B2015/1613, Transcript of Proceedings [2015] FWCTrans 692 (27 November 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052750

---

SENIOR DEPUTY PRESIDENT DRAKE

B2015/1613

s.240 - Application to deal with a bargaining dispute

Parmalat Australia

and

Transport Workers' Union of Australia; National Union of Workers

(B2015/1613)

Sydney

9.37 AM, THURSDAY, 19 NOVEMBER 2015

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, can I have the appearances.

PN2

MR J McKENZIE: Thank you, your Honour. McKENZIE, initial J, for Parmalat Australia Pty Ltd. I have also as of yesterday been appointed as a bargaining representative for Parmalat for these proceedings, although I understand the parties to the negotiation have been advised of that, in accordance with section 176(1)(c) of the Fair Work Act.

PN3

THE SENIOR DEPUTY PRESIDENT: Haven't been, did you say?

PN4

MR McKENZIE: Have been, yes, as of yesterday.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Who do you appear with?

PN6

MR McKENZIE: I'm sorry?

PN7

THE SENIOR DEPUTY PRESIDENT: Who do you appear with?

PN8

MR McKENZIE: I'm sorry, I have with me MR F MILICH, and MR R PIAGI, on my right.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN10

MR T WARNES: Your Honour, my name is Warnes, initial T, and I'm here for the Transport Workers Union. With me is MR SOU and behind me is MR NELLUMS and MR WHITE.

PN11

MR G CRIPPS: Commissioner, initial G, Cripps, appearing for the NUW, I have behind me the delegate on-site MR BAN TRAN, for the NUW.

PN12

THE SENIOR DEPUTY PRESIDENT: Ban Tran?

PN13

MR CRIPPS: Yes.

PN14

THE SENIOR DEPUTY PRESIDENT: Thank you. Is there any objection, as the solicitor appearing, to Mr McKenzie's appearance today?

PN15

MR WARNES: No, none from the TWU, your Honour.

PN16

THE SENIOR DEPUTY PRESIDENT: Any objection?

PN17

MR CRIPPS: No objection.

PN18

THE SENIOR DEPUTY PRESIDENT: Permission to appear is granted as a solicitor, even if you weren't a bargaining representative.

PN19

MR McKENZIE: Yes. Thank you, your Honour. If I could take you to form F11 which was filed with the Commission on Monday. I just want to state for the record we thank the assistance of the Commission for bringing this matter on promptly. The form F11 sets out broadly the nature of the dispute between Parmalat and the TWU. If I can take you to paragraph 2.1, essentially the negotiations between Parmalat and the NUW, the TWU and also a bargaining representative has been to combine two agreements. One being the Parmalat TWU Enterprise Agreement 2011 and the Parmalat Lidcombe Plastic Enterprise Agreement 2012.

PN20

Parmalat has been negotiating with representatives from the TWU as well as the NUW and another employee bargaining representative. In 2.4 it sets out the number of meetings that have been held between the parties, in the order of 13 or 14, and there was a meeting as late as Tuesday of this week, 17 November. Last week there was a notice to take protected action which was in the form of a one hour stop work meeting.

PN21

THE SENIOR DEPUTY PRESIDENT: I'm sorry, this air conditioning in this room is very noisy and it's above my head. Would you mind just speaking up a little bit.

PN22

MR McKENZIE: Yes, I have to apologise for my throat in advance.

PN23

THE SENIOR DEPUTY PRESIDENT: That's all right.

PN24

MR McKENZIE: Last week the TWU notified of protected action, in the form of a one hour stoppage, and on 15 November the TWU notified of protected action in the form of a 24 hour work stoppage commencing today. For the record, Commissioner, the TWU have advised the business yesterday that that action was withdrawn, however the company has been notified of further protected action to take place tomorrow in the form of a 24 hour stoppage, and overtime bans on the weekend which is the 20th and 21st. So there's essentially three outstanding protected action to take place.

PN25

THE SENIOR DEPUTY PRESIDENT: Have you got a copy of that notice?

PN26

MR McKENZIE: I do have a copy of the notices. That's for Thursday, that's for Saturday. I can give you Saturday's, just bear with me for a minute. That's for Friday.

