C2006/2810, Transcript of Proceedings [2006] AIRCTrans 934 (3 August 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15450-1

SENIOR DEPUTY PRESIDENT KAUFMAN

C2006/2810

NATIONAL UNION OF WORKERS
AND
COLES MYER LOGISTICS PTY LTD
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2810)

MELBOURNE

2.20PM, FRIDAY, 21 JULY 2006

PN1

MR G MAAS: I appear for the National Union of Workers and appearing with me is MR D STILES who is the organiser for the Coles Myer Logistics Hoppers Crossing site. Also with us here today, your Honour, the delegates from the site, MR W SMITH, MR P KERRIDGE, MS D THOMPSON and MR F DIMITRIOU.

PN2

MS R FRASER: I appear for Coles Myer Ltd and appearing with me this afternoon is MR S MORRIS who is the Distribution Centre Manager for Hoppers Crossing.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes thank you. Yes Mr Maas, the notification doesn't tell me very much.

PN4

MR MAAS: Thanks your Honour. Look this is a pre-reform Act, 170LW application in relation to the Coles Myer Logistics Pty Ltd and National Union of Workers Hoppers Crossing Certified Agreement 2005. Just by means of background, your Honour, we'd just like to let you know that the agreement covers the distribution facility out at Hoppers Crossing where some 350 employees are employed and further that the disputes procedure at clause 6 of the agreement has been followed through and we haven't been able to come to any resolution and that's the reason why we're here before you now. Your Honour, if I may take you to clause 20 of the agreement. I'm not sure if his Honour has a copy of the agreement.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes I think so. Yes?

PN6

MR MAAS: Your Honour, clause 20 of the agreement specifies the way or specifies the payment of wages. On the plain and ordinary meaning of the words at clause 20, wages shall be paid to each employee on a weekly basis by electronic funds transfer. At clause 20.2, these wages shall be available to the employee by midday on the normal payday which is a Wednesday. Your Honour, what we're saying is that by the plain and ordinary meaning of these words, wages refers to all the employees' wages.

PN7

It doesn't refer to half of it or most of it or some of it and not including overtime, it would mean that all wages are to be paid on this day. Just by way of note, your Honour, I'd also say at this point that the Wednesday payday, there's some historical background to this in that the company did request that payment be made on this day and I believe this occurred some five or six years ago as a result of a payment dispute which came to the Commission at that time. It has since been, the payday which I believe was previously on a Thursday had been moved to a Wednesday and has been subsequently agreed to in two EBA negotiations since that time to be on the Wednesday.

PN8

Your Honour, the difficulty lies in that payments appears to be a problem on a Wednesday on approximately six occasions each year. These occasions are around public holidays whenever there seems to be a public holiday which falls on a Monday. There are difficulties experienced by the employees when the company doesn't adhere to the payment being made on the Wednesday and we're talking about the flow on effects I guess your Honour. We're talking about if payment isn't made in that particular week and it's carried over to the following week, we're talking about extra tax being removed from those wages and the employee ending up with less pay in their pocket.

PN9

Rightly or wrongly your Honour, these employees are weekly wage earners who live on a week to week basis as to how they utilise their pay. Many of these employees have their mortgage payments directly debited from their accounts. They have a whole range of other payments which are directly debited from their accounts. If payments aren't made in the specified time, as they are agreed to or have been agreed to in the enterprise bargaining agreement, then there are a whole range of fines and taxes from banks and other institutions which affect the employees.

PN10

Upon my instructions, your Honour, it affects up to at least about 50 per cent of the work force whenever this occurs. The problem was exacerbated earlier this year, your Honour, and if I might be able to tender a document.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, what's that?

PN12

MR MAAS: Your Honour, this is a general company email which came out to all employees who have email access and as I was beginning to tell you, the problem was exacerbated by this email coming out because what it shows is that salary employees are catered for if you like when there's this payment problem surrounding around public holidays and to put it bluntly, your Honour, the workers don't seem or the workers feel as though they're not being catered for when these problems occur here.

PN13

And as I said this has exacerbated the problem. We have tried to resolve since April. We're trying to find some form of solution to it and I guess that's why we're here today, to see if we can do that. I might close on my submissions at this point, your Honour, subject to any questions that you might have.

PN14

THE SENIOR DEPUTY PRESIDENT: What would you seek from the Commission, Mr Maas?

