C2005/1184, Transcript of Proceedings [2005] AIRCTrans 1815 (5 September 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12571-1

VICE PRESIDENT LAWLER

C2005/1184

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION-WESTERN AUSTRALIAN BRANCH
AND
CITY OF SUBIACO
s.99 - Notification of an industrial dispute
(C2005/1184)

SYDNEY

2.06PM, MONDAY, 22 AUGUST 2005

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

PN1

MR M HAMMOND: I appear on behalf of the ASU and for MR M TSISINNI,
MR T ALLAN and MR F LOHF, all of whom are rangers of the City of Subiaco.

PN2

MR S HAWKINS: I appear for the City of Subiaco and with me is
MR M DUCKETT, manager of field services and MS M STANLEY, manager of HR.

PN3

THE VICE PRESIDENT: Thank you very much Mr Hawkins. Yes Mr Hammond.

PN4

MR HAMMOND: Thank you, your Honour. The key issues in dispute today are essentially the extension of shifts on Friday and Saturday night from the current 10 pm to a proposed - - -

PN5

THE VICE PRESIDENT: Sorry. Are you all right? Can you hear me Mr Hammond?

PN6

MR HAMMOND: I can your Honour.

PN7

THE VICE PRESIDENT: You can hear me okay, Mr Hammond?

PN8

MR HAMMOND: I can your Honour.

PN9

THE VICE PRESIDENT: Okay fine. So you were talking about an extension of the Friday and Saturday night shifts from 10 pm?

PN10

MR HAMMOND: That’s right from 10 pm which is the current close off of that shift until 2 am, which is the proposed new roster. Your Honour, in terms of jurisdiction, we say the Commission has jurisdiction to hear this matter by way of section 102 of the Workplace Relations Act 1996. The City of Subiaco is a named respondent to the Local Government Officers’ West Australian Award 1999.

PN11

Sir, in summary, we say that the main items that we intend to speak about today are the following. Firstly, that the council management has not followed the original intentions of the councillors in this matter. Secondly, that the proposed changes to these three rangers’ rosters, is contrary to their current contracts of employment. Thirdly, that the proposed changes to their rosters are unsociable, and place a strain on them and their families. And lastly, that the work that they have been asked to perform is not their key role and they’ve not been properly trained to perform these tasks.

PN12

Your Honour, in terms of the first item, we say that on 20 August 2004, the City of Subiaco Council passed the following resolution:

PN13

That the City employs two additional rangers to provide security patrols principally to deter anti social behaviour on Friday and Saturday evenings between 10 pm and 2 am. This resolution was passed unanimously by all the Councillors present.

PN14

Following on from that resolution your Honour, two rangers, and a third ranger who was a replacement of a staff member who had left, were employed in April 2005. I understand those rangers were made aware of their proposed rosters, the nature of their work and they accepted those positions. We say that instead of following the clear instructions of the councillors as outlined in the resolution of 20 August, management as from 21 January 2005, told the existing rangers, that they would be expected to work the new rosters finishing 2 am on Saturday and Sunday mornings.

PN15

We say that the council had not discussed the impact on the existing staff. It was not part of their consideration, or deliberations when they passed that resolution. We say the council management have no mandate to change existing rangers contractual arrangements. And, that the changes that they are proposing, places them in the position of hardship, which was not the intention of council. Your Honour, we must state at this stage, that there have been a large number of meetings between the city and our members, since January of this year.

PN16

The disputes settlement procedure within the Local Government Officers Award was enacted in January 2005. The working relationship between our members and the city has remained good and there have been cordial discussions throughout this process. So we have no complaint in terms of the manner in which the disputes settlement procedure has been conducted. We have at all times, sought to be constructive in these negotiations, and come out with a number of alternative rosters, which have been designed not to prejudice our members.

PN17

Sir, in terms of contractual entitlements, we say that there are a number of entitlements currently in place. Mr Frank Lohf signed a letter of approvement in January of 2001 which states that his hours are 8.15 am to 5 pm Monday to Friday. That is his existing contract of employment and Mr Lohf’s position description which was signed and dated 1 April 1999, does not have included within it, any security patrols nor has he been accredited in terms of training to conduct security work.