PN27

THE SENIOR DEPUTY PRESIDENT: As I understand it, just to make sure Mr McKenzie, the industrial action is proposed by the TWU but not by the NUW or by the other bargaining representative.

PN28

MR McKENZIE: Yes, that's correct. I was about to get to that, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Thanks.

PN30

MR McKENZIE: I don't have Sunday's, your Honour. It's all on the one page.

PN31

THE SENIOR DEPUTY PRESIDENT: Thanks.

PN32

MR McKENZIE: In terms of the matters in dispute and point 3 of the form F11, your Honour, there was a meeting with the company and the bargaining representatives on Tuesday. Despite what's in the notice where the outstanding matters we've advised are about wages, it's my understanding of the business that the wages matter has been resolved, in other words there's agreement in principle on wages and also duration. However, it is the case that the TWU at least raised a new matter on Tuesday concerning public holidays and we're looking at seeking clarification on that, plus two outstanding matters which relate to part-time hours and shift changes.

PN33

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN34

MR McKENZIE: They're essentially the matters in dispute, your Honour, and we're seeking the assistance of the Commission in conference.

PN35

THE SENIOR DEPUTY PRESIDENT: Thank you. Does the NUW have any interest in this matter?

PN36

MR CRIPPS: Yes, because we thought we had an in principle - yes, sorry. Yes, we thought we had an in principle on it, when we initially talked and now we're going backwards again, as far as I understand.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Warnes.

PN38

MR WARNES: Thank you, your Honour. Mr McKenzie put it quite properly, I think. I mean I don't - my instructions aren't that these are new issues brought up, that they've been issues throughout the bargaining process but Mr McKenzie put it proper. There is not save for these qualifications, three is not agreement on the wage increases as yet, although there is movement available from the TWU on that front, but he did put it correctly in that there's - there are three outstanding issues. One of them is known as a flex up provision in the agreement, which purports to allow the company to employ part-time employees. Then what's called flex them up to further overtime hours, but pay them at ordinary time hours.

PN39

Now that's a provision that I think the company has pushed the entire time and it's a remnant of a separate agreement. Mr McKenzie put it there were two agreements that apply to the site, one to the blow moulding section of the site and one that applied to the production and distribution sections of the site. Now I think that provision comes from the old blow moulding enterprise agreement, the company's been pushing that and the - - -

PN40

THE SENIOR DEPUTY PRESIDENT: And you don't want it.

PN41

MR WARNES: The TWU continues its objection to that provision.

PN42

THE SENIOR DEPUTY PRESIDENT: Right.

PN43

MR WARNES: The other one was shift rosters, relates to when the company wishes to make changes to shift rosters. Currently the provision as it stands is there has to be agreement with the employees that a shift change will occur. I believe the company wishes to change it from agreement of all of the employees to agreement section by section, so there's a difference on that clause. The TWU wishes for that clause to stay as it is, the status quo as it is in the distribution and production agreement.

PN44

The public holidays, this is quite an odd one and I don't particularly understand it because under the national employment standards I don't actually think the company cannot recognise them. But the issue is in relation to Easter Saturday and Easter Sunday, apparently in the current agreement those two days aren't recognised as public holidays and aren't paid as such. Now I don't think that term would carry any weight and I can't remember the section at the moment. But considering that it does breach the NES, on my submission, but that remains an issue in dispute. The company don't want to grant those two public holidays.

PN45

As to the last issue, there remains and I wouldn't put it as high as in dispute but there does remain an issue of contention as to whether there was actually ever agreement that these two agreements would merge into one. So I want to put that on the record because it seems that that issue was never particularly resolved. The company seem to have proceeded on the basis that it was, whereas - I just want to highlight that final issue to the Commission before we enter into any sort of dialogue in relation to those outstanding issues.

PN46

THE SENIOR DEPUTY PRESIDENT: Just have a seat for a moment. I've just got a new copy of the Act and all of my little pieces of post-its telling me where everything is have disappeared.

PN47

MR WARNES: I'm currently searching for it as well. It's 115, your Honour, if I can assist. It sets out the public holidays under the national employment standards and although those two days aren't listed in 115(1)(a), they are incorporated into 115(1)(b) as those two days are gazetted as public holidays in New South Wales.

