C2001/2719, Transcript of Proceedings [2001] AIRCTrans 1229 (21 June 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 1, 17-21 University Ave., CANBERRA ACT 2601
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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER JONES

C2001/2719

TRANSPORT WORKERS' UNION
OF AUSTRALIA

and

CAPITAL ROOF TRUSSES PTY LIMITED

Notification pursuant to section 99
of the Act re transfer of business

CANBERRA

2.33 PM, WEDNESDAY, 30 MAY 2001

PN1

THE COMMISSIONER: May I have appearances, please.

PN2

MR P. SEAL: I appear on behalf of the Transport Workers' Union.

PN3

THE COMMISSIONER: Thank you, Mr Seal.

PN4

MR F. GILLINGHAM: Commissioner, I appear on behalf of Capital Trusses Pty Limited. We are not sure if we are supposed to be here today, but the notification that the company received was referred to as Capital Roof Trusses Pty Limited, also referred to Canberra Roof Trusses Pty Limited, but if - but maybe Mr Seal might be able to explain which company, if I am in the right area.

PN5

THE COMMISSIONER: No doubt you are looking for an out on that, are you? You are looking for an outlet, are you?

PN6

MR GILLINGHAM: Not at all Commissioner.

PN7

THE COMMISSIONER: No, I know. I am only joking, too.

PN8

MR GILLINGHAM: I am under some instruction.

PN9

THE COMMISSIONER: Okay, good. Mr Seal.

PN10

MR SEAL: First, let me confirm, Commissioner, that it is Capital Roof Trusses - Capital Trusses, sorry, that the issue is about, if Mr Gillingham is satisfied with that as an explanation, Commissioner.

PN11

THE COMMISSIONER: Are you satisfied, Mr Gillingham.

PN12

MR GILLINGHAM: Yes.

PN13

THE COMMISSIONER: Okay. Yes, Mr Seal.

PN14

MR SEAL: If I can you through the history of what - the dispute, Capital Trusses informed their staff by letter on 17th - or 16 May this year that the business had in fact been sold to Universal Trusses. Now, prior to that, they had no consultation with their staff whatsoever. They - in saying that, there was no indication to their staff that anything was in fact taking place until they received this letter. Following - subsequent to that, and I have got a copy of a letter for the Commission - - -

PN15

THE COMMISSIONER: Yes.

PN16

MR SEAL: As the Commissioner can see that the letter outlines the sale. It also says that all the employees of the company are terminated as at 16 May 2001, and will be re-employed by Universal Trusses Pty Limited as of Thursday, the following morning. Now, Commissioner, there is a number of aspects to this that - - -

PN17

THE COMMISSIONER: I think we will mark that as an exhibit. Mark it exhibit TWU1.

EXHIBIT #TWU1 LETTER FROM CAPITAL TRUSSES PTY LIMITED TO ALL EMPLOYEES

PN18

THE COMMISSIONER: Yes, Mr Seal.

PN19

MR SEAL: Commissioner, there is a number of aspects to this that certainly do not meet the requirements of the Act, for instance, under 170GA of the Act. There is a provision obviously for orders in relation to consultation with a union or a representative of staff in relation to employment, or the termination of employment, and also under 170FA of the Act, there is also certain conditions that have to be met in relation to the termination of employment.

PN20

In the first instance, Commissioner, we would be seeking some assistance from the Commission to look at a number of areas. The first one is that people that do not wish to be employed by Universal Trusses, that there is a redundancy available for those people. A number of them have been employed by the company for quite a period of time.

PN21

People that do wish to be employed by Universal Trusses, there is elements of that that need to be dealt with as well, such as people's entitlements to long service leave, sick leave and to the terms and conditions, because if it is a transmission of business, the terms - the award is a common rule award and that will transmit, anyway, but in saying that, people who in fact did turn up for work with Universal Trusses were handed a letter which purported to outline the terms and conditions of their employment with the new company. People who were not satisfied or happy with those terms - - -

PN22

THE COMMISSIONER: I will mark that exhibit TWU2.

