C2004/6074, Transcript of Proceedings [2004] AIRCTrans 3929 (8 October 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 13992

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER

C2004/6074

CPSU, THE COMMUNITY AND PUBLIC
SECTOR UNION

and

SPECIAL BROADCASTING SERVICES
CORPORATION (SBS)

Application under section 170LW of the Act
for settlement of dispute re alleged introduction
of a new roster which seeks to change the custom
and practice of rostering 8 hour days without
consultation

SYDNEY

11.04 AM, WEDNESDAY, 29 SEPTEMBER 2004

PN1

MR P. INGWERSEN: I appear on behalf of the Community and Public Sector Union and also here in the Commission, have a number of members from the studio at SBS with me.

PN2

MR C. PEISLEY: I appear on behalf of SBS. I have with me this morning MR K. ANDERSON, the Acting Manager of Human Resources, SBS and MR T. ASLANIDIS, who is the Manager of TV Operations for SBS also.

PN3

THE VICE PRESIDENT: Yes, Mr Ingwersen.

PN4

MR INGWERSEN: Thank you, your Honour. The matter before us today is in relation to some proposed changes, some very substantial changes to rosters at SBS and there's a number of problems we have with the approach that's been taken and the substantial impact that it has on members and the effective non-compliance with the certified agreement and as such a dispute's been notified under the dispute settlement procedures of the agreement and we will be seeking the assistance of the Commission to resolve that. The three main concerns that we have are as follows.

PN5

One, the SBS Management put out a roster. This roster was a substantial change in that currently employees work shifts of eight hours or eight and a half hours if you include a half hour unpaid meal break. Never in the history have they worked anything but eight hours unless there's been overtime and the new roster provided for shifts of between four and 12 hours.

PN6

There is some discussion over that roster but that roster was then pooled last Wednesday, 22 September I think it would have been, and a revised roster was provided on the Thursday and the first problem we have is that the award and the agreement provide for or require consultation over substantial changes and consultation over changes to rostering and consultation over major changes - I'll take you to the specific clauses in a minute. I'm just outlining the broad contentions - and there was no consultation over the roster that was provided last Thursday and is due to be implemented at midnight tonight.

PN7

The second concern we have is that while the matter is in dispute, the status quo should remain in place and the agreement refers to the custom and practice there and there's a dispute over the first roster, SBS agreed to pull it, do some reviews of a number of matters with that but they haven't agreed to maintain the status quo, and the third point that we have a concern about is that what SBS are proposing is actually an extra claim and there's a no extra claims clause within the agreement. I'll take the Commission through the history in a little bit more detail and then through the various clauses and I was also going to call one of our studio members as a witness to give some very brief evidence as to the concerns that they have but I have provided the Commission with - - -

PN8

THE VICE PRESIDENT: I don't think at this stage, it's necessary to do that because we should deal with it by conciliation in the first instance and you can simply assert what those matters are.

PN9

MR INGWERSEN: I'll certainly assert them then. If I take the Commission to a document.

PN10

THE VICE PRESIDENT: So there's no change to the total hours worked?

PN11

MR INGWERSEN: That's correct. There is no change to the total hours worked in the roster over the roster period. That's correct. Your Honour, I would actually seek to tender these documents.

PN12

THE VICE PRESIDENT: Do you have any objection to it being marked for purposes of identification, appreciating that we'll be in a conciliation mode initially, Mr Peisley?

PN13

MR PEISLEY: No, your Honour.

PN14

THE VICE PRESIDENT: Thanks. I'll mark this bundle of documents as exhibit CPSU1.

EXHIBIT #CPSU1 BUNDLE OF DOCUMENTS

PN15

MR PEISLEY: The documents detail the history of this matter and if I refer the Commission in the first instance to the document number two, which is the third page overall and that is a proposed roster that was initially put out as a draft by Mr Aslanidis and this roster raised quite a number of concerns. There are 12 hour shifts where members in the studio haven't worked 12 hour shifts previously. There were four hour shifts. If we look at some examples on the roster, for example, on Tuesday, 28 September then Wednesday, 29 September, if you looked against the name of someone like Jeremy Cavanagh or Paddy - further down the page - the roster on the Tuesday provided for a five hour shift from 10.30 to 3.30 p.m.