PN18

Mr Trevor Allan was appointed to the position of ranger effective from 18 August 1997. His letter of appointment specifically states the hours of working are between 7 am to 10 pm Monday to Sunday. Mr Allan also does not have any security training. Mr Mark Tsisinni, commenced with the council as a ranger on 13 January 2003. His contract of employment states he will be working 38 hours per week as per the roster, which at that stage was 7 am to 10 pm.
Mr Mark Tsisinni has not received any security training either.

PN19

We say that management are making unilateral variations to our members contract of employment and that that variation will adversely affect them. Your Honour, in terms of the third point that we addressed in our summary, we say that these proposed rosters are unsociable and have a negative impact on our three members. They will result in four weekends out of seven being disrupted by work. At present the ratio is two weekends in five. The family and social commitments will have to be radically revised, due to family work commitments not being able to be undertaken during the weekends. Later shifts will disrupt the sleeping patterns of our three members and have an adverse impact on them and their families.

PN20

We have statements from our three members going to the fact that these changes are going to cause their family great hardship. Some of the members have young families which, of course, weekends is an important opportunity to spend time with their family. These proposed rosters will cut into their time in a great, and significant manner. We also say that the work that is being asked to be performed by our three rangers, is security work. It is not core work of our members, nor have our members been properly trained, nor are they accredited to fill this function.

PN21

In terms of where we are now your Honour, the city advised the ASU in correspondence dated 1 August of its intentions to proceed with it’s changed rosters from Wednesday 17 of this month. They also advised that the disputes settlements procedure had been exhausted. They proceeded to send a memo to the rangers dated 9 August, advising them of the new rosters they would be commencing on 17 of this month. On 12 August the ASU lodged our section 99 and sought commitments from the city that they would not prejudice our members, until this matter. In effect, your Honour we were asking the city to delay the introduction of these rosters until such time as we could seek the assistance of the Commission. We also advised the city that it was not our belief that the disputes settlement procedure had been exhausted and there was still room for discussion, and negotiate in attempt to get an agreed outcome in this matter.

PN22

On 15 August the city responded to the ASU saying that they intended to carry on with their implementation schedule and that the new rosters would come into effect on the 17th. This concerned us greatly, your Honour because on 19 August, these rosters would have their first critical impact in that members would be asked start at 5.15 pm and finish on Saturday morning at 2 am. And clearly that is the matter which is in dispute.

PN23

Following on from that on the 19th the ASU lodged an additional application with the Commission for a bargaining period and that application is under foot now. It has also been brought to my attention today, that on 19 - - -

PN24

THE VICE PRESIDENT: Is there a certified agreement Mr Hammond?

PN25

MR HAMMOND: No, there is not, sir it is just under the award.

PN26

THE VICE PRESIDENT: So you’ve initiated a bargaining period?

PN27

MR HAMMOND: That is correct. And that has, the seven day period will be expiring on Friday of this week. We also are informed sir, that on 19th that one of our members received a warning letter, or ostensibly a warning letter advising that the new roster started, or commenced on 17th and their failure to abide by that roster may incur some form of disciplinary action, should they not conform to it. This is of significant worry to us your Honour, because this matter has been subject to a dispute for some period of time. We haven’t sought to frustrate that process, nor to delay it, we’ve been working through the various options. Unfortunately, the city has made a date on 17th and has sought to implement its new roster from that period.

PN28

The solution, your Honour, is that ideally we would be asking the city to honour it’s commitments made to our members, in terms of their contracts of employment. We are seeking the status quo to remain, the status quo before this dispute was initiated. Sir, the other item which we have been discussing, on a without prejudice basis, is the prospect of compensation for our members in terms of them breaking their contract of employment, effectively and also for the additional hardship that it will place on our members and their families.

PN29

Now this was originally, in the original discussions back in January 2005, there was some indication from management that some form of financial consideration, would be possible. But since that time, there’s been no progress made on the matter of some form of financial consideration. The ASU on behalf of its members, has put forward a number of different proposals, which include different rostering patterns and different sums of money, in terms of consideration for our members changing their contracts of employment and accepting the altered rosters.

PN30

THE VICE PRESIDENT: Is the ASU content that the two new rangers who are employed following the council resolution, should work the 10 pm to 2 am roster on Friday and Saturdays?

PN31

MR HAMMOND: Your Honour, it is our contention that those rangers were employed with full knowledge and understanding of what the rosters would be. The award provision makes it possible for rangers to be working those hours, and so we say that there was appropriate offer and acceptance in those employment arrangements.

