C2004/4774, Transcript of Proceedings [2006] AIRCTrans 1066 (18 September 2006)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 8241
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2004/4774

AUTOMOTIVE, FOOD,
METALS, ENGINEERING,
PRINTING AND KINDRED
INDUSTRIES UNION

and

PRIXCAR SERVICES PTY LTD

Notification pursuant to section 99 of the Act
of a dispute re alleged excessive use of casual
labour

MELBOURNE

8.45 AM, TUESDAY, 17 AUGUST 2004

PN1

MR A. COLE: I appear for the Australian Manufacturing Workers Union, and with MR D. NUNN.

PN2

MR G. DECLASE: I am the Human Resources Manager for Prixcar and, with MR J. FORSYTH, State Manager for Victoria.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Cole?

PN4

MR COLE: Yes, thank you, your Honour. Your Honour, the matter before you is fairly well laid out in the notification to the Commission, and perhaps to assist we will hand up some exhibits to start the proceedings. Your Honour, the key points in respect of the union's application are outlined in dot points 5 to 9 inclusive. That is we have sought a commitment from the company to convert a significant number of casual employees to full-time status. There is no genuine need for the company to use casual labour, and at this point in time the company refuses the request made by the union to convert a significant number of casual employees to full-time status. We will make point there that the company is currently interviewing some employees about making them full-time, and the union is not aware of how many the company are seeking to make full-time.

PN5

The union alleges that the company are in breach of clause 6F(1), casual employment of Vehicle Industry - Repair, Services and Retail Award in relation to its use of casual labour. We believe that the company is engaged in the practice where casual employees are limited in their daily hours of work and such practice is a deliberate attempt by the company to absolve themselves from their respective legal responsibility as contained in clause 6F(1); casual employment of Vehicle Industry - Repair, Services and Retail Award. And, your Honour, the application only relates to the Altona North site, and doesn't involve the Brunswick site; there is no casuals employed at the Dawson Street location.

PN6

But I must flag to the Commission that the union would be seeking to make further application in respect to this matter to include the other states of Australia, apart from Tasmania, or seek to have this matter joined with the further application. Commissioner, if you go past - on tab 1, onto the next page past the application, you will see a listing of the employees; this period was from October to March 2004, and you will note that at the top the casual employees are 17 and full-time employees, there are 32. And it goes down - the full-time employees go down to the area where you can see Vicpol and the number of employees there, they work for the Victoria Police at the Brunswick site, so they are not included in our arguments.

PN7

This document was given to the union from the company as to identify the incentive scheme payments and what this document does, your Honour, is if we go to the hours component of the document it actually shows the hours that were worked by each of those employees over this particular period, and next door to it in the following column is the equivalent employees.

PN8

So, if we take the case of Mr X at the top, the hours that he has worked make him equivalent to 0.84 of a full-time employee. The further - if we go to the next page, your Honour, where we talk about the vehicle industry and that is a clause lifted directly from the Vehicle Industry - Repair, Services and Retail Award 2002.

PN9

A casual employee is one engaged and paid as such, except for persons principally employed in tire fitting as defined and/or tyre repairing retreading process as defined, maximum period for which a casual employee can work continuously on a full-time basis, that is the total daily and weekly hours also prescribed in the award shall be six weeks. In any case where such full-time employment extends beyond six weeks, the employee shall thereafter be deemed to be employed by the week.

PN10

Your Honour, if we go to tab 2 - - -

PN11

THE SENIOR DEPUTY PRESIDENT: Mr Cole, is the bottom line on this that you say they are in breach of the award in that they are not employing people who have been casuals for longer than six weeks on a full-time basis, on a weekly basis?

PN12

MR COLE: No, the bottom line for us, your Honour, is basically we say that the company have by their actions have subverted that particular clause in the award by deliberately not allowing people to work the amount of hours that would allow them to become full-time employees in terms of the provisions of that particular - - -

PN13

THE SENIOR DEPUTY PRESIDENT: Well, aren't they allowed to do that?

PN14

MR COLE: Well - - -

PN15

THE SENIOR DEPUTY PRESIDENT: Their obligation is set out in the award.

PN16

MR COLE: Your Honour, it is a question - the question the union wants resolved is: what is a fair and reasonable proportion of employees employed as casuals as against full-time employees?

PN17

THE SENIOR DEPUTY PRESIDENT: You want me to vary the award?

PN18

MR COLE: No, I am not seeking that at all, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: What are you seeking?

