume day duty or perhaps Ms Williamson can explain that to you when we come in to conference as to how that works.

PN89

THE COMMISSIONER: Yes. But anyhow - let us - but, listen, we won't go in to the detail of that right now but - - -

PN90

MS STEVENS: Sure.

PN91

THE COMMISSIONER: But what you are saying is there is is a difficulty in regard to - - -

PN92

MS STEVENS: To how it is being managed.

PN93

THE COMMISSIONER: - - - people being called out at night and so forth? That is one of the issues.

PN94

MS STEVENS: And to how it is being managed. Different managers manage it in different ways so - - -

PN95

THE COMMISSIONER: Now, now - - -

PN96

MS STEVENS: - - - we have some crews being treated - - -

PN97

THE COMMISSIONER: Sure.

PN98

MS STEVENS: - - - in one manner and others - - -

PN99

THE COMMISSIONER: Okay.

PN100

MS STEVENS: - - - completely differently.

PN101

THE COMMISSIONER: Now, and what you are saying here is that you are looking - you are also looking for the assistance of the Commission in this matter? And in part because you have got a long and complex agreement perhaps and it is been applied inconsistently.

PN102

MS STEVENS: I think that that is part of the issue, yes. But what I am seeking your assistance in is helping us with the culture. There is a culture of harassment, bullying, there are a lot of stressed out employees. Mr Anstis is the brave one who allowed himself to be the guinea pig, if you like. There are - - -

PN103

THE COMMISSIONER: So - - -

PN104

MS STEVENS: - - - employees under constant stress.

PN105

THE COMMISSIONER: Yes.

PN106

MS STEVENS: Constant exhaustion and we are having a lot of difficulty - - -

PN107

THE COMMISSIONER: And this is because of the workload, the after hours work, the inconsistent application of the agreement and what could be described from your point of view perhaps as poor management practices in some cases?

PN108

MS STEVENS: That is absolutely correct. That is correct.

PN109

THE COMMISSIONER: Yes.

PN110

MS STEVENS: Now, the company - - -

PN111

THE COMMISSIONER: Now, have you sat down with the company yourself, Ms Stevens, and your delegate perhaps and others and attempted to work through these matters?

PN112

MS STEVENS: We have tried on a number of occasions and there are times where I accept we have got results. Now, Mr Penleigh the manager responsible for harassing Mr Anstis was demoted. While we appreciate that there is still a lot of problems that are widespread. One clause of the agreement is that we are supposed to meet monthly. Now, these monthly meetings ceased - - -

PN113

THE COMMISSIONER: Pretty frequent, Ms Stevens, as you would accept probably. You have got probably more to do than run around and - - -

PN114

MS STEVENS: That is correct.

PN115

THE COMMISSIONER: - - - meet every month with Le Pine.

PN116

MS STEVENS: That is absolutely correct, however, because there are so many branches there are so many issues that we would like to nip in the bud and they are being allowed to fester and it is causing this breakdown in our relationship and a bad working culture which is not good for our members.

PN117

THE COMMISSIONER: Sure.

PN118

MS STEVENS: So I am seeking your assistance in helping us straighten it out.

PN119

THE COMMISSIONER: Good. Okay, well, let us see what we can do.

PN120

MS STEVENS: Okay.

PN121

THE COMMISSIONER: Thanks, Ms Stevens. Mr Nelson.

PN122

MR NELSON: Commissioner, Ms Stevens has raised a number of issues which I feel I need to go to. And as well as that I think I need to paint for you some ideas of the way in which funeral operations operate so that you have an understanding - - -

PN123

THE COMMISSIONER: Not too lengthy, I hope, Mr Nelson.

PN124

MR NELSON: No, it won't be too lengthy. These people pay me on a retainer, Commissioner, not by the hour so - - -

PN125

THE COMMISSIONER: I see.

PN126

MR NELSON: - - - I have to keep - I have to keep it brief.

PN127

THE COMMISSIONER: Yes. Okay.

