C2004/6220, Transcript of Proceedings [2004] AIRCTrans 4326 (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 8911

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2004/6220

THE AUSTRALIAN WORKERS UNION

and

A STRAIGHTENING PTY LIMITED

Notification pursuant to section 99 of the Act
of a dispute re wages and conditions of
employment matters

MELBOURNE

9.32 AM, FRIDAY, 29 OCTOBER 2004

PN1

MR R.C. WINTER: I appear on behalf of the Australian Workers Union. Appearing with me is MS T. STEVENS.

PN2

MR P. ANGELICO: I appear on behalf of A Straightening. Appearing with me is MR F. WILFUNG from A Straightening.

PN3

THE COMMISSIONER: Thank you. Mr Winter?

PN4

MR WINTER: Thank you, Commissioner. I would just like to thank the Commission for bringing it on at such short notice because the issues that we raised in the dispute notification there has been some additional problems in the short term and we wish to seek the assistance of the Commission in trying to resolve these issues. There is a bit of a history between the union and the company in (1) trying to negotiate an agreement, and (2) actually getting the company to comply with the terms of the agreement and the award. If I may at this stage for your information hand up a copy of the agreement. Commissioner, this is an agreement between the Australian Workers Union and A Straightening Company that was negotiated in 2002 which the section 170LJ agreement was certified by the Commission.

PN5

The agreement has passed its nominal expiry date as of 14 September this year. It hasn't been replaced by another agreement and the agreement hasn't been terminated so for all intents and purposes the terms and conditions of the agreement still continue. A Straightening is based down there in the western suburbs. They are a metal fabrication manufacturing establishment. They, as of up to a month ago, they employed nine full timers and nine to eleven casuals. Now, approximately four weeks ago the casuals were all - all the casuals were terminated and as of last week they were advised that if they wished to work for the company they would have to work through a labour hire agency. That is one of the issues that we would like to bring to the Commission's attention.

PN6

The other issues that are in dispute is prior to their termination the agreement at clause 15, which is the casual and contractors' provision, states clearly that work would be in general on a full-time permanent basis with in-house employment. That would be the normal type of arrangements but due to peaks etcetera they would use short-term casuals. In this case it is clear at the third dot point that the maximum duration of three months for each engagement and then a minimum, of course, of one day that any longer service for a casual would have to be agreed to by the union and then there is a provision there in regard to supplementary labour that it would not be used to engage and re-engage on a continuing basis.

PN7

What has occurred though is that the casuals have been employed in most circumstances for a year or more in breach of clause 15 of the agreement. The company did not reach agreement with the union to extend the period of the casuals and also we would argue that the company has breached that clause in relation to the large number of casuals that they have engaged. So not only have they engaged casuals for a lengthy period of time in breach of that clause but they have also engaged large numbers where the intention of that clause is clearly to cover peaks where the majority of the employees would be full time. As I mentioned earlier, all the casuals have now been terminated and they have been told that for them to work with the company they would have to be re-engaged through a labour hire agency known as Hellis.

PN8

That is one of the issues, or two of the issues: the length of the service of the casuals and the issue that now they have all been terminated and told that they would have to work for a labour hire agency. Many of the other issues are, and there are a number of them, involve pay issues that have lodged - I have mentioned in my dispute notification and some of them are quite disturbing that employees have received pay slips dated 1 October to state that certain moneys would be placed into their accounts and as of the end of October those moneys haven't been paid. We are talking about three employees at this stage that we know of where they have received their wage slips, their wage slips - and we can provide details to the Commission and details of the bank accounts - where it states clearly that certain moneys were to be paid into the account and those moneys haven't been paid.

PN9

Another issue that is in dispute is that employees have been working 40 hours a week, which is the normal circumstance where you accrue two hours for an RDO. They have been working 40 hours a week, only been paid for 38 hours but not receiving their RDOs. So they would either receive two - they should receive either the two hours at penalty rates that is in excess of 38, or receive the RDOs. In this case the RDOs haven't been granted and the overtime hasn't been paid. Another issue that has - we have just been made aware of is that in the metal industry you would be aware that with casual loading if you work overtime the casual loading remains as part of the hourly rate and the penalties go on top. What has occurred in relation to this case for casuals is that they - when they work overtime they have just reverted to the full-time rate of pay and they have lost their casual loading when they would work overtime.

