C2005/2634, Transcript of Proceedings [2005] AIRCTrans 1266 (8 June 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11690-1

SENIOR DEPUTY PRESIDENT KAUFMAN

C2005/2634

TEXTILE, CLOTHING AND FOOTWEAR UNION OF AUSTRALIA
AND
BRUCK TEXTILES PTY LIMITED
s.99 - Notification of an industrial dispute
(C2005/2634)

MELBOURNE

11.02AM, WEDNESDAY, 25 MAY 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

MS K FAWCETT: I appear for the Textile, Clothing and Footwear Union and with me is MS J KRUSCHEL, the assistant secretary of the Victorian branch and MR R ARCURI.

PN2

THE SENIOR DEPUTY PRESIDENT: In Wangaratta?

PN3

MR G PELS: I appear for the Australian Industry Group on behalf of our member Bruck Textiles and appearing with me is MS L CLARKE, the human resources manager and MR G HINES.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Ms Fawcett, very helpfully this tells me that it is about an alleged transfer of an employee and nothing more.

PN5

MS FAWCETT: Yes, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Now, you better tell me something about it.

PN7

MS FAWCETT: If it is convenient to the Commission I would propose to basically outline the factual background to the dispute.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes.

PN9

MS FAWCETT: The respondent to the dispute, Bruck Textiles, operates two businesses in Wangaratta. One of the businesses is Bruck Textiles which I will refer to as Bruck and the other business is Wilson Fabrics, which I will refer to as Wilson. The two businesses operate independently of each other, however - - -

PN10

THE SENIOR DEPUTY PRESIDENT: What does each do?

PN11

MS FAWCETT: The Wilson business is a warehousing, basically a warehousing business and the Bruck business is basically a manufacturing business although I am sure the respondent can give you some more details about that.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes.

PN13

MS FAWCETT: Both businesses employ people who are covered by the Bruck Textiles Wangaratta Enterprise Agreement, so the same agreement. As background to the issues to do with this dispute I want to outline the shift arrangements at both sites. At the Bruck site employees work on either two shifts or three shifts depending on what area they work in. So, for example, in the coating area there is three shifts, there is a day shift that goes from 8 am to 4 pm, an afternoon shift that goes from 4 pm to 12 midnight and a night shift that starts at midnight and ends at 8 am. Then, for example, in the final inspection area there is two shifts. There is a day shift that starts at 7 am and ends at 3.30 and an afternoon shift that starts at 3.30 and ends at 11. In each area whichever shifts are worked depends on what roster an employee is on. Some rotate through three shifts, some rotate through two shifts and there are some employees that only work day shift.

PN14

THE SENIOR DEPUTY PRESIDENT: Do people move between coatings and inspections?

PN15

MS FAWCETT: Yes, they do on a limited basis. In contrast to that, the work at Wilson's operates only on a day shift which runs from 7 until 3.30. Mr Robert Arcuri who is the employee that this dispute centres around.

PN16

THE SENIOR DEPUTY PRESIDENT: Robert who?

PN17

MS FAWCETT: I beg your pardon?

PN18

THE SENIOR DEPUTY PRESIDENT: What is his name?

PN19

MS FAWCETT: Arcuri, A-r-c-u-r-i.

PN20

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN21

MS FAWCETT: Mr Arcuri has worked for Bruck before in about 1987 for a couple of years and then worked again at Bruck in around about 2002, 2003 as a casual employee at the Bruck site working day and afternoon shifts in the dispatch area. In about June 2003, Mr Arcuri responded to an advertisement in the local paper, The Chronicle, for a position at Wilson and he successfully obtained a full time day shift position that was located at the Wilson site. The position was at a level 3 and it involved various duties to do with warehousing, things like audit picking, stock returns, invoicing and the like. In early March this year, your Honour, Mr Hines who is a manager at Wilson's announced that Wilson's needed to lose two of its employees.