EXHIBIT #TWU2 LETTER FROM UNIVERSAL TRUSSES OUTLINING TERMS AND CONDITIONS OF EMPLOYMENT

PN23

MR SEAL: People who were not satisfied or happy with signing that particular letter, or did not wish to take up the employment offer with Universal Trusses, were told that they would be regarded as being - as having resigned their employment. Now, Commissioner, as I think - as I am sure the Commission is fully aware, that is certainly not what the case would be.

PN24

The people are either terminated unfairly on 16 May, or they were made redundant on that date, and there can be no other - and there can be no other way of terminating that contract because, quite simply, there was not an issue of discipline or an issue of termination based on other reasons, other than the sale of the business. Commissioner, in the first instance, what we would like to do see is we can - - -

PN25

THE COMMISSIONER: How many employees are we looking at?

PN26

MR SEAL: It is my understanding that there is 15.

PN27

MR GILLINGHAM: 14 on the factory floor and 8 upstairs - 22.

PN28

MR SEAL: So there is in fact 22.

PN29

THE COMMISSIONER: 22. There was 22 overall, I am told. Did anybody take up employment with the company?

PN30

MR SEAL: Sorry, Commissioner?

PN31

THE COMMISSIONER: Anybody take up employment with the company?

PN32

MR SEAL: Initially there was a number who agreed to take up the employment with the company and they were - I am not certain of the exact number of that, but they were happy to do so, until they were told by the new company that in fact in some instances their pay would be cut by some 30 per cent, that their hours would in fact be cut, or that they would be - they would be part time or casual as opposed to previously being permanent employees.

PN33

THE COMMISSIONER: yes, okay.

PN34

MR SEAL: Commissioner, as I was saying, in the first instance we will seek the assistance of the Commission to get a resolution to the dispute and that is that the people who do not wish to take up employment are - we have some assistance and negotiate a redundancy package or some form of redundancy. Secondly, that we can deal with the issue of the people who do wish to take up employment with the new company, what in fact terms and conditions that they will be employed under.

PN35

THE COMMISSIONER: Does the award cater for redundancy?

PN36

MR SEAL: The ACT - the Transport Workers' Union (ACT) Award does not cater for redundancy, but the parent award does, and the parent award is the Transport Workers' - it has been simplified, so I think it is now Transport Workers' (1998) Award.

PN37

THE COMMISSIONER: Okay.

PN38

MR SEAL: If the Commission pleases.

PN39

THE COMMISSIONER: Mr Gillingham.

PN40

MR GILLINGHAM: Well, Commissioner, I am not quite sure who my friend is representing today, but in any event, as I understand it, Mr Seal is a representative of the Transport Workers' Union and there are not many persons employed in any - or were employed by the company I represent, in any of the classifications with which my friend represents, so - and I do not think he has explained in terms of what the operation was about in that there were a number of people who are employed in what is referred to as the workshop, in the trussing area, and there are persons who were employed in various management and clerical classifications who, I think, my friend referred to as those being upstairs.

PN41

So, I am not quite sure who he is representing. But at all events, it is true that - to this extent that on Wednesday, 16 May, the employer I represent, Capital Trusses Pty Limited, exchanged contracts for the sale of business to another company, and my friend has referred to some company by name. All employees that were employed by the company I represent in the trussing and factory area, including the drivers, were paid all their entitlement in relation to the various award obligations as a result of the company then advising employees that the company had sold its business, but - - -

PN42

THE COMMISSIONER: I assume there is nothing - no redundancy in the award, that was not one of the entitlements?

PN43

MR GILLINGHAM: That would be one of the cases, if it please the Commission.

PN44

THE COMMISSIONER: Okay.

PN45

MR GILLINGHAM: But could I add this, it was, I am instructed expressed contractually, and I do not like to talk about confidentiality in terms of contracts unless it is in camera, in relation to certain things within that contract, as a result of them selling that business where there was an onus put on the transmittee of the business, or the receiver of the business - the other company.