PN128

MR NELSON: Commissioner, I think it is fair to say that in relation to the Anstis matter that as far as we were aware about the relationship with Mr Anstis and his manager, Mr Anstis has spoken to the regional manager and said that Mr Penleigh was difficult to get on with. Now, it wasn't put any higher than that and we actually don't know anything about the - - -

PN129

THE COMMISSIONER: More - some more - - -

PN130

MR NELSON: - - - other than in general terms that the general - the issue about Mr Anstis and Mr Penleigh. We have not been given anything in writing. The dispute resolution procedure which is in the agreement hasn't been used in any way at all.

PN131

MS STEVENS: That is not true.

PN132

MR NELSON: And we are not - we really don't know too much about what is going on, other than - - -

PN133

THE COMMISSIONER: Okay.

PN134

MR NELSON: - - - the discussion that Mr Eagles had with the regional manager, a Mr Crow and there was some suggestion of the people not returning calls. So, now it - what happened was that we solved the problem with Mr Anstis, if you like, by default because there had been concerns about Mr Penleigh and as a result of that he was moved and demoted. So, that was how that matter was resolved.

PN135

THE COMMISSIONER: Now, did I hear correctly that Mr Anstis - how do we spell that by the way?

PN136

MR NELSON: I think it is Anstis.

PN137

MR FOWLER: A-n-t-s-i-s.

PN138

THE COMMISSIONER: Antsis. Did I hear correctly Mr Antsis is currently on stress leave of some kind? Or am - was that somebody else?

PN139

MR NELSON: He is back at work.

PN140

THE COMMISSIONER: He is back at work?

PN141

MR NELSON: Yes. Now, all I was going to allude to Commissioner was that Mr Fowler has actually spoken to Mr Ants - Antis - - -

PN142

MR FOWLER: Anstis.

PN143

MR NELSON: - - - who has assured him that there is no longer any issue. The matter is resolved and that is where it ends.

PN144

THE COMMISSIONER: So, as far as Mr Antsis is concerned - I hear it as A-n-t-s-i-s?

PN145

MR NELSON: No, A-n-s-t-i-s.

PN146

MR FOWLER: A-n-s-t-i-s.

PN147

THE COMMISSIONER: A-n-t-s-i-s?

PN148

MS STEVENS: No, A-n-s-t-i-s.

PN149

MS WILLIAMSON: Yes. A-n-s-t-i-s.

PN150

MR NELSON: Sorry.

PN151

THE COMMISSIONER: Okey-doke. Good, good.

PN152

MR NELSON: Anyway, the gentleman we are - - -

PN153

THE COMMISSIONER: Yes, who has had some problem with stress at the workplace,- - -

PN154

MR NELSON: Yes, yes.

PN155

THE COMMISSIONER: - - - he is now back at work and he is telling people from management that things are okay.

PN156

MR NELSON: Well, I mean, he is not only telling people from management, he is telling the General Manager that he is okay. Mr Fowler went out and spoke to him - - -

PN157

THE COMMISSIONER: Yes.

PN158

MR NELSON: - - - to see that everything was all right.

PN159

THE COMMISSIONER: Good.

PN160

MR NELSON: So, that is where we are at with that. Now, - - -

PN161

THE COMMISSIONER: Does the company concede there is a bit of a culture of stress and difficulty, to put it at its lowest, Mr Nelson? Or is the company of the view that things are broadly okay but there may be some isolated cases where there are problems?

PN162

MR NELSON: We would take the view that the agreement is a complex agreement. And that there are difficulties - - -

PN163

THE COMMISSIONER: That is a matter which you - I mean, anytime the parties wish to they could sit down and simplify the agreement and then bring it here and say, even if it is not yet expired and say, we want to make these changes to simplify it.

PN164

MR NELSON: Well, I will hand the agreement up in a moment and - but we would say that it is complex. It is complex because of the way in which funeral operations are conducted and there are not only other issues with the managers being able to use the agreement there is also difficulties with the employees being able to use the agreement. So, I would say that it is - two sides to it. We would absolutely and totally reject any issue of victimisation of an employee. We totally reject that.

PN165

The matter of the night van, the night van is what the - the role of the night van is detailed in the agreement and we can go to that on the record if you - or off the record if you prefer. I am in your hands with that one, Commissioner. Now, coordination actually, there is a centralised coordination system, if you like, an operations room.

PN166

THE COMMISSIONER: How big is Le Pine Funeral Services in terms of employees in the City of Melbourne?

PN167

MR NELSON: Biggest in Melbourne, about a 100 FDAs. A 120 employees. It does the most funerals in Melbourne.