PN15

MR MAAS: What we'd seek from the Commission would be an order to state that the terms of the agreement are upheld as to its intent and as to the plain and ordinary meaning of those words.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes thank you. Yes Ms Fraser?

PN17

MS FRASER: Thank you, your Honour. What I might first do is briefly go through our submission in relation to the application of the agreement and the award and our belief that we are applying the conditions of the agreement and the award. Firstly from the enterprise agreement which I believe you have in front of you, it relates to clause 5.1 of the agreement which is relationship to parent award, savings provision AWAs in 5.1. It states in point 5.1.1:

PN18

This agreement shall be read wholly in conjunction with the Storage Services Retail Victorian Warehouses Award 2000 as at March 2002 provided that this agreement shall prevail to the extent of any inconsistency.

PN19

Going then to clause 20 that Mr Maas has outlined to us which talks about wages being paid to an employee under 20.2:

PN20

The wages shall be made available to the employee by midday on the normal payday Wednesday.

PN21

Now I'm just going to refer to the Storage Services Retail Victorian Warehouses Award 2000 which is award number 796002.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, do you have a copy of that for me?

PN23

MS FRASER: No I don't have a full copy of it.

PN24

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of the extract to which you refer?

PN25

MS FRASER: Only a copy on my page, I'm sorry your Honour. I didn't bring a copy with me.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes well you'd better read it slowly then.

PN27

MS FRASER: I will certainly. Clause 20.1 states:

PN28

All wages will be paid - - -

PN29

THE SENIOR DEPUTY PRESIDENT: Sorry clause 20.1 or 5.1?

PN30

MS FRASER: 20.1 of the Storage Services Retail Victorian Warehouses Award.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, the award, right.

PN32

MS FRASER: Payment of wages clause. 20.1:

PN33

All wages will be paid weekly in the employer's time and not later than Thursday in each week. Where Thursday or Friday is a public holiday the payday will be Wednesday.

PN34

The remainder of the clause deals with, by agreement an employer may pay fortnightly, which is not relevant in this case. And in the case of full time employees, two days pay may be kept in hand was the final point, 20.3 of the award clause. In reading the agreement in conjunction with the award, the company maintains your Honour, that both the agreement and award state the wages will be paid weekly. The agreement describes Wednesday as being the normal payday. The agreement clause is not written as an absolute, your Honour.

PN35

For example by stating, had the agreement stated that wages shall be available to the employee by midday on Wednesday payday I would state that this is an absolute, however the agreement seems to contemplate that there may be circumstances where there may be an abnormal payday such as when a public holiday falls in that week. The agreement itself is silent on the issue of public holidays. The award contemplates public holidays on Thursdays and Fridays. It does not specifically contemplate public holidays falling earlier in the week.

PN36

The company therefore contends that as long as wages are paid by Thursday, we're still abiding by the agreement except in abnormal circumstances a payment of wages is made no later than Thursday in lieu of the normal payday. In essence employees will receive their pay as soon as the respective financial institution process the pay. We feed the pay through on the Tuesday night regardless of when the holiday falls. So the worst case scenario for our employees is that they will get paid on the Thursday in lieu of the normal payday Wednesday in this situation.

PN37

THE SENIOR DEPUTY PRESIDENT: I thought Mr Maas was suggesting that, waits a week and then they get paid two weeks - - -

PN38

MS FRASER: If I may answer that, your Honour. I'll get to that point. In April this year the company advised the employees at Hoppers Crossing and this is in relation to the Easter situation, that some employees would receive their pay on the Thursday instead of a Wednesday, with most still receiving their pay on Wednesday. Again it depended on when the pay was put through - sorry which financial institution the employee is with will dictate when their pay is actually received.

PN39

THE SENIOR DEPUTY PRESIDENT: So did you pay Tuesday?

PN40

MS FRASER: We put through the pay on Tuesday night. If it's with a major financial institution such as ANZ or Commonwealth, the employee will normally receive their pay Wednesday. If they're with a smaller bank it may be delayed until Thursday in a situation where there's a public holiday.

PN41

THE SENIOR DEPUTY PRESIDENT: What about the public holiday on the Wednesday?