PN20

MR COLE: We are seeking today for you to seek to conciliate an understanding agreement if you like between the parties. What we would like to see at the end of the day is to have an agreement between ourselves and the company in respect to how many employees if you like are labour levels agreement, how many employees will be permanent and how many would be full-time. The current situation is that we currently have about 50 per cent permanent and 50 per cent part time - casual, I should say, and going back in time about six, eight months ago, we have had anywhere between 33 per cent and 50 per cent of the employees employed at the company have been employed in respect of a casual basis. And we believe that we can demonstrate this, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Well, is there any dispute over that? I mean, is there any - the dispute between you is what? The company says they want to employ on a casual basis and you say they are employing too many on a casual basis. Is that the dispute?

PN22

MR COLE: The company say to us they will employ more permanent employees.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes.

PN24

MR COLE: Right, the company hasn't demonstrated that to this point in time.

PN25

THE SENIOR DEPUTY PRESIDENT: Well, but the dispute is; you say they are employing too many on a casual basis for too long, they should employ more people - - -

PN26

MR COLE: More permanent employees.

PN27

THE SENIOR DEPUTY PRESIDENT: Well, that is simply put, isn't it? I mean you don't need to go through all this material; that issue I would imagine is not in dispute; the company from the letter I have read in tab 1 says:

PN28

We want the flexibility, but we are prepared to look at some more full-time employment.

PN29

MR COLE: It is a question of how many.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, quite. That is the issue between you.

PN31

MR COLE: Yes.

PN32

THE SENIOR DEPUTY PRESIDENT: I mean, there is two volumes here but it is not a hard issue.

PN33

MR COLE: Well - - -

PN34

THE SENIOR DEPUTY PRESIDENT: They will either agree or they won't agree, I haven't got a magic wand.

PN35

MR COLE: I understand that, your Honour. But what we are saying is that the - it goes further than the issue of just a casual as against a permanent employee. It goes further on a number of bases which I was going to take you to, but I will take you to up front if you like. In employing such a large number of casual employees when there is no need to do that, they can make a significant number of people permanent given their work load, and we can demonstrate that in the documentation.

PN36

But by making them casuals they disadvantage those employees both in terms of them not having a permanent employment relationship and the benefits that go with permanent employment relationship, but also not giving those people the opportunity as laid out in the 1998 enterprise agreement to have training to allow people to progress through the various levels, and it is an eight level pay structure out there. You have got one person, one of these casuals, that has been a casual for seven years. Now, these people are denied any additional training, so they are denied the ability to be able to go through the structure in the company and to receive additional money.

PN37

THE SENIOR DEPUTY PRESIDENT: So why don't you negotiate a new enterprise agreement with them?

PN38

MR COLE: Well, the reason that we are here, your Honour, is because we have got the enterprise agreement coming up in October this year and we want to try to resolve this particular issue and not have a bun fight in the course - - -

PN39

THE SENIOR DEPUTY PRESIDENT: What is the expiry date of the enterprise agreement?

PN40

MR COLE: 30 September.

PN41

THE SENIOR DEPUTY PRESIDENT: It is a 1998 agreement?

PN42

MR COLE: No, the - I am sorry, the 1998 agreement refers to those provisions I talked about, about allowing employees training et cetera. But the extant agreement - there is 2001, 2004 agreement.

PN43

THE SENIOR DEPUTY PRESIDENT: Well, the issue remains, in about a month you can take action over the Act.

PN44

MR COLE: I understand that.

PN45

THE SENIOR DEPUTY PRESIDENT: So, isn't that the appropriate way to pursue the matter?

PN46

MR COLE: Well, we thought that we would try to get this - we didn't want this issue to become embroiled in the negotiation of the enterprise agreement.

PN47

THE SENIOR DEPUTY PRESIDENT: Well, I mean, Mr Cole, the award has provisions as a safety net for how they should employ. From what you have said, they are not breaching that. You just don't like the number of casuals they have employed under those provisions.

PN48

MR COLE: It is not that we don't like the number of casuals, I mean that does irk us, but it is the way the company employ them.

PN49

THE SENIOR DEPUTY PRESIDENT: Well, okay, the way they employ them. And, I mean, if you were in their shoes, wouldn't you employ them that way?

PN50

MR COLE: Well, no I wouldn't.

PN51

THE SENIOR DEPUTY PRESIDENT: Well, all right, they are running the business, why shouldn't they be allowed to operate in terms of the award provisions together with the enterprise agreement as they choose?

PN52

MR COLE: Well, except the award provisions of the enterprise agreement don't run harmony with each other, because if you talk about enterprise agreement, I spoke about the 1998 enterprise agreement, that allows all employees; it doesn't talk about permanents, it doesn't talk about casuals; it talks about all the employees having the right to training to progress through the career path structure.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, well are they breaching that enterprise agreement?

