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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 8146
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT ACTON
C No 2001/2084
C No 2001/3205
NATIONAL UNION OF WORKERS
and
BLUE STAR PTY LTD
Notification pursuant to section 99 of the Act
of a dispute re the alleged transfer of an
employee to avoid paying a bona fide redundancy
package
Application under section 170LW of the Act
for settlement of dispute re the transfer
of an employee allegedly to avoid paying a
bona fide redundancy package
MELBOURNE
10.39 AM, THURSDAY, 28 JUNE 2001
Continued from 10.5.01
PN10
MR T. LYONS: I appear for the NUW and appearing with me, your Honour is MR E. CURNOW.
PN11
MR C. MILNE: I appear for Blue Star, or in fact Boise Cascade trading as Blue Star and with me I appear with MS F. FAULKNER, human resources manager of the company.
PN12
THE SENIOR DEPUTY PRESIDENT: Do you seek leave to appear?
PN13
MR MILNE: Yes, I do. I thought that I would appear, your Honour, because I had already been granted leave to appear in one of the matters.
PN14
THE SENIOR DEPUTY PRESIDENT: Is there any objection for Mr Milne's application leave?
PN15
MR LYONS: No, your Honour.
PN16
THE SENIOR DEPUTY PRESIDENT: Leave is granted. I have received outlines of submissions and witness statements in this matter and there is one issue I wish to raise with the parties and as I understand it the issue between the parties or the dispute between them is whether the redundancy provisions of the agreement, being the Blue Star/Nuw Port Melbourne Certified Agreement 2000 to 2002 should apply to Ms Rennie. Am I correct in that understanding?
PN17
MR LYONS: I think that is the logical consequence of the argument, your Honour, which the argument in fact appears to be whether or not Ms Rennie's transfer to the Ericsson team was permanent or not. We say if it was permanent the consequence is the EA and the redundancy package applies to her. The company's position is it was a temporary transfer, so I think your Honour has distilled the consequence of the argument down if not the factual argument.
PN18
THE SENIOR DEPUTY PRESIDENT: Well, the issue in dispute as I raise it as I understand it.
PN19
MR LYONS: Yes.
PN20
THE SENIOR DEPUTY PRESIDENT: I assume that is the basis of your 170LW application?
PN21
MR LYONS: Yes, it is, your Honour.
PN22
THE SENIOR DEPUTY PRESIDENT: Mr Milne.
PN23
MR MILNE: Your Honour, I do not disagree with what Mr Lyons has said. It is fundamentally the issue of whether the transfer was a permanent transfer or not and it is a consequential issue as to whether the redundancy is payable on that basis.
PN24
THE SENIOR DEPUTY PRESIDENT: That raises in my mind an issue that has not been at least to this point raised in the submissions of the parties but which I would like you to deal with and I raise it now so you can deal with it in submissions and if necessary in questioning of any witnesses. The redundancy provision in the agreement - or let me rephrase it this way. The agreement operates in conjunction with the Storage Services General Award 1999 provided that to the extent of any inconsistency the provisions of the agreement override the provisions of that award.
PN25
The Storage Services General Award 1999 contains a redundancy clause which in one part talks about alternative employment at 14.8 and says:
PN26
An employer in a particular redundancy case may make application to the Australian Industrial Relations Commission ...(reads)... alternative employment for an employee.
PN27
The issue that is raised in my mind is even if I was to come to the conclusion that Ms Rennie was redundant from the position she has occupied whether the other position that has been proposed for her is acceptable alternative employment and what the implications of that should be. I just raise that - - -
PN28
MR MILNE: Do your Honour want to take anything on that at the moment because it is certainly going to form part of our submissions?
PN29
THE SENIOR DEPUTY PRESIDENT: No, I just raise it as part - because the parties should understand in light of the Full Bench decision in United Rubber Australia Pty Ltd v NUW, print H9091, 9 August 1989, it would seem one gets to the issue of alternative acceptable employment only if one has first come to the conclusion that there is a redundancy. Who is going first?
PN30
MR LYONS: I understand we are the applicant, your Honour. I might say that - we certainly have a view that the award clause has no application at all, that the agreement covers the field. Your Honour, we propose to - I might say my friend and I have not had discussions about how the matter would proceed but we have two witnesses to call. I understand the company has three. There was some further written evidence provided to the union by the company yesterday, a letter of a payroll administrator.
PN31
THE SENIOR DEPUTY PRESIDENT: Yes.
PN32
MR LYONS: The union reply by facsimile yesterday indicated that were they to rely on any of the evidence that was provided we would require any of the persons giving that to be available. I understand that that person is not available today so we assume that that means the company does not seek that evidence to be entered.
PN33
MR MILNE: Your Honour, we will be calling only three witnesses today and each of those witnesses has provided a statement. They are Ms Patricia Hetherington, Mr Peter Scanlon and Mr John McFarland.
PN34
THE SENIOR DEPUTY PRESIDENT: Yes.
PN35
MR LYONS: Good, your Honour, so we have Ms Rennie and Mr Ryan. We propose to call Ms Rennie.
PN36
THE SENIOR DEPUTY PRESIDENT: I will deal with all the witness evidence first before I go to submissions.
PN37
MR LYONS: Yes. Thank you, your Honour. I would ask that the other witnesses be asked to leave while they give evidence.
PN38
THE SENIOR DEPUTY PRESIDENT: Yes.
PN39
PN40
MR LYONS: Thank you, Ms Rennie. Have you made a statement in this matter before the Commission?---Yes, I have.
PN41
Do you have a copy of that statement in front of you?---Yes, I do.
PN42
And you have a copy of the two attachments to that statement?---Yes.
PN43
And is that statement a true and correct in all respects?---Yes.
PN44
PN45
MR LYONS: Ms Rennie, are you able to inform the Commission how long you have been employed by Blue Star Pty Ltd?---It is almost 16 years.
PN46
And in what capacities have you been employed by that company?---For the nine years or so I was in retail. For the next six I was in customer service and for the last eight or so months I have been in Ericsson's which is out in the warehouse.
PN47
Are you able to explain to the Commission what is involved in the customer service tasks?---Customer service, I answered the phones, I keyed in orders. Yes, that is about it.
PN48
When you say you answered the phone?---Yes.
PN49
Those orders came in over the phone?---I had phone orders and I had faxed orders, yes.
PN50
And you would then enter those orders into the computer?---Yes, I did.
PN51
And since you have been employed, in your own words, in the warehouse, what has your job involved?---Picking the phones, packing the phones, data entry, inputting the information into the computer and also stocking the shelves in Ericsson's plant.
PN52
And are those tasks similar to what is performed by the other members of the Ericsson team?---Yes, the same, although a couple of people answer the phones to customers. I didn't.
PN53
Right, so you have no longer have direct relations with customers over the phone?---Not at all.
PN54
Jacqui, in your statement you give some evidence about how you came to be in that role. Are you able to explain to the Commission the circumstances under which you came to work in the warehouse?---Yes. In early September 2000 Pat called me into her office. She was my customer service manager at the time and she said that she had come up with a good idea. Amanda Lane had transferred from Blue Star Group New Zealand and she was working out in Ericsson' but had wanted a customer service job but she was told there wasn't a position available at the time, so Pat said she come up with a great idea that because I had been customer service for so long it was time for a change and she said that I could go out into Ericsson's and that Amanda could take my place in customer service.
PN55
Ms Rennie, were you told that transfer would be permanent?---Yes, I was.
PN56
And you were told that by - you referred to Pat, is that Pat Hetherington?---Yes, it is.
PN57
And Ms Hetherington was the boss you reported to?---Yes, she was.
PN58
At the time that you were told of - sorry, I will start again. At the time of those discussions with Ms Hetherington was there discussions as to what your terms and conditions of employment would be in the warehouse?---Can you repeat that?
PN59
Sorry. At the time you had the discussion with Ms Hetherington about going to Ericsson's?---Yes.
PN60
Did you have a discussion about what you would be paid to work in the warehouse?---Yes, I was. Yes, I was told that my pay wouldn't change, that it would stay the same and my hours would stay the same as well.
PN61
Your hours of work?---Yes.
PN62
And did you raise that issue with Ms Hetherington?---Yes, I did.
PN63
And why did you raise that issue with Ms Hetherington?---Because I wanted my wages to stay the same.
PN64
Is it fair to say you were concerned that your wages may drop?---Yes, I was. Yes.
PN65
On commencement in the warehouse has there been any change to your terms and conditions, what you have been paid and what you have got?---No, it is the same, although I do get overtime now in which I never did when I was in customer service.
PN66
So when you say you did overtime now?---Yes.
PN67
You receive overtime for working what sort of hours?---Extra hours. When I was in Ericsson's, you know, there were times when we had a lot of work so we got paid for extra, you know, one or two hours.
PN68
Ms Rennie, if I can get you to turn to the second attachment of your statement which is some pay slips of yours?---Yes.
PN69
If you say there on that first page it is marked time and a half and double time?---That is right.
PN70
Can you see that there?---Yes, I can.
PN71
Is that the sort of payment of overtime to which you are referring?---Yes, it is.
PN72
Before your transfer to the warehouse were there any circumstances in which you were paid overtime?---Only if we worked on a Saturday then we were paid only time and a half. We weren't paid double time.
PN73
Since you have been in the warehouse are you paid, to the best of your knowledge, overtime on the same basis as the other Ericsson employees?---Yes, I am.
PN74
Ms Rennie, at any stage, either before you transferred to the warehouse or afterwards, do you recall raising with any of the other employees or management the issue of moving back to customer service?---Yes, I did.
