C2006/1485, Transcript of Proceedings [2006] AIRCTrans 723 (8 May 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14911-1

COMMISSIONER WHELAN

C2006/1485

SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
AND
PHILIP LEONG PTY LTD
s.170LW - Application for settlement of dispute (certification of agreement)
(C2006/1485)

MELBOURNE

11.40AM, WEDNESDAY, 26 APRIL 2006

PN1

MR K MCCOSH: I appear on behalf of the Shop Distributive and Allied Employees Association.

PN2

MS L JENKINSON: I appear on behalf of Woolworths and MR M MANN.

PN3

THE COMMISSIONER: Right, Mr McCosh?

PN4

MR MCCOSH: Yes, Commissioner. This matter pertains to the treatment of Sunday, 1 January of this year as public holiday and the rights and entitlements of such in accordance with the enterprise agreement, the Phillip Leong Stores Pty Ltd Mulgrave Grocery Agreement of 2002. First of all I guess there is no dispute that 1 January this year was a gazetted holiday in addition to the 2nd. If there is I do have evidence that I can tender to show that the government did gazette the date.

PN5

THE COMMISSIONER: Okay. Is that accepted? That it was gazetted is accepted.

PN6

MR MCCOSH: The first exhibit I will tender then, Commissioner, is a copy of the clause pertaining to public holidays from the agreement.

PN7

THE COMMISSIONER: I've got the agreement here, can you tell me what?

PN8

MR MCCOSH: It's clause number 13.

PN9

THE COMMISSIONER: yes.

PN10

MR MCCOSH: I draw your attention to a couple of the main features of this clause, Commissioner. First of all 13.1 covering public holidays. This particular clause identifies days recognised as public holidays and the clause goes on to conclude:

PN11

That any public holiday gazetted subsequent to the certification of the agreement will be deemed to be a public holiday under this agreement.

PN12

So the agreement does provide for recognition of the 1 January 2006. That being the case then, Commissioner, I'll draw your attention to 13.6.

PN13

THE COMMISSIONER: Yes.

PN14

MR MCCOSH: The last clause which states that where Christmas or New Year's days fall on a Saturday or Sunday the following Monday and or Tuesday will be observed as the public holidays, that is normal substitute date provisions apply. Should that be the case there is also provision in 13.5 for public holidays falling on rostered days off where it's stated:

PN15

That if a public holiday falls on a full time employee's RDO or non rostered working day then the full time employee shall receive an additional days pay or a day off in lieu.

PN16

Et cetera, et cetera,

PN17

to be taken within 28 days of the holiday.

PN18

Now, in the past the company has maintained the application of the agreement and I will tender you a document which will demonstrate this. This document, Commissioner, is an official memorandum from the acting distribution centre manager dated 26 October 2004. It pertains to the Christmas and New Year public holidays of 2004 and in particular, Commissioner, I draw your attention to Boxing Day being Sunday 26 December where the status of the distribution centre shows that it is closed and the comment there provides that no employees are rostered to work Sunday therefore all permanent employees recognise the substitute day, 27 December, as the public holiday.

PN19

Now, Commissioner, what we are seeking is that the Sunday 1 January of 2006 receive the same recognition from the company for the employees at the site and that a substitute day should have been provided to employees or in fact it should have been recognised as a public holiday with an additional day's pay which it was not and that leads us to this point in time, Commissioner, where we're seeking the Commission's assistance to resolve the matter.

PN20

THE COMMISSIONER: So what happened? There were employees who worked on 1 January? There were no employees that worked?

PN21

MR MCCOSH: In the main, no employees, unless night shift employees may have started very late on 1 January to work into the main body of 2 January.

PN22

THE COMMISSIONER: Okay.

PN23

MR MCCOSH: But the predominant work force did not work on the 1st.

PN24

THE COMMISSIONER: Okay. Did people work on the Monday or did people only work on the Tuesday?

PN25

MR MCCOSH: They worked on the Monday, Commissioner, and that was treated in accordance with the public holiday provisions. There is no issue with the Monday the 2nd.