PN54

MR COLE: Yes, they are.

PN55

THE SENIOR DEPUTY PRESIDENT: Well, is that this agreement?

PN56

MR COLE: That is the - it is read in conjunction with that, the 1998 agreement.

PN57

THE SENIOR DEPUTY PRESIDENT: Doe the 1998 agreement form part of this agreement?

PN58

MR COLE: It does.

PN59

THE SENIOR DEPUTY PRESIDENT: Well, have you got the '98 agreement?

PN60

MR COLE: I have.

PN61

THE SENIOR DEPUTY PRESIDENT: Which part of the '98 agreement do you say they are breaching?

PN62

MR COLE: Well, if we go to page 2, or page 3 I should say which is the aims of the agreement at clause 8, we go to 8.1.2 it says:

PN63

To provide opportunities for all workers to achieve better job satisfaction through up-skilling and increased wages.

PN64

If we go to page 13 where we talk about the contractor agreement, it says, at 22.1:

PN65

The company has agreed that wherever possible it will endeavour to utilise the skills of its permanent workforce.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes?

PN67

MR COLE: And at appendix B at page 21:

PN68

In the principles of the career path training in the agreement, the parties have agreed that the central principles to give all workers the ability to move progressively on a voluntary basis from one broad banded classification to the next, and from pay point to pay point.

PN69

And it goes on to talk about the provision of career paths within the organisation. And again we say that because of the manipulation of the casual's clause, that the casuals are disadvantaged as against permanent employees, both in terms of gaining training, and in terms of their wages.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes.

PN71

MR COLE: So those, you know, are fundamental issues of the difference between casual and permanency as far as the union is concerned.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes.

PN73

MR COLE: If you go to clause - page 16 of the document.

PN74

THE SENIOR DEPUTY PRESIDENT: Which document is this?

PN75

MR COLE: The 1998 agreement.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes.

PN77

MR COLE: You will see the classification structure laid out there, and whilst the wages have changed you can see that there is significant difference between the wages level for somebody at grade 1, through to grade 8. But the casual employees, albeit it being employed on a long term basis, have got no ability to be able to progress through that classification structure.

PN78

THE SENIOR DEPUTY PRESIDENT: What proportion of their workforce is casual?

PN79

MR COLE: At the moment there is 32 casuals, I think - 31 casuals and 32 permanents, and the equivalent, you know, I can take you through the documentation, but it is an equivalent of, in the order of 24 full-time positions.

PN80

THE SENIOR DEPUTY PRESIDENT: How many employees do you say should be made permanent?

PN81

MR COLE: We believe that there is the ability to make 20 of those employees permanent.

PN82

THE SENIOR DEPUTY PRESIDENT: 20 out of the 31?

PN83

MR COLE: Yes.

PN84

THE SENIOR DEPUTY PRESIDENT: Okay.

PN85

MR COLE: If I take you to section 5 of the exhibit.

PN86

THE SENIOR DEPUTY PRESIDENT: Tab 5 are you talking about? Are you talking about tab 5?

PN87

MR COLE: Beg yours?

PN88

THE SENIOR DEPUTY PRESIDENT: Are you talking about tab 5?

PN89

MR COLE: Tab 5, sorry.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes.

PN91

MR COLE: It lays out there the number of casuals that are current, and these are from 31 March, 27 July. The first column shows the number of casuals employed per week, and you can see there that they range between 27 and 31. The total hours worked by those casuals per week and the equivalent employees total hours divided by 38. So, if we have a look down at the bottom where we do the analysis of it, we find on the bottom line that the employees are working - those employees are working the equivalent of 22.93 full-time positions.

PN92

THE SENIOR DEPUTY PRESIDENT: Yes? All right, what has the company told you about what they are going to do?

PN93

MR COLE: The company is saying that it - the company has got a new contract coming up soon, with Daimler Chrysler, the company is going to employ more people and the company has said to us at this point in time that they are considering employing more permanent people, but they haven't attached a number to it. I am not sure that the company themselves are aware exactly how much work it will generate; this new contract, but it will be a significant amount we would expect. The other issue, your Honour, is if we go to tab 6.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes.

PN95

MR COLE: We have done an analysis of the total amount of hours worked at the site by casual employees, but we have done this in a different way. It is done in how many hours and how many times that that has been worked.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes.

PN97

MR COLE: You see the dividers of seven hours a day, which is typically what the casuals are offered; if you go to the 28 hours you will see that that has happened 55 times. 35 hours, it has happened 135 times. And if we go to the next tab, tab 7, which does a summary of it, we find that based on all the pay advice information that we have received from the company, the total number of times casuals worked a seven hour day between 31 March and 27 July 2004, was 269 times or 53.8 per cent.