PN42

MS FRASER: If it's on a Wednesday, Thursday would still be the latest. This Easter issue that was referred to before was referred through the grievance process. At that time discussions were held between Coles Myer State Supply Chain Manager for Employee Relations, Earl Hayes and the State Supply Chain Manager for General Merchandise and Apparel, Bob Brown and Martin Pakula, who was then secretary of the NUW. It was agreed that for Easter the company would run a second pay run that week, prior to Good Friday. This meant that employees would only receive base pay.

PN43

Payment of overtime allowances, meal money et cetera were adjusted the following pay. Martin Pakula was then advised this would be the last time the company would put through this particular process due to the considerable administrative burden and difficulty it imposed and the fact that people then had delayed wages on the overtime. This issue has come about because of recent significant change to the way payroll is managed at Coles Myer.

PN44

We've introduced an automated time recording device in lieu of clock cards and we've outsourced our payment of payroll to a company called EDS. In the past we calculated payroll individually on a site basis and in order for us to facilitate a Wednesday pay, we used to have to run a special payroll to ensure that a pay went in on Wednesday. We advised the NUW and the delegates - - -

PN45

THE SENIOR DEPUTY PRESIDENT: This is only for Easter is it?

PN46

MS FRASER: No this is any public holiday we used to do this process. What we are now putting forward is that we will always put the pay in on the Tuesday night, regardless of when the public holiday falls, however peoples' pay may be affected in them receiving pay on the Thursday instead of a Wednesday when there's a public holiday in the first half of the week.

PN47

THE SENIOR DEPUTY PRESIDENT: Sorry. If the public holiday's on a Monday what happens?

PN48

MS FRASER: The pay will still be in the bank, the pay may be delayed until Thursday if the banks processes are delayed.

PN49

MR MORRIS: Predominantly it's the - - -

PN50

THE SENIOR DEPUTY PRESIDENT: If the pay goes in on the Tuesday what's the public holiday on a Monday got to do with it?

PN51

MS FRASER: Sometimes the banks can have difficulty with it. I'm not saying it's our processes. We've got it in there still on a Tuesday night.

PN52

THE SENIOR DEPUTY PRESIDENT: You get it in on the Tuesday night?

PN53

MS FRASER: Yes.

PN54

THE SENIOR DEPUTY PRESIDENT: Monday might have been a public holiday, so what?

PN55

MS FRASER: Yes. So there shouldn't be any change.

PN56

THE SENIOR DEPUTY PRESIDENT: And if the public holiday's on a Tuesday.

PN57

MS FRASER: Yes.

PN58

THE SENIOR DEPUTY PRESIDENT: You still get it in on a Tuesday because you do it electronically?

PN59

MS FRASER: That's right. Yes.

PN60

MR MORRIS: Your Honour, if there's a public holiday on the Tuesday it won't be late. It's if there's a public holiday on the Monday, the process we normally do on a Monday morning to send payrolls through Monday afternoon doesn't happen until Tuesday morning so everything gets delayed ….. So in a normal week when we process pays on a Monday morning, pays for the people in the big banks as Rebecca's referred to, will be into those accounts on Tuesday night so on a normal week they're getting paid the day before of what's in the agreement.

PN61

THE SENIOR DEPUTY PRESIDENT: So normally they get paid on a Tuesday?

PN62

MR MORRIS: A lot on Tuesday night.

PN63

THE SENIOR DEPUTY PRESIDENT: It goes into their account on a Tuesday normally?

PN64

MR MORRIS: Tuesday night. Correct your Honour.

PN65

MS FRASER: Yes your Honour.

PN66

THE SENIOR DEPUTY PRESIDENT: But under the agreement it has to go in on, no later than midday on Wednesday?

PN67

MS FRASER: That's correct.

PN68

THE SENIOR DEPUTY PRESIDENT: And you're saying that sometimes, depending on the financial institution, it may not get in until when on a Thursday?

PN69

MS FRASER: Thursday morning.

PN70

THE SENIOR DEPUTY PRESIDENT: Thursday morning.

PN71

MS FRASER: Is my understanding. The reason that the situation around Easter arose was because we, at the time had said these changes to our payroll administration have only come in this year and we had been discussing it with the NUW, to say to them look we're aware that this could potentially be an issue that peoples' pay may be delayed until Thursday because of a public holiday. We're letting you know now.

PN72

At the time it was come back to us through the grievance process and the company agreed then that we would put through an extraordinary pay to ensure that the base pay went in on the Wednesday but which of course then delayed payment for overtime and things like that which was unavoidable given that our processes were unable to accommodate us putting the entire pay through to get it through by Wednesday midday.

