C2005/1779, Transcript of Proceedings [2005] AIRCTrans 554 (4 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10480

COMMISSIONER LAWSON

C2005/1779

s.99 - notification of an industrial dispute

Liquor, Hospitality and Miscellaneous Union
and
KAH Australia Pty Ltd t/as The Sydney Boulevard
(C2005/1779)
Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998, The

SYDNEY

10.22AM, WEDNESDAY, 09 FEBRUARY 2005

PN1

MR M VANCE: I appear for the Liquor, Hospitality & Miscellaneous Workers Union, New South Wales branch.

PN2

MR P RYAN: I appear for the Australian Hotels Association, representing the Boulevard Hotel.

PN3

THE COMMISSIONER: Thank you, Mr Ryan. I apologise to you gentlemen for the late commencement to these proceedings. The matter before the Commission, is an application filed pursuant to section 99 of the Workplace Relations Act, by the LHMU. It notified the registrar in alleged industrial dispute between the union and the employer named KAH Australia Proprietary Limited, trading as the Boulevard Hotel, and the matter is said to concern the conversion of casuals to permanent status employment. Mr Vance, it's your matter, what do you have to say about that?

PN4

MR VANCE: Thank you, Commissioner. Commissioner, the employee's concerned in this notification, are employed pursuant to the Hospitality Industry and Accommodations Hotels Resorts and Gaming Award 1998. The particular clause which is the subject of the dispute is clause 15.2.5 and I have a copy of the award which I will - - -

PN5

THE COMMISSIONER: I have got a copy in front of me, Mr Vance.

PN6

MR VANCE: Yes. I won't do that then. Yes, it's clause 15.2.5 is the relevant clause. In this instance, Commissioner, there are three employees are members of the union who have requested that the union, act on their behalf in relation to gaining permanent employment, they have been casually - - -

PN7

THE COMMISSIONER: Well, with very great respect to the employees sought to be converted, pursuant of section 15.2.5, you call, calling upon the union to do it for you?

PN8

MR VANCE: I beg your pardon, Commissioner?

PN9

THE COMMISSIONER: Have the employees acted on their own account in seeking to be converted to full time or part time employees.

PN10

MR VANCE: Yes, Commissioner, they have. In the first instance, in October, of last year, there were verbal requests made and there has been some interaction between the union and the company since then which I will go to shortly. The three individuals, Commissioner, are Irene Kulovska, who has over the 52 weeks until 27 December, last year, averaged 35.6 hours, Rina Rahman, who has over the 52 weeks, again, averaged 35.2 hours and the last employee, Dilbura Talukder, who has averaged 35.8 hours.

PN11

THE COMMISSIONER: How long has she averaged?

PN12

MR VANCE: 35.8 hours. In here case, she has been an employee, a casual employee, at the hotel for five years, in the case of Ms Rahman it's four years, and in the case of Ms Kulovska it's, I understand, a little short of 18 months. Certainly more than - - -

PN13

THE COMMISSIONER: Where they have been, what, regular and systematic casuals.

PN14

MR VANCE: Yes. They're regular and systematic, they are employed pursuant to a roster. A roster is issued on a weekly basis showing the shifts that they will work, each of the employees almost invariably works a shift on the Saturday and Sunday and various shifts during the week subject to the roster provided by the company, and their hours will vary, they are not exactly the same week to week, depends upon the rostering done by the company.

PN15

Almost always at least 30 hours a week for work and there are some occasions where up to 50 hours have been worked during the week. The question of becoming permanent employees was first raised by the individuals, I understand, with their immediate supervisor during October and I have had some discussions with Mr Ryan and he agrees it was around that time that there was a request made, or the question was raised in the first instance.

PN16

Following that, and not being successful, the employees discussed the matter with their union organiser, Ms Hermanto, who apologises but cannot be here today due to another appointment, of course, will be available if necessary for examination, there were letters sent to the hotel on 6 December, last year and 6 January, this year, naming a number of employees including the three who I have - - -

PN17

THE COMMISSIONER: These are LHMU letters to the employer?