PN46

Suffice to say that I am instructed that the purchaser would employ employees on the same terms and conditions as they were under with the selling company, or the transmittor. I am further instructed that it is the understanding of my company that drivers who Mr Seal would be concerned with, had signed with the new company. That is what we understand, but I mean they would have to talk to the other company to ascertain that.

PN47

The matter that is before the Commissioner therefore, which is a section 99 matter, and I assume that the matter has been referred by the President to the Commission as it is constituted, I would assume that this matter, if there is a dispute existing, would go to the basis of a conference initially, and if there is a dispute existing, it would need to be defined as to exactly what that dispute. In our submission, the company who was served with a section 99 dispute notification is not in dispute with any persons that were previously employed by them.

PN48

I should add, though, that for whatever reason, and it will probably go on in another part of this Commission, that there have been a number of papers filed for unfair dismissals, as I understand it, but what they are about, I am not at this stage aware of.

PN49

THE COMMISSIONER: Well, I have not got them.

PN50

MR GILLINGHAM: Pardon?

PN51

THE COMMISSIONER: I have not got them.

PN52

MR GILLINGHAM: Well, I am - - -

PN53

THE COMMISSIONER: Yet.

PN54

MR GILLINGHAM: No. But I have been advised just before lunch today that that is the case. So, this matter is fairly - well, in our submission, there is no dispute. I am prepared to go into conference with the Commission for the purposes of ascertaining exactly what the substance of Mr Seal's contentions are about, but we are surprised, given that Mr Seal was in discussions with a representative of the employer I represent in relation to exactly what was going to take place, or took place in relation to the selling of the business. I cannot pronounce his name, but he was from Clayton Utz.

PN55

So at all events, we are surprised that this matter has been filed and for those reasons, we are not sure what we are here for, or what the dispute is about. It cannot be in relation to redundancy provisions because if Mr Seal is representing people bound by the Transport Workers' Award, it does not have redundancy provisions, and the whole basis of the exchange of papers with the other employer was on the premise that all employees would be offered positions with that company on the same terms and conditions. If it please the Commission.

PN56

THE COMMISSIONER: Yes. Mr Seal, do you want to say anything else before we go into conference?

PN57

MR SEAL: I do, Commissioner. There are a couple of things I would like to clarify. The first one is I would like to refute the assertion that there has been discussions with myself pre the sale of the business. I gained that as an impression. I am not sure whether Mr Gillingham meant that, nor to imply that, but there were certainly no discussions with the TWU prior to the sale. The discussions with the company in fact emanated from the sale and basically the dismissal, the way it was. I just want to clarify that.

PN58

And, secondly, Commissioner, prior to going in conference, I am representing more than the drivers. I have in fact signed, if the Commission needs, signed letters from the other employees appointing the Transport Workers' Union as their representatives in this particular matter. So, if the Commission wants those, I am quite happy to provide them. And, thirdly, just for the Commission's information, none of these people that I am in fact representing have in fact at this stage submitted unfair termination applications.

PN59

THE COMMISSIONER: Okay. If we are looking at TWU, normally you would represent - how many employees are we looking at?

PN60

MR SEAL: Commissioner, you would probably at the CFMEU for the - - -

PN61

THE COMMISSIONER: No, no, I am talking about your union.

PN62

MR SEAL: The drivers, Commissioner?

PN63

THE COMMISSIONER: Yes, the drivers. How many drivers would there be?

PN64

MR SEAL: Sorry?

PN65

THE COMMISSIONER: How many drivers?

PN66

MR SEAL: There are three drives that I am aware of.

PN67

THE COMMISSIONER: Three drivers, okay. We will adjourn into conference and see where we go from there.

NO FURTHER PROCEEDINGS RECORDED [2.50pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TWU1 LETTER FROM CAPITAL TRUSSES PTY LIMITED TO ALL EMPLOYEES PN18
EXHIBIT #TWU2 LETTER FROM UNIVERSAL TRUSSES OUTLINING TERMS AND CONDITIONS OF EMPLOYMENT PN23