PN10

Two of the bigger concerns we have is in relation to protection of entitlements and also superannuation. At clause 21 on page 11 of the agreement it is agreed that there would be a fund established and the employer would pay 1 per cent of the total employee labour cost into that fund as protection of entitlements. We have tried to obtain that information whether that has occurred. We have been unable to do so. As of this morning we have also - I can't - I haven't been able to obtain detailed information from the super fund involved but we, as of this morning, none of the employees concerned had received superannuation statements from the super fund. They have made attempts to obtain those. We just - and we are not making an allegation that the superannuation hasn't been paid but we wish to know whether it is up to date.

PN11

We have some concerns about the viability of the company at this stage and we just bring it to the Commission's attention and we seek to have some clarification and further talks in regard to some of those outstanding payments. If the Commission pleases it might be more appropriate to go back - to go into conference to see if we can clarify a number of these points.

PN12

THE COMMISSIONER: Thanks, Mr Winter. Yes - sorry, Mr Angelico, is that right?

PN13

MR ANGELICO: Yes, Angelico.

PN14

THE COMMISSIONER: Angelico, sorry.

PN15

MR ANGELICO: Well, first of all the reason - the casuals weren't terminated. We had no work - our customer has had no work for about four weeks now. We have only just go loads back in in the last few days. So they weren't terminated. Everyone was laid off because we had no business to do. So that is a falsehood for a start. Secondly, the reasons we put the casuals with the labour hire company is to give them the chance to get work somewhere because I had no work to offer them for the best part of October and this was communicated to all the boys. I actually had a meeting with all the boys on Tuesday. Do you remember that, guys, or have you forgotten already?

PN16

We had a meeting, we agreed about most of these issues, so I don't know why we are here today but that is another issue for the moment. This serious allegation about the wages paid in October or - I mean, that is the first I have heard of it. I mean, I have said to the boys on Tuesday, "If you've got a problem come and talk to me." Now, in the EBA there is a procedure there for dispute settlement. There are 12 different options before we come stampeding to the Commission. Now, we have had no notice that there is a problem.

PN17

THE COMMISSIONER: Right.

PN18

MR ANGELICO: Particularly in regard to this protection of entitlements and the superannuation. Now, first of all, the superannuation is up to date. Again, if there is a problem come and talk to us. I don't know why that is - how these issues haven't been raised earlier, particularly the wages issue, because generally, look, we are not perfect. We make mistakes on wages and we generally fix them up within one to two days if we are told about them but we can't fix something that we don't know about.

PN19

THE COMMISSIONER: You say that, what, the disputes procedure hasn't been followed?

PN20

MR ANGELICO: No, it hasn't:

PN21

In the event of a dispute occurring between the parties every endeavour will be made to amicably settle the same -

PN22

etcetera, etcetera -

PN23

The employees will discuss matters affecting him or her with an immediate supervisor.

PN24

We don't know - I mean, as I said to the boys on Tuesday, we can fix most things within, you know, a day or two but if we don't know about it we can't fix it. We could just follow, you know, this pretty good procedure. It is in the EBA for a pretty good reason instead of, you know, wasting the Commission's time. I am sure you have more important things to do, you know but - - -

PN25

THE COMMISSIONER: Oh, no, we are always happy to have your company.

PN26

MR ANGELICO: - - - you know what I mean.

PN27

THE COMMISSIONER: Always happy to have your company.

PN28

MR ANGELICO: Right.

PN29

THE COMMISSIONER: What is the issue with the RDOs?

PN30

MR ANGELICO: Well, this again, it is the first it has been raised. They were erroneously told that you get an RDO included in your 38 hours, which is not correct as we all know.

PN31

THE COMMISSIONER: Yes.