PN32

THE VICE PRESIDENT: But, cutting to the chase, the ASU is not trying to seek the council from utilising those two employees to work those hours?

PN33

MR HAMMOND: Not at all your Honour, no. In fact, that would be part of our, what we see, as a way forward, and what we had thought the council’s intention was based on the original resolution of the councillors. And I think that is what the councillors believed that is what they were doing as well. They were employing two additional rangers to provide this specific service in the time frames.

PN34

THE VICE PRESIDENT: Mr Hammond, how many rangers are rostered on Friday and Saturday nights after 10 pm on the new rosters that have been notified by the city?

PN35

MR HAMMOND: Two, your Honour.

PN36

THE VICE PRESIDENT: Okay, thank you. Mr Hawkins? Can I just indicate what I was proposing was, to as it were, hear from each of you and then go into conference off the record.

PN37

MR HAWKINS: I think that is what we assumed that was what was going to happen, your Honour. Thank you, your Honour, pardon my sunglasses, because I left my other glasses, and I can’t read without them.

PN38

THE VICE PRESIDENT: Quite okay.

PN39

MR HAWKINS: Look, I don’t disagree I think it was on 28 September when council resolved that the roster be extended to ensure that there was coverage until 2 am. That was a decision that was made by council. There was a comment made that there was no discussion with the staff prior to that point. Under the local government act, council is a decision making body and they can move a motion and make a decision on it, and then they basically delegate power to a CEO under the act to implement that resolution, in an appropriate operational manner. From when that council resolution was made, I concur, in terms of there was a lot of discussion and consultation with the three rangers effected, to discuss the implementation of a new roster for the rangers’ staff, that would effect the resolution, so that we would have a 2 am finish.

PN40

During those discussions, the union did raise with us the impact on family responsibilities, change of duties to the security work, I think of lack of standard procedures and an issue in terms of incentive. The city’s position in relation to this matter is that it is a – the roster changes are appropriate under the terms and conditions of the award. We have explained to our officers that the intention is not for them to take on security work and security duties. That what they would be doing is carrying out their normal ranger duties as they do, and functions under the local government act in their award. And if they saw any incidences of social behaviour and issues like that, reporting it to the appropriate office which is the police, to deal with, and that the rangers wouldn’t be getting involved with security actions. So effectively, all they would be doing is extending their normal working duties out to 2 am.

PN41

In relation to the impact on family responsibilities. The city, through the consultation process, did a lot of work in terms of variations to rosters including one that was put forward which was a 10 hour check roster which reduced the number of days that they were working and gave them more days off consecutively. We worked through various issues like that to try and see if we could come to some agreement in terms of a roster that had less impact through the members.

PN42

We didn’t get a lot of feed back until later in the process in relation to that, where the union finally put forward a proposal for a particular roster, and that was conditional on I think, one finishing at 12 am with an additional amount, should I say cash incentive, or if it finished at 2 am with an additional cash incentive. We, as a city rejected that offer, because obviously the resolution was to go through to 2 am than accept something that said we only went through to 12, because we would be implementing the resolution.

PN43

And we also believe that we are entitled to amend the roster from time to time to effect operational changes under the award, and we offered the award conditions that we are required to. We don’t believe that there is any need for us to provide any additional cash incentive. We also have developed standard operational procedures for the whole of the ranger services teams, so they would understand clearly what their roles and responsibilities would be for the hours on their rosters and that way there wouldn’t be any misinterpretation of whether their role was that of security officers or rangers, to try and address that issue.

PN44

We have explained when we came up with a couple of variations of rosters, we did initially say that with one of the rosters we put an offer on the table of basically paying the same hourly rates that we do currently with the penalty rates kicking in for the extended hours after 10 am[sic] on those nights, along with other offers. Those offers have been withdrawn recently and we’ve just gone with the particular roster that we’ve currently implemented. In terms of the current roster that’s now operational, the city felt that we’d been consulting on this for a long time. We weren’t getting anywhere in terms of progressing the matter. What we kept coming back to was that there were issues in terms of family impact and whether they were security duties.

PN45

We addressed those issues and explained that they weren’t doing security duties, we’d looked at rosters in terms of affecting the family impact and tried to press those forward. What we got back was an offer saying, well we are prepared to do this roster, but we want additional money for it. We explained to the officers that we were not willing to go down that line. In relation to the implementation of the final roster, as I said, after that consultation period, the fact that we weren’t going to get – or we didn’t believe that we would get agreement, we implemented the rosters to go forward, we believe that this is a lawful instruction and is consistent in terms of the local government award that they work under. Probably all I have to say at this point in time, thank you your Honour.