PN18

MR VANCE: Yes. And the employees who I have advised you of today were included in those letters. In relation to Ms Kulovska, she was only included in the January letter. Now, there have been some discussions between Ms Hermanto, our organiser, and Ms Achmar, the HR manager from the company. I have been advised by Ms Hermanto, that those discussions were of no assistance, that there was simply a refusal to discuss the matter other than we are happy to talk about it once the renovations to the hotel are completed. And I am told today, Commissioner, that the renovations will proceed perhaps from six months time, perhaps a little longer and they will take 18 months and up to two years.

PN19

Now, if the company thinks - if the employer is prepared simply to speak to the employees following that period of time, where does that leave the employees because they will almost certainly not have the same number of hours being worked at the end of that period. It's the intention of the hotel to close down a part of the hotel at a time so, roughly a third maybe, of the hotel at times to do the renovations.

PN20

Now, currently, I understand there are, Mr Ryan, will confirm, about 50 per cent or perhaps a little more than that, of the employees in the particular area. These employees are employed as room attendants, a little over half of those employees are currently casual employees, and I recognise that when the hotel has its renovations done there will necessarily be less work for room attendants. Nonetheless, we say that there is plenty of capacity for those persons to become permanent, regular part time employees. Commissioner, this clause that was put into this award by consent and Mr Swancott from my organisation advises that you had some involvement in that matter, in order to assist the parties to come to consent. The provision of the award operates that if there is no agreement to be found, the disputes procedure comes into place. Now, that has occurred and the matter is now before the Commission for conciliation and, if necessary, arbitration.

PN21

THE COMMISSIONER: Well, it doesn't say that, with very great respect, the dispute settlement procedure says, and I quote at clause 11.3:

PN22

If the matter cannot be resolved it may be referred to the Commission.

PN23

For what purpose, I don't know. It's not my award.

PN24

MR VANCE: Well, the intention of the union, sir, would be to argue that the Commission has the capacity to conciliate on these matters and, if necessary, to decide upon them and in the event we are unable to agree that will be - I can make some submissions on that. The union is seeking that there be agreement of the company, to convert the three individuals I have named to permanent part time status. We have had some time to discuss it again this morning. It appears there is an opportunity to further look at it prior to the renovations to the hotels, or over a reasonable short period, the next few weeks we can have a look at what capacity, whether the hotel agrees there is a capacity to convert some people.

PN25

And, if so which people should be converted as I am advised that there are a number of people over these three and over and above those who the union have previously raised for discussion with the company, who have independently approached the company. And the company, obviously, would need to give consideration as to which employees can be made permanent and whether all of them can be made or only some of them. That's only reasonable that they do that but I wouldn't want that to stretch out into a lengthy period of time.

PN26

THE COMMISSIONER: So, you have only been advised of this this morning.

PN27

MR VANCE: I have only been advised this morning.

PN28

THE COMMISSIONER: Over the next few weeks, the company will review its position about the conversion of some persons, including the persons that you are representing today in the context of renovations that are yet to commence.

PN29

MR VANCE: I think that's the gist of it, and Mr Ryan, will no doubt confirm. I will say one more thing, Commissioner, the degree to which there is a capacity to make these employees permanent has to be considered in the light of the fact that there are at least four new casuals who have been employed by the hotel since December. Now, if it's the case that there's less work to be done in six months time or so, it seems to me to be a bit contradictory to be putting on casuals at the same time as you have casual employees who want to be made permanent.

PN30

Because those casuals were put on, from around December, there has, in fact, been a little less work that's been available to our members. And we are not saying that that's as a result of their request but it does seem to go in the opposite direction to an argument that there won't be enough work. Unless the Commission has further questions, that's all I open with.

PN31

THE COMMISSIONER: Are these employees' direct employees of the hotel?

PN32

MR VANCE: Yes, they are, Commissioner.

PN33

THE COMMISSIONER: Are the new casuals direct employees to the best of your knowledge?

PN34

MR VANCE: As far as I am aware, they are.

PN35

THE COMMISSIONER: All right. Thank you, Mr Vance. Mr Ryan, what is the other side of the story?

PN36

MR RYAN: Thank you, Commissioner. Commissioner, if I could just address the relevant clause in the award, 15.2.5, which says that whereby an employee may elect to convert to either full time, regular part time, depending on the number of hours worked per week as a regular casual. Now, 15.2.6(b) states that:

PN37

In considering a request from an employee to convert, the employer may have regard to among other things, the size and need of the workplace, the trading patterns and any other relevant part.