PN32

MR ANGELICO: Now, to the best of my knowledge the hours that they work is a normal 7.6 hour day, which equals 38 hours a week. Now, this is - we have been going for three years. I don't know why this is all of a sudden a problem now. As I said, you know, I can't fix a problem that I don't know about. The other thing which is very important to mention we are out of contract as of 14 September so I can't offer anyone full-time employment. Now, I have been trying to re-negotiate a new contract with my customer for the best part of 12 months. Now, I can't offer - it is pointless offering someone full-time employment if I don't have a contract. That would be suicidal from a business point of view and even at the moment we are on a month-to-month so - - -

PN33

THE COMMISSIONER: And that expired in September?

PN34

MR ANGELICO: September 14, yes, and yes we are negotiating with our customer now but I don't know if and when that is going to happen.

PN35

THE COMMISSIONER: Who is your customer?

PN36

MR ANGELICO: Smorgen Steel.

PN37

THE COMMISSIONER: Okay.

PN38

MR ANGELICO: So two things have to happen; they have got to agree with us and we have got to agree to the deal, you know, either of us - yet we haven't come to agreement yet so to put people on full time and give them false hope I think is - would be quite irresponsible and it is something I don't want to do.

PN39

THE COMMISSIONER: So that relates to the casuals?

PN40

MR ANGELICO: Yes, and that is why we haven't - I mean, no one has asked to become permanent. I know, you know, we probably all haven't followed the casual conversion procedure. Part of the reason is that, yes, look I take - after September 14 I just did not know what we were doing and I still don't know. So it was pretty hard to offer someone a full-time job and give them the hope that there is going to be permanent employment when I just know there is not.

PN41

THE COMMISSIONER: Mr Winter says that some of those casuals had - or a lot of those casuals - had been there fore 12 months or more.

PN42

MR ANGELICO: Oh, there has been a couple. Not a lot; there has been a few, yes. I don't have exact figures in front of me.

PN43

THE COMMISSIONER: Right.

PN44

MR ANGELICO: But no, that is true, yes. There is a few of them been there for that time.

PN45

THE COMMISSIONER: He also raises the issue of overtime penalties being paid on the casual loading. He says that he has been advised that the company reverts back to the normal hourly rate and then applies the penalties to the hourly rate rather than the penalties he is applying to the hourly rate plus the casual loading.

PN46

MR ANGELICO: Well, I don't have the information here with me so I will have to find out about that. That is the first time that issue has been raised. The other point that was made, the protection of entitlements, now we have had no contact from the union for 12 months. We were actually here almost a year to the day, 27 October, and I want to actually raise a point from that meeting. That was in front of Commissioner Hingley. Now, because there were some personality issues Ms Stevens was meant to be away from our site and another delegate was going to be attributed to us. Now, I missed a few messages from Mick Eagles but I haven't heard it back yet but that was supposed to happen 12 months ago.

PN47

THE COMMISSIONER: Yes.

PN48

MR ANGELICO: This is the first contact we have had in nearly 12 months so I don't know what happened with that. That was 27 October in front of Commissioner Hingley. So Craig, have you got any thoughts on that because I think you were at the same hearing?

PN49

MR WINTER: No, I wasn't, but I can comment on that.

PN50

THE COMMISSIONER: All right, thanks. Mr Winter?

PN51

MR WINTER: If I can deal with a few of the issues. The organiser who has been handed this site is away on leave, right, so when these issues were first raised - and we have got to bear in mind these - the employees were terminated, we would say, from the company's payroll - - -

PN52

MR ANGELICO: They weren't terminated.

PN53

MR WINTER: - - - four weeks ago, that Ms Stevens attended site on 7 October to discuss these issues and the company refused to discuss them with her and - - -

PN54

MR ANGELICO: Excuse me, Mr Commissioner.

PN55

THE COMMISSIONER: No, hang on, no.

PN56

MR ANGELICO: Sorry.

PN57

THE COMMISSIONER: Let Mr Winter - you will have your chance.

PN58

MR WINTER: And as a result we lodged the S99 notification. We couldn't do anything else in relation to it. We tried to talk to the company to just try and settle some of these issues. Now, in regard to issues of outstanding wages, many of the workforce has a poor command of English but they had relatives contact the company on numerous occasions in regard to outstanding wages and they spoke to payroll and we could put people in the box in regard to that, and they even went to the banks to get statements to show that the payments hadn't been put in. So for the company to say these issues haven't been raised is just totally incorrect. The first port of call for any wages claim is the payroll office and that has occurred on numerous occasions and there has been numerous telephone calls to the company in regard to the outstanding wages.

