C2005/3056, Transcript of Proceedings [2005] AIRCTrans 1232 (31 May 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11634-1

COMMISSIONER BLAIR

C2005/3056

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-TASMANIAN BRANCH
AND
ACL BEARING COMPANY
s.99 - Notification of an industrial dispute
(C2005/3056)

HOBART

4.35PM, THURSDAY, 19 MAY 2005

PN1

MR S LITTLER: I appear on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and with me is delegate from ACL, MR G BURTON.

PN2

MR A FLOOD: I appear on behalf of ACL Bearing Company.

PN3

THE COMMISSIONER: Thank you, Mr Flood. Yes, Mr Littler.

PN4

MR LITTLER: Thank you, sir. We notified a dispute on behalf of our members who work for ACL Bearing Company, employed in the tool room, the projects and maintenance section. The dispute relates to, as identified in the notification, failure of the company to pay tool allowance in accordance with the award. It is the intention of the union today to outline the history and give some circumstances as to how the dispute has arisen and seek the Commissioners assistance in resolving this dispute, initially to the point where the Commission could offer some conciliatory support to the parties to try and resolve this matter.

PN5

Initially by the way of conciliation, it has been accepted by the employer as well, if it pleases the Commission. Okay. Would you like me to go through in regards to my submission on that matter?

PN6

THE COMMISSIONER: It's up to you.

PN7

MR LITTLER: Okay. Look, what I will briefly say is so that the employees employed is governed by the Metal, Engineering and Associated Industries Award 1998 and the employees in question we believe are eligible to receive tool allowances identified in clause 5.9.1(d) of the award. Sir, the employees we are seeking to be subject to an outcome of the Commission is 11 tradespersons who were at the time of making this application, full time employees. Sir, the history of this matter has been of some length to it. Prior to December 1993 all tradespersons and apprentices employed by the company was paid a tool allowance as per the award.

PN8

In January changes were made where the production service manager issued a memorandum stating that apprentices employed between 1994 and 2004 would not receive a tool allowance and that the company would be allocating a normal production service tool kit by the company during the terms of the apprenticeship and thereafter as a tradesperson the same took it will be maintained. Sir, the union's position on behalf of our members is a straight forward one and that we believe that the Metals Industries Award of 1993 provides and identifies in clause 8(q)(i), to quote:

PN9

Tradespersons and apprentice except as provided by classification 1.3.9 and by ...(reads)... as set out in the clause and of the award.

PN10

We believe that we can prove to the Commission that the award has been breached. As I indicated, there's some history to it but I will leave it at that and discuss it in more detail in the conciliation, if it pleases the Commission.

PN11

THE COMMISSIONER: Thanks, Mr Littler. Yes, Mr Flood.

PN12

MR FLOOD: Thank you, Commissioner. It's interesting to sit here and hear the basis of the AMWUs claim, Commissioner, because it's the first time it's been clearly annunciated to us what the problem actually is. We have been discussing tool allowance with the AMWU since February of this year and since that time we have had a number of discussions and I have got to say we have struggled to understand exactly what the problem has been alleged. At the start of the year we were considering our position on a tool allowance which we paid to some of our non tradespersons and whether or not we would continue to provide that allowance or whether we would provide tools to those people and we believe for quite some time that that was what the problem was that the union had.

PN13

It was only on 15 April that the issue of a tool allowance to our tradespersons, our trade employees was actually discussed. I have got to say that until I heard
Mr Littler then we still didn't really understand what the dispute was about. We wrote to Mr Littler on 13 April and 2 May asking him to clarify what the dispute was actually about and we got no satisfactory response to those letters. So in response to Mr Littler's opening submissions to you, I would confirm that we are content to proceed in conciliation. In fact, that's our preferred option. WE only became aware that this matter was coming before you on yesterday afternoon, Commissioner, and we certainly haven't had the opportunity to prepare for a hearing.