PN98

THE SENIOR DEPUTY PRESIDENT: Mr Cole, you have picked a four month period there; is that the only period for which you have data?

PN99

MR COLE: Well, it is the only - that was the period for which we asked the company for the information. Earlier on in the document, as I pointed out, there was a break up right at the start of the document, I think at tab 2, or tab 3. I am sorry, the back of tab 1. Let us have a look, those are the October to March 2004 figures which are not significantly different.

PN100

THE SENIOR DEPUTY PRESIDENT: All right, so you say they show about 50 per cent utilisation of casuals over the past, what, year?

PN101

MR COLE: Between 33 per cent and 50 per cent of the workforce, total workforce.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN103

MR COLE: Okay. And also that period, the over-time component is getting bigger and bigger and bigger. Just to have a - - -

PN104

THE SENIOR DEPUTY PRESIDENT: Do you say this is a national problem?

PN105

MR COLE: Yes, it is.

PN106

THE SENIOR DEPUTY PRESIDENT: How many employees have they got nationally?

PN107

MR COLE: I am unsure. Mr Declase is the national HR Manager, I am sure that he could - - -

PN108

MR DECLASE: 274.

PN109

MR COLE: 274.

PN110

MR DECLASE: That includes the management team as well.

PN111

THE SENIOR DEPUTY PRESIDENT: Does that include the casuals?

PN112

MR DECLASE: It includes casuals as well, yes, your Honour.

PN113

THE SENIOR DEPUTY PRESIDENT: Did you do the same thing in the other states?

PN114

MR DECLASE: We have the same operation in every other state.

PN115

MR COLE: If we go, your Honour, to tab 8 right through the rest of the documents and you can pick - - -

PN116

THE SENIOR DEPUTY PRESIDENT: That is just the detailed data, isn't it?

PN117

MR COLE: - - - it up wherever you like.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes, the detailed data, I have seen that.

PN119

MR COLE: Yes, you will see that, you know, the number of times that seven hours is worked. So, it is not as if the work is work that is a casual nature, the work is there all the time. They just work seven hours a day and then they come back tomorrow and they continue on with the job. It is not as if they are - it is not casual work as we know casual work to be, you know, on an infrequent basis. This is a permanent arrangement with the use of casuals working a seven hour day or less, on the odd occasion more, but you know, as the statistics point out, 53 per cent of the time working a seven hour day, same starting time, same finishing time each day.

PN120

THE SENIOR DEPUTY PRESIDENT: All right.

PN121

MR COLE: For the reasons that we have put up, your Honour, we believe the best way to resolve this is to have a manning level agreement. Now, we were hopeful that the Commission might assist us in conciliating that if the Commission's got a mind to do that, or as you point out we do have the enterprise agreement coming up, however the union for its part is trying to minimise the risk of any industrial dispute arising over this particular issue which would give rise to maybe stop work strike action during the course of protected - - -

PN122

THE SENIOR DEPUTY PRESIDENT: Was there industrial action associated with the last enterprise agreement?

PN123

MR COLE: Yes, there was, your Honour.

PN124

THE SENIOR DEPUTY PRESIDENT: How much?

PN125

MR COLE: Only a small amount I am advised.

PN126

THE SENIOR DEPUTY PRESIDENT: What about the previous one?

PN127

MR COLE: Yes, I am informed it was more that time around.

PN128

THE SENIOR DEPUTY PRESIDENT: Okay, thank you. Mr Declase?

PN129

MR DECLASE: Your Honour, we are really disappointed that the company has been dragged into this Commission. As the union puts it, the parties have failed to resolve this matter and request a re-listing at the Australian Commission. From our point of view, we have discussed with the union all the way through and I will go through a couple of instances. On Thursday, 22 July, the company met with Alan Cole and David Nunns from the union on the issue of casuals. At this meeting it was agreed that the company requires making a number of casuals full-time employees. The union was explained the company's recruitment and selection policies and the time-frames that were going to apply. That evening at about 4 o'clock, two hours later, we posted these ads on our noticeboards.

PN130

THE SENIOR DEPUTY PRESIDENT: Mr Cole, I will mark the two volumes that you have handed up as C1.

PN131

MR COLE: Thank you.

PN132

EXHIBIT #C1 EVIDENCE OF THE UNION

PN133

THE SENIOR DEPUTY PRESIDENT: Mr Clarke, I will mark this internal advertisement - what date do you say it was put out?

PN134

MR DECLASE: It was put out on 22 July.