PN59

In regards to the breaches of the agreement for casuals, the company is well aware that they have breached the agreement in employing casuals for lengthy periods of time, right, in excess of the three months that is agreed with the agreement. The company has mentioned the issue of its contract with Smorgens. That is why we are so concerned (1) when wages don't go into a bank account, but pay slips are issued as of 1 October and then there are telephone calls, it should send the alarm bells ringing. When that occurred, Ms Stevens went to the site and on 7 October the company refused to discuss anything with her and refused to - and as a result of that the next alternative is to notify the Commission to seek the Commission's assistance in trying to resolve these issues. If the superannuation has been paid, fine. We are not -we just want some evidence that it has been paid and that it is all up to date.

PN60

In regard to the casuals, whether they have been terminated or not, the company has stated, well, there is now work on the offer, offered, but you can only get that work if you work through the labour hire agency. They are telling the casuals, "Go and apply through the labour hire agency if you wish to come back." They haven't offered the casuals work as direct employees and what we say is that they should be offered work in regard to - as direct employees, so - - -

PN61

THE COMMISSIONER: Mr Angelico says that because of this period, this hiatus period where they are negotiating with Smorgen Steel, that the company cannot offer direct employment to casuals and the reason why they suggested they go to labour hire was for that labour hire to try and find them - - -

PN62

MR WINTER: Additional work.

PN63

THE COMMISSIONER: - - - additional work. Now, I didn't hear the company say that if work picked up or they reached a contract with Smorgens that they would only hire through the labour hire company. We may need to get that clarified.

PN64

MR WINTER: Well, that is what our members have been informed and I would like Mr Angelico to give us the commitment that that is not going to occur.

PN65

MR ANGELICO: I can only give the commitment I don't have a contract. I have nothing to offer.

PN66

THE COMMISSIONER: No, I understand that, I understand that, and I understand the reasoning you say that to help these people get other work you refer them to a labour hire company.

PN67

MR ANGELICO: Yes.

PN68

THE COMMISSIONER: The question is though that if you do secure a contract that are you then going to say to these casuals, "I will only employ you through a labour hire company or I'm prepared to employ you direct."

PN69

MR ANGELICO: No, it was always the case. If we have a contract, yes, we will employ them direct. I just don't have anything to offer right at this point in time.

PN70

THE COMMISSIONER: No, I understand that.

PN71

MR ANGELICO: Yes.

PN72

THE COMMISSIONER: But if that is what you say - - -

PN73

MR ANGELICO: Yes, and that has been communicated.

PN74

THE COMMISSIONER: Yes, "If a contract is got - - -

PN75

MR ANGELICO: Yes.

PN76

THE COMMISSIONER: - - - that we are not going to insist that you are going through a labour hire company. We will be prepared to employ you provided we have our contract."

PN77

MR ANGELICO: Yes, we need to agree on the level of permanence because we have a Worksafe issue where they want us to automate part of the process, and I said to this to the boys on Tuesday, we may need less - I mean at the moment we are down to 18; I think we were up to 24 at one stage.

PN78

THE COMMISSIONER: Right.

PN79

MR ANGELICO: So that it will probably be 18 people may be about the maximum, so - - -

PN80

THE COMMISSIONER: Okay, right.

PN81

MR ANGELICO: - - - a lot of that is still to be determined.

PN82

THE COMMISSIONER: That should be one issue put to rest - - -

PN83

MR ANGELICO: Yes, exactly, yes.

PN84

THE COMMISSIONER: - - - given what you have said.

PN85

MR ANGELICO: I agree, yes.

PN86

THE COMMISSIONER: Okay. The other issue is you say that some of these issues are issues that you are not aware of.

PN87

MR ANGELICO: That is right, yes.

PN88

THE COMMISSIONER: And Mr Winters says that Ms Stevens on 7 October - was it October?

PN89

MR WINTER: Yes.

PN90

MR ANGELICO: Friday 7.