PN168

THE COMMISSIONER: And is that group of 120 the group that is eligible to belong to the Australian Workers' Union or only a part of those would be?

PN169

MR NELSON: They are all eligible to belong the AWU but - - -

PN170

THE COMMISSIONER: Yes.

PN171

MR NELSON: - - - most of the AWUs membership, and Ms Stevens can correct me, is drawn from within what we call the drivers or the funeral director's assistants.

PN172

THE COMMISSIONER: The drivers and yes, and the assistant group. Yes.

PN173

MR NELSON: Yes.

PN174

THE COMMISSIONER: Who number how many?

PN175

MR NELSON: I think there are about thirty?

PN176

MR FOWLER: Sixty.

PN177

MR NELSON: Sixty of them.

PN178

THE COMMISSIONER: Sixty?

PN179

MR NELSON: Yes. Or thereabouts.

PN180

THE COMMISSIONER: Okay, so half of - - -

PN181

MR FOWLER: Sixty members isn't there?

PN182

MS STEVENS: No, there is more than that.

PN183

MR NELSON: Put it this way, Commissioner, there is the tooth to tail ratio is about one to one so it is probably about sixty drivers - - -

PN184

THE COMMISSIONER: Yes.

PN185

MR NELSON: - - - administrative and managerial personnel. Now, the night van in fact is administered by the - by coordination. Now, there is a coordination cell which is like an operations room where there is at any stage there are two coordinators, sometimes more, who coordinate the operations of the funeral operations. They dispatch a van there to pick up the deceased and somebody here to do that and whatever. All right?

PN186

THE COMMISSIONER: Yes.

PN187

MR NELSON: Now, - - -

PN188

THE COMMISSIONER: So, if somebody rings the funeral service at say 1 am in the morning and says, look some - my relative of some description just passed away - - -

PN189

MR NELSON: That is right.

PN190

THE COMMISSIONER: - - - and you then attend that and - - -

PN191

MR FOWLER: Could be a nursing home, could be a private home.

PN192

THE COMMISSIONER: Yes, yes. And to do that there is a person on call and he is brought back in to do it, he or she?

PN193

MR FOWLER: Well, we have the - the phone call comes in to coordination. Coordination then would call the van out to - sorry?

PN194

THE COMMISSIONER: No, that is okay.

PN195

MR FOWLER: Coordination would then call the van out and give them the location and then then they go out and would transfer the deceased person back to our premises.

PN196

THE COMMISSIONER: And that would be two people?

PN197

MR FOWLER: Yes .

PN198

THE COMMISSIONER: All right.

PN199

MR FOWLER: We try and do it as soon as possible for obvious reasons.

PN200

THE COMMISSIONER: And those individuals could be home in bed asleep or something and are called out or not?

PN201

MR FOWLER: Just depends on the workload of the night van.

PN202

THE COMMISSIONER: Yes.

PN203

MR FOWLER: The other thing that happens on the night van is that we have to move deceased persons from one location to another because we have three locations where we conduct our - where our mortuaries are.

PN204

THE COMMISSIONER: Yes.

PN205

MR FOWLER: And with the changes at some of the public hospitals and at the Coroners Court we are not getting clearances for those deceased people until later.

PN206

THE COMMISSIONER: Yes.

PN207

MR FOWLER: Where previously we got them a lot earlier especially at the Coroners Court and so that means that by, you know, 5 o'clock - - -

PN208

THE COMMISSIONER: Yes.

PN209

MR FOWLER: - - - some of these people are just ready to be transferred so the night van - and it is in the agreement - will transfer those people to - it may be for example from St Kilda to Eltham or from St Kilda to Greensborough and that is in the agreement.

PN210

THE COMMISSIONER: Sure.

PN211

MR NELSON: Perhaps I - - -

PN212

MR FOWLER: We can try to do as many of those during the day - - -

PN213

THE COMMISSIONER: Yes.

PN214

MR FOWLER: - - - but sometimes because of the clearances from the hospitals or the Coroners Court it is not possible.

PN215

THE COMMISSIONER: Yes. Okay.

PN216

MR NELSON: Perhaps I could hand up a copy of the current agreement?

PN217

THE COMMISSIONER: Yes, you can, Mr Nelson.

