C2005/4389, Transcript of Proceedings [2005] AIRCTrans 1949 (21 September 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12768-1

COMMISSIONER EAMES

C2005/4389 C2005/4517

THE AUSTRALIAN WORKERS’ UNION
AND
MERBEIN MUSHROOMS PTY LTD
s.99 - Notification of an industrial dispute
(C2005/4389)

THE AUSTRALIAN WORKERS’ UNION
AND
MERBEIN MUSHROOMS PTY LTD
s.99 - Notification of an industrial dispute
(C2005/4517)

MELBOURNE

9.00AM, THURSDAY, 08 SEPTEMBER 2005

PN1

MS Z ANGUS: I appear on behalf of the Australian Workers Union.

PN2

MR N OGILVIE: I seek leave to appear on behalf of the employer, Merbein Mushrooms Pty Ltd.

PN3

THE COMMISSIONER: Okay, any objection to the appearance of Mr Ogilvie?

PN4

MS ANGUS: Well, can I note for the record the absurdity of discussing the issue of warnings with lawyers, but given that the employer himself hasn't turned up then we don't object.

PN5

THE COMMISSIONER: All right, thank you. The other thing is that there are two notifications that I've listed for this morning. I did that, hopefully for the convenience of the parties, that both the union and the respondent were the same and the issues related to industrial relations it appeared. I take it there's no objection to them being formally joined so that as the issues emerge they can be dealt with?

PN6

MR OGILVIE: No, Commissioner. We're not aware of the background or any of the circumstances surrounding the second matter. I've spoken to Ms Angus before and we've agreed to at least outline what those issues might be so I can pass those onto my client.

PN7

THE COMMISSIONER: Yes.

PN8

MR OGILVIE: As of last night, I wasn't aware of it and wasn't even sure what it was about.

PN9

THE COMMISSIONER: I think the listing might have only got out late yesterday.

PN10

MR OGILVIE: Yes, it - - -

PN11

THE COMMISSIONER: It was a matter of convenience really, that we had it put on.

PN12

MR OGILVIE: Saw the listing, but hadn't seen the notice of dispute or anything like that.

PN13

THE COMMISSIONER: All right. Perhaps you can tell him, Ms Angus, just what is involved here.

PN14

MS ANGUS: Certainly, Commissioner. Commissioner, did I understand that both of the matters have now been called on?

PN15

THE COMMISSIONER: Yes.

PN16

MS ANGUS: Okay. Commissioner, we're seeking the assistance of the Commission in relation to two disputes. The first is the use of disciplinary procedures and written warnings in a manner which we say is severely heavy handed and inappropriate and unnecessary. The second one relates to the unilateral change of a bonus that has been provided for as long as anyone can remember, at least in excess of twelve years, to employees without agreement or consultation.

PN17

If I could address, first of all, the issue of the warnings, which is matter 4389. Merbein Mushrooms appears to have adopted a policy over the last couple of years of using warnings in a very heavy handed manner - we'd certainly say that - a manner that serves to manage the work force by means of fear. As we all know, there are a range of ways employees can be managed in the work force and it's certainly our view that this is neither an effective nor a fair means of managing employees.

PN18

Commissioner, we'll give you two examples of that point. The first one relates to mushroom pickers. Each picker will pick a box and then after they've picked a certain number of boxes they'll move to a separate area where those boxes are weighed up. None of the pickers have scales on their trolleys. It's a separate area where each of the boxes are weighed. There have been a number of instances - in excess of five, recently - where pickers are receiving formal warnings for lodging boxes that are too heavy. Now, there's no capacity for each of these pickers to estimate precisely or to weigh themselves the weight of the box. They're running only on judgment and they work long hours.

PN19

After that repetitive work it is, I would have thought, humanly understandable that there are instances where the judgment or the estimate will be out. Yet, it is the policy of the company it appears to provide formal warnings in instances where that judgment is out. I understand that the company has acknowledge that pickers aren't doing this on purpose, but nonetheless it is their view that the application of warnings presumably will serve to heighten people's judgment about their
boxes - - -

PN20

THE COMMISSIONER: So, are you saying they're putting too many mushrooms in the box?

PN21

MS ANGUS: They're either over estimating or under estimating and on that basis they're issued with warnings.

PN22

THE COMMISSIONER: All right. Okay.