PN26

THE COMMISSIONER: Okay. All right. So what are you saying - are you saying they should have received a substitute day for 1 January, is that right?

PN27

MR MCCOSH: That's correct, Commissioner, and or payment in accordance with clause 13.5 of the agreement.

PN28

THE COMMISSIONER: So they should have got a day in lieu or a day's pay.

PN29

MR MCCOSH: That's correct, Commissioner.

PN30

THE COMMISSIONER: Okay. Thank you, Mr McCosh.

PN31

MR MCCOSH: Thank you, Commissioner.

PN32

THE COMMISSIONER: Ms Jenkinson?

PN33

MS JENKINSON: Thank you, Commissioner. The SDA have indicated that the matter in dispute relates to and I quote:

PN34

The decision of the company to not allow full time employees to take their days off in lieu New Years Day 2006 public holiday falling on their RDO or non rostered working day. This is in breach of clause 13.5 of the agreement.

PN35

With all due respect we're a little bit confused in relation to the notice of the dispute. In particular in relation to the lack of correlation between the only one grievance that the company has actually received in relation to this matter as opposed to the details of the dispute the SDA have notified. The notice of the dispute indicates that the company has breached clause 13.5 of the agreement of which you've already got a copy which discusses payment for public holiday falling on an employee's non rostered working day. In Mr Storey's case, the public holiday actually fell on a rostered working day therefore the clause doesn’t appear to be relevant to the agreement.

PN36

I've got a copy of the grievance from Mr Storey. The nature of Mr Storey's grievance as the company understood it was around seeking payment for an additional day being January 1 2006. Mr Storey was on annual leave around the period of the public holiday falling and he requested throughout this grievance being heard that he be re credited one day of annual leave to cover 1 January which was obviously a Sunday in addition to having been paid the appropriate entitlement for the substitute day which was recognised on Monday 2 January. As we understand it Mr Storey is requesting to be remunerated for a total of 46 hours for that week as opposed to 38 which is entitled as a full time employee.

PN37

I should note that he was remunerated for the Monday public holiday as all our employees were. The whole issue appears from our prospective to be attempt by one employee to double dip in relation to their public holiday entitlement as all our entitled employees, several hundred of them, have been appropriately paid for the New Year's Day 2006 which was observed for us on Monday 2 January. There is also a few areas that we're looking to seek clarification from the SDA in relation to this matter. Firstly, just getting back to the notice of dispute, throughout the grievance procedure Mr Storey made no reference to a day off in lieu which is the basis of the SDAs dispute. He was seeking an additional day's annual leave to be re-credited for the Sunday.

PN38

The notice of dispute provided the SDA indicates that more than employee has lodged a grievance in relation to this matter. We contend that only one employee has lodge a grievance around the payment of an additional day for the public holiday and that this employee's concerns are not consistent with the issue detailed in the dispute notification. We certainly need to identify the other employees for whom SDA have lodged this dispute. We have no recollection of the meeting that allegedly occurred between the SDA organiser, Mr McCosh and the company as part of the grievance procedure which is outlined on the notice of dispute and we seek further information from the SDA around that meeting taking place.

PN39

Finally from our prospective the only resolution to the dispute is for the SDA to withdraw the application because the company maintains that the agreement does not provide for an additional day's public holiday, additional holiday pay to be paid and that the EBA hasn't in fact been breached. All of our employees who were on site at the time or who were working at the time did receive the benefit of the public holiday being served on the Monday. Just finally in relation to the memo here that Mr McCosh has tabled this in relation to the same period of public holidays for the same time last year.

PN40

In relation to Boxing day being Sunday, 26 December, yes, absolutely correct, no employees were rostered to work therefore all permanent employees recognised the substitute day as the public holiday. That's in fact what's taken place this time as well.

PN41

THE COMMISSIONER: So no employees were rostered to work on 1 January and in fact Mr Storey would not have been rostered to work anyway because he was on annual leave. The company treated the Monday as the public holiday and those who worked on the Monday got it paid as a public holiday and those who didn’t work had it paid as day - received the day's pay, is that right?

