C2004/6431, Transcript of Proceedings [2004] AIRCTrans 4325 (9 November 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 8909

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2004/6431

WADEPACK LIMITED

and

AUTOMOTIVE, FOOD, METALS,
ENGINEERING, PRINTING AND
KINDRED INDUSTRIES UNION

Notification pursuant to section 99 of the Act
of a dispute re alleged threat of the union and
its members that employees working in the
Cutting and Gluing departments will not perform
work as directed

MELBOURNE

12.10 PM, FRIDAY, 29 OCTOBER 2004

PN1

MS C. CLEARY: I appear for the Australian Industry Group. Appearing with me is my colleague MS K. IRWIN who will be here in case the matter proceeds past 1 o'clock today because I do have another matter before his Honour Hamilton at 2 o'clock today. Also with me, your Honour, from the company is MR B. ROWE, the Operations Manager for the Mount Waverley site.

PN2

MR T. HALE: I appear on behalf of the AMWU. Appearing with me today is MR J. REID.

PN3

THE DEPUTY PRESIDENT: Thank you. Go ahead, Ms Cleary - before you start, Ms Cleary, I think my associate has advised you already, but I also have a matter at 2 o'clock this afternoon.

PN4

MS CLEARY: I saw that on the notice of listing, yes, your Honour.

PN5

THE DEPUTY PRESIDENT: Yes. Go ahead.

PN6

MS CLEARY: Okay. Your Honour, as you are aware on behalf of Wadepack Australia Limited the AR Group did notify the Commission of a section 99 dispute yesterday afternoon, early afternoon. Subsequent to that notification though your Honour we have been made aware that unlawful industrial action is now occurring at the site and that the site at Mount Waverley is now subject to a 24-hour stoppage over this matter and that industrial action commenced at 2.15 pm yesterday, your Honour. Obviously in light of - - -

PN7

THE DEPUTY PRESIDENT: So there is - the action is intended to end, as you understand it, this afternoon; is that correct?

PN8

MS CLEARY: That is right, your Honour, yes.

PN9

THE DEPUTY PRESIDENT: Thank you.

PN10

MS CLEARY: But saying that though, your Honour, it also has been indicated to us that the 24-hour stoppage is the first process of the union trying to resolve this problem and the issue in relation to the concept of higher duty allowance will not go away and the union will use whatever endeavours it can to persuade the company to concede to its demands.

PN11

THE DEPUTY PRESIDENT: Right, well, perhaps you had better just tell me what the dispute is about at this stage, Ms Cleary, and then I will hear from Mr Hale and if there are no objections we might go into conference and have some discussions about it.

PN12

MS CLEARY: Your Honour, Wadepack Australia Limited is a company that principally is engaged in the packaging industry and in light of that just for a reference point it is covered by Part 2 of the graphic arts broad band and classification definitions called Cardboard Box Container and Carton Industry Section and this award clearly outlines the job functions within that part of the industry and the relevant levels in accordance with the broad band and classification structure of the Graphic Arts Award 2000 and even its predecessor award, the Graphic Arts General Interim Award 1995. Your Honour, you would be aware as a result of the section 99 notification before you that there is in fact an enterprise agreement in operation and that enterprise agreement is called the Wadepack Limited Enterprise Agreement 2003 and has a nominal period of 1 May 2006. Your Honour, do you have a copy of that enterprise agreement with you today?

PN13

THE DEPUTY PRESIDENT: Yes, I do.

PN14

MS CLEARY: Your Honour, as the notification to the Commission indicates, on 4 October 2004, Mr Jim Reid who is present here today, indicated to the company that two of his members were not happy with their current pay rate. Those two members were printers' assistants who were in addition to assisting with the operating of machinery also assisted with - one of them operated a guillotine while another individual actually operated a fork lift from time to time. During this meeting it was clearly outlined to Mr Reid and the father of the chapel of the site and his deputy that the company was not in breach of the provisions of the Graphic Arts General Interim Award 1995 as that it was paying well in excess of the minimum award rates and also the mixed function clause was not applicable to the argument. Your Honour, there is a mixed function clause in the 19 - - -

PN15

THE DEPUTY PRESIDENT: Yes, just before you go to that, Ms Cleary, I note this agreement doesn't in fact specify any rates. It specifies some increases to the rates of pay. Where do I find the rates of pay that are actually paid?

PN16

MS CLEARY: It refers back to the 1995 award, your Honour.