PN218

MR NELSON: It would probably be useful. Can we have it marked as an exhibit, if the Commission pleases.

PN219

THE COMMISSIONER: We will mark that LP1.

EXHIBIT #LP1 EMPLOYMENT AGREEMENT

PN220

MR NELSON: And if I could take the Commission to page 9 at clause 10.3 and the second last sentence in that clause:

PN221

Employees employed on the night van will be tasked by coordination with duties which are compatible with core funeral tasks. Employees on the night van roster will not be employed on car washing or branch cleaning during that roster.

PN222

Now, we say that on that basis that we are entitled to do - to have the night van do anything which is compatible with core funeral tasks. And in fact washing vans and branch cleaning is also compatible with core funerals tasks but when this agreement was negotiated it was agreed that those two matters would be mentioned specifically. So, - - -

PN223

THE COMMISSIONER: But is it - Mr Nelson, are these people who - people on the night van - - -

PN224

MR NELSON: Yes.

PN225

THE COMMISSIONER: - - - are they normally rostered on a shift?

PN226

MR NELSON: No, they are rostered on the night van.

PN227

MS STEVENS: It is not meant to be a shift but you have made it a shift.

PN228

THE COMMISSIONER: They are rostered on the night van. Does that mean they start duty at 10 pm at night and - - -

PN229

MR NELSON: No, they - there is - - -

PN230

THE COMMISSIONER: - - - go through 'til 8 am in the morning?

PN231

MR NELSON: Commissioner, the way the roster systems work is that there, and this is covered in the agreement as well, - - -

PN232

THE COMMISSIONER: I am really just getting to the point of, do you have it as a shift or do you have it as on a recall basis?

PN233

MR NELSON: It is not a shift. It is on a recall basis.

PN234

THE COMMISSIONER: So, a person's - - -

PN235

MR NELSON: So, they don't report to a location at 10 o'clock at night for example.

PN236

THE COMMISSIONER: No, they are at home - - -

PN237

MR NELSON: Yes.

PN238

THE COMMISSIONER: - - - and they get a call at midnight to say - - -

PN239

MR NELSON: Yes.

PN240

THE COMMISSIONER: - - - we have a requirement to transport a deceased person to somewhere.

PN241

MR NELSON: And what happens is that whoever is called - - -

PN242

THE COMMISSIONER: And they return to duty. They probably have a van at their home, do they?

PN243

MR NELSON: Yes, they do.

PN244

THE COMMISSIONER: And they go directly from home to the location.

PN245

MR NELSON: That is right. Well, they have to go and pick up the jockey, their partner - - -

PN246

THE COMMISSIONER: Yes.

PN247

MR NELSON: - - - to go to do the removal with them. Then they come back, drop each other off if there are no other tasks - - -

PN248

THE COMMISSIONER: Yes.

PN249

MS STEVENS: There are always other tasks.

PN250

MR NELSON: And go to bed.

PN251

THE COMMISSIONER: Yes.

PN252

MR NELSON: Now, my friend is saying there are always other tasks but that is of the nature of the funeral business because let us say that they are called out at 11 o'clock and there is some other work that needs to be done, they are on the road, - - -

PN253

THE COMMISSIONER: Yes.

PN254

MR NELSON: - - - those tasks can be done and there is nothing that is incompatible with the agreement in my submission.

PN255

THE COMMISSIONER: Just as an observation, Mr Nelson, I know in some of my past history which was in telecommunications, the system was obviously if a fault occurs in a telephone exchange at say 3 am in the morning, someone is recalled to attend to that fault, a serious fault and there is a minimum payment prescribed for that.

PN256

MR NELSON: Yes.

PN257

THE COMMISSIONER: And the minimum payment is say two hours at double time or something.

PN258

MR NELSON: Yes.

PN259

THE COMMISSIONER: So the person goes back to the telephone exchange and the agreement provided that essentially that person can be told - can be required to fix the fault - - -

PN260

MR NELSON: Yes.

PN261

THE COMMISSIONER: - - - that is causing the problem. But it wasn't a case of well, now you are there and you are going to get paid for four hours anyhow we want you whilst you are there, if you fix the fault in thirty minutes, we want you to stay around and do some routine maintenance for the other hour and a half because you are getting paid for two hours anyhow.