PN23

MS ANGUS: That's the first example of an instance where warnings, we say, were inappropriately applied. The second example is an individual matter that we want to raise with the Commission. That concerns a warning that has been applied to a particular member for lateness. She's a long serving employee. All employees are supposed to arrive at 7.15 with a view to starting work at 7.30, so there's an expectation that employees put in 15 minutes of their own unpaid time in preparation for work. There's no particular reason why 7.30 is an essential requirement of the job. Were an employee to arrive 10 minutes late, for example, there's a number of ways of dealing with the issue of lateness. They could have their pay docked. They could work back 10 minutes late. There's nothing precious about the 7.30 starting time other than that is the company's position as to the commencement of work. I just make that point.

PN24

This particular member has been late on no more than a handful of times and is now on her second written and final warning. She is - - -

PN25

THE COMMISSIONER: Was that five times, we're talking about? If it's no more than a handful, are you saying five?

PN26

MS ANGUS: Well, no, I've been told a couple. I thought I would - - -

PN27

THE COMMISSIONER: So, two?

PN28

MS ANGUS: Commissioner, I've been told a couple. I thought I'd err on the side of generosity to the company and say that there was no more than a handful.

PN29

THE COMMISSIONER: Okay.

PN30

MS ANGUS: We can get that sort of detailed information, should the Commission require it, but I do know that the lateness that we're talking about is no more than ten minutes late on each of those occasions. This is also in the context of a single mum with five kids, bringing them up on her own as a mushroom picker on minimum wages. She supports five kids, three of them are under seven. I think that provides some sort of stark - well, we would say that is an excessively harsh application of warning policies without acknowledging the individual circumstances that might explain a person's conduct or lateness in that instance. It's not even excessive lateness, we'd say. This person is now on her final warning. She's facing the threat of actually losing her job. A single mum with five kids.

PN31

They are two examples of what we say is the misapplication, the unfair and unnecessary use of warnings to manage the work force. In relation to that issue, it's a shame that the company is not here today but what we'd like to see is an outcome. Firstly, we'd like the warning in relation to that one member with the issue of lateness to be withdrawn. Secondly, we'd like the opportunity for the parties to sit down and discuss more generally the appropriate or inappropriate instances of issuing a warning, ie the general policy discussion about under what circumstances are warnings appropriate, what type of conduct and the gravity of that could would warrant the issue of a warning. That's our concern in relation to the first matter.

PN32

The second matter, I appreciate Mr Ogilvie has only just received notice as he's come in today, effectively, so I would at this stage merely flag it as our concern and we would seek a formal response from the company at a subsequent date.

PN33

THE COMMISSIONER: This is in relation to the bonus?

PN34

MS ANGUS: This is the second issue, that's right. This is the bonus issue, Commissioner. For as long as anyone can remember and certainly in excess of twelve years, employees have had as part of their employment contract, a bonus arrangement that once an employee picks in excess of 17 kilograms a bonus scheme commences. They get additional amounts for each of those additional kilograms picked. That threshold of 17 kilograms has been in operation for in excess of twelve years. It is very much an integrated and fundamental part of the employment contract of all of the pickers at the site. As of late April, without consultation and without agreement, management unilaterally changed that threshold to 21 kilograms.

PN35

That has a significant impact on the take home pay of employees. Our estimate, for somewhere between an average to an above average picker, would take home now something in the vicinity of 50 dollars a week less than they would have otherwise. That bonus arrangement formed very much part of the employment contract of those people. We consider it, on that basis, to be an unagreed variation to that employment contract. They are the two matters.

PN36

THE COMMISSIONER: All right. What do you say, Mr Ogilvie?

PN37

MR OGILVIE: Thank you, Commissioner. The difficulty, obviously, we have is that my client is not able to attend today, Commissioner. Mr Izzard is the manager of Merbein Mushrooms, is based in Mildura. He has been suffering from a neck or back related condition and it has prevented him from being able to travel and prevented him from being able to attend the Commission today, which is why I've been asked to appear.

PN38

I have instructions on the matters in which we could best fathom what these issues were about. Some of the matters, even in relation to the first dispute notification, are new and I'm not properly able to respond. We are able to respond, I think, particularly to the second issue about the warnings, a warning being issued to the individual employee.

PN39

Our primary position is that this is not a matter that is appropriately dealt with by the Commission. We can see that to the extent that there's a concern about the way in which warnings generally are issued and the processes involved may be a matter that is capable of being of an industrial nature, but the particular matter which is what we have presumed to be about the issue of a warning to Ms Melba Burnette is not a matter we say of an industrial character and not a matter which can be an industrial dispute.