EXHIBIT #D1 INTERNAL ADVERTISEMENT

PN135

MR DECLASE: Since then we have received 14 applications only, and the applications - I will show the list of people we organised interviews for them. The union was well aware of what we were doing, but on Friday, 6 August at 3.30 we received a fax from David Nunns advising us that failure to resolve this matter to our mutual satisfaction will result in the union pursuing this matter in the AIRC accompanied by a petition. 20 minutes later on the same day we received a fax from Mr Cole advising:

PN136

The parties have failed to resolve this matter and the re-listing is now posted in the AIRC.

PN137

I contacted both Mr Cole and Mr Nunns and tried to find out exactly what was happening. They didn't want to talk to me at that time; they wanted me to leave it over the weekend, but they advised to me that they will speak to me on Monday. Mr Cole advised me at that stage that somebody had told him that we were making eight people full time positions.

PN138

Commissioner - sorry, your Honour, may I state the following. Under the rules of the award, specifically the clause mentioned by Mr Cole, we have used our casual staff appropriately and accordingly and given everyone whatever hours we could. The union's letter to us dated 26 July demands that we must make 10 casuals plus full time, and it is also stipulated that two particular casual employees must be given preferential treatment over the other casuals.

[9.14am]

PN139

THE SENIOR DEPUTY PRESIDENT: So the union has told you they want 10 full-timers from casuals?

PN140

MR DECLASE: 10 plus - 10 plus.

PN141

THE SENIOR DEPUTY PRESIDENT: Yes.

PN142

MR DECLASE: And also - - -

PN143

THE SENIOR DEPUTY PRESIDENT: And they want two particular.

PN144

MR DECLASE: Two particular - - -

PN145

THE SENIOR DEPUTY PRESIDENT: Who are they?

PN146

MR DECLASE: - - - casual employees must be given preferential treatment over the other casuals.

PN147

THE SENIOR DEPUTY PRESIDENT: Who are they?

PN148

MR DECLASE: A gentleman by the name of Mr X.

PN149

THE SENIOR DEPUTY PRESIDENT: Yes.

PN150

MR DECLASE: And Junior Duncan.

PN151

THE SENIOR DEPUTY PRESIDENT: Yes.

PN152

MR DECLASE: As ..... manager I cannot agree to this demand. We have a company recruitment and selection policy that gives everyone a fair go all round and selects the best person for the job, following a defined selection criteria. In relation to the number of matters, again the needs of our operation, work schedules and planning, will ultimately decide the numbers we can have for full time. The union's methodology of determining the hours that casuals work which has been presented to you is very simplistic and flawed and open to their interpretation. From the company's view of hours provided we actually work on actual hours and with all respect to the union they do not understand the cyclic nature of our business.

PN153

We only get busy when a ship arrives in port. When a ship arrives with 2000 cars that is when we get busy.

PN154

THE SENIOR DEPUTY PRESIDENT: What do you do?

PN155

MR DECLASE: We store BMWs, Mercedes Benzs, Volvos that come by ship for the clients over here. So during this period - as soon as the ship comes in we get to the wharf, we pick the cars, we bring them on our sites, we have to drive them all round the place and park them and get them ready for manufacturers. The second stage where we really get busy is when sales of cars start going up. As they start going up we get a demand for more cars. That is the time that we get more casuals on board and we have periods where it is basically dead and that is why you - - -

PN156

THE SENIOR DEPUTY PRESIDENT: Right. So you take them off the ship and you store them until the manufacturers want them?

PN157

MR DECLASE: That is right, exactly. That is exactly what we do.

PN158

THE SENIOR DEPUTY PRESIDENT: Right.

PN159

MR DECLASE: We are just a storage basically and get the cars ready and process. With all respect to the union we really are busy at month ends and whenever car carrying vessel arrives in port. During the other periods we are in a trough; supplying is very particular to us. In summing up it is our clear intention to man up our permanent workforce; there is no problems with that.

PN160

THE SENIOR DEPUTY PRESIDENT: How many are you going to put on permanent?

PN161

MR DECLASE: I will ask our state manager, he has got the numbers that he would like to.

PN162

MR FORSYTH: We will put four on this week.

PN163

THE SENIOR DEPUTY PRESIDENT: Yes.

PN164

MR FORSYTH: And we are assessing the new client we are getting, Daimler-Chrysler. We are still really reviewing just what that entails but we will definitely put on another two to four, depending on exactly where that review ends up.

PN165

THE SENIOR DEPUTY PRESIDENT: So probably between six and eight permanents?

PN166

MR FORSYTH: Correct, your Honour, yes.

PN167

'

PN168

THE SENIOR DEPUTY PRESIDENT: And you have done the interviews?