PN75
And are you able to tell the Commission what you said in those circumstances?---Yes, I was worried that because my job was permanent that I wouldn't be allowed to go back inside so I asked Pat. I said, you know, if I don't like it, you know, like I want to be able to come back inside, I don't want to have to leave the company. She didn't actually say yes or no. She just said to me, "See how you go, I am sure you will be okay".
PN76
Were you ever given any indication by Ms Hetherington that you had a right to come back inside if you did not like it?---No, I wasn't told yes, I could. I assumed I could. I wasn't told yes or no.
PN77
Ms Rennie, can I take you to the first attachment to your statement, please?---Yes.
PN78
Which is the document headed Movement of Employee. Is this the document that you signed confirming your transfer?---Yes, it was.
PN79
And that is your signature and name there at the bottom of the document?---Yes, it is.
PN80
And this was the document which you believe made the move permanent?---Yes, it was.
PN81
Can I take you to paragraph 16 of your statement, please, Ms Rennie. In that statement, in that paragraph there you refer to some training that was given to staff in customer service. Can you explain to the Commission what that training was and what it involved?---Yes. In March we were changing to a new system and to fit in with the Boise system. We all got a schedule of what our training would be and what times our training would be and I was only put into the training for the warehouse and not customer service.
PN82
So you were not trained to use the new system that would apply in customer service?---No, I wasn't, only the warehouse.
PN83
You were only trained in those bits that related to your warehouse functions?---Yes.
PN84
Ms Rennie, do you recall attending a meeting with Mr McFarland with the other warehouse staff on 27 April?---Yes, I do.
PN85
Do you recall what Mr McFarland said to the group at that meeting?---Yes, Mr McFarland said that we were all being made redundant as of 30 June and there wasn't a job there for us, we were being made redundant.
PN86
And when you attended that meeting did you believe that that announcement of redundancies applied to yourself?---Yes, I did.
PN87
No further questions, your Honour.
PN88
PN89
MR MILNE: Thank you, your Honour.
PN90
Ms Rennie, if I can take you back to prior to your redeployment into the Ericsson team and immediately prior to that did you have a meeting - and I think you have already answered this particular part of it, but did you have a meeting with Pat Hetherington prior to that occurring?---To my move, yes, I did.
PN91
At that meeting you have indicated that you were asked to move across to the Ericsson team. During that meeting was it explained to you why you were required to move across or that it was beneficial to move across?---Pat felt that I needed a change.
PN92
Did Pat indicate you, and I am referring to Pat Hetherington, your Honour, did she indicate to you that your personal circumstances or the reasonings behind that?---Part of the reasons.
PN93
Did in fact Ms Hetherington say to you that you had gone stale and needed a break?---Not that I can recall, no.
PN94
At that meeting you were advised in your evidence that your hours and wages would remain unaltered, is that correct?---Yes, it is.
PN95
At the same meeting do you recall Ms Hetherington saying to you that the door was always open to you to return?---No, she didn't.
PN96
Were you aware at that stage that the Ericsson contract was being negotiated?---No, I wasn't.
PN97
So did you at any stage raise with any of your superiors, that is either Ms Hetherington or Mr Scanlon, whether in fact your position was secure should the Ericsson contract not be renewed?---Sorry, can you repeat that?
PN98
Certainly. During any discussions - perhaps if I rephrase that a bit more simply?---Yes.
PN99
During discussions with any of your bosses did you raise concerns about your job should the Ericsson contract not be renewed?---No.
PN100
What were your duties immediately prior to transferring from the customer service team to the Ericsson team?---In customer service I answered the phones to customers and keyed in orders.
PN101
Data entry, would that be correct?---Yes. Yes, keying in orders, yes.
PN102
And keyboard operation?---Yes. I keyed in orders, yes.
PN103
What were your duties immediately after, after your redeployment to the Ericsson team and I immediately after?---I had to pick the phones and then I had to put the information into the computer and then I had to go out and pack them and when the stocks were low I had to help pack the shelves.
PN104
I put to you that your duties on your immediate redeployment were data entry and keyboard skills, is that correct?---No, I had to pick the phones as well.
PN105
THE SENIOR DEPUTY PRESIDENT: Pick the phones?---Yes. We had to go in - we had a whole list of phones that we had to send out, so we had to first go in and pick the phones off the shelf and then we had to take the - I had to actually carry the phones to the computer, had to key them into the computer and then I had to go and pack them into their envelopes and then they were stacked up and then we sent them out.
PN106
MR MILNE: Who was your immediate superior prior to the redeployment?---Pat Hetherington.
PN107
Who was your immediate superior after the redeployment?---Was my team leader in Ericsson's which was Geoff Narowski.
PN108
Who was his immediate superior?---Peter Scanlon.
PN109
Thank you. Is it true that the customer service team are paid overtime?---No. Only on a Saturday and that was only at stocktake time.
PN110
Is it true that they get paid overtime?---On a Saturday, yes.
PN111
Is it true also that overtime is not approved or payment for overtime in the customer service team is not paid unless it is approved by management?---Can you repeat that, sorry?
PN112
Is it true that overtime in the customer service team is payable only when management approved the overtime?---That is true, yes.
PN113
So you are saying that you have not received overtime except on stocktake or Saturdays, is that correct?---On a Saturday, that is right.
PN114
Were you ever asked or was overtime ever approved by management for you to work overtime at any other period of time?---No.
PN115
Ms Rennie, you have referred to attachment 1 I think it was of your statement which is the movement of employee document. Do you have that in front of you?---Yes.
PN116
Could you explain to the Commission from that document what position you moved from?---From customer service.
PN117
And could you also explain to the Commission what position you moved to?---Ericsson's customer service.
PN118
So you moved from a customer service position to a customer service position according to this document?---Ericsson's customer service, yes.
PN119
That may be so but to a customer service position?---Yes, although I didn't answer phones in Ericsson's.
PN120
Yes, we will hear some evidence later as to the duties. The document that you have in front of again, movement of employee document, does that at any stage say that there was a change of classification, your classification that you worked under?---Yes, because it says Ericsson's.
PN121
Your classification I think you have already - your Honour, perhaps I am asking the question that the witness is not familiar with my terminology of classification so I will not pursue that any further, but suffice to say you moved from a customer service role to a customer service role?---Yes. But, yes, it was a different role.
PN122
Thank you?---Yes.
PN123
THE SENIOR DEPUTY PRESIDENT: Mr Milne, it does raise an issue in my mind about whether there is any original contract of employment, written contract of employment?
PN124
MR MILNE: Your Honour, I am not able to provide one and that is purely and simply because Ms Rennie has been there for some period of time as I understand it. I have been right through the file on Ms Rennie and there is no original contract of employment. However, we would say that it is undeniable and the evidence Ms Rennie is giving is that she was a customer service officer and I think - - -
PN125
THE SENIOR DEPUTY PRESIDENT: I understand your submission. My question was more of one of information.
PN126
MR MILNE: We are not able to provide one, yes, and I am sorry - - -
PN127
THE SENIOR DEPUTY PRESIDENT: There is no letter of appointment, etcetera?
PN128
MR MILNE: Your Honour, as I understand it the company has been taken over a couple of times, or at least one and those normal things that occur in that perhaps there are some files maybe in the old company that are archived but we have certainly not been able to find them from 16 years ago.
PN129
THE SENIOR DEPUTY PRESIDENT: Okay.
PN130
MR MILNE: Or 15 odd years.
PN131
Ms Rennie, on that document, the movement of employee, does it say anywhere that it was a permanent transfer?---No.
PN132
Thank you. I will take you back to your evidence and you gave some evidence on training?---Yes.
PN133
Had you accepted the redeployment back to the customer service team would you have expected training in their systems to have been given to you?---Sorry, can you repeat that?
PN134
Had we not been here today because of your desire not to go back to the customer service team?---Right.
PN135
And had you gone back would you have expected that the company would have provided training for you on the new system?---If I had to move back, yes.
PN136
Would you have expected to be trained prior to moving back?---If I was expected to go back, yes.
PN137
During the meeting with Mr McFarland on 27 April?---Yes.
PN138
You have indicated that Mr McFarland made a comment that each and every one of you was redundant?---That is right.
PN139
Is that correct?---Yes, it is.
[11.09am]
PN140
Prior to that meeting and in fact on 26 April, the day before?---Yes.
PN141
Were you advised by Ms Hetherington that you were required to move back into the customer service team?---I was told, yes, on the 26th that she expected me back into customer service that day and to start that day in customer service on the 26th.
PN142
So you were advised prior to this meeting where supposedly everyone was told that they would be made redundant, you were already advised that you were required to move back into another role?---That was the day before.
PN143
That is correct?---Yes.
PN144
But it was before the meeting?---It was the day before the meeting.
PN145
So you were aware at the time of that meeting that the company was transferring you or intended to transfer you back into the customer service team?---Not on the 27th. I thought that they must have changed their mind because I was called in as part of the team to be told I was being made redundant.
PN146
Were you aware of any discussions with persons as to your attendance at that meeting or whether you were required at that meeting or not?---I was told to go to the meeting, yes, on the 27th.
PN147
But were you advised of any other occurrences leading up to that meeting as to whether you would be required to attend or not?---Sorry, I don't understand. On the 27th I was called up. John McFarland told John Ryan to call me up as part of the Ericsson's team to be told I was being made redundant.
PN148
So the answer, and I am not trying to put words in your mouth?---No.
PN149
The answer is no, you were unaware of any other discussions relating to your attendance?---Before that, no.