PN16

You then went through the next day on the Wednesday to have a 10 hour shift starting at 2.30 a.m. going through to 1 p.m. and of course that contravenes a lot of OH&S principles with regards to rostering. It should have a forward rotation rather than a backwards rotation and issues like that and SBS recognised that there were concerns with this roster and that was a result of a number of processes and I take the Commission to those and if we go to the last page in this bundle of documents, there's a letter dated 3 August from Ms Leah Piper which was sent to Mr Aslanidis and there was a request there for some urgent discussions about this roster.

PN17

As a result of that letter there were some talks that were eventually held in mid-August. They involved one of our delegates, Chris Gates, from the studio along with some other members, Mr Anderson and another SBS Manager. At that stage, I understand SBS undertook that they would distribute the draft roster to all employees as some staff had not actually seen it at that stage and Mr Aslanidis and Mr Anderson undertook that they were to meet with the SBS studio crew to discuss all their concerns. That meeting with the SBS studio crew didn't end up taking place so the roster just sat there as a draft and there was no indication as to whether or not it was going to be implemented.

PN18

On Thursday, 8 September a low level manager in the studio basically advised that the draft roster was now a formal roster that was being posted for the required 14 day period and on 9 September, as detailed in the second last letter on the bundle of documents there, the studio crew, they held a meeting and they rejected the proposed roster for a number of reasons and the reasons included the duration of the shifts, that there's between four and 12 hour shifts that are contrary to the award in the agreement, that if they want to introduce - SBS wish to introduce such changes, it should be done in the context of the negotiations and a number of other points like that.

PN19

THE VICE PRESIDENT: Well, I note SBS' position appears to be from the correspondence that it's in fact consulted and that the changed roster is consistent with the award and agreement.

PN20

MR PEISLEY: That would be broadly their view I suspect. The point is, and the correspondence of 10 September from SBS outlined that that they view that they have consulted about that. The matter was then escalated to a higher level. There was a letter of 15 September from the CPSU to Mr Shaun Brown, the Head of Television within SBS corporation and that letter detailed the concerns about the duration of the shifts - that they go from four, five, six, eight, 10, 11 hour shift durations and some of the specific problems with that. Also a meeting was sought. Mr Brown was absent for a number of days then.

PN21

So the matter was escalated to Mr Milan, who is the Managing Director of SBS and that's covered in a copy of the correspondence there from Ms Leah Piper as well. Mr Milan passed the matter back to Mr Brown, as is also detailed in subsequent correspondence there and a meeting took place between Ms Piper and Mr Brown. Prior to that meeting taking place, there was a further detailed letter sent to Mr Aslanidis outlining Occupational Health and Safety concerns about the specific 12 hour shift arrangements and that's detailed here. I mean, there's a whole range of issues that arise from that and there's also concerns that arise there from the shorter duration of shifts and other changes that there might be.

PN22

That letter was also endorsed by each of the occupational health and safety representatives at SBS in a memo to Mr Aslanidis and that's outlined in a copy of a document provided there as well, that each of them basically said well, we are concerned about the length of such shifts. It is standard practice in any area where there is shift work, that if there is to be a 12-hour shift, then there are to be assessments of the impact of such shifts on occupational health and safety, the impact on employees, the fatigue, disruption of sleep patterns, all those sorts of things. That's one leg to the argument and one area of concern that we have with it.

PN23

At the meeting that was then held with Mr Brown, the head of television, the end result was that Mr Brown accepted that there should be some reconsideration of the question of the 12-hour shifts effectively of the roster that was initially provided. The studio crew members agreed to waiver any over-time arrangements that would comply with having to introduce a revised roster at short notice if they revert back to their previous 8-hour roster. However, Mr Brown also took the view that he would introduce a new roster with seen days notice and that roster was also a substantial change from the current arrangements in that it provided for shifts of four, five, six, eight, nine and 10 hours duration and that roster is on the second page of this bundle of documents and your Honour, you can see that there is a number of shifts there that have various durations.