PN17

THE DEPUTY PRESIDENT: Oh, right. Thank you. So the current rates of pay are those as specified in the 1995 award with the addition of what, two increments of 4 per cent since then; is that correct?

PN18

MS CLEARY: No, it isn't, your Honour. You would find that with the majority of printing enterprises in Victoria they pay market rates which are well in excess of any minimum award rate prescribed.

PN19

THE DEPUTY PRESIDENT: Okay, so there is an above-award component, yes.

PN20

MS CLEARY: Yes.

PN21

THE DEPUTY PRESIDENT: But that is not incorporated into the agreement.

PN22

MS CLEARY: That is right.

PN23

THE DEPUTY PRESIDENT: Yes, thank you.

PN24

MS CLEARY: The purpose of the meeting held on 14 October was for Mr Reid to indicate to the company that two of his members, his print assistants, weren't happy with their hourly rates of pay and the company clearly outlined to Mr Reid and his father of the chapel that the hourly rate provided to those two individuals fully compensated them for the work performed and did actually recognise the fact that, yes, they would be acquired on an as-needs basis to either operate the guillotine, which is a level 2 position, or operate a fork lift, which is deemed to be a level 3 position pursuant to the terms of the relevant Federal award.

PN25

Your Honour, during these discussions Mr Reid also indicated to the company that there were some concerns with respect to the company's gluing and cutting departments where printers' assistants during lunch break were being asked to monitor the operation of a machine. The assistants in those departments in accordance with the broad-banded classification are actually classified at level 2 at the same level as the operators, being level 2. And again the company clearly indicated to Mr Reid that there was no award breach, that the mixed function clause of the relevant award did not apply because the mixed function clause clearly indicates that if they are doing work which the award attracts a different wage rate to that is when the higher duty allowance should be paid.

PN26

THE DEPUTY PRESIDENT: Sorry, I don't quite follow what you are saying there, Ms Cleary.

PN27

MS CLEARY: In accordance with the broad-banded classification structure, your Honour - and if you have a copy of the award in front of you, even the 2000 award can be of assistance.

PN28

THE DEPUTY PRESIDENT: No, I have the '95 one here so - - -

PN29

MS CLEARY: I think, your Honour, I am a bit disadvantaged there because I have only actually got the 2000 award with me.

PN30

THE DEPUTY PRESIDENT: Well, that is fine. I have got that as well I think.

PN31

MS CLEARY: Okay.

PN32

THE DEPUTY PRESIDENT: No, I don't. I have got the '95 one.

PN33

MR REID: I have got a spare copy of the 2000 if you would like it?

PN34

THE DEPUTY PRESIDENT: Oh, I have got the 2000. It is on the back. It is all right. Thanks all the same.

PN35

MS CLEARY: And if I refer to appendix F, your Honour.

PN36

THE DEPUTY PRESIDENT: Which is on which page, Ms - - -

PN37

MS CLEARY: It is - - -

PN38

THE DEPUTY PRESIDENT: Oh, you have probably got a different page-numbering system in any event.

PN39

MS CLEARY: I do. I can be of assistance if you would like me to find it for you, your Honour.

PN40

THE DEPUTY PRESIDENT: Yes, you might do that.

PN41

MS CLEARY: To assist you, your Honour, because I know that you are new to the industry and this industry has quite a lot of historical background to it, is that - - -

PN42

THE DEPUTY PRESIDENT: Ms Cleary, I am fairly familiar with the award. I have had, prior to being in this - - -

PN43

MS CLEARY: Okay, right.

PN44

THE DEPUTY PRESIDENT: - - - particular job, exposure to graphic arts awards so - right, yes, go ahead.

PN45

MS CLEARY: Your Honour, as you can see, the award there at Part 2 refers to the Cardboard Box, Container and Carton Industry Section which Wadepack operates within and it clearly outlines that basically there are only two levels of employees within that broad industry, either being a level 2 or a level 3 employee. If you were to look at the job functions performed by Wadepack Australia Limited employees within both the cutting and gluing sections most of those employees fit within the definition of level 2 employees. Now, the level 2 definition applies to an assistant as well as applying to an operator of a machine.

PN46

THE DEPUTY PRESIDENT: Yes.

PN47

MS CLEARY: Now, obviously, your Honour, we would say that as both job functions are classified at the same level there is no higher duty allowance payable and the award rate is the same for both job functions.

PN48

THE DEPUTY PRESIDENT: Yes, okay.