PN150
Thank you. But you were quite clearly spoken to on the 26th about your move back into the customer service team?---Yes, on the 26th.
PN151
Why did you perceive having been spoken to on the 26th that you were required to - and when you attended a team meeting?---Yes.
PN152
A team meeting, that you were being told then that you were redundant?---I thought they may have changed their mind. I was told to go up there on the 27th so I went up there.
PN153
Did you query that at the time?---No, I didn't.
PN154
So an issue as significant as being made redundant in your mind, being told that you are going to be made redundant?---Yes.
PN155
And in the circumstances of the day before being told that you would be transferred to the customer service team and you did not think that it warranted a query?---No, I didn't.
PN156
I have no further questions, your Honour.
PN157
THE SENIOR DEPUTY PRESIDENT: Mr Lyons.
PN158
MR LYONS: Nothing further, your Honour.
PN159
THE SENIOR DEPUTY PRESIDENT: Ms Rennie, the role you were performing in the Ericsson team, were there other employees doing the same job as you?---Yes, your Honour, five others.
PN160
So you and five other were all doing the same job?---Yes, there were.
PN161
PN162
THE SENIOR DEPUTY PRESIDENT: Mr Lyons.
PN163
PN164
MR LYONS: Mr Ryan, you made a statement in this matter before the Commission?---Yes, I did.
PN165
Do you have a copy of that statement in front of you there?---Yes, it is here.
PN166
Is that statement a true and correct statement in all respect?---Yes.
PN167
PN168
MR LYONS: Thank you, your Honour.
PN169
Mr Ryan, are you able to tell the Commission how long you have been employed by Blue Star?---Seventeen years. A number of company moves, yes, and 15 years as a manager of the warehouse.
PN170
Fifteen years as the manager of the warehouse?---Yes, yes.
PN171
And is that the position that you currently hold?---Yes, it is.
PN172
Does that position involve you in the Ericsson contract?---It does now and it did after Peter Scanlon left totally.
PN173
And is it fair to describe you as the direct manager of the Ericsson contract?---I do now, with a team leader, Geoff Narowski, yes.
PN174
And you have held that function since Mr Scanlon left?---Yes.
PN175
Can you tell the Commission when it was that you took over that role?---Well, Peter started moving around Christmas and I had holidays in January but February there was a number of issues which I took over because the manager of the place, Chris Roberts, was handling it and he left too, so I took over totally around February.
PN176
So from around February of this year?---Yes. Constantly before that I was aware of everything that was going on, yes.
PN177
And at present are you Ms Jacqui Rennie's direct manager?---She reports to me, yes.
PN178
Mr Ryan, who do you report to, for the information of the Commission?---Pat Hetherington is constantly aware of anything that I do. I report to her.
PN179
Are you able to explain to the Commission what Ericsson contract involves?---Mainly the Ericsson contract buys - well, computers are a big part of our company now so it's data entry and so everything. It is a picking, packing of phone orders and spare parts. It is stacking shelf, it is housekeeping, it is the whole lot. Jacqui was involved in all.
PN180
My question, Mr Ryan, went a little bit to what the contract is actually for. What does Blue Star actually do for Ericsson?---They service the whole phone area of Ericsson phones. They do the whole lot. The stock comes in, it is invoiced, it is inputted, it is dispatched, the whole thing. You can pack, process the lot.
PN181
So it is the warehousing distribution of new phones and spare parts?---Yes.
PN182
Mr Ryan, in your statement you refer to the advertisement of a job in September 2000 in the Ericsson team?---Yes, it was known aware to everyone.
PN183
Are you able to inform the Commission of your knowledge of what that job was?---It was mainly it was a data entry base with invoicing. As anyone who has had the job the demand that we have when you are not doing that you do other warehouse stuff that involve the process of data entry mainly. Ericsson's is a tricky invoicing thing. We were interested in getting Jacqui because you go into three screens, the process of servicing and in printing, the repairs and the phones, is a hard data entry process. It is tedious the way it is set up. So you might only do eight to 15 in an hour sometimes so we were interested in Jacqui. Jacqui was involved one starting like everyone else and the six of them in every other duty.
PN184
So the job that was advertised was one part data entry?---Yes.
PN185
And another part warehouse duties?---They all did it, yes, and Jacqui did it.
PN186
Does the position involve any interaction with the public or customers?---No, not out in the warehouse. No, she had no customer service calls for Ericsson. No, no.
PN187
Are you able to inform the Commission what you mean by the term the warehouse duties?---All staff do the same thing. What I mean by that, once a phone is processed and data entry Jacqui might do a batch when she is quiet like the rest of the other five staff. They might have to unload a crate of phones which Jacqui did with the rest of the staff. They might have to process and pack it. They pack it into a mail bag, they label it, they stack it on a pallet for the carrier and they invoice the goods. You know, she was involved - - -
PN188
So fairly standard sort of warehouse functions?---Yes.
PN189
Can I take you to paragraph 4 of your statement, Mr Ryan where you say that Jacqui Rennie was offered a permanent warehouse job. What evidence are you able to give the Commission that that position was permanent?---Well, Amanda Lane was replaced from one permanent position to another and Amanda Lane - you know, a transfer of two jobs took place. I understand like that because I informed and asked Peter Scanlon at the time what was going on because I was in charge of overseeing payroll and under the EBA agreement in payroll once they work over a certain amount of hours they have to get overtime, so she received overtime. There was a bonus system. The team leader was doing the payroll at the time which I took over later when Peter left, but we had a golf incentive and the golf incentive was if they reached - it was based on what work they did and how correct it was, they received a bonus too. At the time Jacqui came out there she received the golf incentive which the Ericsson team got if they met the quota and Ericsson was a sensationally profitable business and these people constantly worked overtime and from the time Jacqui came down she was paid overtime once she worked the allotted time, you know.
PN190
So you made those inquiries of Mr Scanlon to ensure that Ms Rennie was paid properly?---Well, I have to pay under the agreement. Everyone that comes out and works in the warehouse gets paid overtime.
PN191
The bonus system, Mr Ryan, that you just mentioned?---Yes.
PN192
That is a bonus system that applies to only people who work in Ericsson?---No, we had two systems. Our last manager who was working Blue Start, Dennis Bassini, was really good. It was just an incentive to buck people up through the transition of two other moves and he gave - we had two separate - he made a golf game of it and it was based everyone a limb, everyone reported and we done measures, work measures which were good and we had a golf incentive and it was based on mistakes, accuracy, how many you put out and if we reached that every month we got $100 each.
PN193
And that was for all the warehouse employees?---The whole warehouse yes.
PN194
But it was limited to the warehouse, not the office, is that the decision you are making?---Yes, yes. No-one else got it.
PN195
And since Ms Rennie's transfer she has been eligible and been receiving those bonuses as they are payable?---Yes, yes.
PN196
If I can take you to paragraph 5 of your statement, you say that Peter Scanlon told you that the transfer was permanent?---Yes. I needed to know that for obvious reasons.
PN197
You have a direct memory of Mr Scanlon saying that to you?---Yes, he told me the position was a permanent position.
PN198
Do I understand your evidence correctly that that was in response to you asking him if it was permanent?---Yes, because it was a query, question that Jacqui discussed with me about an RDO and Jacqui had conversations with him so I needed to be clear with him. It was just that Jacqui wasn't to get the RDO. That was acceptable to Jacqui when she discussed it with Peter Scanlon. So I needed to know that because I did payroll. I need to know where I stand.
PN199
THE SENIOR DEPUTY PRESIDENT: Why did she not get the RDO?---RDO is in terms of Jacqui had discussed an RDO and she accepted that Peter at this stage she wouldn't get it and I accepted what Peter said.
PN200
MR LYONS: Mr Ryan, do you recall a meeting in the warehouse on 27 April of this year with Mr McFarland?---Yes.
PN201
You were present at that meeting?---He called us up to the boardroom, yes. Yes, I was present.
PN202
Are you able to tell the Commission what Mr McFarland announced to the group at that meeting?---That they would be finishing tomorrow which is the 29th or 30 June, that they wouldn't continue Ericsson's contract and they will all be made redundant.
PN203
So that was a meeting where the senior manager was announcing the end of a contract and redundancies?---Yes.
PN204
Did Ms Rennie attend that meeting?---Yes. I asked him if Jacqui was to come because there was - he said, yes, she was to come up.
PN205
And why did you ask whether or not Jacqui should attend?---Because this trouble was going on and Jacqui was told, you know, before to get inside and I wondered if she was to come. He asked her up.
PN206
And when you say the trouble what are you referring to?---Well, Jacqui was told in April to get inside to the office to start another job, yes, after - - -
PN207
You are referring to the instructions she was given the day before to say back inside?---Yes, yes.
PN208
Are you able to inform the Commission, you mentioned the 29th or 30 June, are you able to tell the Commission what is happening with the rest of the Ericsson employees?---They received their redundancy figures on Tuesday by Mr Caldwell and they will leave tomorrow.
PN209
So those other five, is it?---Yes, the other five people have been made redundant. Yes.
PN210
And they are being made redundant tomorrow?---Yes.
PN211
Did you understand they are being paid in accordance with the enterprise agreement, their redundancies?---Yes.
PN212
Nothing further, your Honour.
PN213
THE SENIOR DEPUTY PRESIDENT: Mr Ryan, in paragraph 4 there is a reference to Peter Scalliam, is that right?---Peter Scanlon, yes.
PN214
PN215
MR MILNE: Thank you, your Honour.
PN216
Mr Ryan, if I can take you back to October last year. This is specifically - my questions are specifically directed to the time of the redeployment of Ms Rennie to the Ericsson team. At that time who was directly responsible for the Ericsson team?---Peter Scanlon.
