C2005/3186, Transcript of Proceedings [2005] AIRCTrans 2156 (19 October 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13043-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

C2005/3186

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
CURTAIN STYLING PRODUCTS
s.99 - Notification of an industrial dispute
(C2005/3186)

ADELAIDE

10.17AM, WEDNESDAY, 05 OCTOBER 2005

PN1

MR D KIRNER: I am the secretary of the CFMEU Forests and Forest Products Division.

PN2

MR M J HOWARD: I appear for Curtain Stylings Products Pty Ltd, appearing with me is MR D TANSING.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Kirner.

PN4

MR KIRNER: Yes. The company, Curtain Styling Products, is respondent to the Furnishing Industry National Award, it's a federal award matter. There are some 18 workers down there, most of whom are members of the CFMEU. The company has experienced some problems over the last five months in relation to working hours and our members have, for the last five months, agreed on a regular basis to maintain a pattern of reduced working hours in accordance with clause 17 of the award working a shorter time, which provides that employees are able to agree to work part-time for any period and in which case the weekly wage shall not apply. So what has occurred is that workers have taken the slack up in relation to a reduced workload by accepting shorter working hours.

PN5

Now it has got to a point, following the loss of a contract by the company recently which accounted for up to 80 per cent of the work, that the women on the site believe that it is no longer appropriate for them to continue to work shorter working hours because of the lack of pay. It's now got to a point where there's perhaps too many people on the site and the workers would like some consideration from the employer of redundancy or their ability to actually access redundancy, and in - so reducing the numbers of staff provided closer to the former working hours that workers have been on prior to May.

PN6

So the union is of the view that we have tried to cooperate for as long as possible for five months where people have had reduced working hours but the women themselves have indicated that the reduced working hours for the duration that it's occurred, is not enough for them to live on and they would seek to remove their support for working shorter working hours, and we believe this should then trigger with the employer a notion of redundancy and termination of employment.

PN7

THE SENIOR DEPUTY PRESIDENT: And what's happened, Mr Kirner?

PN8

MR KIRNER: Well - - -

PN9

THE SENIOR DEPUTY PRESIDENT: Should I understand that request as being a proposition been put to the employer and been rejected?

PN10

MR KIRNER: I've put the proposition and the employer - - -

PN11

THE SENIOR DEPUTY PRESIDENT: Why are you here today?

PN12

MR KIRNER: We're seeking conciliation in relation to this matter to see if it can be resolved and the employer can accept that in the circumstances it is probably due that redundancy is considered by the employer. The employer at this stage is not willing to concede that they need to make any redundancies, and consequently we had a worker resign the other day to access their long service leave and find another job. We believe that redundancy does apply if there is a shortage of work and in these circumstances should apply. So I suppose the purpose of today is to work out whether we can get some agreement around the need for redundancies, given that for the last five months people have had reduced working hours as the soak up for the lack of work.

PN13

THE SENIOR DEPUTY PRESIDENT: If I look at clause 13 of the award which is the dispute resolution clause, how far through that process has this matter progressed?

PN14

MR KIRNER: We have had discussions with the employer. We've had discussions with the employer's nominated industrial relations representative, Maurie Howard. And we have been unable to resolve the matter through discussion in that way. We'd previously listed this matter over working a shorter time some time ago and we reached some resolution when we went out to the site and had a meeting with workers and the workers indicated that if there were to be shorter working hours that those shorter working hours would in fact be spread equally amongst the staff.

PN15

THE SENIOR DEPUTY PRESIDENT: And are they? Or is that - you see what I'm struggling with is it seems to me that, on what you've told me, there is the potential for a dispute over whether or not the provisions of clause 17 are being properly applied which may or may not have aspects to it associated with whether the shorter working hours are being uniformly applied or whether they should be. It may or may not have associated with it the extent to which clause 17.2 operates so as to provide for an appropriate review period. But I don't know that. And then, on a totally separate issue, I'm not sure on the basis of what you've told me, whether there's also a dispute over the application of the redundancy clause 19.

PN16

MR KIRNER: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: I'm just wanting some help in terms of where we might be going in the matter.

PN18

MR KIRNER: That's an accurate summary. In terms of the working shorter time, the original dispute that we listed was in relation to a worker who believed that as hours were reduced, their hours were reduced more and as hours were increased, their hours were not increased. And subsequently, we lodged a dispute notification after discussion with the employer and we then met with Maurie Howard and we agreed to have a meeting and there seemed to be some forward movement from the employer about trying to provide some further work for this person so that she didn't feel as though she was being left out. After that had occurred, the company lost the contract that was approximately 80 per cent of the volume of its work and hours again took a dive and we believe will be considerably low for some time.