PN48

THE SENIOR DEPUTY PRESIDENT: So you say that those days are prescribed under New South Wales law, is that what you're saying?

PN49

MR WARNES: Yes, they're gazetted in New South Wales.

PN50

THE SENIOR DEPUTY PRESIDENT: Thanks.

PN51

MR WARNES: In saying that, your Honour, my submission only extends to given a limited amount of turning my mind to the issue. There is an exception that if it's prescribed in the regulations and I haven't been able to peruse the regulations as yet but that's our initial position.

PN52

THE SENIOR DEPUTY PRESIDENT: Since I was a half an hour late this morning have you had any conversation?

PN53

MR WARNES: Your Honour, we were actually sitting in the room from 9 o'clock so I must have missed the message, so we actually haven't had a chance to discuss it as yet and as you can see there is a cast of thousands here.

PN54

THE SENIOR DEPUTY PRESIDENT: Well we'll go off the record and I think I'll have a conversation with Mr McKenzie and Mr Warnes. Would all other persons please leave the hearing room. We'll go off the record, thank you.

OFF THE RECORD [9.51 AM]

ON THE RECORD [6.52 PM]

PN55

THE SENIOR DEPUTY PRESIDENT: Yes, Mr McKenzie, I think there's - well I'm fairly sure there's an agreement about disputed matters. Do you want to place them on the record?

PN56

MR McKENZIE: Yes, if I may, your Honour, and just for the record we'd like to place on the record our appreciation of the assistance you've provided us today. It's 10 to 7 and we've been here most of the day.

PN57

THE SENIOR DEPUTY PRESIDENT: I have, but that's all right.

PN58

MR McKENZIE: We do have an agreement in principle we put to you and we'll put on the record. In terms of wages the parties have an agreement in principle 3.5 per cent wage increase per annum during the life of the agreement plus the back pay operation date as agreed. There's the flex up of part-time employees to 32 hours per week and I note that the arrangement is that the part-time employees are currently in the distribution centre.

PN59

The allocation of overtime is the third point which will be consistent with the current draft of the agreement which is subclause 16(ii) and that sets out the priority and order in which overtime is allocated. Included will be in the understanding a definition of overtime as explained today. The fourth point is the public holiday question. The parties don't propose any changes to the wording in the public holidays. That effectively means, however, that should an employee work on gazetted public holidays in New South Wales which will be Easter Saturday, Easter Sunday for example then the public holiday penalty rates would apply.

PN60

Clause 16 of the agreement as it relates to roster changes would include a wholesale majority agreement to change the rosters. That wording will be finalised, but essentially with the caveat that if there was a compelling reason to - from the business to actually change a roster then the business can seek a vote within three working days.

PN61

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN62

MR McKENZIE: I think that's all the matters that are outstanding, your Honour.

PN63

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN64

MR McKENZIE: We understand as a result of that agreement in principle that the TWU will be advising its members tonight that the industrial action planned for tomorrow and over the weekend will be called off.

PN65

THE SENIOR DEPUTY PRESIDENT: Thank you. Well that they will recommend that.

PN66

MR McKENZIE: Yes.

PN67

MR WARNES: I have nothing to add, your Honour, that's the agreement in principle that was reached - - -

PN68

THE SENIOR DEPUTY PRESIDENT: Does what Mr McKenzie has said reflect the terms?

PN69

MR WARNES: It does, your Honour.

PN70

THE SENIOR DEPUTY PRESIDENT: I'll order transcript so that both parties have a copy of that.

PN71

MR WARNES: Thank you, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: Would you notify me as to what the effect of your recommendation is, Mr Warnes?

PN73

MR WARNES: Of course.

PN74

THE SENIOR DEPUTY PRESIDENT: Thank you very much. It's nice to have dealt with you all.

PN75

MR CRIPPS: Thank you.

PN76

THE SENIOR DEPUTY PRESIDENT: Mr McKenzie, I'll be happy to deal with the application for the agreement quickly if you refer it to me.

PN77

MR McKENZIE: Thank you, your Honour.

PN78

THE SENIOR DEPUTY PRESIDENT: Mr Warnes.

PN79

MR WARNES: Thank you.

ADJOURNED INDEFINITELY [6.56 PM]