PN217
What was your role in the Ericsson team?---I oversaw that they - as a directive from Peter to see if they came to work on time and to see if they were in and oversee the payroll.
PN218
At what stage did you become responsible in your own right for the Ericsson team?---At the February because I asked what was going on with the thing because when Peter left early and decided to go in December I took holidays and Jacqui was being dealt with by the manager at the time, Chris Roberts. There was a lot of coming and goings between him and nothing was rectified and I spoke to Fay Faulkner about it.
PN219
Okay. But at the time of - so you took over the responsibility for the Ericsson team some time after December?---Yes.
PN220
Were you directly involved in any of the meetings with Ms Hetherington or anyone else relating to the redeployment of Ms Rennie in October 2000?---No, I wasn't.
PN221
So you are not able to give evidence at all about those issues that were raised during those meetings or in fact what occurred what discussions took place at those meetings?---No, but I can state that - - -
PN222
No, I asked the question that you able to or are you not able to give evidence?---I wasn't there obviously, no, no.
PN223
Thank you. So you are not able to say categorically that Ms Rennie's employment contract was changed at that time?---I don't understand what you mean, sorry.
PN224
You were not privy to any of the discussions or involved in any of those discussions, so you are not able to give evidence on what occurred at those discussions?---I wasn't privy to those discussions, no.
PN225
So as a consequence you are not able to give evidence as to whether her contract changed or not?---No.
PN226
Thank you. What is Ms Rennie's current employment classification, what is she employed as?---She is a grade 3 under the - yes.
PN227
What is her classification?---She inputs - - -
PN228
Is she a clerk?---No, she is a - - -
PN229
Is she a customer service officer?---She is not a customer service. She data entries like the other five people and does warehouse duties in the warehouse.
PN230
Mr Ryan, I take you to that document that was put up by Ms Rennie?---Yes.
PN231
Do you have a copy of that or have you seen it or are you familiar with that document that is the movement of employee?---I don't. The statement from her?
PN232
Could the witness be shown this document, your Honour?
PN233
Are you familiar with that document?---I have seen this document.
PN234
Okay. Could you read to the Commission the classification that Ms Rennie moved from?---Well, she moved from the customer service.
PN235
And she moved to?---Data entry in the warehouse.
PN236
No, that is not. Mr Ryan, I asked you a question. On that document - - -?---Look, do you want me to read what is on here? She says Ericsson's customer service.
PN237
So she moved from a customer service role to a customer service role, is that correct according to that movement document that has been entered by Mr Lyons?---Yes, but what - - -
PN238
Thank you?---Yes.
PN239
So one could assume that if there - no, I withdraw that. Are you aware of any other document that has been promulgated by the company which refers - or any other movement document that changes Ms Rennie's classification?---I have seen no document, no.
PN240
Thank you. Who is responsible for moving people and promulgating the paperwork?---For staff in the warehouse?
PN241
Yes?---No decision will be made unless I speak to the site manager at the time.
PN242
I would have thought the human resources manager would be responsible for that. But are you responsible to alter the terms and conditions or in fact the classification of any employee?---No.
PN243
So as a result of that, you have given evidence on this, Ms Rennie is currently working as a customer service officer?---Well, it said it there but I just have to state that it wasn't a customer service role.
PN244
Mr Ryan, you have already given evidence - - -
PN245
MR LYONS: Let him answer the question. You may not like the answer but you have got to let him answer it.
PN246
MR MILNE: Your Honour, Mr Ryan has been asked a specific question, is she still working as a customer service officer?---Well, customer service role, can I please say?
PN247
THE SENIOR DEPUTY PRESIDENT: Mm?---I think is, you know, answering phones and doing all that. When she came under my jurisdiction and I have to honestly say, she did the duties of the rest of the five staff which was the warehouse duties as well. She never - - -
PN248
MR MILNE: Mr Ryan - - -?---Excuse me. She never did a phone call for Ericsson. She did never did a customer - and I might be wrong here, a customer service role to me is dealing with people, taking orders and doing the whole thing. She never did that. She did data entry by herself quietly in my office on a terminal, went out and picked and packed phones. That is what she did. Now, it says here if you want me to speak and say customer service that is fine, but to me that doesn't seem her role.
PN249
Mr Ryan, Amanda Lane, who is Amanda Lane?---Amanda Lane is the girl that she transferred from.
PN250
What was Ms Amanda Lane's classification in the customer service team before she transferred - sorry, in the Ericsson team before she transferred through to the customer service?---I haven't seen a document on Amanda Lane. I had no dealings with the transfer of Amanda Lane so I can't answer that honestly.
PN251
But you said it was a direct transfer?---Well, if it says it is customer service as it says on here it might be, but I have seen no paperwork for Amanda Lane.
PN252
To your knowledge there has been no change by the company at all to those duties that Ms Rennie was required to do when she transferred across. No-one has authorised - let me rephrase that. Has anyone with the responsibility or the authority to do so transferred Ms Rennie to anything other than a customer service role since you took the responsibility for the Ericsson team?---No, her duties haven't changed, no, since I have taken control because she did the other things. Yes.
PN253
Has Ms Rennie - that is not quite the question I asked you, Mr Ryan. I asked you has anyone formally changed Ms Rennie's contract or her classification to do anything other than what she was told to do when she moved across to the Ericsson team?---No.
PN254
Thank you, I have no further questions, your Honour - just bear with me. My apologies, your Honour, I do have a couple more questions.
PN255
You have referred to a meeting that Mr McFarland carried out with the Ericsson team on 27 April where he advised the Ericsson team that were, in your words, going to be made redundant, is that correct?---Yes.
PN256
Prior to that meeting, that communication meeting on 27 April were you instructed that Ms Rennie was not required to attend?---I was not.
PN257
Did you receive any indication from Ms Hetherington that she had had a call from Ms Faulkner saying that Ms Rennie was not to attend that meeting?---No, definitely not.
PN258
Why did you seek clarification from Mr McFarland as to whether Ms Rennie should attend?---Well, I knew this would start like this and I wanted to see if Mr McFarland wanted to speak to her.
PN259
So in your mind - I will rephrase that. You were aware that Ms Rennie had been transferred on the 26th, or advised of her transfer on 26 April to the customer service team in the office, is that correct?---Yes.
PN260
And that was in your made so you queried with Mr McFarland as to whether or not she should attend and why did you do that?---Because I had spoken to Fay and I spoke honestly, what do I need to do. In all the way through this and with Fay I said what do I need to do, so I have always found what to do, do I need to do this. I spoke openly and honestly to both parties.
PN261
Did Mr McFarland at any stage say to you that yes, she should attend because this is going to affect her?---Mr McFarland asked me let her please come. He said she was to come so I got her.
PN262
Did he ever say that this would directly affect her?---No, he talked to us as a group.
PN263
At any stage did Mr McFarland ever speak to anyone individually?---No, he didn't.
PN264
So this was a brief communication session?---Yes.
PN265
Where at Mr McFarland did not address any individual's particular circumstances?---No, he informed us as a group.
PN266
Thank you. I have no further questions, your Honour.
PN267
PN268
MR LYONS: Just one thing, your Honour.
PN269
Mr Ryan, when you were being asked by my friend about classifications you started to use the grade and then I think you were cut off. Can you explain to the Commission what you were intending to say there?---Well, the whole concern that we speak is when the whole - there was a conflict with Jacqui I had to know how to pay her and what to do with her, so the whole thing is when I look at it is grading so she gets the overtime, she gets the process. Customer service, this gentleman said this, that is okay, I mean I wasn't privy to this but answer honestly, when she started out with me, you know, I have worked there with these people, they are hands on, they do what they are told. To me it is not called a customer service position. I graded her. She housekeeped the place, she picked and packed phones, she went into other areas and helped with the spare parts, she unpacked spare parts, she did all that. She went over 3 o'clock in the afternoon and helped Jordan and Geoff and then load the courier van. That is what she did, you know, so the terminology and if she didn't do it she got told off by me.
PN270
Can I ask you, Mr Ryan, when you used the term grading levels were you referring to the grading levels in the certified agreement?---Yes, I have to operate by those, yes.
PN271
No further questions, your Honour.
PN272
THE SENIOR DEPUTY PRESIDENT: Mr Ryan, in paragraph 3 of your statement you say:
PN273
In September 2000 an e-mail went out to all staff regarding the warehouse position Ericsson's.
PN274
Then in the next paragraph you say:
PN275
Jacqui Rennie was offered a permanent warehouse job in Ericsson's on 2 October 2000.
PN276
?---Yes.
PN277
The job that she was offered on 2 October 2000, is that the job that went out on e-mail?---Yes. There was a transition period, clearly from memory, where Amanda Lane was still working there and there was a time when Jacqui ..... take the job. Amanda Lane would actually go in and work during the day and be trained and even come back and do some overtime to help everything get up. Ericsson was a massive business and they worked from 8.30 to 6/7 o'clock at night a lot of times. So that is in the time frame but there was a transition period when Amanda Lane was getting trained when Jacqui decided even between then and she was even coming out and doing overtime in the warehouse.
PN278
So what did the e-mail say?---That there was a position that is data entry.
PN279
So went out on e-mail to staff saying - - -?---There is a job in - - -
PN280
- - - there is a permanent position in the warehouse?---Data entry and servicing with Ericsson's.
PN281
Do you want to let us know or something?---Yes, that is how they offered them. They still offer jobs like that.
PN282
And it was that job you say she took up in 2 October?---Yes.