PN38

Now, Commissioner, my friend alerted you to the dispute resolution clause, clause 11 of the award earlier but 15.2.15 says that any dispute about a refusal of an election to convert, must be dealt with in a clause with provisions clause 11, the dispute resolution clause.

PN39

THE COMMISSIONER: Well, that is why it is here, isn't it?

PN40

MR RYAN: Yes, Commissioner, but I will get to that, it may be here prematurely.

PN41

THE COMMISSIONER: Well, if that's the case, if you're assertion is that it's here prematurely, you tell me your side of the story, with the discussions that are said to are said to have occurred in accordance with the disputes settlement procedure before the matter has been referred to the Commission.

PN42

MR RYAN: Yes, Commissioner. I am getting to it and I will hand up the chronology which will assists us.

PN43

THE COMMISSIONER: What's this document, Mr Ryan?

PN44

MR RYAN: Commissioner, this is a chronology that has been prepared consistent with the hotel in respect to the notification of the dispute by the union and the election - - -

PN45

THE COMMISSIONER: Has Mr Vance, seen this before now?

PN46

MR RYAN: He has got a copy now, Commissioner.

PN47

THE COMMISSIONER: Any objection to this, Mr Vance?

PN48

MR VANCE: I haven't been right through it. It appears to - I would have to check dates with organisers in regard to it, but subject to that that.

PN49

THE COMMISSIONER: Well, I will mark it anyway.

EXHIBIT #R1 CHRONOLOGY WITH RESPECT TO NOTIFICATION

PN50

MR RYAN: Commissioner, there are some employees that - well, the correspondence on 8 December , 6 January, from the union at one stage had about seven employees but Mr Vance, says today they are only pressing for three. One of those isn't listed on here but the other two, Dilruba Talukder and Rina Rahman, both show their commencement dates on the second and third line, as May 2000 and 20 August, 2001 respectively. On 30 May, 2003, Commissioner, you issued an order for the casual conversion rules be inserted into the Hospitality Industry Award, that's print number 932322, and on 3 October, of that same year, Commissioner, you issued a clarification order which was print number 938890. The next two entries aren't applicable at this stage, Commissioner, but on 5 May, the Boulevard Hotel management meeting discussed the refurbishment plan for mid 2005, there was progress reports at the subsequent initial meetings throughout the remainder of that year.

PN51

In mid June, 2004, following that meeting in May, the executive housekeeper Leo Gabales, discussed the renovations and the impact, the likely impact of the renovations with housekeepers during the morning briefing meeting. Now, on
15 October, my friend said that some of the employees approached the hotel directly. I am instructed that on October there was a meeting between the union organiser, Annie Hermanto and the Boulevard Hotel HR Manager, Suzie Achmar, which discussed the prospect of some staff converting. However, at that meeting, no specific names were mentioned, it was just a general discussion about the possibility of it occurring. I am also instructed that none of the staff members that have been put forward by my friend approached Leo Gabales, the executive housekeeper, directly. Now, on 8 December, the LHMU wrote to the Boulevard Hotel - - -

PN52

THE COMMISSIONER: Well, is that understandable in the circumstances, that the employees may not have been comfortable in approaching the head housekeeper as individuals?

PN53

MR RYAN: Perhaps, Commissioner. They also, well, they didn't approach the human resources manager either.

PN54

THE COMMISSIONER: Well, one doesn't know the atmosphere as to whether they might be encouraged to do so or whether they, in fact, felt they may have been putting their own casual positions at risk, raising the matter as individuals. It might well be that they sought the comfort of a collective approach, which it appears Ms Hermanto, did for the first time on 15 October. Is that a reasonable proposition?

PN55

MR RYAN: That's a reasonable proposition, Commissioner, but at that stage on 15 October, no particular individual staff's names were put forward to convert. That occurred on 8 December, in correspondence to the hotel from the union and a follow up correspondence was set on 6 January, 2005.

PN56

THE COMMISSIONER: Now, does that detail persons naming persons seeking casual conversion, both of those letters?