PN42

MS JENKINSON: That's correct. The employees that weren’t rostered were paid in accordance with clause 13.5.

PN43

THE COMMISSIONER: Yes, so they got a day's pay or a day off in lieu in respect to the Monday?

PN44

MS JENKINSON: Yes.

PN45

THE COMMISSIONER: Okay. So nobody was rostered to work on the Sunday and nobody got paid for the Sunday.

PN46

MS JENKINSON: That's correct. There is a night shift approved to start Sunday night.

PN47

THE COMMISSIONER: Yes. Okay. All right. Mr McCosh, is there any other - did anybody else as far as you're aware lodge a grievance apart from Mr Storey?

PN48

MR MCCOSH: No I'm personally not aware of any, Commissioner.

PN49

THE COMMISSIONER: Right. Okay.

PN50

MR MCCOSH: But it came to our light it was raised through delegates in discussions. We have had quite a number of lengthy discussions about a new enterprise agreement for that site and it was raised by delegates during that time. It was taken up with the company by the SDA. In fact I had discussions with the business manager at the site, a Mr Ron Caithmis. I've had a discussion in the company of Mr Mick Mann in relation to that particular day to try and clarify the issue. I understand what Ms Jenkinson has said about the recognition of 1 January by paying employees on the 2nd but, Commissioner, both days were gazetted public holidays and that's our point.

PN51

THE COMMISSIONER: So what you're saying is that people should have been paid for both the Sunday and the Monday as gazetted public holidays and in fact Monday wasn’t a substitute because both days were gazetted.

PN52

MR MCCOSH: That's correct, Commissioner. There should have been a day in lieu given on the 3rd and people being treated as a public holiday for the 3rd in lieu of the 1st.

PN53

THE COMMISSIONER: And you're saying that you can reconcile 3.1 and 3.6 if you say the following Tuesday is the substitute day?

PN54

MR MCCOSH: That's correct.

PN55

THE COMMISSIONER: Okay. All right. Well this is what this appears to me to be in fact is a - irrespective of the circumstances of Mr Storey, you're saying, Mr McCosh, that the general issue was discussed with the company quite separate from Mr Storey's individual complaint.

PN56

MR MCCOSH: That's correct, Commissioner, yes.

PN57

THE COMMISSIONER: Okay. And that this issue is really an issue of interpretation about the relationship between clause 13.1 and 13.6?

PN58

MR MCCOSH: Well it appears that way from the company's point of view. Historically we haven’t had an issue pertaining to this sort of matter. Its just that this year I guess - - -

PN59

THE COMMISSIONER: Well isn’t it triggered by the fact that the government gazetted both days?

PN60

MR MCCOSH: That's correct.

PN61

THE COMMISSIONER: Because I must say I can't remember whether in 2004 what happened, what was gazetted by the government quite frankly in relation to those days? So while I understand what you've provided here shows that there was effectively there were two substitute days, one for Boxing Day and one for Christmas Day in that year and there was a substitute day for New Year's Day on 1 January 2005 being Monday 3 January and that seems to be consistent with clause 13.6. The difference as I - the issue as I understand it being put is that if people, if either the 1st or the 2nd was an RDO or a non rostered working day then there should have been an additional substitute day being the Tuesday.

PN62

MR MCCOSH: The Tuesday should have been a substitute for the Sunday, Commissioner.

PN63

THE COMMISSIONER: Yes. Because New Year's Day fell on a Sunday and the Monday was a public holiday in any event.

PN64

MR MCCOSH: That's correct, Commissioner.

PN65

THE COMMISSIONER: Okay. And what the company did was treat the Monday as the substitute day?

PN66

MR MCCOSH: Correct, Commissioner.

PN67

THE COMMISSIONER: Okay. Well, okay. Thank you, Mr McCosh.

PN68

MR MCCOSH: Thank you, Commissioner.