PN283
Was there time limit placed on that job in the warehouse?---No.
PN284
The one mentioned in the e-mail?---No. Not to my knowledge, no.
PN285
Anything arising out of that?
PN286
MR MILNE: Sorry, your Honour?
PN287
PN288
MR MILNE: Did the e-mail actually state that it was - and I am sorry, your Honour, but we have tried to find the e-mail but it has been scrubbed off the system over the years of course.
PN289
THE SENIOR DEPUTY PRESIDENT: It will be somewhere in the ether I am told.
PN290
MR MILNE: Well, yes, so they say but we are certainly not able to find it, I can assure you.
PN291
Did that e-mail simply advertise a position?---Yes.
PN292
Did it say casual permanent or did it say - does your memory got to that?---It said position. Now, when it says position, when they advertise position in the main warehouse it is positions permanent.
PN293
But it did not say permanent?---No, but can - - -
PN294
Thank you, that is all?---Okay.
PN295
PN296
THE SENIOR DEPUTY PRESIDENT: Does that complete your evidence?
PN297
MR LYONS: Yes, other than, your Honour, we will at some point seek to rely on the certified agreement. I do not know whether your Honour wishes to mark that now? It does form part of the evidence that we would rely on.
PN298
PN299
MR MILNE: Sorry, your Honour, is that the 2000 to 2002 agreement?
PN300
MR LYONS: Yes, it is.
PN301
MR MILNE: Thank you.
PN302
MR LYONS: That concludes our evidence, your Honour.
PN303
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Milne.
PN304
MR MILNE: Your Honour, I am assuming that you want to continue with our witness evidence at the current time?
PN305
THE SENIOR DEPUTY PRESIDENT: Mm.
PN306
PN307
MR MILNE: Ms Rennie, you have made a statement in this matter?---Mm.
PN308
Do you have a copy of that statement?
PN309
THE SENIOR DEPUTY PRESIDENT: You have got the wrong person, Mr Milne.
PN310
MR MILNE: I am sorry, your Honour.
PN311
THE SENIOR DEPUTY PRESIDENT: You said, Ms Rennie.
PN312
MR MILNE: Did I? My apologies.
PN313
Ms Hetherington, did you make a statement in this matter?---Yes, I did.
PN314
Do you have a copy of that statement?---Yes, I have.
PN315
Do you have it with you?---Yes.
PN316
As far as you are able to is that a correct statement of facts as far as you are aware?---Yes, it is.
PN317
Ms Hetherington, I will ask you some questions pertaining to that statement. Perhaps if I could commence with prior to Ms Rennie's redeployment were you her immediate superior?---Yes, I was.
PN318
Did you at that stage consider Ms Rennie's performance to be satisfactory?---No, I didn't.
PN319
In what way did you consider her performance unsatisfactory?---I was receiving a lot of complaints from the other members of the customer service team regarding far too much time spent on personal calls and the duration of the calls and from some of the account managers or the account manager that she looked after that customers hadn't been phoned back at the appropriate amount of time.
PN320
Thank you. Were you aware that Ms Rennie had this stage had some personal problems?---Yes, I was.
PN321
Had Ms Rennie's performance been better in the past to your knowledge?---I had heard that. I had heard that she had worked for the company for a long time and had enormous knowledge of product knowledge and that she had been a valuable member of the staff, yes.
PN322
Did you consider that Ms Rennie would benefit from a break from the customer service department?---Absolutely, because of the pressures in her personal life which I felt may have been a contributing factor to the time spent on phones and things like that, I believe it was because of personal issues.
PN323
Why do you think Ms Rennie would have benefited from a redeployment somewhere else or a break from the customer service department?---Customer service within the mainstream is very demanding. There is calls coming at a very high frequency, a lot of pressure where I believe the role within the Ericsson team would not have that pressure from outside contact with clients and that she will be able to have a data entry role and just not have the pressure that was there in the day to day customer service team.
PN324
In October 2000 did you have a meeting with Ms Rennie specifically regarding the possibility of Ms Rennie moving to the Ericsson?---Yes, I did.
PN325
What position was Ms Rennie to fill in the Ericsson team?---Of data entry within the Ericsson team.
PN326
What was her classification in that team?---It was a customer service role.
PN327
THE SENIOR DEPUTY PRESIDENT: Customer service what?---A customer service role within the Ericsson team.
PN328
MR MILNE: Did you have a discussion with Ms Rennie as to what her wages would be following her redeployment?---Yes, I did. I assured her that the wages and conditions that she had within the mainstream customer service team would be unaltered.
PN329
So in fact does that mean that her staff conditions would remain?---Absolutely.
PN330
Did you have a subsequent need to confirm that with her?---No, at that meeting she said, "Well, what if it doesn't work out", and I said, "Well, the door is always open".
PN331
By that do you mean the door was always open for Ms Rennie to come back into the customer service team?---Absolutely. I hoped because of her value previously, I hoped that she could get her life together and then become a valuable member of the customer service team again if that is what she wished.
PN332
Were you aware of any other discussions regarding Ms Rennie seeking a rostered day off?---I believe she spoke to Peter Scanlon regarding that but I confirmed that the situation that she had within my customer service team should have exactly the same salary and conditions when she went to the warehouse.
PN333
So you confirmed that her current wages and hours would remain as is?---Yes, I did.
PN334
In fact did you override Mr Scanlon in that?---Yes, I did.
PN335
Perhaps could you elaborate on that? Had Mr Scanlon given Ms Rennie some other understanding?---I am not sure exactly what transpired between Peter and Jacqui.
PN336
But you overrode a decision and you made a conscious decision that Ms Rennie's terms and conditions would remain the same?---Absolutely.
PN337
Even though they were different than those people employed in the Ericsson customer service?---Yes, that was brought up in a management meeting that Jacqui would have very different terms to the people in the warehouse but my viewpoint was that because she had personal issues I wanted to alleviate her pressure but I didn't want her to lose any of the conditions she had.
PN338
And in fact did you want her to continue to work as a staff member?---Yes.
PN339
Now, why did you override Mr Scanlon? Had you reached some agreement with Ms Rennie?---Yes, well, I had spoken to Jacqui and said this is the condition if you do the Ericsson role, so I had given her my word on that.
PN340
Did you at any time specify to Ms Rennie that she would be working as a warehouse employee rather than a customer service employee?---No, my perception is that she would be doing a data entry role. I mean a similar role to what she was doing within my team but based within the Ericsson team in the warehouse.
PN341
So your understanding that when Ms Rennie moved across to the Ericsson team her duties would substantially stay the same?---Yes, except she probably - I thought actually that she might have had some - the occasional phone call coming through but definitely not sort of constant phone calls coming through from clients.
PN342
So your intention of moving Ms Rennie across to the Ericsson team was not to alter her classification of employment to a warehouse employee?---Not at any stage.
PN343
Did Ms Rennie raise with you at any time the possibility of returning to the customer service department?---Well, as I said before, she said, "What if it doesn't work out" and then I said, "Well, then the door is open, we can look at it at some other stage".
PN344
So you did not at any stage contemplate that this was a permanent transfer?---No, I didn't.
PN345
Who is Amanda Lane?---Amanda Lane is a young lady that worked in customer service in our New Zealand affiliate company and she had sent her resume over and wanted to become part of the customer service team within Australia. When she came over, when she first came over we didn't have a role for her immediately and because they needed a data entry person in the Ericsson team she was offered that role at a customer service salary, as a customer service Ericsson team member.
PN346
So Ms Lane was employed as a customer service officer?---Absolutely.
PN347
In the Ericsson team?---Yes.
PN348
Prior to October last year?---Yes. I believe she started there in September I think it was.
PN349
Did Ms Lane and Ms Rennie, for want of a better term, change positions?---Yes.
PN350
What is Ms Lane now classified as?---Exactly the same. Same wage, same title, customer service.
PN351
So Ms Rennie obviously went to the Ericsson team as a customer service officers?---Yes, yes.
PN352
At any stage did you have a meeting with Ms Lane regarding concerns that she had after her redeployment into the customer service department, that is Ms Lane?---Yes. Amanda was concerned that Jacqui had expressed to her that she could come inside at some stage and Amanda was concerned that that would affect her role and I said to her, you know, "Jacqui may well come back at some time, however your role is absolutely secure".
PN353
So Ms Lane did that as a result of Ms Rennie telling her that she could come back into the customer service team at any time she liked?---That is right. Amanda said to me that from a discussion with Jacqui it had raised fears with her of the security of her role.
PN354
Did you speak to Ms Lane about that and did you get a statement from Ms Lane?---Yes, I did.
PN355
Your Honour, I am going to ask your Honour to enter that statement - - -
PN356
MR LYONS: And I would strongly object to that. I indicated yesterday in writing to the company if they wanted to tender that we required Ms Lane for cross-examination.
PN357
MR MILNE: No, your Honour, I am not tendering it as evidence. I am tendering it simply as a result of Ms Hetherington having got that document, you as the presiding person in this Commission are obviously able to put whatever weight you do on that document. That is obviously your prerogative. We are not tendering it and we are not seeking evidence on that and there is a reason we are not seeking evidence and that is Ms Lane was reluctant to come in here because she feels that she is under pressure from her peer group and has in fact major concerns about being seen to have taken sides. However, Ms Lane has quite clearly stated a factual position in her statement. We had gone to the degree of being prepared to subpoena Ms Lane and in fact had the paperwork prepared to do so through this Commission but Ms Faulkner made the decision that she would not require Ms Lane to attend because of the perception that Ms Lane had that she would be seen by her colleagues to be taking side. Now, I think it is a reasonably important part of this case that Ms Lane had concerns, that Ms Rennie had expressed to her that she could come back at any time. That indicates what Ms Rennie's position was regarding her redeployment. Now, as I have said, your Honour, I am not entering it as evidence. I simply want it there and you may put the weight of evidence on it that you particularly require or wish to do so.