PN22

The reason that he gave for that was that Wilson could not afford to have two people, that production had dropped off. He outlined the process that the two employees that ultimately left Wilson would be transferred permanently to the Bruck site. He asked for volunteers and said if there weren't any volunteers the company would then look at a selection process where there would be a short list of seven from which two would be chosen and there would be a set of criteria applied relating to skill level, attendances, work cover history and any medical conditions. The respondent did undertake this assessment, there were interviews of staff. Initially Mr Arcuri was told that he was part of the seven but that he was at the tail end of the seven and that he was safe.

PN23

However, later the same day he was told that in fact he had now been chosen and was required to transfer to the mill. Mr Arcuri's position is that he doesn't want to work at the mill and has indicated that position. The key problem about transferring to the mill from Mr Arcuri's perspective is that he is the father of twins that were born in January 2004, so around about 15 months old, and he and his wife share the care for those children. It is because of those family responsibilities he is unable to work an afternoon shift which would be one of the requirements of the position at Bruck. Just to outline his circumstances in a bit more detail, Mr Arcuri's wife works full time from about 8.30 to 5.30 each day. She also studies at TAFE two nights a week from around about 7 pm to 9 pm and the course that she is doing is relevant to increasing her skills for her work.

PN24

In addition to that, her mother is chronically ill and has kidney failure and is in fact today undergoing surgery to allow her to take dialysis on an ongoing basis and it is likely that those care commitments are going to be ongoing. So in light of all of those commitments that Mr Arcuri's wife has, Mr Arcuri picks up his children from day care most days which is at 4 o'clock. He cares for them solely while his wife is at work or studying and at other times they share responsibilities for basically feeding the kids, bathing the kids, putting them to bed and the like. So Mr Arcuri has indicated to the respondent that because of these family responsibilities it is going to be basically impossible for him to work on an afternoon shift.

PN25

He has had discussions with local management and also with Mr Williamson who is the CEO of the respondent but those discussions weren't successful. He then sought the assistance of the TCFUA and Ms Kruschel has endeavoured to meet with the respondent by requesting to do so by telephone and by fax several times for approximately two weeks in late March. Ultimately a meeting did take place shortly after the Textile, Clothing and Footwear Union filed the first section 99 application in relation to this matter.

PN26

THE SENIOR DEPUTY PRESIDENT: When was that?

PN27

MS FAWCETT: Just bear with me. Yes, it was 23 March, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, and the date of the meeting was?

PN29

MS FAWCETT: Te meeting took place on 30 March but was arranged shortly after 23 March.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes.

PN31

MS FAWCETT: The meeting took place from the TCFUAs perspective and from Mr Arcuri's perspective the meeting was productive. The TCFUA and Mr Arcuri came out of the meeting believing that a resolution had been reached and on that basis advised the Commission that the previously listed hearing should be adjourned. But subsequent to that it became evident that the respondent's position in relation to what had happened in that meeting differed - - -

PN32

THE SENIOR DEPUTY PRESIDENT: What was your understanding of the resolution?

PN33

MS FAWCETT: Sure. The resolution from the perspective of the TCFUA was that Mr Arcuri would work temporarily at the Bruck site for three months, that he would work on day shift, that if he was required at any time to work an afternoon shift his family responsibilities would be taken into account and that there was a view to returning him to the Wilson site at 30 June.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes. You say that didn't happen, that didn't transpire.

PN35

MS FAWCETT: What happened is that the company put its position in writing to the union twice. The two positions appeared to differ but the company's position was that it maintained the capacity to transfer Mr Arcuri, that he could work predominantly day shift because it suited the production requirements but that they reserved the right to unilaterally require him to work an afternoon shift. And that they were prepared to review the situation on 30 June but that the only circumstances that Mr Arcuri would be returned to Wilson is if production requirements at Bruck were low, work requirements at Wilson had increased and then in those circumstances they would not automatically transfer Mr Arcuri back but they would consider it.

PN36

THE SENIOR DEPUTY PRESIDENT: What has happened between 31 March and now?

PN37

MS FAWCETT: Mr Arcuri has, despite his opposition to the course, been working at Bruck since 4 April. However, he has only been required to work day shift during that period although the respondent has made its position clear that it considers it has the capacity to direct him to work afternoon shifts.

PN38

THE SENIOR DEPUTY PRESIDENT: What do you want me to do?