PN24

If you look at the column of Wednesday against Christ Gates there's a 6-hour shift, there is a column of Saturday 2 October against Paddy Anistopoulos, there is a 4-hour shift on that Saturday, on the Sunday there are various 5-hour shifts and the Thursday there is a 5-hour shift and the like. So there is a range of different shifts there. Now, historically the way shifts have operated in studio is the crew have been quite flexible in terms of how they work. They may work a morning, they may work a night shift, they may work an evening, there may be a start time of 10 am, the following day may be 11.30 am, the following day it may be 3.30 pm, the start times vary from day to day and week to week and there hasn't been any dispute about, so it's probably a little different to some other areas where there is shift work in that you tend to have more established set patterns of shift rotations.

PN25

What there hasn't been though in the studios, there have never been shifts of anything different to an 8-hour duration or 8-1/2 hours if you take into account the meal break. That is a very substantial issue that there will effectively be 4-hour shifts brought into place. Nowhere in SBS that I am aware and certainly, member of studio are aware of, have there been 4 or 6-hour shifts introduced and it's a very substantial change there.

PN26

As a result also of the meeting with Mr Brown the CPSU said well, the initial roster that has been put out is in dispute, it is agreed that it will be re-assessed, therefore the current arrangements should remain in place. Mr Brown rejected that proposal and basically said well, if we didn't agree with that, then the matter could be referred to the Industrial Relations Commission in accordance with the agreement and as such, we are here.

PN27

The agreements and awards, your Honour refer to a number of matters, do you have a copy of the agreement?

PN28

THE VICE PRESIDENT: I do.

PN29

MR INGWERSEN: You do. Could I take the Commission in the first instance to clause 1.4 of the agreement. Clause 1.4 talks about a closed agreement, as a closed agreement in settlement of all matters for its duration, the parties agree that during the nominal life of this agreement there will be no further claims for changes in employment conditions of SBS employees except as part of the negotiations for a new agreement, as per the re-negotiation clause. This a new claim for entitlements, there have never been 4-hour shifts, there have never been 6-hour shifts at SBS.

PN30

In other areas within the television industry where such changes have been sought to be introduced to have 4-hour shifts or shifts of shorter duration, it's been through the process of re-negotiation of agreements where at the ABC or at the Seven Network or any of the other broadcasters in television,so the consistent approach within the industry. The next clause within the agreement that refers to rostering is a question of composite pay clause, clause 15. Composite pay is an arrangement where effectively, it's average shift penalties, it applies in a number of discrete areas within SBS and studio is one area where it does apply.

PN31

The clause here deals with how composite pay arrangements are calculated but it does refer at 15.4 to the determination of roster patterns and the roster patterns have been determined traditionally by SBS in, as I referred before, the start time might be 10.30 am, it might be 11.30 am, it might be 12.30 pm, rotate through. Each day may well have a different start time. There is not a huge amount of certainty there but the way it has always been interpreted and always been read, is that the rosters have been of eight hours duration, they have not changed. The length of the shifts in the studio have never, ever changed that I am aware of and certainly in the history of the employees that we have here as members. So each day might be different in terms of start time but the duration has been consistent.

PN32

The next clause that is relevant to this matter is clause 19 which refers to flexible working hours agreements. Now, your Honour, this clause was probably originally established more for employees who might like to look at changing their hours but in this case we have SBS who are seeking to change the hours to have, I suppose it's substantially a flexible working hours arrangement and there are a couple of instructive points here and the parties agree that for the purpose of this section, any changes to an employees hours of work will be strictly voluntary and made only at the request of the employee, be subject to agreement with SBS and SBS will not attempt to influence an employee to enter into an agreement and agreements will take into account the operational considerations.

PN33

What we have in this instance is SBS have made a decision, well, they want to have flexible working hours of four hours one day and 10 hours another day or with the original roster, four hours one day, 12 hours the next day and that can't be done, they can certainly - we don't argue about their ability to change the start time of shifts, as has historically and consistently happened but we do argue about their ability to change the - unilaterally change the duration of such shifts.

PN34

The next relevant points refer to clause 27, your Honour which is the dispute settlement procedures. The dispute settlement procedure outlines a number of steps that need to be taken, I won't go into a lot of detail because I have already referred to correspondence between the parties and in our view that clearly indicates that we've attempted to resolve the matter. The clause 27.2.6 allows the matter to be referred to the Australian Industrial Relations Commission and at 27.2.7 the AIRC may determine the matter by conciliation or arbitration and we would be seeking that the Commission use the powers under section 170LW to resolve this matter today.