PN358
THE SENIOR DEPUTY PRESIDENT: I will not allow its tender unless you call her.
PN359
MR MILNE: Thank you, your Honour.
PN360
Ms Hetherington, further to that then, you were spoken to by Ms Lane and it was quite clearly put to you that her concerns were specifically related to comments that were made by Ms Rennie about being able to return back to the customer service team?---Absolutely.
PN361
Thank you. Who is the person that is ultimately responsible for the final say, if I could put it that way, as to who and how a person is redeployed within your company?---Ms Faulkner.
PN362
Thank you. Who was responsible for the Ericsson team at the time of the redeployment, that is, when Ms Rennie moved from your specific area of responsibility in October to the Ericsson - - -?---Peter Scanlon.
PN363
Sorry?---Peter Scanlon.
PN364
Thank you. Did Mr Scanlon take any part in the decision making or the meetings with Ms Rennie?---No.
PN365
So you were the person that spoke to Ms Rennie about her redeployment?---Yes, I was.
PN366
Did Mr Ryan take any part in the meetings with Ms Rennie?---No.
PN367
Did Mr Ryan have any direct knowledge of your discussion with Ms Rennie?---I am not sure of that.
PN368
Ms Hetherington, he was not involved in the meetings?---We had management meetings prior to me speaking to Jacqui and at that those management meetings that was where it was passed on that Jacqui had indicated an interest to work within the Ericsson team and then after those discussions then I spoke to Jacqui on my own.
PN369
So whilst it may have been knowledge within the company that there was some proposal or that Ms Rennie may be going to move but the detail of that movement was your knowledge and not of your knowledge alone?---John Ryan was part of the management team along with Peter Scanlon. I am not sure exactly - he wasn't always at meetings so I honestly can't say definitely.
PN370
The discussions relating to Ms Scanlon's terms and conditions, were they yours? You had those discussions with Ms Rennie - did I say - - -?---I am sorry, I don't understand.
PN371
When the discussions occurred relating to Ms Rennie moving to the Ericsson team and indeed those discussions that related to her hours and her wages?---Yes.
PN372
Was it your sole responsibility to talk to her about those?---Yes, yes.
PN373
Thank you. In your role as being responsible for the customer service department?---Yes.
PN374
Do the employees within the customer service department receive overtime payments?---We very rarely have a requirement but if there is a requirement they are currently being paid overtime and they have been paid overtime in the past.
PN375
Thank you. On 27 April Mr McFarland conducted a communication meeting with the employees in the Ericsson team. Did you advise Mr John Ryan as to who should attend that meeting?---Yes, I said for the Ericsson team to go upstairs and meet with John but not to include Jacqui.
PN376
Why did you do that?---Because I believe - no, because I was directed by Ms Faulkner, yes.
PN377
On what basis?---On the basis of the fact that Jacqui may well be transferring back into the customer service team.
PN378
Thank you, Ms Hetherington, I have no further questions.
PN379
THE SENIOR DEPUTY PRESIDENT: Do you wish to have her statement marked?
PN380
MR MILNE: I am sorry, your Honour?
PN381
THE SENIOR DEPUTY PRESIDENT: Ms Hetherington's statement, do you want it marked?
PN382
PN383
MR LYONS: Ms Hetherington, the people you have described as being customer service employees, are they employed under an enterprise agreement?---Not that I am aware of.
PN384
So they are not employed under a collective arrangement?---Not that I am aware of.
PN385
Are they employed under an award in Victoria?---Not that I am aware of.
PN386
So how are their terms and conditions of employment set to your knowledge?---The people that were there before my time I have absolutely no idea, but people that have come and brought example, Amanda and other people since then, I have worked out an acceptable salary for each person.
PN387
So they are on a contract they negotiate with you?---Yes.
PN388
Are you aware of any award or agreement that specifies the classification customer service or customer service operator?---I am not aware of it, no.
PN389
So that is just a term the company uses, is it not? It is not a classification?---Customer service?
PN390
Mm?---It is an industry, I would say an industry classification.
PN391
It is a description of a job though, not a capital C classification if you like?---I haven't had any experience at all with classification per se so I really - you know, all I know is that that is the title for that role as say account manager for a sales person.
PN392
So it is a title, a job title?---A title, that is right.
PN393
Would you agree that the key part of the customer service job is actually dealing with customers?---Not necessarily. Sometimes it is or customer service can - some people are classified as customer service in a job and their key role is just data entry.
PN394
Again that is a job title, customer service, rather than a classification?---Well, I guess it is your own perception of it.
PN395
Would not someone who does data entry be more accurately described as a clerk?---I have not known that. With 20 years in this industry people in a customer service role whether they actually answer the phone or processing orders off a fax are considered to be part of customer service teams that I have been involved.
PN396
So a person entering data in the computer all day would not be accurately described as a clerical or administrative staff?---I guess you could call it anything but all I am saying in our industry that is my perception.
PN397
What about someone who is engaged in picking and packing phones in a warehouse, how would you describe that role?
PN398
MR MILNE: Your Honour, I object to that because Ms Hetherington is not a warehouse supervisor. She would not know.
PN399
THE SENIOR DEPUTY PRESIDENT: I will allow the question?---Sorry, would you repeat the question?
PN400
MR LYONS: Certainly. Someone who is engaged in picking orders in a warehouse for the phones, how would you describe that position as a job title?---I honestly wouldn't describe it because I have never had any dealings with the warehouse at all. My only dealings with the warehouse where I am, if I happen to liaise with Mr Ryan.
PN401
Just thinking about - you understand, you have seen the warehouse?---Mm.
PN402
You have an understanding of what goes on there?---Mm.
PN403
Even though you do not work there, is that right?---I am but I have never physically seen anyone pick or pack phones within our warehouse. I am very, very rarely out in the warehouse. I will occasionally walk through.
PN404
But if someone is working out in the warehouse they would not accurately be described as customer service, would they?---The people that are in our warehouse I consider are storemen and the people that are there.
PN405
Who work out in the warehouse?---Mm.
PN406
And after October of last year where did Jacqui Rennie work?---She worked in front of a computer.
PN407
In the warehouse?---In the warehouse area, as Amanda did.
PN408
Thank you. If I could return to the customer service employees who are inside?---Yes.
PN409
You gave evidence that they were paid overtime?---Yes.
PN410
Now, I put it to you that they are paid overtime for some weekend work, is that correct?---On a very, very rare occasion that has been required they have been paid overtime.
PN411
But if they work past their normal finishing time for any reason they are not paid overtime, are they, as an automatic right?---I am not aware that most people do work past their normal finish time.
PN412
I understand that. That was not the question I asked you, Ms Hetherington. If they did are they automatically paid overtime?---At the moment I have girls starting an hour early every day and they are paid overtime.
PN413
But that would not happen automatically. You would need to be a special approval of that, is that right?---If it is a pre-arranged agreement for someone to put in extra hours then they receive overtime.
PN414
Are you aware that in the warehouse if you work over your hours automatically you are paid because of the enterprise agreement?---No, I am not. I have absolutely no knowledge of the enterprise agreement.
PN415
Can the witness be shown the attachment A to Ms Rennie's statement. Do you recall this document, Ms Hetherington?---I actually don't.
PN416
But is that - - -?---Yes.
PN417
Sorry?---I mean that is my signature, yes, but I don't have any - I honestly don't remember doing it at the time but it is my signature.
PN418
And it is dated there 3 October you can see. Would it be your view that this is the document which represents the agreement you reached with Jacqui in October about her move?---That is right, because it has got from customer service to Ericsson customer service, absolutely.
PN419
Yes, that is right. Can I draw your attention to where it has been signed there?---Yes.
PN420
And it says approvals, do you see that?---Yes.
PN421
And there is two places there to sign, employee and manager?---Yes.
PN422
And yourself and Jacqui have signed that?---Yes.
PN423
I put it to you that the company acknowledges that to move somebody requires the agreement of the employee and of the manager, is that correct?---That is right.
PN424
So the employees do not just have a right of let us say I feel like working in a different department now, I am going to move, do they?---That is right.
PN425
They would need to get the authority of the appropriate manager?---Yes.
PN426
And Blue Start acknowledge they cannot just move people around willy nilly either, can they? They need the employee's agreement to be moved from job to job?---You would imagine so.
PN427
Well, I put it to you that that is entirely what this document means when it says employee and manager approval?---That is right.
PN428
Would you agree that the document that you have got in front of you is an agreement between yourself and Jacqui for her change in role?---That is right.
PN429
Would you agree that that represents a new contract for Jacqui?---A change of role? Not a new contract because the terms and conditions were exactly the same.
PN430
What about a change to her contract?---Well, a change of role.
PN431
A change of role?---Mm.
PN432
All right. Now, subsequent to this document Jacqui moved to the Ericsson contract?---Within the Ericsson team, yes.
PN433
And that was as a result of this document?---Yes.
PN434
And between October and now could Jacqui have simply decided to move back in to the other customer service team?---No, she would have come in and we would have spoken about it.
PN435
So she did not have a right to simply up stumps in Ericsson and say I want my old job back?---She would have had a right to come and talk to me about it, yes.
PN436
She had a right to come in and enter into negotiations with you, did she not?---That is right.