PN262

MR NELSON: And that would be quite improper, I would suggest.

PN263

THE COMMISSIONER: Yes, well that was the norm.

PN264

MR NELSON: No, that is not the situation here, Commissioner.

PN265

THE COMMISSIONER: Yes. Now, Mr Nelson, I have just seen some other people wandering past that door and they are going to be coming in here in a - - -

PN266

MR NELSON: I should have said at the beginning, Commissioner, I am grateful to you for rescheduling this after all the nonsense yesterday.

PN267

THE COMMISSIONER: No, well I am sorry we had to put it back and when we had the possibility of it not going ahead this morning I arranged another meeting for 9.30 and then when you said - came back to me and said well no, we would like to go ahead, well, it was quite difficult to put it on at the original time which I think was 10.

PN268

MR NELSON: That is right. I won't take - I did the work but I won't take the blame. I blame my friend Ms Stevens for that.

PN269

MS STEVENS: I blame you for not releasing the other two delegates who also wanted to be here.

PN270

MR NELSON: Commissioner, what I was going to say was this, that when those people are on the night van they are getting paid double time. In fact, they get a weeks salary by two. So, - - -

PN271

THE COMMISSIONER: Yes.

PN272

MR FOWLER: So they work 30 hours - - -

PN273

MR NELSON: - - - so, they work - if they work 30 hours they actually get paid for 80 hours.

PN274

THE COMMISSIONER: This is the on-call allowance arrangement, yes.

PN275

MR NELSON: No, no, they are paid 80 hours worth of pay for being on the night van roster.

PN276

THE COMMISSIONER: Yes.

PN277

MR NELSON: Now, some of - some people may only work - - -

PN278

THE COMMISSIONER: I guess what they are doing is they are putting a normal working week in and then they are on the on-call roster.

PN279

MR NELSON: No, no, they don't work during the week.

PN280

THE COMMISSIONER: They don't work during the week?

PN281

MR NELSON: No.

PN282

THE COMMISSIONER: Oh, I see.

PN283

MR NELSON: No, no. They work - the week that they are on night van they work from 10 to 8.

PN284

THE COMMISSIONER: Yes.

PN285

MR NELSON: And they get paid for 40 hours.

PN286

THE COMMISSIONER: Yes, okay, yes.

PN287

MR NELSON: Sorry, they get paid for 80 hours of normal pay.

PN288

THE COMMISSIONER: Yes.

PN289

MS STEVENS: It is a penalty for night shift loss of life style.

PN290

MR FOWLER: Well, you just called it a shift.

PN291

MR NELSON: Now, perhaps if both of my friends could be quiet.

PN292

THE COMMISSIONER: Yes, Mr Nelson and I - yes, yes - if - let me just ask the person who is on the night van roster - - -

PN293

MR NELSON: Yes.

PN294

THE COMMISSIONER: - - - is actually allowed to stay at home and - - -

PN295

MR NELSON: Yes, they are.

PN296

THE COMMISSIONER: - - - and only attend work when they are required.

PN297

MR NELSON: That is right.

PN298

THE COMMISSIONER: But they get paid for that week - that roster, 80 hours pay, you say?

PN299

MR NELSON: That is right.

PN300

THE COMMISSIONER: Okay. For a week's work?

PN301

MR NELSON: For a week's work.

PN302

THE COMMISSIONER: Yes. Okay.

PN303

MR NELSON: Okay.

PN304

THE COMMISSIONER: Well, I understand that.

PN305

MR NELSON: So, what can happen is that there might be some weeks and I mean, we can present evidence if this matter continues- - -

PN306

THE COMMISSIONER: Yes.

PN307

MR NELSON: - - - where the average number of hours worked is 32-1/2 hours or thereabouts.

PN308

THE COMMISSIONER: Yes.

PN309

MR NELSON: 42-1/2.

PN310

THE COMMISSIONER: And I just might revert back to my telecommunications illustration by the way, the people who were on call in the telecommunications area, and Ms Stevens might listen to this, they normally work a normal working day.

PN311

MR NELSON: Yes.

PN312

THE COMMISSIONER: Okay, you work from eight until five and then you go on call for the after hours requirement and if you are called - you get an allowance for being on call. I think it is probably about - roughly a quarter to a half normal time.