PN169

MR DECLASE: Yes, your Honour. The interviews commenced on Monday and concluded this Friday.

PN170

THE SENIOR DEPUTY PRESIDENT: Yes.

PN171

MR DECLASE: We planned to advise all applicants of the outcome this week but all this stuff has brought it to a stop. In summing up - - -

PN172

THE SENIOR DEPUTY PRESIDENT: Right. So you have picked your four; you just haven't told anyone yet.

PN173

MR DECLASE: That is right, we haven't told anybody.

PN174

THE SENIOR DEPUTY PRESIDENT: Yes.

PN175

MR DECLASE: It is disappointing, when the company was going through its policy procedures and offering full time employment, is at the same time being dictated by the union that number one, we failed to resolve the matter because we discussed this with them throughout; we must take 10 plus casuals, we must give certain persons a job over others, we must explain who is on our interviewing panel, we - - -

PN176

THE SENIOR DEPUTY PRESIDENT: You didn't really have an interview panel of six, did you?

PN177

MR DECLASE: Yes, I had all the supervisors there because we knew that we would be in this kind of a situation. Furthermore, we must explain why a union member is not on the panel and even though we go through a pre agreed process with the unions, telling exactly what we are going to do, in the middle of the interviews and towards the end of the interviews we are basically ordered to the Commissioner - into the Commission. So, Commissioner, I ask you where is the fairness and where is the issue of the matter now trying to be resolved?

PN178

THE SENIOR DEPUTY PRESIDENT: Have you been told why it has got to be Duncan and Mr X?

PN179

MR DECLASE: Yes, I have told why it is Duncan and Mr X, is because Duncan has been a casual with us for seven years.

PN180

THE SENIOR DEPUTY PRESIDENT: Yes.

PN181

MR DECLASE: The reason Duncan - let me make this clear. The reason why Duncan is having problems, he has crashed three of our cars.

PN182

THE SENIOR DEPUTY PRESIDENT: Yes.

PN183

MR DECLASE: So he is banned from driving basically.

PN184

THE SENIOR DEPUTY PRESIDENT: Yes.

PN185

MR DECLASE: And that is what he is doing. And I will talk about the panel interview - different, but they wanted Mr X, Mr X being one that they picked who does data dots and also Junior Duncan because he has been there for seven years.

PN186

THE SENIOR DEPUTY PRESIDENT: So what is - Duncan has been there seven years.

PN187

MR DECLASE: Yes.

PN188

THE SENIOR DEPUTY PRESIDENT: That is why they have told you they want him. Why do they say they want Mr X?

PN189

MR DECLASE: Mr X apparently because he does a specific job called data dotting which is spraying little micro dots under the BMW so if any parts get stolen they are going to always find it.

PN190

THE SENIOR DEPUTY PRESIDENT: Yes.

PN191

MR DECLASE: But we can put another casual on that job quite easily.

PN192

THE SENIOR DEPUTY PRESIDENT: How long has Mr X been with you?

PN193

MR DECLASE: Mr X has been with us 14 months.

PN194

THE SENIOR DEPUTY PRESIDENT: Right. And which one do you say has damaged three cars?

PN195

MR DECLASE: Junior Duncan.

PN196

THE SENIOR DEPUTY PRESIDENT: Right. All right. So your position is you are going to put on six to eight?

PN197

MR DECLASE: Yes.

PN198

THE SENIOR DEPUTY PRESIDENT: You say their stats are too simple?

PN199

MR DECLASE: Yes, they are very simple.

PN200

THE SENIOR DEPUTY PRESIDENT: Do you agree that 50 per cent of your workforce thereabouts is casual?

PN201

MR DECLASE: No, that is incorrect as well.

PN202

THE SENIOR DEPUTY PRESIDENT: How much do you say?

PN203

MR DECLASE: We would say round about 30 per cent throughout Australia. The second thing where we disagree also, your Honour, is Mr Cole said that nobody goes through the classification. Our EBA - if you look at our EBA it will say that everybody that starts with us is on grade 1. After three months they must move into grade 2 or grade 3 and all the people have moved into grade 2 and grade 3. So that comment that he made was - - -

PN204

THE SENIOR DEPUTY PRESIDENT: Is there any - what about your permanents, what classification are they on?

PN205

MR DECLASE: They are between 2s to 4s.

PN206

THE SENIOR DEPUTY PRESIDENT: Yes. Right.

PN207

MR DECLASE: We have only got one person on 5 at the moment.

PN208

THE SENIOR DEPUTY PRESIDENT: Okay. Is there a limit on some prohibition for the casuals going into 4s?

PN209

MR DECLASE: Into 4s - there is no - there is no prohibition of them going to 4s.