PN35

The next important point with the dispute settlement procedure clause is at clause 27.5.1 which is the continuation of work and it talks here that with prejudice to either party and except where there is a bona fide safety issue been involved, the parties shall ensure the continuation of work and that work practices applied during the operation of procedures under this clause are in accordance with the relevant awards and custom and practice at the work place.

PN36

The matter is in dispute, the custom and practice has been that there are 8-hour shifts or 8-1/2 hours if you take into account the unpaid meal break. We accept that the practice has also been that management may determine the different start times, we are not arguing about that but there has been a clear custom and practice with the duration of the shifts, there is a matter in dispute and as such, while that original proposed roster goes through an assessment and further discussions, the current arrangements should remain in place.

PN37

The other relevant clauses then go to the fact that SBS introduced a revised roster with seven days notice without any discussion about the revised roster and that is clause 28 work place change, 28.1.1 notification - - -

PN38

THE VICE PRESIDENT: You can't seriously suggest that that isn't part of the overall proposal for change though, that revised roster is a response to the concerns that the unions articulated.

PN39

MR INGWERSEN: The union articulated - - -

PN40

THE VICE PRESIDENT: On your own case.

PN41

MR INGWERSEN: Yes, we articulated concerns about a whole range of issues that went from the four hours to the 12 hour shifts. Now, to introduce a four hour shift without any real discussion about the impact of that, to give seven days notice and say, okay, we're starting four hour shifts in seven days time - - -

PN42

THE VICE PRESIDENT: In any event your point is that you say that there has been no consultation in relation to the most recent roster.

PN43

MR INGWERSEN: That's correct.

PN44

THE VICE PRESIDENT: That's a major change within the meaning or workplace change within the meaning of clause 28.

PN45

MR INGWERSEN: That's correct, your Honour. That's one argument that the latest roster, major changes, no consultation over that. The previous roster which has been deferred for further discussions, while that's being deferred the existing or the previous arrangements of eight hour shifts should remain in place and I don't know if I need to refer you to any other parts of clause 28. 28.3.1 indicates a requirement for SBS to discuss with affected employees the changes referred to in clause 28.1.1 and measures to avert or mitigate any adverse affects of such change on employees and give prompt consideration to those matters.

PN46

There was no opportunity for discussion about that new roster. It was put in place, seven days for it to start and it's due to commence at midnight tonight.

PN47

THE VICE PRESIDENT: And this is a major change in respect of what, production program organisation structure or technology?

PN48

MR INGWERSEN: The alteration of hours of work, significant effect at clause 28.2.

PN49

THE VICE PRESIDENT: No, no, 28.1.1, the obligation is activated by - - -

PN50

MR INGWERSEN: 28.1.1.

PN51

THE VICE PRESIDENT: - - - the development of the proposal to introduce major change in production program organisation structure or technology, so it's got to be within one of those options, which one?

PN52

MR INGWERSEN: Yes, it's a major change in production program and organisation in that these employees work within the production area within the studio. It's a major change in terms of how the rostering of the production is being done and organisation in terms of how the rostering is carried out within SBS.

PN53

THE VICE PRESIDENT: Thank you, Mr Ingwersen.

PN54

MR INGWERSEN: There are a number of award clauses I should just draw the Commission's attention to.

PN55

THE VICE PRESIDENT: What is the relationship between this agreement and the award?

PN56

MR INGWERSEN: Yes, the agreement is read in conjunction with the SBS Award and a lot of the rostering matters are called up out of the award which are instructive to be looked at. It says a requirement for consultation over roster changes in the award as well. Do you have a copy of the award, your Honour?

PN57

THE VICE PRESIDENT: I don't.

PN58

MR INGWERSEN: I can provide a copy. I take it you have got a copy, have you?

PN59

MR PEISLEY: Yes.

PN60

MR INGWERSEN: The key items that need to be referred to in the award at clause 31.3 and 31.3.1:

PN61

Shift patterns, shift work a new roster or change to shift cycles may be approved after consultation with the relevant employees. Shift rosters will specify the commencing and finishing times of ordinary hours of duty of the respective shifts.