PN313

MR NELSON: Yes.

PN314

THE COMMISSIONER: And then if you actually do get called back you get a minimum payment for your recall.

PN315

MR NELSON: That is right.

PN316

THE COMMISSIONER: But you are still working your normal 40 hour week as well as the on call. So it is somewhat different than the circumstance you are illustrating to me here - - -

PN317

MR NELSON: That is right.

PN318

THE COMMISSIONER: Where you say, and I guess in a - what we could call a slow week a person might only work for 20 hours.

PN319

MR NELSON: Yes. And that is how we end up with an average of 42-1/2 hours, where it was - - -

PN320

THE COMMISSIONER: Yes.

PN321

MR NELSON: Mr Fowler is quite right, that the busy time in fact in the funeral industry is in the winter and not in the summer, so they might work a whole bunch of hours in the winter, but be very quiet in the summer, and it is not unknown to have a situation where they are only called out once at night.

PN322

THE COMMISSIONER: Yes.

PN323

MR NELSON: Certainly in the summer.

PN324

THE COMMISSIONER: Sure.

PN325

MR NELSON: Now, I mean, these are all matters of evidence.

PN326

THE COMMISSIONER: Yes.

PN327

MR NELSON: And I am happy to - - -

PN328

THE COMMISSIONER: Now, I didn't hear Ms Stevens talk about that very much, excepting about the reference to the company re-establishing a shift for night work, but that is another matter. We are not going to go down that track.

PN329

MR NELSON: Yes, look, if it was a shift they would have to be at a certain spot at a certain time or whatever. We don't even insist - - -

PN330

MS STEVENS: That is what they are being asked to do.

PN331

MR NELSON: We don't even insist, Commissioner, that they are ready to start at 10 o'clock.

PN332

MS STEVENS: Yes, they do. Coordination is ringing them and insisting upon that.

PN333

THE COMMISSIONER: Ms Stevens, if you could just be quiet, please.

PN334

MR NELSON: Commissioner, I think that that is a matter of evidence. One of the difficulties that we have with dealing with this matter is that there are any number of unfounded allegations which are never reduced to writing, and we can never get to the bottom of it, because it is all rumour, say-so and innuendo. Now, for this matter to be dealt with and to be finished once and for all, I think that the best way from my perspective - - -

PN335

THE COMMISSIONER: You are a bit ambitious, Mr Nelson, with a reference to once and for all, but anyhow, go on.

PN336

MR NELSON: Well, I suppose it has been going on for 14 years, so all of this business with the way the funeral industry is run, particularly in my experience, is that if statements are going to be made they need to be backed up by evidence. It is no good me making a statement or Ms Stevens making a statement where there is no evidence to support it.

PN337

THE COMMISSIONER: Yes.

PN338

MR NELSON: And that is the difficulty I have. Now, I am not asking the Commission to arbitrate, certainly not asking the Commission to arbitrate. But what I am saying - - -

PN339

THE COMMISSIONER: There is nothing to arbitrate at this stage.

PN340

MR NELSON: No, precisely. But if this matter was to go forward, that we should pass the conciliation process, or as part of the conciliation process we should have some sworn evidence and we should have the opportunity to examine and cross-examine witnesses about the statements that they make.

PN341

THE COMMISSIONER: Yes.

PN342

MR NELSON: Now, I am mindful of the - if I could just deal with two other matters very quickly. The matter of Mr Anstis' diary. If my friend wants to table that I can give an assurance that the only people who will have access to it is myself and Mr Fowler.

PN343

THE COMMISSIONER: Well, I might - before we do anything about tabling the diary, I might ask Ms Stevens - and this can be dealt with later - just to give me a copy in-confidence and I would have a look at it and see whether it is of a nature that I think - and I am not - that is, well, I am just thinking this sort of, on the run here a little bit. But we will come back to that but what you are saying Mr Nelson is if the diary is put in in evidence - - -

PN344

MR NELSON: Yes.

PN345

THE COMMISSIONER: - - - you can give an assurance that whatever is in it might be - it will have to be examined by the people who are directly involved in the matter but it won't go any further. And it - the copy could be returned at the finish of the hearing and things of that nature.