PN19

And workers have indicated on that matter of redundancy, a number have come forward and put their hand up as volunteers and I suppose we really need to, if we can't resolve it in conciliation, move toward arbitration and work out if workers have an entitlement to redundancy if they no longer are agreeable to work a short working week with review periods on the basis of clause 17. It is traditional in the soft furnishing industry that rather than jobs being lost, people would work shorter time. But there's defined timeframes of review of every four weeks and the consent from the staff to continue to do it without consideration of redundancy will probably - will go and we would say that would be a trigger for redundancy that the employer needs to consider. If the employer can't consider it, we would be asking the Commission to arbitrate a decision on the relationship between clause 17 and clause 18.

PN20

THE SENIOR DEPUTY PRESIDENT: 18 or 19?

PN21

MR KIRNER: Sorry, 19. And of course clause 19 then relates as well in relation to notice to clause 20, notice of termination. We currently have some workers who have had to go off and find two jobs, another job to work at the moment and they're not happy about that as a long term solution to the problem. There are four employees on workers' compensation at the moment as well and we just think there's too many people unfortunately, working at the work site at the moment. We would rarely say that but the staff themselves have asked the union to come forward and say they can no longer work the shorter working hours.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23

MR KIRNER: And I think that the consent of the staff to do it is critical because if working hours are reduced by an employer without the consent of staff away from their original employment, it can lead to notions of constructive dismissal which again breaches their employment contract. So we'd like to get it on a reasonable footing of sometimes problems exist in businesses and that's why redundancy provisions are in the award.

PN24

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. Mr Howard.

PN25

MR HOWARD: Thank you, your Honour. Maybe if I just go back a little bit in time, your Honour, and come through a little bit historical on this. On
1 November 2000, the company actually employed 10 employees and they were all employed on a casual basis until January 2003. In January 2003, employment was changed from casual to part-time and because of the sometime seasonal nature of the work, the company gave an undertaking to provide maximum hours where possible and a minimum of three days per week's work.

PN26

THE SENIOR DEPUTY PRESIDENT: Undertaking to who?

PN27

MR HOWARD: Undertaking to the employees at that time, being January 2003.

PN28

THE SENIOR DEPUTY PRESIDENT: So it's a maximum?

PN29

MR HOWARD: Maximum hours which would have been five days a week and a minimum of three days during the slow periods.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes.

PN31

MR HOWARD: Now this method of work has been consistent with the part-time arrangements as discussed with the employees in January 2003. That process has continued on since that time so we've had the process in place now for some two years and nine months. Some employees have only worked three or four days a week until September 05. However most of them worked up to five days per week. Now on 28 August 05, the company lost the contract for Spotlight Stores which was almost 90 per cent of the company's total business.

PN32

As a result, the company has moved from the wholesale market to the retail market, they're trying to re-establish their business now. Changes to the business has caused staff losses through natural attrition. The levels have fallen from 19 to nine, of which eight are part-time and one is a casual. Now out of those people that are part-time, one works eighteen hours per week by choice and the other seven are working three days per week and there are two currently on WorkCover, one of them very unlikely to return to work.

PN33

THE SENIOR DEPUTY PRESIDENT: So the seven working three days per week total what sort of hours?

PN34

MR HOWARD: Twenty-two hours a week, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes.

PN36

MR HOWARD: Now, as I said earlier, the present arrangements are staff who are working three days per week as per the undertaking given in January 03. Three persons seeking packages are required staff, so losing all of them would mean the workroom would be without a cutter and therefore it would be impossible for the company to trade. Now, out of those three that were looking for a package, the circumstances changed slightly. One has resigned and that person only worked three days a week by choice. One has indicated she may be only able to work three days per week on return from annual leave and that's a notice that's been given to Mr Tansing on 20 September and I'll read it to the Commission:

PN37

Dear Linda and David, I wish to inform you that when I return from holidays on 10 October, I may no longer be available Mondays and Fridays to work. I will inform you of any other change as time goes on. Di Sinclair.

PN38

So we're down to that. And the third one that was supposed to be in the package arrangement has not indicated she wants to leave and she was employed in September 03 on the part-time basis. Now, admittedly when you go from trading as the company as over that period of time with contracts from people such as Spotlight and you then move off the wholesale into the retail situation, there is always teething problems and some frustrations as to the currency and how it will continue to work. But by doing what the company has done, we will provide the company and staff with a more stable future in terms of working arrangements.