PN57

MR RYAN: The letter dated 8 December, identifies seven people. Of the three put forward by my friend today, only two were in that seven, that is Talukder Dilruba and Rina Rahman. On 6 January, Irene Kulovska was included in that correspondence.

PN58

THE COMMISSIONER: So the third was identified in that letter of 6 January.

PN59

MR RYAN: In late December and early January, Suzie Achmar met with some of these employees and discussed the issue of casual conversion and told them it was unlikely due to the renovations and during her discussions, all the employees appeared to accept that response. On 14 January, the LHMU organiser, Annie Hermanto and Suzie Achmar were having a meeting about another issue at the hotel and the casual conversion was raised again. They agreed to - Mrs Hermanto agreed to contact Ms Achmar shortly thereafter to arrange a meeting to discuss the casual conversion issue in detail. On 19 January, the Boulevard Hotel issued a memo to all staff inviting them to enter a competition to name some of the new banquet rooms and restaurants that would be part of the renovation, and then on
2 February, the Boulevard Hotel received the notification of the - - -

PN60

THE COMMISSIONER: What has 19 January got to do with this issue?

PN61

MR RYAN: I think that, Commissioner. That may have been a catalyst for the industrial dispute notification issue being filed.

PN62

THE COMMISSIONER: Well, how do you know that? You haven't linked it together here at all and it doesn't automatically follow reading it for the first time.

PN63

MR RYAN: Well, Commissioner, on 14 January, there was an agreement between Ms Achmar and Ms Hermanto, to have a further meeting about the issue and Ms Hermanto was to contact Ms Achmar, in relation to that there was no further contact until the notification of this alleged dispute was filed in the Commission on the 2nd.

PN64

THE COMMISSIONER: Why did no further meeting take place after
14 January?

PN65

MR RYAN: Well, there was the agreement on 14 January, was that the union organiser would contact Ms Achmar the next week or so to arrange a meeting to go through the issue.

PN66

THE COMMISSIONER: So in your view it was all being initiated one way.

PN67

MR RYAN: Well, it was being - - -

PN68

THE COMMISSIONER: The hotel wasn't accepting any direct responsibility to take it the next stage.

PN69

MR RYAN: No, they were discussing but they arranged a meeting on the 14th, or they had an agreement on the 14th, that they would, Ms Hermanto would contact the hotel in the next week or so to arrange a meeting at a time suitable.

PN70

THE COMMISSIONER: But no such meeting has taken place and today is
9 February.

PN71

MR RYAN: The next correspondence they heard about the casual conversion issue following the 14th, was 2 February, when they received the paperwork that the issue had been filed with the Commission.

PN72

THE COMMISSIONER: Well, what did Ms Achmar, then do to follow it up with Ms Hermanto? It's a two way street.

PN73

MR RYAN: The following - - -

PN74

THE COMMISSIONER: Once the employer was notified that the matter had been brought to the Commission's attention by way of a formal dispute notification, that's on 2 February, it's now seven days later. Has anything occurred in the last seven days?

PN75

MR RYAN: There has been no further contact, Commissioner, only there was - Ms Hermanto, sought entry to the hotel on Monday to access some time and wages records but nothing was discussed in detail.

PN76

THE COMMISSIONER: Well, the matter is obviously still on foot, isn't it? The fact that the two principle players, if I can describe them that way, Ms Hermanto and Ms Achmar, have chosen not to talk to each other in the last week. They are consenting adults, they can do that, but the matter hasn't gone away, and now it's here. So what's your proposal at this stage, Mr Ryan?

PN77

MR RYAN: Well, Commissioner, the hotel is having renovations that are due to commence in the middle of this year. That may be earlier, may be later. It should have commenced around June, July this year.

PN78

THE COMMISSIONER: I can't believe it is that loose. Is it June or July? Is it going to happen or isn't it going to happen?

PN79

MR RYAN: It's going to happen but the exact start date hasn't been confirmed yet, Commissioner.

PN80

THE COMMISSIONER: Right. So what do you say to Mr Vance's proposition that further casuals have been engaged in the meantime and the apparent request for conversion of casuals seems to have been put on the backburner?

PN81

MR RYAN: In respect to that - well the four casuals that Mr Vance is referring to were engaged in November.

PN82

THE COMMISSIONER: But how does that impact upon the unanswered question about the conversion of casuals or the three known persons today?