PN346

MR NELSON: Well, it would only be discussed between Mr Fowler and myself because we are the people who in the end have the responsibility - - -

PN347

THE COMMISSIONER: Yes.

PN348

MR NELSON: - - - for the official running and - - -

PN349

THE COMMISSIONER: Sure. No, that is understood.

PN350

MR NELSON: - - - manning of the business. I have to say, Commissioner, and I say this with all due respect, I would have some concerns if the diary was handed up just for your - - -

PN351

THE COMMISSIONER: Yes.

PN352

MR NELSON: - - - inspection- - -

PN353

THE COMMISSIONER: I understand that.

PN354

MR NELSON: - - - and I put it no higher than that.

PN355

THE COMMISSIONER: And that is why I had some reservations about my own initial thought about the matter.

PN356

MR NELSON: I am sure you know how I am alluding. Now the other matter is to do with the monthly meetings. Commissioner, there has been fault on both sides here. We say that we are not a 100 per cent pure. We also say that the AWU is not a 100 per cent pure.

PN357

THE COMMISSIONER: I will give - just make an observation. A monthly meeting comes round very, very quickly. And for both busy union people and busy business people it can - it is not going to work unless people properly prepare themselves and think about what is going on and if you are going to have meetings I would have thought quarterly meetings would probably be a lot more sensible. That is just a very quick observation from me.

PN358

MR NELSON: Well, you are probably right, Commissioner, but Ms Stevens and I are - - -

PN359

THE COMMISSIONER: With the opportunity in the meantime - like if something comes up second month of a three-month meeting cycle and it is a serious matter well someone addresses it immediately. You don't have to wait for a meeting to - - -

PN360

MR NELSON: Well, Ms Stevens and I are in, you know, reasonably constant contact a couple of times a week about matters that we have to deal with. Commissioner, the issue was raised by my friend as a sign about the issue of making delegates available. As a matter of policy, we will make delegates - - -

[11.33am]

PN361

THE COMMISSIONER: We are not going to go down that track this morning, Mr Nelson. Do not worry about it.

PN362

MR NELSON: Well, it just goes to one point that I need to make, Commissioner. If you are going to schedule matters for hearing with us, and I thought I actually might ..... that the panel had about this, that any matters to do with funeral industry that we are involved with anyway, and I suspect overall should not be scheduled for a Friday, because Friday is by far the most difficult and busy day.

PN363

THE COMMISSIONER: Yes, I understood that. That is why we were going to postpone this hearing initially.

PN364

MR NELSON: Yes. Commissioner, I have clearly taken the time.

PN365

THE COMMISSIONER: Good, okay. This matter that has been raised this morning obviously has a level of complexity that goes beyond our capacity to deal with it in the next 10 minutes. What I was going to suggest to the parties, that we might get back together on another date late in September, and this is obviously, you know, not the preferred way to deal with these things. I would rather deal with them when they initially come up.

PN366

I was going to suggest, say, Tuesday 21 September as a date. or the following week. And we would set aside a day. I am not saying we will take a day, but we will set aside a day. And rather than have a hearing such as this, I will organise a conference room, and we will sit in a conference room for a little while, and see if we can go through the issues.

PN367

In the meantime, whatever date we select, I am going to ask Ms Stevens to provide me and the company with a list of the specific matters you wish to have discussed on that day, and any material that is necessary to establish the facts as you put them forward. For example, if you say that Mr Smith is being harassed by somebody, I want to know the nature of the harassment, I want to know the dates that it occurred. Now, I do not call harassment a person being told, look, Mr Smith, you are 10 minutes late for your shift, and I do not want to see that happen again - you know, issues about timeliness, or cleanliness, or things of that nature. Unless people think that certain individuals are being singled out for particular attention and criticism for the wrong reasons.

PN368

I want you, Ms Stevens, to provide me and the company between now and when we set a date with a written statement setting out the particular issues you are concerned about, and the evidence that supports it. We are not looking for a foolscap folder full of evidence here: we are looking for something brief but able to be understood.

PN369

In addition, I would like you to put in that, if you raise a particular issue, I want what the issue is, what the facts are as you see them, what the evidence is, and what your proposed solution is, okay?

PN370

MS STEVENS: Okay.

PN371

MS STEVENS: Just one request, Commissioner, I would like the other two delegates to be present.