PN40

Having said that, I think it's probably important to outline to the Commission what my instructions are. Ms Burnette commenced employment in June 2003 as a casual mushroom picker. She was required, under the terms and conditions of employment, to clock in for work using a time clock by 7.30. That applies to all pickers and the start times - I'll explain a bit later - are important to the company in that its an integral part of the business that they know how many people are rostered on to work each day and that they get the numbers right each day for picking because it can be quite variable from day to day. Having people at work on time and having an awareness of when people are coming in and not coming in is an important factor to the company.

PN41

Ms Burnette has been late for work since her commencement on 77 occasions, on my instructions, Commissioner. Not a handful of occasions. The company's payroll records show that she's clocked in for work after the 7.30 time on 77 occasions. Now, these range from just a couple of minutes late - as you can see - right through to not showing up at all. They go through from 2 minutes, 3 minutes, 15 minutes, 20 minutes, not coming in at all, not reporting in that she's not going to attend for work. That's obviously caused great problems for my client. The payroll records show that because it's a clock in, clock off system so it's quite easy to see the days she has been late and the days she hasn't been able to attend.

PN42

She has been issued on 3 August with a first written warning. She hasn't been issued with a final written warning, she's been issued with a first written warning. That written warning was:

PN43

For being unable to meet the company daily start time and since ...(reads)... you must phone Ros -

PN44

Who is the supervisor:

PN45

By 7 am.

PN46

The company used this first written warning as a final resort. There has been continual counselling and verbal warnings issued to the employee over that two years and three months period. They were unable to rectify the problem. Her being late caused difficulties with the company. They tried to resolve the issues, and we understand there are family issues, there are health issues, there were appointments which she needed to attend, and we don't query any of those, but the problem is both attending late and proper notification of when appointments were going to take place and notifying the company in sufficient time for other arrangements to be made. We say that the issue of the first written warning was a last resort and has actually achieved the desired effect, Ms Burnette has not been late for work since 3 August, the date when the written warning was issued.

PN47

Her employment is not under threat. She has been issued with a warning to ensure she attends for work on time as is required of the other thirty or so pickers who work in the area. That written warning has achieved the desired effect, and as far as we're concerned unless there is a further recurrence of her being late then the matter is closed. It's not a matter that can be dealt with by the Commission.

PN48

In relation to notification, part of the problem is not only was the employee late but there were many occasions when she had appointments and she only notified the company at the last minute. The company has a policy which is quite clear in terms of notification of appointments and allowing for days off for appointments, and where all the pickers are actually required - because it's a casual work force - arrangements can be made where the employee can work sort of half a day, depending on when the appointment is made.

PN49

The policy in relation to days off for appointments is set out in the lunch room, it's placed on the notice boards and it's next to the time clock , so she's well aware of what that policy is. Similarly, when the employee is absent, they're required to notify as soon as possible the night before that they're going to be absent. The employees are well aware of those policies. So, to deal with that particular issue, we say it was not a matter that ought to be brought before the Commission. It's an individual issue in relation to an individual employee about the issue of a warning for continually being late for work. That matter seems to have resolved after the issuing of a warning and she's now turning up on time.

PN50

The other issue, in relation to the issuing of the warnings for the boxes being overweight, I don't have any instructions on. I wasn't aware that that was going to be an issue raised. I can get instructions, I can ask my client to provide a response to the union in relation to that matter in particular. I can seek instructions on whether they'd be willing to participate in some sort of general discussions with the union about the context in which warnings are issued. The difficulty we have is that these are matters that have not been raised in any formal sense or raised directly with the employer. If they are raised, put in writing to the employer, we will get an opportunity to respond and we can do that. Until we have some sort of particularity about what's been complained of then it's very difficult for me to respond.

PN51

In relation to the second issue about the change in the bonus I definitely have no instructions in relation to that matter. I spoke to Mr Izzard late last night and he wasn't aware of that being an issue at the site. To the extent that it is an issue, we can provide a response to the AWU now that we understand what the problem is. That being the case, I'm not sure this matter can be taken any further.

PN52

THE COMMISSIONER: All right. Ms Angus?

PN53

MS ANGUS: Well, certainly for the record we'd disagree with the notion that warnings are not a matter about which the Commission can have jurisdiction. There are a number of cases that you can trace down the 20th century in terms of the High Court dealing with what constitutes an industrial dispute. Certainly, if anything has been construed more broadly than the whole notion of what is a matter that pertains to the employment relationship - it's quite simply the case that issues of disciplinary procedure and warnings issued to employees are matters that fall within the scope of an industrial dispute. I think it's unfortunate if the company's line, through Freehills, is to dodge the content of our concerns in that matter.