PN14

In fact, the important people within ACL Bearing Company that need to be here can't be here. In fact, one of them is on the mainland today, so that's why I'm here by myself.

PN15

THE COMMISSIONER: Right.

PN16

MR FLOOD: I don't think I need to go any further just at the moment other than to leave to conciliation if that's your preference.

PN17

THE COMMISSIONER: Okay, thank you.

PN18

MR FLOOD: Thank you.

PN19

THE COMMISSIONER: I just have a question, I'm not quite sure whether I heard probably. Mr Littler, you said prior to December '93.

PN20

MR LITTLER: Yes.

PN21

THE COMMISSIONER: And then you said that a notice was issued stating that between '93 and 2004.

PN22

MR LITTLER: Yes. Look, prior to 1993 the award was adhered to. The memorandum was issued in 1994, January, and it was for a period from then until 2005 we believe that the company was in breach of the awards.

PN23

THE COMMISSIONER: Right, okay.

PN24

MR LITTLER: Am I allowed to make just a comment in regards to Mr Flood if I could?

PN25

THE COMMISSIONER: Sure.

PN26

MR LITTLER: Look, I acknowledge that there has been some confusion around the tool allowance but the dispute was put in with the company in February. There has been, to my recollection, only three meetings but numerous emails and correspondence, and just to clarify one of Mr Flood's comments that the company was not aware of the situation, I received a letter by email by the human resources manager on 16 May 2005, which is quite obviously early this week, and it states:

PN27

Shane, thank you for the letter. It is now clear what we are asking for so we will go away and examine what you have said and come back to you.

PN28

What escalated this dispute, sir, was subsequent to that email received within a minutes another email from the human resources officer advising that they have taken away tool allowance from two of the employees while we had a dispute and we believe that's in breach of the grievance procedure in the award. Thank you.

PN29

THE COMMISSIONER: All right, thank you. Do you wish to respond to that, Mr Flood?

PN30

MR FLOOD: Not on the record, thank you, Commissioner. I certainly will later on but I don't think there's any need to put it on the record.

PN31

THE COMMISSIONER: Okay, thank you. The Commission will go into conference. Thanks.

<SHORT ADJOURNMENT [4.44PM]
<RESUMED [5.15PM]

PN32

THE COMMISSIONER: In this matter, C2005/3056, which is an application by the AMWU and ACL Bearing being the respondent. The Commission has had an opportunity to hear the parties argument firstly on transcript and secondly in conference. Arising from the information that has been provided to the Commission as indicated both in transcript-in-conference; the Commission believe it's in a position to issue the following determination:

PN33

(1) The employees in question, and the Commission understands there's approximately 11, they will keep their current tool kit;

PN34

(2) Any new employee will be given the option of providing their own tools with the appropriate tool allowance as determined by the Metal, Engineering and Associated Industries Award 1998, or;

PN35

(3) They receive a company tool kit which remains the property of the company and shall be returned when the employee leaves the company.

PN36

It is expected that the company would maintain such a tool kit in a proper order. That is, replacement on a wear and tear basis;

PN37

(4) The Commission rejects any claim for retrospectivity in regards to the payment of the tool allowance. The Commission does understand and accepts that the union may be unhappy about that, but the Commission believes it is in a position given the information that has been provided, the information has been detailed to reject such a claim;

PN38

(5) if any employee feels it necessary to purchase tools that are over and above what the company provides in their tool kit, the employee must seek approval of the company before such a purchase occurs if they wish to have the cost of such a tool paid for by the company;

PN39

(6) The company in regards to point 5 shall not reject such a request if the request is deemed to be reasonable.

PN40

Now, as indicated, that is a determination by the Commission. The Commission doesn't expect the parties to say that they accept that because it's not a recommendation. It is a determination by the Commission and the Commission would expect that such a determination would be conveyed, (a), to union members, and (b), to the company appropriate management level. If there's no further business? The Commission thanks the parties and will stand adjourned.

<ADJOURNED INDEFINITELY [5.18PM]