PN210

THE SENIOR DEPUTY PRESIDENT: Right.

PN211

MR DECLASE: It depends on what skill level they come - we have got some casuals that are at paint shop that are on a classification well above the grade 5s, are paid well over grade 5. We have got casuals in that area as well.

PN212

THE SENIOR DEPUTY PRESIDENT: Right. Okay. So you say you are not discriminating between - - -

PN213

MR DECLASE: No, we are not discriminating - - -

PN214

THE SENIOR DEPUTY PRESIDENT: - - - between permanents and casuals on the basis of classification?

PN215

MR DECLASE: Exactly. The other job I do also, your Honour, is I am the payroll manager as well.

PN216

THE SENIOR DEPUTY PRESIDENT: Yes.

PN217

MR DECLASE: So I know exactly how these payroll systems work.

PN218

THE SENIOR DEPUTY PRESIDENT: Yes.

PN219

MR DECLASE: Micropay, which is the system we use, always flags us whenever we tend to breach close number 6.

PN220

THE SENIOR DEPUTY PRESIDENT: Yes.

PN221

MR DECLASE: It has been set up that way.

PN222

THE SENIOR DEPUTY PRESIDENT: Yes, yes. All right. Well, Mr Cole, why does it have to be Mr X and Duncan or do you dispute it has to be Mr X and Duncan?

PN223

MR COLE: No, well, we say Duncan because whilst he may have crashed three cars or damaged three cars - I think it is probably a better way of putting it than crashed three cars - the last of those, as I understand it, was over four years ago and the other because he does the data dots which the union sees as a more specific type of work - that is MR X - a more specific type of work with more - more important than all of the others which are either drivers or yardmen - employed directly as drivers or yardmen. The only casuals that are not - are Mr X, who does data dots and one other who is a spray painter.

PN224

THE SENIOR DEPUTY PRESIDENT: Well, let us just take MR X. Is this some special skill that you have to have for this data dotting?

PN225

MR COLE: Well, we say that it is a skill over and above what you would get - basically for drivers or for yardmen you can get them off the street and train them within three or four hours.

PN226

THE SENIOR DEPUTY PRESIDENT: Yes.

PN227

MR COLE: But there is a bit more tot the work on data dotting than there is being a yardman or a driver.

PN228

THE SENIOR DEPUTY PRESIDENT: Well, how long does it take training to do data dotting?

PN229

MR COLE: I am not sure.

PN230

THE SENIOR DEPUTY PRESIDENT: How long do you say, Mr Declase?

PN231

MR DECLASE: I wrote the position description for the data dot job.

PN232

THE SENIOR DEPUTY PRESIDENT: Yes.

PN233

MR DECLASE: And anybody could do within two hours. It is not spray painting, it is just an air gun with a ..... fitted onto it and you just spray under the car and you record the numbers. It is not a trade.

PN234

MR COLE: Well, we don't seem to be getting anywhere. Just one thing that Mr Declase said when he challenged the number of employees and he said there was around about 33 per cent, I did take you through on the document the number of casuals employed for the period from March to July this year, which is at tab 5. This information - the reason that Mr Declase has said that the union has been unreasonable and what have you - this information only came out at the one meeting that I have had with him, where we got all of the time cards which make up the bulk of these two folders. So we then individually went through all of those time cards and that is where the raw data came from.

PN235

So I challenge Mr Declase to say to us, if he is saying that 33 per cent - to say to us that there is 45 full time employees employed in the classifications covered by the enterprise agreement, if that is what he is saying because the figures simply don't - these are time cards that have been provided to the union at the union's request by the company. If the Commission please.

PN236

THE SENIOR DEPUTY PRESIDENT: Mr Cole, let me just take you to tab 8.

PN237

MR COLE: Yes, your Honour.

PN238

THE SENIOR DEPUTY PRESIDENT: And take you to Mr X, who is about five in.

PN239

MR COLE: Yes.

PN240

THE SENIOR DEPUTY PRESIDENT: There is a date, 6 April 2004, there.

PN241

MR COLE: Yes, your Honour.

PN242

THE SENIOR DEPUTY PRESIDENT: Is that the week ending?

PN243

MR COLE: Yes, week ending, your Honour.

PN244

THE SENIOR DEPUTY PRESIDENT: Okay. So in that week Mr X worked five days?

PN245

MR COLE: 25.9 hours, your Honour.

PN246

THE SENIOR DEPUTY PRESIDENT: Five days?

PN247

MR COLE: Yes, your Honour.

PN248

THE SENIOR DEPUTY PRESIDENT: The next week how much did he work?