PN39

MS FAWCETT: Your Honour, we have come today basically to seek the Commission's assistance to resolve the matter. I have prepared some submissions in relation to the legal position if the matter isn't resolved and I am happy to outline those to you.

PN40

THE SENIOR DEPUTY PRESIDENT: We will go into conciliation before any legal arguments are put. That is the requirement of the Act of course.

PN41

MS FAWCETT: That would certainly be our preference, your Honour.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Pels, what is the company's perspective on this? Mr Pels, can you hear me?

PN43

MR PELS: Yes, your Honour.

PN44

THE SENIOR DEPUTY PRESIDENT: What does the company say about it all?

PN45

MR PELS: Well, I think just to clarify for the benefit of the Commission, the two sites, that's Bruck Production and Wilson Fabric, it is all the one legal entity and both sites are covered by the one EBA, just to prove for the benefit of the Commission, and therefore the transference of Mr Arcuri from one site to the other doesn't suggest there is any change in legal position as far as contract or the EBA or, we assert, the contract of employment. I think, as Ms Fawcett indicated, that Mr Arcuri has agreed or consented to go and work at Bruck doing day shift because that is where his skills are needed. Now, Mr Arcuri did previously work in the mill and that is one of the reasons he was selected because he had good skills in that area and those skills are required by the company. There is a - - -

PN46

THE SENIOR DEPUTY PRESIDENT: I don't think the problem is that he is working in the mill, I think they want some sort of guarantee that he will remain on day shift.

PN47

MR PELS: Yes. There is two issues there, your Honour. One that Mr Arcuri is saying because of family responsibilities he has to stay on day shift, he wants a guarantee that he will go back to Wilson by 30 June. In effect that was the issue really. The fact is that the parties got very close to reaching an agreement and put in writing that the sticking point was that the union wanted an ironclad guarantee that he would return by 30 June. The company said they would review it at
30 June, depending on the production requirements and staffing needs they would then decide what would happen as of 30 June.

PN48

THE SENIOR DEPUTY PRESIDENT: So Mr Pels, is the position that until 30 June he will continue with Bruck on day shift?

PN49

MR PELS: That is correct, your Honour. Yes.

PN50

THE SENIOR DEPUTY PRESIDENT: Well, what are we doing here now? Ms Fawcett?

PN51

MS FAWCETT: Well, if that is the company's position now I think it would be useful for us to explore that further but it is a change from what they have put in writing to both Mr Arcuri and to the union, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Pels, we might just go into conference for a few minutes, do you think?

PN53

MR PELS: Yes, your Honour. Yes.

PN54

THE SENIOR DEPUTY PRESIDENT: Ms Fawcett?

PN55

MS FAWCETT: Yes, your Honour.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes. We will just go off the record please.

OFF THE RECORD

PN57

THE SENIOR DEPUTY PRESIDENT: After a discussion with the parties, I have made the following recommendation which has been accepted. That is that Mr Arcuri will continue to work at Bruck until 30 June on day shift. The company will provide him with more varied work if that is available during that time. There will be a review of the position on 30 June, the form of which will involve a meeting between the union and the employer. If the matter is resolved on 30 June that will be the end of this proceeding and the parties will notify the Commission accordingly. If the matter is not resolved on 30 June, it will be re-listed at the request of either party.

PN58

Pending the further hearing and determination of the matter, Mr Arcuri will continue to work day shift at Bruck. The company has informed me that he may be requested to work overtime and within the limits of his family responsibilities, Mr Arcuri has indicated that he can work overtime and requests for overtime will be dealt with in the normal course. The parties reserve all their rights. Is there anything that I have left out of that, Ms Fawcett?

PN59

MS FAWCETT: That there be liberty to apply to come back earlier before that, your Honour

PN60

THE COMMISSIONER: Yes. I will give you liberty to apply on 48 hours notice. Mr Pels?

PN61

MR PELS: Yes. We agree with that, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes. you also have liberty to apply on 48 hours notice should you wish to do so.

PN63

MR PELS: Yes.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes. Well, we will adjourn the Commission. Thank you.

<ADJOURNED INDEFINITELY [11.26AM]