PN62

Then there is another point which is relevant, particularly for the first roster which was:

PN63

Except at the regular change over of shifts employers will not be required to work more than one shift in each 24 hours.

PN64

Because of the backward rotating nature of the initial roster, that particular clause would have been breached, but the award spells out a requirement for consultation over changes to rostering and the agreement is read in conjunction with the award.

PN65

Your Honour, I don't think you need me to go through any definitions of what consultation is or anything like that.

PN66

THE VICE PRESIDENT: No, thank you, Mr Ingwersen.

PN67

MR INGWERSEN: Well, I'll leave my submissions at that.

PN68

THE VICE PRESIDENT: Mr Peisley, please feel free to respond generally, but could you just start with identifying the clauses that you say are relevant to the extent that they haven't been identified already.

PN69

MR PEISLEY: Your Honour, there are several clauses in the award which have not been specifically drawn to your attention which we believe give SBS the right to establish rosters and vary shift patterns and roster patterns.

PN70

THE VICE PRESIDENT: And they are?

PN71

MR PEISLEY: Well, firstly the one that Mr Ingwersen has mentioned, 31.3.1. 31.3.1 especially provides for SBS to introduce new rosters following consultation. We say that we have met that obligation in full. The consultation that Mr Ingwersen has dealt with in the least detail possible in his submissions in fact is only half of the story. The facts are, your Honour, is a proposal to make this change was first put forward to the affected employees on 13 July 2004.

PN72

This was followed by written confirmation shortly after that to all affected employees, followed in August by a further written confirmation that included three draft rosters encouraging those staff to consider those rosters and put forward their ideas for comment. On 3 August the union's Leah Piper sought a meeting with the SBS management to discuss the roster. That meeting took place on 20 August. Again, the reasons for the changed roster were explained in detail. SBS disputes Mr Ingwersen's claim that it was agreed at that meeting that SBS would convene further discussions with all studio employees to discuss the roster.

PN73

It was left at that meeting that the CPSU would be able to come back to studio operations management with any further concerns or issues of dispute. They didn't do so. That led to studio operations management on 9 September issuing a new roster to come into effect on 23 September. That triggered a meeting of members and Ms Leah Piper attended in which a resolution was passed condemning the new roster saying it was in breach of the award and the agreement, saying it was in breach of OH&S best practice and saying that if the new roster was implemented everything within their power - all action within their power would be taken to prevent that happening.

PN74

Mr Aslanidis responded on 10 September pointing out that the changes that we were proposing were consistent with the award and the agreement and that he was open to have further discussions with the CPSU prior to the implementation of that roster on 23 September. No response was received to that communication from Mr Aslanidis and the matter then unfolded as described by Mr Ingwersen.

PN75

But the point of concern with his submission this morning, your Honour, is that the amended roster that he claims to have been issued with only seven days notice and no consultation was, in fact, a compromise proposal put forward by the head of TV, Shaun Brown, on 22 September after an hour and a half of meeting the previous day with the CPSU, the MEAA and their members in that work area. At that meeting the union demanded that the custom and practice be maintained, the roster as it had been previously applied be maintained, pending SBS conducting a risk assessment and also conducting further consultation. Mr Brown considered those demands.

PN76

On 22 September he wrote back to the CPSU saying that he would agree to conduct a risk assessment. He would agree to further consultations regarding the new roster, but he would not agree to continue with the custom and practice and put forward what he explained to be a reasonable compromise and that was to amend the so-called 12 hour roster so that no shift exceeded ten hours and that roster come into effect from 23 September and continue to be worked by studio staff pending the risk assessment and pending the consultation he had agreed to.

PN77

That, we say, your Honour, is a perfectly reasonable compromise to the dispute that the union has brought before you today.

PN78

THE VICE PRESIDENT: Now, it's now the 29th, isn't it, today?

PN79

MR PEISLEY: That's right, your Honour.

PN80

THE VICE PRESIDENT: 29 September, what's happened between the 23rd and the 29th?

PN81

MR PEISLEY: What happened, your Honour, is that the letter of the 22nd was given to Ms Piper. She was intending, as I understand it, to come into the SBS premises that afternoon to meet with her members in the studios. She could not do so and she spoke with Mr Brown and sought effectively an extension of time. Mr Brown agreed to extend the introduction of the amended roster for a period of 24 hours.