PN91

THE COMMISSIONER: Yes, 7 October, tried to make an arrangement to discuss some of these issues and was told by the company, "Well, we're not going to discuss them." The employees say - and Mr Winters says on their behalf because some of their English is not that good - that relatives contacted payroll and didn't get a satisfactory response from payroll. Now, are you aware of that?

PN92

MR ANGELICO: No. Well, first of all the procedure if there is a payroll problem is to talk to the manager who is on site and that has worked well for, you know - I said we are not perfect, I am not saying we are, but this thing about the overtime, the 48 hours or 30 and 48 hours, that is the first I have heard of this with the RDOs but if there are any issues - - -

PN93

THE COMMISSIONER: So who did you - sorry.

PN94

MR ANGELICO: Sorry.

PN95

THE COMMISSIONER: Who did you contact to talk?

PN96

MS STEVENS: Both of these two were sitting in the office that poses as a shed.

PN97

MR ANGELICO: And you didn't come and see us after the meeting. You spoke to the boys - - -

PN98

MS STEVENS: Your exact words to me were, "What are you doing here?" and you wouldn't deal with me.

PN99

MR ANGELICO: And the context of that was Mick Eagles said to this Commission last year that a new organiser was going to be assigned to our site because there were some personality issues and that is why I asked you that question. I said, "Tonia, why are you here because Mick said someone else was looking - - -

PN100

MS STEVENS: Well, from now on you can expect to resume - - -

PN101

MR ANGELICO: - - - after this site."

PN102

MS STEVENS: - - - dealing with me once again.

PN103

MR ANGELICO: Well, I want clarification of that from Mick. Nothing personal, but that is - Mick told the Commission that and I have worked forward on that basis.

PN104

MS STEVENS: Okay, well I am back - - -

PN105

THE COMMISSIONER: Well, I mean - - -

PN106

MS STEVENS: - - - as from today.

PN107

MR ANGELICO: Well, anyway, that is beside the point.

PN108

THE COMMISSIONER: If there is a personality issue with Ms Stevens - and I don't know why; she is such a delicate little petal - then we can work through that with the secretary of the union.

PN109

MR ANGELICO: That is fine, yes.

PN110

THE COMMISSIONER: That is the person responsible for making a decision on who he allocates to - - -

PN111

MR ANGELICO: That is fine, yes.

PN112

THE COMMISSIONER: - - - the various shops.

PN113

MR ANGELICO: And until I hear from Mick Eagles different I am going to move forward on what Mick said 12 months ago. Can I just make another point on that October 7 meeting? Tonia and another - who is the other guy who was there, with the short hair?

PN114

MS STEVENS: Oh, Tom Kairouz.

PN115

MR ANGELICO: Tom, yes, I couldn't remember his name.

PN116

After you spoke to the boys you drove off. You never - - -

PN117

MS STEVENS: You made it very clear you wouldn't deal with us.

PN118

MR ANGELICO: No, we didn't.

PN119

MS STEVENS: So we just gathered our facts and lodged - - -

PN120

MR ANGELICO: Well, why didn't Tom come in and say, "Here's the issues"?

PN121

MS STEVENS: - - - a section 99 - because you made it - - -

PN122

MR ANGELICO: The next thing I see I - - -

PN123

MS STEVENS: - - - very, very clear you - - -

PN124

MR ANGELICO: No.

PN125

THE COMMISSIONER: Well, hang on. Wait, wait, wait. Is there any value in having a group hug to try and break down these barriers?

PN126

MR WINTER: There is a lot of history that might - - -

PN127

THE COMMISSIONER: I mean, is there any value in that? Listen, you - - -

PN128

MR ANGELICO: Can I make a suggestion?

PN129

THE COMMISSIONER: You are now aware of the issues, okay?

PN130

MR ANGELICO: Yes.

PN131

THE COMMISSIONER: And some of them are quite serious because they go to the payments which are required payments. They go to the issue of an RDO, whether in fact you are complying with your agreement.

PN132

MR ANGELICO: Mm.

PN133

THE COMMISSIONER: There is the issue of being satisfied that superannuation in fact is being paid. Now, some of those I understand you may not be able to deal with straight away because you need books and you would need your accountant and so forth.