PN73

THE SENIOR DEPUTY PRESIDENT: Well we seem to be like ships passing in the night here. Mr Maas is saying payment's delayed for a week, you're saying it's never later than Thursday morning.

PN74

MS FRASER: The base pay went through but this was - - -

PN75

THE SENIOR DEPUTY PRESIDENT: But that was only a one off.

PN76

MS FRASER: It was only one off.

PN77

THE SENIOR DEPUTY PRESIDENT: Well we're talking about six times a year according to Mr Maas, every time there's a holiday.

PN78

MS FRASER: No this arrangement we put in place for Easter was a one off arrangement.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes that's got nothing to do with it by the sound of it, to the general - - -

PN80

MS FRASER: No it doesn't.

PN81

THE SENIOR DEPUTY PRESIDENT: That doesn't sound as though it's got anything to do with the general complaint.

PN82

MS FRASER: It was an outcome of a discussion between Martin Pakula and Bob Brown.

PN83

THE SENIOR DEPUTY PRESIDENT: There seems to be a dispute on the facts here.

PN84

MS FRASER: But in normal circumstances what we're saying is that we recognise where there is a public holiday on a Tuesday or a Wednesday, on Monday or Wednesday - - -

PN85

MR MORRIS: It's when the public holiday is on a Monday. We're predominantly talking about when the public holiday's on a Monday.

PN86

MS FRASER: Yes, that peoples' pay may be delayed until Thursday morning.

PN87

MR MORRIS: And that's the six days I think that Gary's referring to - - -

PN88

THE SENIOR DEPUTY PRESIDENT: Excuse me sir, we're on transcript. The record will be very confused if you're talking to other people then to me.

PN89

MS FRASER: Sorry your Honour.

PN90

THE SENIOR DEPUTY PRESIDENT: I'm still confused. No, not yet. You say that Coles Myer's processes deposit the money into an institution named by the employee every Tuesday night regardless of whether there's a public holiday on the Monday or not.

PN91

MS FRASER: Yes.

PN92

THE SENIOR DEPUTY PRESIDENT: And normally that money is available on the Wednesday morning.

PN93

MS FRASER: Wednesday. Yes.

PN94

THE SENIOR DEPUTY PRESIDENT: Rather than Wednesday lunchtime as required by the agreement, sometimes even on the Tuesday by the sounds of it.

PN95

MS FRASER: Yes your Honour.

PN96

MR MORRIS: Tuesday night.

PN97

THE SENIOR DEPUTY PRESIDENT: And for some reason that I don't understand, if there's a public holiday on the Monday despite the fact that Coles Myer does what it does on the Tuesday, I suppose due to some backlog in the financial institution that money may not hit the employees account until after lunchtime on the Wednesday but by Wednesday night at the latest, or Thursday morning at the latest?

PN98

MS FRASER: Thursday morning, your Honour, yes.

PN99

THE SENIOR DEPUTY PRESIDENT: Yes.

PN100

MS FRASER: Yes your Honour.

PN101

THE SENIOR DEPUTY PRESIDENT: So the greatest delay is no more than 24 hours on your submission?

PN102

MS FRASER: That's right.

PN103

THE SENIOR DEPUTY PRESIDENT: It's never more than 24 hours late and it's usually early?

PN104

MS FRASER: That's right your Honour.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes. Okay well that's what you say. Yes okay.

PN106

MS FRASER: We had flagged that this issue was going to be a problem this year, as I said with us changing over our payroll because what we had done in the past, when we calculated and administered payroll on site, aware that pay may be delayed up until Thursday in those weeks we used to manually calculate and put through pays a day early so that we would avoid this problem. We're now no longer able to do that. This is essentially as we understand the crux of the grievance.

PN107

In fact we had the last public holiday which was Queen's Birthday, it was the last Monday public holiday in June and at that time the company, our understanding is that the employees received their correct pay including overtime and so forth.

PN108

MR MORRIS: Correct.

PN109

MS FRASER: No complaints were received on site. Further, feedback from team members was positive that they had received their overtime as they call it in the right week's pay and not the following week and we've not had any formal complaints from any employees on site about that particular process around the Queen's Birthday holiday. We have discussed this issue at length with NUW and delegates on site and we were of the view previously that we had agreement with, reached agreement with the NUW on the fact that we would now have to allow these processes to run according to the timelines dictated to us by EDS.