PN249

MR COLE: He worked three days.

PN250

THE SENIOR DEPUTY PRESIDENT: Yes.

PN251

MR COLE: At 21 - - -

PN252

THE SENIOR DEPUTY PRESIDENT: The following week?

PN253

MR COLE: 21.3 hours but my understanding - I think that was where there was public holidays that week.

PN254

THE SENIOR DEPUTY PRESIDENT: The following week, four days.

PN255

MR COLE: I can't - yes, I have found it, yes, 30.7 hours.

PN256

THE SENIOR DEPUTY PRESIDENT: The following week?

PN257

MR COLE: Five days, 35 hours.

PN258

THE SENIOR DEPUTY PRESIDENT: Where is it, up near the middle or front?

PN259

MR COLE: Towards the end - probably half a dozen in from the end.

PN260

THE SENIOR DEPUTY PRESIDENT: The following week, five days?

PN261

MR COLE: I am just - - -

PN262

THE SENIOR DEPUTY PRESIDENT: Volume 2, five days.

PN263

MR COLE: Yes.

PN264

THE SENIOR DEPUTY PRESIDENT: Week ending 18th of the 5th, five days. Week beginning 25th of the 5th?

PN265

MR COLE: Five days.

PN266

THE SENIOR DEPUTY PRESIDENT: Mr Cole, the advertisement, D1, they advertised full time positions and only 14 of the 31 applied.

PN267

MR COLE: That is correct, your Honour.

PN268

THE SENIOR DEPUTY PRESIDENT: So on their basis of employment between six and eight they will disappoint between six and eight people, won't they?

PN269

MR COLE: Time will tell, your Honour.

PN270

THE SENIOR DEPUTY PRESIDENT: Well, if you don't apply.

PN271

MR COLE: Well, there might be reasons - we understand that there were 17 applied but - - -

PN272

THE SENIOR DEPUTY PRESIDENT: Well, who do you say applied that is not on that list?

PN273

MR COLE: We don't have their names but we understand that they applied two days before.

PN274

THE SENIOR DEPUTY PRESIDENT: You don't know who they are?

PN275

MR COLE: No.

PN276

THE SENIOR DEPUTY PRESIDENT: Mr Declase, you are going to name four people this week.

PN277

MR DECLASE: Yes.

PN278

THE SENIOR DEPUTY PRESIDENT: What about the other six - sorry, two to four?

PN279

MR DECLASE: Could I hand over to Mr Forsyth, please?

PN280

THE SENIOR DEPUTY PRESIDENT: Yes.

PN281

MR FORSYTH: Yes, your Honour, we have just got the business of Daimler-Chrysler which is a substantial client.

PN282

THE SENIOR DEPUTY PRESIDENT: Yes.

PN283

MR FORSYTH: And we probably got awarded that about three weeks ago.

PN284

THE SENIOR DEPUTY PRESIDENT: Yes.

PN285

MR FORSYTH: So we are having numerous meetings over the next three to four weeks trying to mesh their business in with ours.

PN286

THE SENIOR DEPUTY PRESIDENT: Yes.

PN287

MR FORSYTH: So we are really trying to assess volumes of vehicles, processing requirements because what we do is store and process imported cars.

PN288

THE SENIOR DEPUTY PRESIDENT: Yes.

PN289

MR FORSYTH: That is what we do. We distribute them out to the dealers for the manufacturers so we need to know what boats they come on. They come out of Europe so we have got to look at our other European volumes.

PN290

THE SENIOR DEPUTY PRESIDENT: Okay.

PN291

MR FORSYTH: And assess that.

PN292

THE SENIOR DEPUTY PRESIDENT: So when do you think you will be in a position to say how many more permanents?

PN293

MR FORSYTH: We commence their work at this stage on October 8.

PN294

THE SENIOR DEPUTY PRESIDENT: Yes.

PN295

MR FORSYTH: I would look at putting on two to four people end of September so we have got a week or two to train them into the Daimler-Chrysler business.

PN296

THE SENIOR DEPUTY PRESIDENT: Okay. Well, is six to eight too short for you, Mr Cole?

PN297

MR COLE: It is, your Honour.

PN298

THE SENIOR DEPUTY PRESIDENT: Well, my view is that if you want more and you want a manning agreement, you have got an enterprise agreement coming up; negotiate it as part of that.

PN299

MR COLE: Be that as it may.

PN300

THE SENIOR DEPUTY PRESIDENT: I will adjourn this matter on that basis.

ADJOURNED INDEFINITELY [9.33am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 EVIDENCE OF THE UNION PN133
EXHIBIT #D1 INTERNAL ADVERTISEMENT PN135