PN69

THE COMMISSIONER: It appears, Ms Jenkinson that the issue is wider that
Mr Storey's individual complaint from what Mr McCosh is saying and it's an issue of how the company has treated the Monday being 2 January which the company has treated as substitute day for New Year's Day and which the union's saying because of the fact that it was a gazetted public holiday and that the 1st and the 2nd were both gazetted public holidays you couldn’t have a substitute day which was already a gazetted public holiday and therefore the 3rd should have been the substitute day. That's my understanding of the position. I don’t know whether it's been put in those terms to you before but that’s my understanding in terms of the agreement as to what's been put. Is that your understanding of what the issue was?

PN70

MS JENKINSON: It is now having heard Mr McCosh explain it.

PN71

THE COMMISSIONER: Yes.

PN72

MS JENKINSON: I'd certainly not be able to go without - - -

PN73

THE COMMISSIONER: It took me a little while to work it out but now I have.

PN74

MS JENKINSON: The notice of dispute doesn’t, I guess, indicate the fact that we're talking about an issue that Mr McCosh has discussed with members of management. It quite clearly refers to the fact that individual employees plural have lodged grievances in relation to it so we were a bit confused as to the basis of the dispute and I'd certainly think anyone reading that would be equally confused. I guess from our position the gazetting issue it's an interpretation issue,
Mr McCosh is referred to here. From our view this clause 13.1 refers to an additional public holiday being gazetted not a pre-existing public holiday being gazetted over two days.

PN75

From our perspective the intent of gazetting it over the two days was to ensure that weekend workers aren’t disadvantaged in relation to the public holiday payment. We're not seeing it and we certainly haven’t seen it to be an additional public holiday in the sense that Mr McCosh is describing.

PN76

THE COMMISSIONER: Yes, because the way that clause 13.1 is drafted it says:

PN77

Weekend employees are entitled to the following public holidays.

PN78

And it lists the days obviously including New Year's Day and it says:

PN79

Or any other day which may be -

PN80

Proclaimed I think that's supposed to be, my copy says, prodaimed, but yes, I think it's just a typo.

PN81

Or any other day which may be proclaimed in lieu or substitution thereof whilst each public holiday remains gazetted. Any public holiday gazetted subsequent to certification of this agreement will be deemed to be a public holiday under this agreement.

PN82

Now, I think that the issue is if New Year's Day was gazetted as a public holiday and the 2nd was not gazetted in substitution for the 1st but as an additional public holiday that's where Mr McCosh is saying the only way therefore to treat those is to say well the substitute day must be the Tuesday because the substitute day can't be the Monday because it's already a gazetted public holiday. That's my understanding of what's been put. Now you might want to go away and have a think about that and see if you have a view because it's clearly a question about how clause 13.1 and 13.6 work when you've got that sort of situation. Do you want me to just stand down for five minutes while you have a talk with Mr Mann perhaps? Okay, and Mr McCosh I wouldn’t mind, if you did have the gazettal there didn’t you?

PN83

MR MCCOSH: Yes.

PN84

THE COMMISSIONER: Can I just have a look at that while we do that?

PN85

MR MCCOSH: Yes, Commissioner, by all means.

<SHORT ADJOURNMENT [12.03PM]
<RESUMED [12.13PM]

PN86

THE COMMISSIONER: Yes, Ms Jenkinson and Mr Mann.

PN87

MR MANN: Thank you, Commissioner, just a couple of things to point out before I go into further argument on it.

PN88

THE COMMISSIONER: Yes.

PN89

MR MANN: Sunday, the 1st and Monday, 2 January this year were actually gazetted public holidays, there weren’t - there was no substitute public holiday amongst them. Was in the document that Mr McCosh tendered they were actually substitute public holidays so they were movement of a public holiday from a Saturday or a Sunday to a Monday or a Tuesday to ensure that employees wreak the benefits of those should they not be rostered.

PN90

THE COMMISSIONER: Yes.

