AG2006/4147, Transcript of Proceedings [2006] AIRCTrans 795 (2 June 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15066-1

COMMISSIONER CRIBB

AG2006/4147

APPLICATION BY GRIBBLES GROUP LTD & HEALTH SERVICES UNION OF AUSTRALIA-VICTORIA NO 3 BRANCH
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/4147)

MELBOURNE

9.37AM, FRIDAY, 19 MAY 2006

Continued from 10/5/2006

PN264

THE COMMISSIONER: Good morning everyone. I think the ball's in your court, Ms Fraumano.

PN265

MS S BINGHAM: Commissioner, I should announce my appearance.

PN266

THE COMMISSIONER: Sorry. My apologies. It feels like Monday morning.

PN267

MS BINGHAM: It does. I seek leave to appear for the MSAV.

PN268

THE COMMISSIONER: Right. Thank you Ms Bingham. Is there any objection to Ms Bingham's appearance, Ms Fraumano?

PN269

MS FRAUMANO: No objection Commissioner.

PN270

THE COMMISSIONER: Thank you Ms Fraumano. Leave is granted Ms Bingham.

PN271

MS BINGHAM: Thank you, your Honour.

PN272

THE COMMISSIONER: Ms Fraumano? I think I'm safe to ask you the questions now. It's my fault.

PN273

MS FRAUMANO: Thank you Commissioner. During the last hearing we indicated that Gribbles would check the pay rates that were applying to employees on permanent night duty. On checking that we found that the $50 as detailed in the 2001 agreement or as amended to $51.50 is indeed not paid to employees on traditional permanent night shift but are paid to employees where more than half the shift is worked after midnight. That's arising from the 2001 agreement. I can hand a copy up to the Commission if that assists.

PN274

THE COMMISSIONER: That would be helpful. Thank you Ms Fraumano.

PN275

MS FRAUMANO: Commissioner the clauses within the agreement relate to permanent night shift allowance and I will just take you to that clause and it's clause 14, shift work that deals with the medical laboratory technicians and the clauses that relate to the $50 are clause 14(3)(a) where it says provided further than the case of an employee permanently working on roster hours of ordinary duty in accordance with sub clause 2 of this clause. More than half their rostered hours occur after midnight and before 6.30 am they shall be paid $50 per rostered period.

PN276

The clause within that document does not refer to employees on permanent night duty where not more than half their shift is worked after midnight. In respect to HSUA 3 and I've had discussions yesterday and we have a undertaking here which we're able to provide to the Commission.

PN277

THE COMMISSIONER: Thank you.

PN278

MS FRAUMANO: In the first part of the undertaking is the rates that were tabled during the hearing on the last, when we were last here.

PN279

THE COMMISSIONER: Yes.

PN280

MS FRAUMANO: The part for clarity is directly under that table and the undertaking is that an employee who permanently works on rostered hours where more than half their rostered hours occur after midnight and before 6.30 am and who continue to work such permanent night shift will be paid an allowance of $51.50 which was the rate prior to the positive vote. Commissioner, for clarity this only applies to any employee who is currently getting the $51.50 and the second part of that undertaking relates to the fact that we'll advise employees of the alterations to the allowance brought about by the undertakings. If the Commission pleases.

PN281

THE COMMISSIONER: Thank you, Ms Fraumano. Mr Langmead?

PN282

MR LANGMEAD: Yes Commissioner, I can confirm that those undertakings do reflect the agreement of the parties and indeed the clarification in relation to work after midnight had always been the intent of the parties. It was just an ambiguity in the previous wording which has now been removed. If the Commission pleases.

PN283

THE COMMISSIONER: Thank you Mr Langmead. Ms Bingham?

PN284

MS BINGHAM: Thank you Commissioner. Commissioner, if I may ask through you whether the commitment in the last paragraph, the undertaking, goes to making back payments to the employees. It's not clear, just notifications. If we could get a commitment on transcript that that does undeniably include the fact that back pay would be paid.

PN285

THE COMMISSIONER: Back pay to when? Would you like to be specific?

PN286

MS BINGHAM: Back pay from the date which the change from the rates occurred. I don't think I can be more, I can't give an actual day. From the date that the rates were reduced, which unfortunately I am unable to assist you with because we are not privy to that information of course. The only other thing that the MSAV has to say on the point, we don't believe that this is the ideal situation to rectify this problem. We have no intentions of making any further comments regarding the undertaking.