PN83

MR RYAN: Well, Commissioner, the four that were put on in November, that's prior to the hotel receiving formal request for election, for the employees - - -

PN84

THE COMMISSIONER: No, it's not. That was first put to the hotel in October, you say it's so in your own chronology, 15 October.

PN85

MR RYAN: There was a discussion about the possibility but there wasn't anything concrete in terms of which employees and how many. The other issue is, Commissioner, that at this point in time with the hotel having not commenced the renovations and being summer, it's quite a busy period. And that's why some casuals were engaged in November, to assist with the high level of demand at this point of time.

PN86

THE COMMISSIONER: Sure. It's the normal fluctuation of a hotel business. It's pretty easy to observe the fluctuating loads of the Boulevard Hotel, having regard to the fact that it's next door to this building. One has a reasonable idea of the numbers of people that are to-ing and fro-ing, you have only got to look at the buses that are parked at the back of the place.

PN87

MR RYAN: Now, in respect of the renovations, Commissioner, the expected period is for them to take place will be approximately 18 months. That could take - sometimes these things blow out.

PN88

THE COMMISSIONER: Sure.

PN89

MR RYAN: So it could take a bit longer.

PN90

THE COMMISSIONER: You are repeating all of the material that Mr Vance, has put to me. I still haven't got any sensible response yet to the proposition, why haven't the three applications for conversion to casual been dealt with in accordance with the award?

PN91

MR RYAN: Well, Commissioner, the expected occupancy period rates for that period, the forecast for this year is currently at about January, 74 per cent, and it fluctuates between the sixties and seventies through till May. And the forecast from June onwards is 55 per cent, July 42, August 24, 24 in September, 34 in October, 26 in November and 23 in December. It's going to be up to four rooms at a time that will be - - -

PN92

THE COMMISSIONER: Mr Ryan, you don't have to convince me, you have to convince three employees. For some reason, they don't have this detail, or
Ms Achmar has chosen not to discuss it with them on a one to one basis.

PN93

MR RYAN: Commissioner, Ms Achmar discussed in December and January with these employees individually and - - -

PN94

THE COMMISSIONER: Did she? All right. And did she have their consent?

PN95

MR RYAN: Well, the result of those discussions the employees were satisfied with the hotel's response that that was a reasonable reason and that the issue would be reviewed once the renovations were completed.

PN96

THE COMMISSIONER: So when did these discussions occur with the three employees? In January.

PN97

MR RYAN: Throughout December, following the letter that was sent by the LHMU and then they will complete it in early January, following the Christmas, New Year period.

PN98

THE COMMISSIONER: So, you are saying that the hotel has relied upon 15.2.6(b), the fourth dot point, the trading patterns of the workplace or enterprise, including cyclical, seasonal trading demand factors.

PN99

MR RYAN: And that point, Commissioner, as well as any other coupled with the fact that the renovations will impact that, yes.

PN100

THE COMMISSIONER: So you are saying in December and January, these three named employees accepted the renovations timetable and the impact that that would have on their request for casual conversion?

PN101

MR RYAN: Yes, Commissioner.

PN102

THE COMMISSIONER: Well, you see now I have two completely contrasting positions. I have them in second hand submissions and not one skerrick of evidence apart from the chronology of events that really doesn't provide me with much evidence. So how do you suggest that the matter is dealt with from this point? I will be giving you the same opportunity to respond, Mr Vance, because it might very well beat this matter as here, on a premature basis. I am now told and you have heard, that these three employees accepted in December and January the renovations timetable and the impact that it would have on their casuals conversion request. I will ask Mr Ryan what he wants to do next and then you can have a response.

PN103

MR RYAN: Commissioner, I think perhaps, from here it may be best if the parties had a timeframe of somewhere between two to three weeks, to meet representatives from the hotel in the Australian Hotels Association with the employees and the union representatives, have a detailed examination of renovations, the current levels of staffing within the housekeeping department.

PN104

THE COMMISSIONER: That's the offer that you effectively put to Mr Vance this morning, isn't it?

PN105

MR RYAN: We canvassed that, Commissioner.

PN106

THE COMMISSIONER: Well, that seems to be a reasonable proposition.