PN91

MR MANN: The issue is that if we look at the agreement, if we accept that they're public holidays then we've got to also determine the fact do we roster employees on those days because they're not entitled to public holidays unless we work on those days. We haven’t rostered employees on a Sunday at that site since 2003. So to claim payment for a public holiday for a day that we do not roster people and have not rostered people for three days would appear to clearly double dipping. The other issue is that even by the definitions in the agreement if you look at the payment clause which the payment clause is at 13.2, 13.3 and then 13.5, they all refer to ordinary hours or rostered day off or non rostered working day.

PN92

If I can then take you to clause 6.1.2 it talks about a full time employee works 38 ordinary hours in a week, page 7 of my document.

PN93

THE COMMISSIONER: I've got no pages on mine.

PN94

MR MANN: Okay.

PN95

THE COMMISSIONER: Okay. Here it is, yes:

PN96

A full time employee works 38 ordinary hours which may be average over a full week cycle.

PN97

MR MANN: Correct.

PN98

THE COMMISSIONER: Yes.

PN99

MR MANN: Then if you go to the definition which is clause 4.

PN100

THE COMMISSIONER: Yes.

PN101

MR MANN: It says, 4.7:

PN102

A work roster is defined as the hours an employee is rostered to work ordinary hours on any day or combination of days during the week. A work roster also means an employee's start and finishing times, ordinary days of week and or shift.

PN103

So then 4.8 then goes on to say:

PN104

Ordinary hours are defined as the hours that comprise an employee's base weekly roster.

PN105

So then you come down to what a rostered day off is. I don’t think anyone is arguing that that Sunday could have been an employee's rostered day off. It's a non working day therefore it can't be a rostered day off because our shifts vary but most of them go Monday to Thursday, Tuesday to Saturday or Monday to Friday. So the Sunday can't be a rostered day off so therefore the provisions under 13.5 can't apply for that particular issue. If you then look at 4.1.5:

PN106

A non rostered working day is defined as a day the employee's not rostered to work ordinary hours.

PN107

The argument that I would use there is, if you can't be rostered at all because we don’t roster people on the Sunday then you can't be rostered to work anywhere else.

PN108

THE COMMISSIONER: It's not a working day at all.

PN109

MR MANN: Correct.

PN110

THE COMMISSIONER: Yes, okay.

PN111

MR MANN: And if you can't be rostered to work ordinary hours then you can't be not rostered to work ordinary hours therefore the provisions of a non rostered working day don’t apply therefore none of the provisions outlined in clause 13.5 can be applied to this issue. Every employee on site, permanent full time employee has been paid for the public holiday during the span of hours that the site currently operates which is basically late Sunday night or evening night shift Sunday night through to Saturday. We just don’t see that we can be asked to pay people for a public holiday that is (a) not a substitute day, it’s a gazetted day but it's a day that no employee can actually be rostered to work and has been rostered to work since November 2003.

PN112

THE COMMISSIONER: Okay.

PN113

MR MANN: Thank you, Commissioner.

PN114

THE COMMISSIONER: Thank you, Mr Mann. Mr McCosh?

PN115

MR MCCOSH: Yes, Commissioner, I think what Mr Mann has failed to recognise is the relevance of clause 13.6 where it does clearly state that where Christmas Day or New Year's Day fall on a Saturday or Sunday the following Monday and or Tuesday will be observed as the public holiday. That is the normal substitute day provisions apply. It's quite simple, Commissioner, it was a gazetted public holiday on the 1st and it was on the 2nd. The 3rd of January should have been a substitute day for the 1st.

PN116

THE COMMISSIONER: Where does it - how does that affect the entitlement? I think what Mr Mann is putting is this that employees who worked on the public holiday got paid on - employees who worked on the Monday the 2nd got paid as a public holiday and those who didn’t work on the Monday because it was a day when people could be rostered to work got paid for the day as a public holiday. He's saying that 13.5 can't apply to the Sunday because it can't be an RDO and it's not a non rostered working day because it isn’t a working day effectively, its not a day that people are ever rostered work.