PN49

MS CLEARY: My understanding is that there is an issue from the membership of the AMWU that - - -

PN50

THE DEPUTY PRESIDENT: And - sorry - all the people subject to this dispute are currently classified a level 2; is that correct?

PN51

MS CLEARY: That is quite right.

PN52

THE DEPUTY PRESIDENT: Yes.

PN53

MS CLEARY: And it is my understanding that there is an issue to do with the membership of the AMWU that the assistants wish to be paid a higher rate of pay when they are actually monitoring the machines during the operators' lunch breaks and the company's response is, "We are paying well above the award. We are paying the individuals a relevant market rate for the job functions performed," and my instruction is that the lowest rate of pay applying to an individual within this department for a 37 1/2 hour week is $557 as opposed to the current award rate for the 2000 award, being $484.10.

PN54

THE DEPUTY PRESIDENT: Yes.

PN55

MS CLEARY: My further instruction, your Honour, is that the union's claim is that they want the company to sit down now and negotiate a pay structure for different job functions at the site. The company has indicated to the union that it is not interested in doing so and it is our submission that if the union wishes to re-negotiate the terms and conditions of employment of its members it should wait until the agreement is re-negotiated in 2006. It is our position, your Honour, that the company is not in breach of the award, it is not in breach of the Federal agreement and that the employees are fully compensated for the work required to be performed.

PN56

Furthermore, your Honour, just for a bit of background in relation to this company, it was previously here before another member of this Commission in relation to another alleged award breach and as part of those negotiations a settlement was reached and that time, in September this year, wage rates were already being adjusted by another 2 per cent. We say that the union clearly is in breach of the award, they are engaging in unlawful industrial action and that we seek your support in getting the union to lift the industrial action today. If the Commission pleases.

PN57

THE DEPUTY PRESIDENT: Yes, thanks, Ms Cleary. Mr Hale?

PN58

MR HALE: Yes, your Honour. I suppose the first thing is that the stoppage of work is going to finish at 2.15 this afternoon. The members walked off the job in anger in which the way they were being treated. What - - -

PN59

THE DEPUTY PRESIDENT: Well, presumably there is a disputes procedure is there not, Mr Hale?

PN60

MR HALE: There is indeed a disputes procedure contained in the agreement.

PN61

THE DEPUTY PRESIDENT: And as I understand the disputes procedure it allows for matters to be arbitrated by the Commission, does it not? It goes beyond simply conciliation?

PN62

MR HALE: Well, that would certainly be our argument in relation to it, as you are no doubt aware.

PN63

THE DEPUTY PRESIDENT: Yes, well I just wonder why everybody is out the gate, Mr Hale, given that you have got a disputes procedure which you have put your signature on presumably as a union and agreed to comply with. You have an ability under that disputes procedure as I read it to have matters determined and yet people have decided that the best thing to do is hit the grass. What is the basis of that, Mr Hale?

PN64

MR HALE: Well, the only explanation I can give your Honour is that frustration at the company's position in relation to not being prepared to sit down and attempt to resolve the matter.

PN65

THE DEPUTY PRESIDENT: Well, frustration I am afraid doesn't, in my view at least, condone breaches of agreements freely entered into which would obliged you, in my view, to comply with disputes procedures at the very least.

PN66

MR HALE: Well, we would certainly be looking at telling our members that they are expected under the agreement to abide by the settlement of disputes procedure.

PN67

THE DEPUTY PRESIDENT: Yes, all right. Keep going, Mr Hale.

PN68

MR HALE: Okay. Now, in relation to the basis of the dispute the company is saying purely and simply that they don't have to address the internal relativities within the award because of the fact that they are paying above award rates of pay. Now, the award rates of pay for some years now have been a safety net provision and this argument is really about the internal relativities within the award so that the assistants as they call them are running the machines not just during the machine operators' lunch break. I think the term that the company uses is that they are baby sitting the machine and baby sitting the machine includes filling out the records and it might help if I were to just hand up a copy of - - -

PN69

THE DEPUTY PRESIDENT: Do you want these marked, Mr Hale?

PN70

MR HALE: Yes, your Honour.

PN71

THE DEPUTY PRESIDENT: Yes, I will mark the exhibit AMWU1.

EXHIBIT #AMWU1 DOCUMENTS

PN72

MS CLEARY: Your Honour, before we do that, unfortunately we have only been given one page of the two documents referred to. I don't think Mr Hale has got enough copies, have you?