PN437
So she had a right to come to you and say, look, it hasn't worked out, I am interested in coming back inside?---Yes.
PN438
But you would not automatically agree to that request, would you?---I beg your pardon?
PN439
Well, you would not automatically agree just because Jacqui came in and said I want to come back inside?---It would depend on what her attitude would be if she came back inside and her level of work at the time whether it would be accepted.
PN440
And I imagine it would depend on whether you had a job for her?---That is right.
PN441
So there would need to be a vacancy, would there not?---Absolutely.
PN442
So you would need to make a judgment about her as an employee?---Yes.
PN443
There would need to be a vacancy?---Yes.
PN444
And presumably there would need to be someone to backfill her role in Ericsson?---Yes.
PN445
So there is a number of things would have to fall right?---Yes.
PN446
For that transfer to occur?---Yes.
PN447
So I put it to you, Ms Hetherington that there was an agreement between the company and Jacqui to move?---Yes.
PN448
And there would need to be a new agreement between Jacqui and the company to move back?---That is right. But keep in mind we are talking about two different companies. One was within the Blue Star guidelines and then we did not have an HR manager in Blue Star so things are very different now than they were.
PN449
You say the systems have tightened up a bit since Ms Faulkner has come on board?---We did not have an HR manager within the Blue Star group in Victoria.
PN450
So the operational managers were left to sort of make their own judgments if you like?---Yes.
PN451
However where we got to I think was that there was an agreement to move?---Yes.
PN452
There would need to be an agreement to move back?---Yes.
[12.10pm]
PN453
Under examination-in-chief you said that you used the term to Jacqui the door is always open?---That is right.
PN454
I put it to you that what you meant by that phrase is that you could come in and negotiate with me about coming back, you could come in and seek an agreement to come back?---I said exactly what I said, that the door was open, yes.
PN455
But that did not mean Jacqui had an automatic right to come back, did it?---Not without prior negotiating.
PN456
An agreement? I am sorry, you have to say - - -
PN457
THE SENIOR DEPUTY PRESIDENT: You will have to answer because it does not record a nod?---Sorry.
PN458
MR LYONS: The nod was a yes?---Well, my perception would be that if Jacqui had decided that she wanted to come in that we would talk about it.
PN459
Yes, but the question was Jacqui did not have an automatic right to transfer herself back inside?---No.
PN460
Can I ask you, you have given some evidence that the transfer was in your own words temporary?---The transfer was because we had a long term employee who was going through hard times and I was hoping that this would be a situation where she could get her life together and then we could look at it further down the track. That is it, that is where I was coming from.
PN461
I can understand that, Ms Hetherington. In your statement - sorry, I will just find it. In examination-in-chief, Ms Hetherington, you described the move as temporary. Do you recall saying that?---It is not the exact term that I used. I am not aware of that.
PN462
Or not permanent?---All I said was that the door was always open.
PN463
Perhaps I will resolve it this way. Was Ms Rennie's move a permanent move?---Not in my eyes.
PN464
So it was a temporary move?---Yes. Well, if it is not permanent it is open ended.
PN465
That is right, so if it is not permanent it is temporary?---Mm.
PN466
If it was a temporary move why was that not recorded in the document which transferred Ms Rennie in the first place?---I have no idea.
PN467
Ms Hetherington, it is your document?---It is a document that was provided by Blue Star for when there is a change in role, I would imagine whether it was temporary or permanent.
PN468
I put it to you it is a document that is used for a permanent change in role?---Not necessarily, because this was a situation where it was used then and yet if things turn around for Jacqui then, assuming Blue Star had have still been in operation using the same forms, then there could have been a form bringing her back in again.
PN469
And yet you see there in the middle of that form there is reasons for move?---Yes.
PN470
And you have given these reasons now and these background facts in evidence to this Commission and none of that was recorded at the time?---None of which was recorded?
PN471
None of that detail which you have given the Commission today was recorded at the time?---What do you mean? Sorry, I am not with you.
PN472
The details about the reasons for the change?---Yes.
PN473
None of that was recorded at the time on the form provided by the company?---Apparently, no. Other than what is there.
PN474
And nowhere was it indicated that the transfer was temporary?---Or permanent.
PN475
Well, it says movement of employee?---Yes.
PN476
Is there anything in this piece of written evidence which indicates the transfer was other than permanent?---To me there is just a movement. Any movement doesn't necessarily in my perception need to be permanent or temporary. I had great compassion for Jacqui's situation at the time, where I talked to her and even assisted her financially myself. That is the extent of the compassion I had for Jacqui.
PN477
Ms Hetherington, can I ask you about the discussions you had in relation to the wages and conditions that Jacqui was going to enjoy when she moved sites. It has been put to the Commission that the wages and conditions remained the same. That is your understanding?---That was my understanding.
PN478
And that Jacqui specifically asked you about the wages?---That is my recollection, yes.
PN479
And would you not agree that it is entirely understandable from an employee about to be transferred to ask their manager does my wage stay the same?---I would imagine so.
PN480
It is a fairly natural question, is it not?---These days I get asked more is there an increase.
PN481
That might be the other end of the question, but people would certainly be concerned about not wanting to go backwards in any case, would they not?---That is right.
PN482
So in fact the questions Jacqui asked you were fairly understandable in the circumstances?---I guess so.
PN483
Ms Hetherington, were you involved at all in the decision to attempt to move Ms Rennie back into customer service in April of this year?---We have - yes, we had a great need to have another experienced customer service person back within our mainstream customer service team.
PN484
I understand you may have had a vacancy. My question was were you involved in the decision to try and move Jacqui into that position?---Yes, actually I am just trying - I am really - I mean I have sworn on the Bible. I am trying to be absolutely clear.
PN485
That is fine, take your time?---Yes. Yes, I just - the actual decision, how would you say it - - -
PN486
Was the decision - - -?---The decision, no, the decision would not have been made by myself.
PN487
Who was the decision made by to the best of your knowledge?---Ms Faulkner.
PN488
Did Ms Faulkner take your advice as to whether or not you had a vacancy?---Yes, she did.
PN489
Was your advice sought about the original agreement with Ms Rennie to move to the warehouse?---Sorry?
PN490
Was your advice sought at the same time about how you had agreed with Ms Rennie for her to move out in the first place?---I am still not clear, I am sorry.
PN491
Sorry. At the time your advice was sought about whether you had a vacancy?---Yes.
PN492
And you said yes, we do, presumably?---Yes.
PN493
Were you also asked whether or not there was an agreement with Ms Rennie about her move to Ericsson in the first place?---I honestly can't recall.
PN494
Are you aware that Ms Rennie's personal belongings, etcetera, were moved by the company over a long weekend prior to her being informed of the move?---Yes.
PN495
Were you involved in that decision?---Yes - not the decision but the move, yes.
PN496
Did it surprise you that the company would take that action over an individual's belongings before they had even spoken to the individual?---Yes.
PN497
Can I put it to you that it is a strange difference between when Jacqui moved to Ericsson, she sits down with her line manager, reaches an agreement, commits it to writing?---Yes.
PN498
Has a discussion to make sure her pay and conditions are not changed. She is happy, you are happy, away she goes?---Yes.
PN499
When she comes back her personal belongings are moved on Anzac Day?---Yes.
PN500
The first she hears about it and the first her line manager hears about it is when she gets back from the public holiday and she is not asked to do any sort of written agreement?---So the question - - -
PN501
How do you account for the difference between the two approaches?---Well, before it was done by the Blue Star management and it was more done as an in-house smaller scenario whereas now it is from a much firmer HR perspective.
PN502
So this is the new rough and tumble approach, you do not have to ask anybody, you just go and do it in the dead of night?---I don't make the decisions on that.
PN503
Ms Hetherington, to the best of your knowledge is the Blue Star office movement of employee form which you have got in front of you, is that still in use?---Not that I am aware of.
PN504
Is there an equivalent form that is still in use?---Not that I am aware of.
PN505
No further questions, your Honour.
PN506
PN507
MR MILNE: Ms Hetherington, is there currently a vacancy in the customer service team?---There sure is.
PN508
Have you considered Ms Rennie's current level of performance?---Yes, I believe that since John Ryan and I gave Jacqui her warning this year that her behaviour has been exemplary.
PN509
Earlier this year you were required to issue a formal warning, is that what you are saying?---That is right.
PN510
And as a result of that formal warning Ms Rennie's performance has improved, is that correct?---Dramatically.
PN511
The initial redeployment to the Ericsson team was done in your evidence on the basis of Ms Rennie's performance being - well, I think the word was deteriorating because of her personal issues. Are you confident that that has now been addressed to the degree where you could ask Ms Rennie to return to the customer service team?---I haven't had a lot of personal conversations or any personal conversations with Jacqui since she moved out to Ericsson. I don't think so. I don't remember, so really where she is at in her personal life I don't know. But my report back form Mr Ryan since her warning is that her behaviour has been excellent and also I have a dire need for an experienced customer service person and Jacqui is an experienced customer service person.
PN512
Would you go as far as to say that Ms Rennie is the most experienced customer service person in the organisation at the current time?---Yes, I would.
PN513
Would it therefore be logical to move Ms Rennie back into that position?---Providing that her attitude stayed focused, yes.
PN514
So you are saying to me then, Ms Hetherington, if I may summarise it in this way and correct me if I am wrong, but Ms Rennie was - you were quite happy to have Ms Rennie come back into the customer service team should her performance have improved. You have examined her performance as a result of a formal warning instigated by Mr Ryan as her immediate superior and you are happy that she comes back into that role?---I would be delighted to have her back if with her level of experience at the level of performance that Mr Ryan is saying that I think the words hasn't put a foot wrong spring to mind.