PN82

During that period, he agreed that if any employee was rostered under that amended roster to work more than ten hours, they could work the balance of their shift as overtime to allow Ms Piper further opportunity to discuss his offer with the members in the studios. On 23 September, Ms Piper came into the SBS premises. She met with Mr Brown to discuss his letter. As I understand it, she expressed some difficulty with the proposal.

PN83

She again requested that the custom and practice roster of eight hours, shifts of eight hours duration, be allowed to run in accordance with custom and practice. He sent her away while he considered that request. He then called her back and confirmed that his offer would stand, but as a further concession, he would extend the agreement he had made the previous day for a further week. So that anyone rostered ten hours in the next week, whose shifts exceeded ten hours, could work the balance of those shifts as overtime hopefully allowing this matter to be resolved through discussion between the CPSU and its members in that work area.

PN84

THE VICE PRESIDENT: And we're still within that week period.

PN85

MR PEISLEY: And that week period expires this afternoon, your Honour and the new roster comes into effect tomorrow.

PN86

THE VICE PRESIDENT: Right.

PN87

MR PEISLEY: If I may say so, your Honour, this is a dispute essentially about SBSs right to roster its staff to meet its business needs. There is no change to the hours of work of these staff. They continue to work a 40 hour week over a four week cycle. The amended roster was introduced in response to some programming changes which are temporary.

PN88

THE VICE PRESIDENT: So you say the right to vary the roster arises from clause 31, sorry, clause - - -

PN89

MR PEISLEY: 31.3.1 and we also say, your Honour, that's given further effect through application of the provision in the agreement that was referred to by Mr Ingwersen under composite pay under clause 15 of the agreement under 15.4.1 on page 13 of my copy of the agreement your Honour, it says:

PN90

SBS will determine roster patterns in accordance with operational needs.

PN91

Not may determine, not can determine, but will determine based on operational needs. These rosters are in direct response to operational needs. The twelve hour shift that Mr Ingwersen has referred to has been made clear throughout these consultations that the twelve hour shift is effectively a one off to meet extraordinary demands on the need to use SBS studios associated with the broadcast of the closing ceremony of the Paralympics, on the same evening the broadcast of a UEFA Cup soccer match.

PN92

THE VICE PRESIDENT: So it's not proposed that these twelve hour rosters are going to continue indefinitely?

PN93

MR PEISLEY: No. Your Honour, what we are saying is that this roster, the first week of this roster coincided with a week when there were exceptionally high demands on the studio usage time, that is not a normal arrangement. It is likely that if this roster is allowed to progress that shifts are not likely to exceed more than ten hours but if studio demand requires it and sufficient notice can be given of those staff who are employed in that area on shift work it would be proposed that those rosters be allowed to be varied to meet those business needs.

PN94

THE VICE PRESIDENT: Do you anticipate a return back to an eight hour roster when these particular needs associated with the Olympics are over or is this - - -

PN95

MR PEISLEY: Eight hour shifts may continue to be common your Honour but one of the things that this review of the roster has highlighted is that it is not uncommon during the working week for eight hour shifts to not be required. On weekends employees are rostered for eight hours, when in fact their services may only be required for four or five. That is a costly and inefficient arrangement that we are seeking to change, so the major changes to the roster we are proposing are to shift that down time in the roster to other areas where there is a need during the week.

PN96

THE VICE PRESIDENT: What do you say about clause 19?

PN97

MR PEISLEY: Of the agreement or the award your Honour?

PN98

THE VICE PRESIDENT: Of the agreement?

PN99

MR PEISLEY: We say it's a very long bow for the CPSU to be drawing to suggest that this clause has application in this dispute your Honour. The intention in this clause is clearly about employees who wish to balance work and family to propose variation to their hours of employment. To suggest that SBS is in itself attempting to seek to implement a flexible working hours agreement arrangements is in our view simply a nonsense interpretation of this clause.

PN100

THE VICE PRESIDENT: Fine. I don't think that there is anything further that needs to be done on the record, is there?

PN101

MR PEISLEY: I also might add your Honour that the award at clause 17.2 states:

PN102

That ordinary hours will be worked continuously each day for a minimum of three hours provided that meal breaks do not break continuity.