PN287

We believe that it would be most appropriate to protect all employees to rectify the agreement rather than deal with the undertakings in this manner and form and the rectification should be the rectification of the schedules and re-circulating the documentation. But as we've said, we have no intention of forestalling this matter and we make no further comment on the undertakings.

PN288

MS FRAUMANO: Commissioner, could I just put something on transcript in respect to that. What MSAV is currently suggesting would substantially disadvantage employees. The wage increase that has been put through, the initial percentage wage increase, is from the first pay period after the positive vote. What MSAV is now suggesting is that it should go back to a vote, which in fact will require Gribbles to remove the pay increase and to have it then implemented at a positive date.

PN289

THE COMMISSIONER: Ms Fraumano, that wasn't my understanding of what Ms Bingham was seeking on behalf of MSAV. I think if I could try and see if I, I'll have a go at it but – because this is a new matter that has arisen today as far as I can tell. I think that's right and I'm not 100 percent sure whether Ms Bingham was referring to just the night shift thing or all of the other allowances that are specified, are covered by the undertakings. But I think what is sought, is that the column that has first pay period after positive vote, that would actually be a date that's earlier than whatever date that is. Is that correct or have I got it wrong 110 percent?

PN290

MS BINGHAM: No Commissioner, all we're saying is that we think there is a preferred option to protect all employees' rights and remedies under the Workplace Relations Act. We have no further comments to make on the undertaking. We don't intend to interfere with it.

PN291

THE COMMISSIONER: Okay.

PN292

MS BINGHAM: We do seek clarification that back pay will be paid and Dr Kelly has just handed me a document that says that, looks like the pay period was, with a pay period, the 20/3/2006 was the first reduced pay period that people were affected by the underpayments.

PN293

THE COMMISSIONER: Thank you Ms Bingham and that is a different date to the first pay period after the positive vote?

PN294

MS BINGHAM: It may be the same day. There needs to be clarification as to the first pay period after the positive vote.

PN295

MS FRAUMANO: Sorry Commissioner.

PN296

THE COMMISSIONER: That's all right. No trouble Ms Fraumano. Are you able to assist me in this matter?

PN297

MS FRAUMANO: Commissioner, the undertaking indicates that any employee who was previously getting the $51.50, prior to the positive vote.

PN298

THE COMMISSIONER: Yes.

PN299

MS FRAUMANO: If they have received less than that, that will be corrected back to that date.

PN300

THE COMMISSIONER: I think that clarifies it for everybody. I appreciate that Ms Fraumano, thank you. Now could I just ask a question of clarification. The document that you have just handed up today, does that bring together on to one piece of paper all of the undertakings that have been discussed in the last few hearings?

PN301

MS FRAUMANO: Yes I believe so Commissioner. Would you mark that document?

PN302

THE COMMISSIONER: That's the reason for the question. If there's no objection from the parties I shall mark, it's actually headed draft undertaking dated 18 May 2006.

EXHIBIT #R4 DRAFT UNDERTAKING

PN303

THE COMMISSIONER: And as I understand it, it brings together into one document all of the previous undertakings that have been given by Ms Fraumano on behalf of the company over the past few hearings. Okay. Is there anything further that any of the parties wish to say with respect to this matter?

PN304

MS FRAUMANO: Save to request that the agreement be certified, Commissioner.

PN305

THE COMMISSIONER: Thank you Ms Fraumano. I never thought I would hear those words. Is there anything further, Mr Langmead?

PN306

MR LANGMEAD: No Commissioner.

PN307

THE COMMISSIONER: Ms Bingham?

PN308

MS BINGHAM: No.

PN309

THE COMMISSIONER: Fine. Thank you very much everybody. Having heard the submissions of the parties, together with the undertakings that have been given by Gribbles with respect to this matter and which are encapsulated in exhibit R4, plus the statutory declarations that have been submitted and also taking into account the terms of the agreement, I am satisfied the agreement meets the relevant requirements of the Act and the rules. Consequently, I shall certify the agreement from today's date. This matter is now adjourned.

<ADJOURNED INDEFINITELY [9.50AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R4 DRAFT UNDERTAKING PN302