PN39

The company now has a manageable number of staff to continue business and fulfil their obligations to staff and creditors. There has never been a situation where the clause 17 shorter time has actually come into play because the people were part-time employees. Now sometimes, as I said earlier, the hours might have increased from that three days up to five in a busy period but at no stage did they come back to less than three days which was the guarantee given in January 2003. So, I mean, the circumstances have not really changed all that much since January 2003 except on some occasions people may have been working longer hours than they are now.

PN40

But as I have illustrated to the Commission, some of the people are quite happy with that arrangement and only want to work the hours that suit themselves. So I think the circumstances at the moment are there isn't a real need for any redundancies. As I said, one has resigned, one is going to have reduced hours from five back to three days a week, and the other person has not advised the company that they are looking for a package. If the Commission pleases.

PN41

THE SENIOR DEPUTY PRESIDENT: Mr Howard, before we go too much further, can I work first of all from the premise that you agree that the appropriate award is that Furnishing Industry National Award 2003?

PN42

MR HOWARD: That's correct, your Honour. The company is a respondent to the Furnishing Industry National Award 2003.

PN43

THE SENIOR DEPUTY PRESIDENT: So whereabouts under that award are the provisions relative to part-time work?

PN44

MR HOWARD: 16.3, your Honour. It's actually on page 19 of the Commission's copy of the award that's downloaded off the Internet.

PN45

THE SENIOR DEPUTY PRESIDENT: All right. And Mr Kirner's request is that in accordance with the dispute resolution provisions of the award which was set out in clause 13, there should be a conciliation conference directed at clarifying the issues given that he has not been able to reach agreement with the employer in relation to these matters. What do you say to me should happen?

PN46

MR HOWARD: Well, I note that Mr Kirner said that he had a discussion. Well, I've got to admit he did but it was a very brief discussion following a hearing before yourself, your Honour, that finished late one night. I wasn't fully aware of the circumstances. He did put to me that a number of people were looking for redundancy packages and that the company was reducing the hours and that's basic as far as it got. I hadn't been briefed at all at the time, I'd only been just notified of the possibility of a problem. I don't have a problem with conciliation by the Commission in respect to this matter because I think it might be appropriate to try to resolve the issue as soon as possible.

PN47

But it seems that the circumstances that I heard Mr Kirner relate to you this morning when he said there are 18 employees employed, well there are only nine, that's fact. He said the loss of contract was 80 per cent. Well, it's actually 90 per cent of the business. Spotlight was a very big client of the company and made a huge impact on the working hours of the employees and of course on the profitability of the company as well. There are not too many employees now as I have already spoken to the Commission about. We're down to nine and one of those is a casual and one woman has asked for reduced time from five days to three days.

PN48

So, I mean, at the moment, it's falling into place like a jigsaw puzzle that there may not be a problem at all. I'm not sure that Mr Kirner's caught up with all these latest situations but it would appear that with nine employees, eight part-time and one casual and people determining their own hours by choice and agreement with the company that there may not be this problem that Mr Kirner alludes to. So I'm happy to go into conference to see if we can resolve the issue, your Honour.

PN49

THE SENIOR DEPUTY PRESIDENT: What about if I gave you five minutes now to have a quick talk amongst yourselves?

PN50

MR HOWARD: I'm happy to do that, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: Mr Kirner, are you happy with that approach?

PN52

MR KIRNER: Yes.

PN53

THE SENIOR DEPUTY PRESIDENT: By all means, continue to use the court room. I'll just adjourn the matter for five minutes and you can then tell me how you've gone at the end of that time.

PN54

MR KIRNER: Thank you, your Honour.

PN55

THE SENIOR DEPUTY PRESIDENT: I'll adjourn the matter accordingly.

<SHORT ADJOURNMENT [10.36AM]
<RESUMED [11.03AM]

PN56

THE SENIOR DEPUTY PRESIDENT: Who's going to tell me the good or the bad news?

PN57

MR HOWARD: Your Honour, thank you for the time to be able to discuss this matter with Mr Kirner. We have resolved the matter. The issue was reared down to one of the employees who - I read into transcript of a letter from her by the name of Di Sinclair. But having discussed the issue, Mr Kirner then made a phone call to Ms Sinclair and the understanding now is as long as there's at least three days a week provided to her, she's happy with that arrangement and on that basis there are no other issues outstanding, your Honour. It seems that the matter is resolved.

PN58

THE SENIOR DEPUTY PRESIDENT: Mr Kirner?

PN59

MR KIRNER: Yes, that's true, Commissioner.

PN60

THE SENIOR DEPUTY PRESIDENT: All right. I'll adjourn the matter on that basis and close the Commission's file. I wish the parties well in procuring more work and more hours for those who want it. I'll adjourn the matter accordingly.

<ADJOURNED INDEFINITELY [11.04AM]