PN103

So there is a minimum prescribed in the award of three hours for a shift. Nothing in the roster that SBS is proposed is that the so called twelve hour roster or the amended ten hour roster is in fact a breach of any provision of the order of the agreement.

PN104

THE VICE PRESIDENT: Yes.

PN105

MR INGWERSEN: Your Honour, I would just like to respond briefly to three points that were raised. The question of the three hour shifts, those sorts of clauses traditionally refer to the minimum start for somebody who might be a casual, somebody who is a part-timer, it is not a reference to the minimum hours that a full time employee would be working. You do not have full time employees working three hours on one day, it has never happened in SBS, it doesn't happen in other areas within television and it is misconstruction of the award for SBS to assert that.

PN106

The other point then in terms of the consultation I think I should refer to that is important is that Mr Brown, the head of television basically said that, okay, this revised roster when it was provided to the staff and to the union, that would be implemented, you can have discussions while it is being implemented. Now you don't have consultation while something is being implemented, you have it beforehand so that you can consider the impact of it and the impact of things like four hour shifts where you've got members that might be - - -

PN107

THE VICE PRESIDENT: My provisional view is that it is artificial to view the new roster as discrete and independent management change proposal, there is a proposal to change rosters and as a result of the process of discussions that has occurred management has responded by saying, well here's something that we think is going to be better and goes some way towards meeting the concerns of the union.

PN108

MR INGWERSEN: It still gave people one week to move to having four hour shifts or five hours shifts.

PN109

THE VICE PRESIDENT: That's a different issue and I appreciate that there are matters of substance that you've raised in relation to the process as a whole.

PN110

MR INGWERSEN: Yes but the reason you would have consultation over such a substantial change is because that does impact on people's lives and so that is a new roster that impacts on their lives. When you have a four hour shift someone has to commute an hour twenty minutes to work, spends almost three hours commuting, four hours at work in the day, so it's blown the day and to have a roster with little notice with those sorts of changes makes it very difficult to look when they might want to be seeing their partner, their family, other arrangements that they might have outside of work and that's why there is a requirement for consultation over those sorts of things. So it does have substantial impact and for SBS to suggest that that consultation take place while the rosters are being implemented in the wrong approach. They are the matters I just wanted to address quickly your Honour.

PN111

THE VICE PRESIDENT: Thank you, anything further Mr Peisley?

PN112

MR PEISLEY: Yes your Honour if I may, on the issue of the four hour shifts SBS foreshadowed this intention of reducing shifts to a shorter duration when this matter was first put forward on 13 July, four hour shifts have continued to be a feature of the draft roster. The amended roster approved by Mr Brown on 22 September has simply re-stated that intention. The only amendment to the roster as I understand it was to reduce the shifts of twelve hours duration that week to ten hours and allowing those staff to work the balance as overtime.

PN113

THE VICE PRESIDENT: Yes.

PN114

MR PEISLEY: It should come as no surprise to those staff the issue of rosters in four hour shifts your Honour.

PN115

THE VICE PRESIDENT: I will adjourn into conciliation. Now just before I do so, there is limited capacity in the Commission in Sydney to at short notice find someone else to deal with this matter if it needs to be arbitrated promptly, so I don't want to do anything in conciliation that will give rise to an apprehended bias application. So do the parties have any difficulty with me caucusing each party separately?

PN116

MR INGWERSEN: I don't have any difficulty with that your Honour.

PN117

MR PEISLEY: Nor do we your Honour.

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THE VICE PRESIDENT: Right. I mean obviously I can't prevent people from making such an application and it may be things that are said or done in the course of conciliation give rise to the requisite apprehension and therefore motivate an application but I am going to be moderately careful today to try and avoid doing that, so that the matter can be arbitrated properly by me if necessary.

PN119

Mr Peisley, if it is okay I will start with - actually no, can I suggest that everyone comes round to my chambers and we will do it round there.

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MR PEISLEY: Your Honour, I take it you have no difficulty with the members coming as well.

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THE VICE PRESIDENT: Of course, I will adjourn into conciliation now.

NO FURTHER PROCEEDINGS REPORTED [11.44am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU1 BUNDLE OF DOCUMENTS PN15