PN134

MR ANGELICO: Yes.

PN135

THE COMMISSIONER: Or your bookkeeper or whatever.

PN136

MR ANGELICO: Yes.

PN137

THE COMMISSIONER: What I am prepared to do is now that you are aware of those issues and the matter is now before the Commission that - I am not sure whether next Wednesday is a good day because I don't expect you to be open Monday, are you?

PN138

MR ANGELICO: No - - -

PN139

MR WINTER: No.

PN140

MR ANGELICO: - - - the boys open.

PN141

THE COMMISSIONER: Most people would be having the extra long weekend; is that about right?

PN142

MR ANGELICO: Yes - well, I think we are working up there. One of the places will be open - - -

PN143

THE COMMISSIONER: Okay.

PN144

MR ANGELICO: - - - but that is probably - a few days next week are not good for me with the company.

PN145

THE COMMISSIONER: No.

PN146

MR ANGELICO: Perhaps the week after.

PN147

THE COMMISSIONER: And they are not good for me either, but what I would propose to do is to - okay, yes. Where you get your instructions I have to get mine from my associate. What I will do is I will set this matter down for Monday, 8 November, at 1.30 for a conference. What I would like is the company to bring a response through either their books or their bookkeeper.

PN148

MR ANGELICO: Can I make a suggestion? Can the union just give me a list of everything, just email it to me or whatever?

PN149

THE COMMISSIONER: Well, what will happen is you will get a copy of transcript.

PN150

MR ANGELICO: Yes.

PN151

THE COMMISSIONER: Okay, the parties get a copy of transcript.

PN152

MR ANGELICO: Okay.

PN153

THE COMMISSIONER: The items that Mr Winter has raised will be in that transcript.

PN154

MR ANGELICO: Okay.

PN155

THE COMMISSIONER: So you can look at that and then on the 8th at 1.30 if you can provide a response to each one of those issues please and it may be you might be in a position to also clarify where you are in terms of a new contract.

PN156

MR ANGELICO: Yes.

PN157

THE COMMISSIONER: Sorry, I am getting further instructions here. My associate has pointed out that next week, because of a short week, there may be a bit of a delay in the transcript so Mr Winter if you could assist by putting down the issues that you have identified today - - -

PN158

MR WINTER: I will do it right now.

PN159

THE COMMISSIONER: - - - by email or fax, to the company, setting out what the issues are and we will set down 1.30, Monday the 8th for conference, okay?

PN160

MR ANGELICO: Yes.

PN161

MR WINTER: Could I - - -

PN162

MR ANGELICO: If there is anything else to add, add whatever you like so we can deal with it all.

PN163

MR WINTER: Yes, no worries.

PN164

MR ANGELICO: Thank you.

PN165

MR WINTER: Could I just clarify one thing because it is in relation to the employment of casuals in the next week? I just want to clarify, the company has said that there is work there at the company for casuals but they won't employ them as - directly as casuals. They must go through the labour hire agency; is that correct?

PN166

MR ANGELICO: Until we know about the contract, yes. I mean - - -

PN167

MR WINTER: But I just can't see the difference - - -

PN168

MR ANGELICO: - - - I don't want to give anyone false hope.

PN169

MR WINTER: - - - in regard to - - -

PN170

MR ANGELICO: That sounds good in theory.

PN171

THE COMMISSIONER: Well, hang on, wait on - - -

PN172

MR WINTER: - - - you have employed them as casuals.

PN173

THE COMMISSIONER: Well is - quite frankly I can understand the company who says, "We have some work. We don't know whether we're going to have ongoing work." So in the short term it is probably more appropriate to get casuals through labour hire. However, if that position changes in terms of them getting a contract then I would expect - that is the Commission, and so would the union I am sure - that they would then comply with the agreement in terms of casuals, not through a labour hire company.

PN174

MR ANGELICO: Right.

PN175

MR WINTER: I just wanted to confirm that.

PN176

THE COMMISSIONER: Okay, but short term I can understand that position, okay, if there is some uncertainty about ongoing work. All right, we will see you on the 8th. Have a happy week.

ADJOURNED UNTIL MONDAY, 8 NOVEMBER 2004 [9.59am]