PN107

MR RYAN: I think Mr Vance was looking at about one week but - - -

PN108

THE COMMISSIONER: No, I don't think he was quite that tight in what he was expecting. He said that you had told him that it might take two or three weeks to do that. I think probably what Mr Vance, would like to know is that the matter won't just disappear in the next two or three weeks.

PN109

MR RYAN: No, it won't Commissioner.

PN110

THE COMMISSIONER: But you are proposing now the parties confer over the next two to three weeks, both to reconsider the renovations timetable and the impact that that will have on the employment of casual housekeepers, including the impact it's likely to have on the three particular employees who, at this point in time, seek casual conversion. Well, Mr Vance, what do you have to say in response?

PN111

MR VANCE: Thank you, Commissioner. The point made in relation to the employees concern apparently accepting in December, Ms Achmar's explanation regarding the renovations is something that we don't agree with and, in fact, that is the root - - -

PN112

THE COMMISSIONER: Well, do you have affidavits, have you interviewed these employees?

PN113

MR VANCE: Indeed I do, Commissioner.

PN114

THE COMMISSIONER: Right.

PN115

MR VANCE: Because we had named, I think, around seven employees in previous documents, we really wanted to know which employees were serious about that and to that effect, we asked them to come to the union office and make a statute of declaration. Each of those three individuals made a declaration. I won't tender anything. I am happy to if the Commission requires but we say that is very genuinely the case that each one of those doesn't accept what the company says and does wish to be made permanent. I think it's hardly surprising, given that at least two of those people have got a relatively lengthy period of services as a casual employee, see the renovations coming up, recognise there will be less work and are keen to see their work not depleted. I think that's probably the grounds for why they wish to pursue it. There is one other point I would make before I finish up, Commissioner.

PN116

The suggestion that the four casual employees were engaged in November, the new casual employees were over December, it's hardly here nor there given that the employer has know since at least May last year, that the renovations were going to take place and that's when the chronology says employees were advised. I would have thought, since that time, it would have been uppermost in the employer's mind whether or not to put on new employees and the effect that would have on existing employees. Nonetheless, for whatever reason, it seems that there has been a breakdown between our organiser, Ms Hermanto, and
Ms Achmar.

PN117

If there is an opportunity to further revisit the issue over a couple of weeks, we are happy to engage in that. To that extent I would ask if the Commission could list it for report back in two to three weeks at your convenience, and in the event that the parties aren't able to agree, I imagine we will be in a position to agree where we go from there. And it may be that we are seeking directions, Commissioner, at that time.

PN118

THE COMMISSIONER: That seems to be a reasonable proposition, Mr Vance. Have you got any comment about that, Mr Ryan?

PN119

MR RYAN: No comment, Commissioner.

PN120

THE COMMISSIONER: I am asked to re-list the matter for a report back in three weeks time and the parties can do whatever they choose to do in the meantime, apart from ignore each other, of course.

PN121

MR RYAN: Yes, Commissioner.

PN122

THE COMMISSIONER: We will just go off the record and have a look at our respective diaries.
<OFF THE RECORD

PN123

THE COMMISSIONER: Mr Ryan had a report back date and it's now agreed that the proceedings in this matter be adjourned and be re-listed at 2 pm on Thursday, 3 March, 2005, for both a report back and if necessary, the seeking of directions and/or a way forward at that time. In the meantime, I would urge the parties to confer, in accordance with the award obligations under the dispute settling procedure to endeavour to resolve this matter as best as possible before the matter comes back to the Commission.

PN124

If it does come back to the Commission, of course the Commission will provide whatever assistance the parties seek to seek a resolution to the problem at that time. I think it's essential that the parties re-read the provisions of the award, concerning the conversion of casuals and properly take into account the circumstances that are facing both the employer and its proposed renovation program, and the employees, their various workloads.

PN125

Related around that, proposed renovations and the usual fluctuations and seasonal variations to the hotel's occupancy rate. And having regard to those and other matters, I urge you to confer with a genuine attempt to resolve the matters and I will adjourn the proceedings now until 3 March 2005.

<ADJOURNED UNTIL THURSDAY 3 MARCH 2005 [2.00PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 CHRONOLOGY WITH RESPECT TO NOTIFICATION PN49