PN117

So they all got the Sunday as a normal day and they all because they wouldn't have been required to work on that day anyone so they got the benefit of it as a public holiday as a Sunday effectively. And then they all got the benefit of the Monday either if they worked they got paid the public holiday rate or if they didn’t work they got paid for the day anyway. Now are you saying that even though they could not be required to work on 1 January because it was not a working day that they were entitled to get an additional day on the Tuesday?

PN118

MR MCCOSH: A substitute day, Commissioner, not an additional day. The agreement provides for seven day rostering. It provides for work on any of the seven days of the week. The company chooses to predominately not have people working on the Sunday. The agreement does provide under clause 13.4 the substitution of a particular day falling on a Sunday being that New Year's Day which occurred this year, Commissioner, and it clearly states that a substitute day should be provided for that particular public holiday.

PN119

It can't be the Tuesday over the Monday, I'm sorry because the Monday was a proclaimed and gazetted public holiday and it was treated for all intensive purposes as a public holiday. The first available date where it could be treated as a substitute day would be 3 January.

PN120

THE COMMISSIONER: What about the part of - so you're saying that 13.6 required the company to treat the Tuesday as a substitute day?

PN121

MR MCCOSH: That's correct, Commissioner.

PN122

THE COMMISSIONER: Okay. All right. Thank you, Mr McCosh.

PN123

MR MCCOSH: Thank you, Commissioner.

PN124

THE COMMISSIONER: I want to give this some more thought because I think it does require looking at a number of the different provisions, although I've been looking at clause 13.1. I think it is also necessary as Mr Mann has pointed out to look at the definitional provisions and the provisions that relate to ordinary hours of work and rostered days off because the matters not something that can be read in isolation. What I think to be fair to you I should do is to give you time to put in - obviously this is on transcript so I'll have what you've put now but to give you both time to put in writing anything further that you want to put in relation to the issue so that I can consider it.

PN125

As I understand it what is the nature of the claim in relates to whether employees who were not rostered to work on the Sunday but who were or were not rostered to work on the Monday but could have been rostered to work on the Monday were entitled to have the Tuesday treated as a substitute day for the Sunday public holiday as a gazetted public holiday. In which case if they worked on that Tuesday it should have been treated as a public holiday for the purposes of payment and if they did not work on that Tuesday then they should have received a day's pay for that day. Okay. That's basically what it comes down to?

PN126

MR MCCOSH: Yes.

PN127

THE COMMISSIONER: All right. I'd like to give you both the opportunity to put some more material to me in writing in relation to it if you want to do that. I have got obviously the agreement and I think it basically goes to the question of how you actually apply the terms of the agreement and I also have the public holiday notice. I do have the memo that went out in October 2004 which does cover the period that's covered by that same public holiday notice as I understand it. If there's any other material that you think is relevant, I don’t know, was there a memo sent out to employees either the December, January period this year?

PN128

MS JENKINSON: I believe there may have been one sent to our employees in produce. It's a different agreement but the same provisions apply and I believe that was similar in this format, not to these employees.

PN129

THE COMMISSIONER: Okay. Well if there's anything else that you think it would be useful for me to have a look at or if there's any other general observations that you want to put to me, I'd be pleased to receive that.
Mr McCosh, how long do you think you might need to put anything further you wanted to put in writing?

PN130

MR MCCOSH: I would like the benefit of the transcript to have a look at arguments put forward by Mr Mann - - -

PN131

THE COMMISSIONER: Sure.

PN132

MR MCCOSH: - - - in a little bit more detail.

PN133

THE COMMISSIONER: Yes.

PN134

MR MCCOSH: As soon as I receive that it would not take long to construct a written document back to you.

PN135

THE COMMISSIONER: Okay. Well how about by the end of next week, would you be able to do that?

PN136

MR MCCOSH: That would be fine, Commissioner.

PN137

THE COMMISSIONER: Then I'll give you a week after that to put in your reply to it, okay?

PN138

MS JENKINSON: Okay.

PN139

THE COMMISSIONER: All right. Thank you very much.

<ADJOURNED INDEFINITELY [12.27PM]