PN110

We're asking that as the circumstances are clearly beyond our control in terms of when the banks pay people, we've had no choice then for people to be paid on the Thursday morning in lieu of a Wednesday in that week where the public holiday falls on the Monday. Having considered all reasonable options in trying to accommodate employees' wishes, the company is seeking the common sense approach to this issue, your Honour.

PN111

THE SENIOR DEPUTY PRESIDENT: And what is the company seeking? What's a common sense approach?

PN112

MS FRASER: In the weeks where a public holiday falls on a Monday that employees are aware and I suppose where necessary make arrangements for their pay to be available to them on the Thursday. So if that, that might mean that for some employees that they may have to look at how their direct debits and so forth are processed so that they can ensure that they come out on the Thursday which, I mean to be honest, your Honour, I think is something we all do when we have direct debits we generally ensure they go out a couple of days after we get paid to make sure that there's no problem with that.

PN113

Look I'm not sure, your Honour, just in finishing to respond to Mr Maas' exhibit, I'm not sure this is entirely relevant given that it does refer to salaried employees and I would like to point out that one reason that - - -

PN114

THE SENIOR DEPUTY PRESIDENT: They're monthly paid I know that.

PN115

MS FRASER: We're monthly paid, your Honour, and one reason that the company went to some length to ensure that the pay went through was because we're paid in arrears and essentially it's a matter for us, that for most people by the time we get to the end of the month it's a little bit hard to last another five days without pay so I think that was essentially the point of this. Whereas we had asked for some accommodation around this Easter issue for the employees on site to recognising that people still remain to be payed weekly there so that's essentially all I have unless you have any more questions, your Honour?

PN116

THE SENIOR DEPUTY PRESIDENT: Mr Maas, do you want to say anything else on the record before we go into conference?

PN117

MR MAAS: I think we should just break into conference, your Honour. If the Commission pleases.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes. Are you happy about that, Ms Fraser?

PN119

MS FRASER: Yes thank you, your Honour.

PN120

THE SENIOR DEPUTY PRESIDENT: Yes we'll go into conference thank you.

<SHORT ADJOURNMENT [2.42PM]
<RESUMED [3.02PM]

PN121

THE SENIOR DEPUTY PRESIDENT: Well the parties have reached a consent position to resolve the issue between them. It seems that the main problem is that due to a new payroll system involving a sub contractor on some weeks where a public holiday falls on a Monday the normal wage or the wages including overtime and other penalties do not, are not made available to the employee by midday on the normal payday Wednesday but rather by midday on the following day, Thursday.

PN122

This is through no fault of Coles Myer which processes the wages in sufficient time however some institutions on those public holiday occasions are not able to ensure that the monies reach the account of the employee by the Wednesday. To accommodate these difficulties, both of Coles Myer in meeting an obligation that it has but which the meeting of which is outside its control and in order to assist employees who have monetary obligations, some of which are paid by automatic debits from their accounts, the parties have agreed to the following.

PN123

One, Coles Myer undertakes to contact all financial institutions into which it pays employees' wages and other monetary entitlements informing them of clause 20.1 and 20.2 of the Coles Myer Logistics Pty Ltd and National Union of Workers (Hoppers Crossing) Certified Agreement 2005 and seeking the co-operation of those institutions to ensure that the payments are received by the Coles Myer employees, particularly at Hoppers Crossing, by no later than midday on each Wednesday especially in weeks where a public holiday falls on a Monday.

PN124

Two, the NUW undertakes to advise its members to make arrangements for any periodic payments that are taken from the account into which their wages and other monetary entitlements are paid by Coles Myer to occur on, and which payments occur on a regular basis on Wednesday to alter that to regular payments on a Thursday. And thirdly, Coles Myer undertakes to correspond on behalf of any employees who seek it to do so in respect of any other obligations, any monetary obligations the fulfilment of which requires the employee to have received the salary by the Wednesday. Is that satisfactory to all at the bar table?

PN125

MR MAAS: Yes your Honour.

PN126

THE SENIOR DEPUTY PRESIDENT: Yes well very well, I'll reduce the consent arrangement to writing and publish that or provide it to the parties. I won't publish it but I'll provide it to the parties and this matter will be adjourned. Thank you.

<ADJOURNED INDEFINITELY [3.06PM]