PN372

THE COMMISSIONER: We will come to that in a moment. Now, a date. Is the 21st or some time in - the week commencing the 27th any help to anybody?

PN373

MR NELSON: Mr Fowler tells me that he is actually away and that the first date he would be available would be the 28th, Commissioner.

PN374

THE COMMISSIONER: 28th - Tuesday, the 28th, does that sound okay to people?

PN375

MS STEVENS: Yes.

PN376

THE COMMISSIONER: Good. That looks fine to me and we will have a 10 o'clock start that morning and I will organise a conference room and we will sit down. Now, in terms of attendance it would be useful to have a representative group from the AWU side and, Ms Stevens, I hear you say two more delegates?

PN377

MS STEVENS: Yes, because the branches are divided - - -

PN378

THE COMMISSIONER: No, no, I understand. Two more delegates you are talking about, is it?

PN379

MS STEVENS: Yes, that is right.

PN380

THE COMMISSIONER: In addition to the delegate you have got with you today. Is that okay, Mr Fowler?

PN381

MR NELSON: We will make them available, Commissioner, that is no problem.

PN382

THE COMMISSIONER: Okay. And on the face of it we will meet until at least 12.30 or thereabouts and if necessary we will go into the afternoon, but I hope it wouldn't be necessary.

PN383

MR NELSON: Lunch will be on the President, Commissioner?

PN384

THE COMMISSIONER: It will be, yes, you will get the standard Commission lunch, pie and chips. Good. Well, if that is satisfactory we will adjourn this matter this morning and come back on the 28th.

PN385

MR NELSON: Commissioner, could I ask that you authorise a copy of the transcript so that we know where we have ended and where we take up from?

PN386

THE COMMISSIONER: Yes, of course, of course. Yes, we will have transcript provided to the parties. Any other matters that you would like to raise this morning? Ms Stevens, just one thing. We are meeting on the 28th, today is the 3rd, I expect that material that I have asked you to provide by no later than the 22nd.

PN387

MS STEVENS: Okay. I might need your assistance then in the company allowing me to actually have use of the delegates and to actually interview and take witness statements from those that are affected.

PN388

THE COMMISSIONER: Ms Stevens, if it is essential - look, I am not looking for a foolscap folder full of material, I am looking for a two or three line indication of where your concern is.

PN389

MS STEVENS: Okay.

PN390

THE COMMISSIONER: An eight to ten line statement - up to eight to ten lines of the facts as you see them and a two or three line indication of the solution that you are proposing. So I don't want you to spend several days talking to delegates and members about these issues, but if it is necessary to do so I am sure the company will facilitate it to a reasonable extent.

PN391

MR NELSON: Reasonable access won't be any issue, Commissioner. Mr Fowler just asked me to presage to you as well that we will certainly have the manager of co-ordination here and probably one other member of the managerial staff. If the Commission pleases.

PN392

THE COMMISSIONER: Yes, I think a good representative group from your management would be useful as well. So - - -

PN393

MR NELSON: And Mr Fowler just asked me to mention to you, Commissioner, that this is a - September is again one of those winter months, it is very busy.

PN394

THE COMMISSIONER: Yes.

PN395

MR NELSON: So we will give whatever access we possibly can and we certainly won't restrict access in any way.

PN396

THE COMMISSIONER: Yes.

PN397

MR NELSON: But within those bounds.

PN398

THE COMMISSIONER: So, Ms Stevens, everybody is asking you to be reasonable in terms of your access and time that is required of your delegates.

PN399

MS STEVENS: I am always reasonable, Commissioner.

PN400

THE COMMISSIONER: And remember there is always time outside of working hours to talk to people as well.

PN401

MS STEVENS: We know that.

PN402

THE COMMISSIONER: And as a union official I am sure you are used to working outside of 8 to 5.

PN403

MS STEVENS: I think that is right and Ms Williamson and I are used to late night meetings and conversations on a weekly basis.

PN404

THE COMMISSIONER: You heard what I said about the 22nd?

PN405

MS STEVENS: I did indeed.

PN406

THE COMMISSIONER: A response by. Good. Well, this matter is adjourned.

ADJOURNED INDEFINITELY [11.38am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #LP1 EMPLOYMENT AGREEMENT PN220