PN73

THE DEPUTY PRESIDENT: Well, I have only got the same document - - -

PN74

MR HALE: No, it is only one document.

PN75

THE DEPUTY PRESIDENT: - - - twice - - -

PN76

MS CLEARY: Oh, okay.

PN77

THE DEPUTY PRESIDENT: - - - Ms Cleary. You can have one of mine.

PN78

MS CLEARY: No, that is fine. My heading was just a little bit - it has just been photocopied differently. That is okay.

PN79

MR HALE: I just cut the top off.

PN80

MS CLEARY: Yes.

PN81

MR HALE: Sorry.

PN82

THE DEPUTY PRESIDENT: AMWU1.

PN83

MR HALE: Thank you. So that this - they are required to fill out this document as part of the running and down the left-hand side there it is the time so that at intervals they have to - at 15-minute intervals they have to account for all of those going along the access on the - across the top. The machines that we are talking about are running at paces of - they could be running up to 100,000 units an hour - so they are extremely high speed machines. The rates of pay - and Ms Cleary gave it to you as a weekly amount - the standard process worker is on a rate of around $14.80 an hour. The cutting and creasing trainee - - -

PN84

THE DEPUTY PRESIDENT: Sorry, does that equate to the 557 that Ms Cleary talked about?

PN85

MR HALE: I - - -

PN86

MS CLEARY: No, it is less than - it is 555.

PN87

THE DEPUTY PRESIDENT: Right.

PN88

MS CLEARY: It is $2 - yes.

PN89

MR HALE: What is $2 between friends? The cutting and creasing trainee is on $15.71 and given that we say these trainees aren't trainees at all, they are actually performing the work, and the cutting machine baby sitters have been receiving $15 a week extra, so that would be $15 a week on top of the $14.80 per hour. So what the argument has been about is the difference being paid to a machine operator compared with the amount being paid to the baby sitters and the others based on the fact that they are not - that they are doing the exact same work, so they are actually - - -

PN90

THE DEPUTY PRESIDENT: All right, so in brief what we are talking about is machine operators that you say get $15 plus per hour, assistants that get $14.80 or thereabouts per hour, assistants get asked to look after the machine for a period of time while the operators are having lunch but continue to get their $14.80 per hour.

PN91

MR HALE: Well, not just for a period of time that the machine operators are having lunch. They can be put on the machine and the machine operator goes over and sets up another machine and goes about their work in another area.

PN92

THE DEPUTY PRESIDENT: Okay.

PN93

MR HALE: And then in addition to that the process workers who are doing unskilled tasks are getting the same rate as those, with the exception of $15. So with the exception of $15 a week they are getting the same rate as the unskilled workers. So that I guess the internal relativities within the award pick up the relativities that were established through - I think it started with the August '89 national wage case decision and went through those national wage case decisions of the early '90s - were the relativities between awards and within awards were established through the Commission. The company appears to be using the fact that the industry rate has got a long way ahead of the award rate because the award rate has been used or has been developed into a safety net.

PN94

So the safety net is well below what is being paid in the industry. So to try and use the defence that they are not in breach of the award is that they wouldn't have any employees if they were in breach of the award because the level of skill that would be required just would not get people with the skills required to work for the rates of pay on the base award. So I guess the argument is in relation to the appropriate rates of payment of the people with the additional skills so that we are not looking at trying to increase the top rate or indeed the bottom rate but what we are trying to do is to maintain the fairness of the relativities based on the skill levels required in the work. Now, where - and I guess that is the crux and I think that we would be looking at taking up your suggestion that we go into conference.

PN95

THE DEPUTY PRESIDENT: Yes.

PN96

MR HALE: But at some stage it may be easier if you were to go to the site and have a look at the operator and the skills required. It may make it clearer for you to actually do it than for me to call witness evidence and try and describe it or anything of the like, but at the present stage we would be looking at taking up your offer of attempting some conciliation in relation to the matter.

PN97

THE DEPUTY PRESIDENT: Right, thanks, Mr Hale.

PN98

MR HALE: Thank you.

PN99

THE DEPUTY PRESIDENT: Is there anything you want to put on the record briefly, Ms Cleary, before we go into conference?

PN100

MS CLEARY: No thank you, your Honour.

PN101

THE DEPUTY PRESIDENT: We will go off the record thanks.

NO FURTHER PROCEEDINGS RECORDED [1.45pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMWU1 DOCUMENTS PN72