PN54

THE COMMISSIONER: They say they dealt with it in relation to the individual and if there are general issues associated with what you've raised they're happy to respond to that if that's put in writing and a meeting can be set up between the union and the company to deal with it.

PN55

MS ANGUS: In fact, there have been direct discussions between the relevant organiser based in Mildura and the company. The company's view was "well let's just leave that for the Commission" and the absence today indicates that in fact leaving it to the Commission and then being told when we arrive in the Commission that management is not represented today and the argument that the lawyer puts on their behalf is oh, well, technically speaking this is a matter that couldn't even be brought before the Commission is - - -

PN56

THE COMMISSIONER: Yes, well, aside from that, there is correspondence on the file which was forwarded to your organisation, indicating Mr Izzard had sustained an injury and was being treated medically today, that's why he's not here.

PN57

MS ANGUS: All right. Well, I haven't seen that. I don't want to give someone who is injured a hard time, but what I'd suggest, Commissioner, is that there is a background of dispute between the parties that is in relation to a matter that has gone to the federal court. There is some history between these parties that has led to some souring of relationships. Perhaps it's the case that we've gotten off on the wrong foot, but it would seem to me that the way to progress the matter is that certainly we would support a written response to our concerns from the company, that's one point and we appreciate also the remark that this particular member's employment is not under threat, I've taken note of that.

PN58

What we'd like to do, though, Commissioner is, subject to your time table, if you were able to convene a discussion directly between the parties themselves next time you're in Mildura and if that could be step one towards ideally - with greatest respect to Mr Ogilvie - getting the lawyers out of the room and having these sort of industrial matters dealt with directly between the parties.

PN59

THE COMMISSIONER: Does that apply to legally qualified union officials?

PN60

MS ANGUS: I'm not one of those yet, so - - -

PN61

THE COMMISSIONER: I wasn't referring to you, Ms Angus, that's an assumption on your part. Go on.

PN62

MS ANGUS: The point I'm trying to make, Commissioner, is that it would be useful to have that general discussion about the issuing of warnings - and also, the issue of the bonuses and how they should apply - directly between the parties. I think that meeting needs to occur in Mildura, subject to the Commission's time table.

PN63

THE COMMISSIONER: All right. There may be some merit in us adjourning the proceedings into a conference and having a look at the overall issues and then, having had that discussion, if it's thought appropriate that either party wants to put more formal on the record then I'm happy to take that. I think there are some advantages in us having a talk through some of these issues and seeing how we might deal with them. Are you comfortable with that Mr Ogilvie?

PN64

MR OGILVIE: Yes, Commissioner. My only concern is I'm not sure how much - my instructions are limited to what I've already put on the record.

PN65

THE COMMISSIONER: I accept that.

PN66

MR OGILVIE: I think it would assist my client, at least, to get either through me or some more direct correspondence from the AWU some clarification of what the issues are. Then we can try and deal with that and if there are matters outstanding we will seek the assistance of the Commissioner. I think there needs to be at least some better clarification of at least the new issues so my client can respond. If the AWU still wants the Commission's assistance then that can be sought, but I think there needs to be that first step.

PN67

THE COMMISSIONER: All right.

<SHORT ADJOURNMENT [9.22AM]
<RESUMED [9.27AM]

PN68

THE COMMISSIONER: As a result of discussions it has been agreed that the union will quantify the outstanding industrial issues that they see exist at the Merbein Mushrooms organisation. There may be some other issues of an industrial nature that haven't actually been canvassed in these proceedings, but I think it is opportune for the union to quantify what they say are the outstanding issues in writing to the company and give them seven days to respond to their correspondence. My suggestion is that the parties would meet after that exchange to flesh out or to reach agreement on the outstanding issues.

PN69

I would hope that sensible people might be able to achieve an outcome by simply sitting down at the table and working through the issues; however, if it transpires that there are some aspects of the industrial relations situation at Merbein Mushrooms, then the Commission would make itself available, if it thought desirable by the parties, either in Mildura or here in the Commission in Melbourne, to assist in the conciliation of the matters. Of course, if the situation deteriorates to an extent that it is necessary to take further submissions in relation to any of the issues that have been raised by these two applications then the Commission would take those submissions on application in due course. I wish the parties well in their initial discussions and trust that they might be able to sort through these issues in a sensible way.

<ADJOURNED INDEFINITELY [9.29AM]