PN46

THE VICE PRESIDENT: Thank you, Mr Hawkins. We will go off the record at this point.

<SHORT ADJOURNMENT [2.28PM]
<RESUMED [3.46PM]

PN47

THE VICE PRESIDENT: Thank you we are back on the record now. We’ve conducted a conciliation since about 2.30, it is now quarter to four. It is apparent to me that there is very little prospect of resolving this dispute in conciliation at the moment, and I’m minded to find that the conciliation is at an end. Does either party object to that course?

PN48

MR HAWKINS: No.

PN49

THE VICE PRESIDENT: That doesn’t mean that the parties, can’t by agreement have further conciliation. The Commission is always disposed to conciliate further if the parties seek. Mr Hammond?

PN50

MR HAMMOND: Your Honour, we are fixed on getting an outcome, whether that is by arbitration of conciliation. We prefer conciliation, we want to keep all our options open We understand, this day, it doesn’t seem like we’ve been able to reach an outcome.

PN51

THE VICE PRESIDENT: Yes. I need to formally find that conciliation is at an end in order to enliven the arbitral jurisdiction of the Commission and I’m satisfied that all reasonable attempts to resolve the matter by conciliation have been exhausted. I’ve explored the available options with the parties in detail, in private caucuses and I’m satisfied there is a significant difference which is not capable of being bridged between the parties at the moment.

PN52

Mr Hawkins, a matter that was raised in the last private caucus with the union was a warning letter that’s been issued to Mr Allan as a result of him starting in accordance with his old roster, rather than the new roster. My recommendation, first of all, what do you have to say about that?

PN53

MR HAWKINS: I think it’s a memo that I’m aware of, it wasn’t a warning letter. What it was a memo to Mr Trevor Allan explaining what the city believes it’s position is in relation to the roster that we have implemented.

PN54

THE VICE PRESIDENT: In any event, it’s now a matter of record on the transcript, that the City of Subiaco does not rely upon that memorandum to Mr Allan as a warning for the purposes of subsequence reliance in relation to disciplinary action or termination of employment?

PN55

MR HAWKINS: That’s correct.

PN56

THE VICE PRESIDENT: Well Mr Hammond I think that addresses any concern that you might have in relation to that letter. I do recommend that the City of Subiaco give consideration to offering an additional payment to the employees. That is, additional to the moneys that have been paid in accordance with the award and above award by convention in recent years, to compensate them for the addition to their shift of the very unattractive hours between 10 pm and 2 am on Friday and Saturday nights.

PN57

In at least two instances, those hours are contrary to a spread of hours specified in written contracts and the conditions at work that the ASU members face, are significantly less attractive than they were before. And basic notions of industrial justice suggest that there ought to be some compensation for it. I therefore recommend that the City of Subiaco give some consideration to making an appropriate offer of additional compensation to these employees. Notwithstanding that, on one view, technically, the City of Subiaco, is within its rights under the award. The reality is however, that the conditions of work of the effected members are now a lot less attractive than they were before. I’ll adjourn the matter and either party may have it re-listed. I will adjourn the matter generally. Either party may have it re-listed on short notice. Mr Hammond the ball is in your court if you wish to have the Commission arbitrate it. If you contact my associate and I’ll arrange for another member of the Commission to be allocated to arbitrate the matter and whatever happens between the parties, so far as industrial action is concerned, or protected action, is a matter for the parties. If they wish to seek the further assistance of the Commission in the light of developments that occur, if any industrial action is taken, that’s obviously a course that’s open to either side. Anything you would like to put on the record Mr Hawkins?

PN58

MR HAWKINS: No, thank you your Honour.

PN59

THE VICE PRESIDENT: Anything you would like to put on the record Mr Hammond?

PN60

MR HAMMOND: Only that we are disappointed that we haven’t been able to make any moves to resolve this matter. We thought that we would be able to reach some form of outcome with the assistance of the Commission. We’ll need to look at all the options now and consult with our members and take appropriate action.

PN61

THE VICE PRESIDENT: Fine, as I indicated the matter is adjourned generally and either party has leave to have it re-listed at short notice.

<ADJOURNED INDEFINITELY [3.52PM]