PN515
Mr Lyons has made a point of talking to you in cross-examination about the document, if I could use that term, called the movement document. In that document was - the circumstances that led up to that document, did Ms Rennie change her - perhaps if I could rephrase that. The movement that is contemplated in this document?---Yes.
PN516
That is the movement of employment document. Was that simply a move in your mind from one physical location to another physical location?---Yes.
PN517
Without the change of her job description, as I think it was put to you?---Yes. I honestly believed she was going from one customer service role to another customer service role.
PN518
And did you believe that those duties were going to remain substantially the same?---Yes.
PN519
Has Ms Rennie ever said to you that she did not want to come back to the customer service team prior to this particular circumstance arising?---Not that I recall.
PN520
Has Ms Rennie ever indicated to you that she did wish to come back or consider coming back?---Not to my memory.
PN521
Even when Ms Rennie raised with you the issue of the Ericsson team?---That was at the meeting when I said, "You will go out there and you will have the same conditions", and she said, "What if I want to come back". I said, "Well then, we will talk about it", as I said. Yes.
PN522
But Ms Rennie has indicated to you that she would be prepared to come back?---At that meeting, yes.
PN523
Thank you. I have no further questions, your Honour.
PN524
PN525
THE SENIOR DEPUTY PRESIDENT: Mr Milne, who is next?
PN526
PN527
MR MILNE: Mr Scanlon, have you made a statement relating to this matter?---I have.
PN528
Do you have a copy in front of you?---I do.
PN529
Is that statement a true and correct record of your recollections of these events?---They are.
PN530
PN531
MR MILNE: Thank you, your Honour.
PN532
Mr Scanlon, do you have a copy of that statement in front of you?---I do.
PN533
Mr Scanlon, I am going to ask you some questions relating to that statement and I will start by asking you prior to your present position what was the current position you were employed in?---I was the operations manager of Blue Star office in Port Melbourne.
PN534
When did you leave that position?---I left that position on 5 December 2000.
PN535
Do you recall Ms Rennie being redeployed into the Ericsson team?---I do.
PN536
Was this deployment at your initiative?---No.
PN537
Was your area of responsibility, that is, the Ericsson team and I assume - sorry, let me go back. As the operations manager were you directly responsible for the Ericsson team?---Correct.
PN538
Now, was that area of responsibility and that is the Ericsson team, operationally reliant on Ms Rennie being redeployed into that role?---No.
PN539
Was Ms Rennie's redeployment actually, for want of a better term, imposed on you by senior management in that Ericsson team?---It was.
PN540
What was your understanding of the reasoning behind Ms Rennie's redeployment to the Ericsson team?---My understanding was that Jacqui had become stale and needed a change and that was the crux of it.
PN541
What was your impression of the duration of the redeployment? Was it your impression that this was a permanent redeployment and that Ms Rennie was never to go back to the customer service department?---No, it wasn't, no. My belief was that the door was always open to go back to customer service.
PN542
Why do you believe Ms Rennie wa redeployed to the Ericsson team?---Why was she?
PN543
Yes. Was that a performance related issue? Why was she redeployed to the Ericsson team? You have given evidence it was imposed on you, if I can use that term?---Sure.
PN544
Why do you think it was imposed on you?---The regional manager at the time obviously saw that there was a need a data entry person in the Ericsson area. Jacqui fitted that bill perfectly and hence the decision was made.
PN545
Did you have a discussion with Ms Rennie regarding her hours when she was redeployed?---I certainly did regarding RDOs and her hour for lunch on a Friday.
PN546
So Ms Rennie raised with you whether she could have an RDO the same as the other Ericsson team employees?---Correct.
PN547
What was your response to that?---No.
PN548
Did she also raise with you then the question, and this is perhaps a bit more specific, of maintaining her longer Friday lunch hour?---She certainly asked the question and again my answer was no.
PN549
Were you overridden in that decision?---Was I able to, sorry, what?
PN550
Were you overridden in the decision that she could not maintain her longer lunch hour?---I was. I was overridden.
PN551
Why do you think that happened, that you were overridden by more senior people?---To keep Jacqui's wages and conditions identical to what they were.
PN552
So it was your understanding that Ms Rennie had some agreement that her wages and conditions of employment would not alter, is that correct?---Correct.
PN553
So Ms Rennie worked the different wages and conditions than the rest of the Ericsson team?---Correct.
PN554
Why do you think that was so?---Because the perception would be that Jacqui would remain as a customer service operator within Ericsson.
PN555
Sorry, when you say the perception would be, are you saying that Ms Rennie was redeployed as a customer service person and her staff conditions would remain as though she was a customer - as though she was still working in the customer service team?---Correct, ye.
PN556
As the immediate supervisor of Ms Rennie when she transferred or was redeployed to your knowledge did she work under the current certified agreement at - or the certified agreement that was operable at Port Melbourne?---No.
PN557
No?---No.
PN558
While you were Ms Rennie's manager what was her position?---Her position was data entry, processing of orders.
PN559
As a customer service officer?---Correct.
PN560
During the time that you were Ms Rennie's immediate superior, and I certainly, your Honour, say that we understand that Ms Scanlon was only there till 5 December, but during that time that you were Ms Rennie's immediate superior was she employed in what could be generally termed warehouse duties?---No.
PN561
What were her duties?---Data entry, processing of Ericsson orders.
PN562
To the best of your knowledge did she do any or any substantial amount of picking and packing as it is called?---In that period of time, no.
PN563
Were you during that period of time ever instructed that Ms Rennie was to do anything other than data entry and keyboard duty? In other words, were you instructed that she was to carry out warehouse duties?---In that period of time, no.
PN564
Did Ms Rennie raise concerns about her future employment should the Ericsson contract not be renewed and did she raise those with you?---In general discussion, yes, she did. Jacqui was a little bit concerned as to what would happen if Blue Star office lost the Ericsson account and I am under the assumption that she would have had an assurance from both Chris Roberts and Pat Hetherington that if something did happen that the door was always open for her to return to customer service.
PN565
Was it your understanding that Ms Rennie could go back to the customer services department subject to a need and performance basis?---Absolutely.
PN566
I have no more questions, your Honour.
PN567
THE SENIOR DEPUTY PRESIDENT: Mr Scanlon, when did you leave?---5 December 2000.
PN568
PN569
MR LYONS: Thank you, your Honour.
PN570
Mr Scanlon, when you were employed at Port Melbourne facility were you in the warehouse 100 per cent of the time?---No.
PN571
You were the manager of the whole warehouse?---I was the operations manager so I looked after the warehouse, the purchasing area and also Ericsson.
PN572
And presumably you had an office that was outside the warehouse somewhere?---Correct.
PN573
Under examination-in-chief you said that you never saw Jacqui perform warehouse duties in the time you were there, is that correct, up to December?---Being around about an eight week period.
PN574
Is this matter before the Commission Jacqui has given evidence that right from the start she did do some roles in the warehouse. Are you in a position to contradict that evidence?---Her role was - - -
PN575
I am not asking about a role, Mr Scanlon. I said she has given some evidence which says that right from the start of her transfer she performed some warehouse duties. Are you able to contradict that?---What is your definition of warehouse duties?
PN576
The picking and packing work, Mr Scanlon?---Of Ericsson telephones?
PN577
Yes?---My understanding, and remembering this is going back a number of months ago, but my understanding is that Jacqui's function within the Ericsson team was to do data entry. Now, if she did some picking and packing I can't say yes or no.
PN578
So you are unable to contradict Jacqui's evidence that that is what she did?---No, I can't do that, no.
PN579
No, that is fine. Thank you, Mr Scanlon. Mr Scanlon, your evidence in respect of the original move of Jacqui, can I say that your statement itself is full of qualifications, would you agree with that?---Statements?
PN580
Yes, your statement?---Yes.
PN581
If I take you to paragraph 5 of your statement you say that you had an understanding of a perceived need. Do you have any direct knowledge of the decision to move Ms Rennie?---That decision was ultimately made by Chris Roberts who was the regional manager and Pat Hetherington.
PN582
And were you privy to any of the discussions that precipitated that move?---No, no.
PN583
So in fact you were just told about the move, were you not?---Basically.
PN584
And at paragraph 6 you say you had an impression again. Do you have any direct knowledge of that that would put some weight on your impression?---The impression being again that the door in my open was always open. Again that is what I would have been told.
PN585
Did anyone ever say to you, look, this move is temporary?---No. On the same hand - - -
PN586
No, that is fine. Thank you, Mr Scanlon. Now, this use of this term the door was always open, I put it to you that all that means is that Jacqui has reached an agreement to transfer once, she could reach an agreement to transfer back. That is what it means, is it not, Mr Scanlon?---It could have been that, yes.
PN587
Well, what else could it mean other than that?---That the door is not closed, that there is opportunity dependent on a number of things that may or may not happen.
PN588
In the time that you were employed at Blue Star - or by Blue Star, Mr Scanlon, was it the habit of employees just to be able to move themselves around between departments as they wished?---No.
PN589
They needed to get the agreement of the manager to do that, did they not?---Correct.
PN590
And then there would be a vacancy, would there not?---Correct.
PN591
You would have to move to a position that existed?---Yes, or was created.
[12.39pm]
PN592
That is right, either empty or created?---Yes, yes.
PN593
Or in some form, that is right. So the employees did not have the right to simply decide I don't like where I am working, there is a vacancy there, as of Monday I am just going to go and fill that?---No, of course not.
PN594
Those matters had to be the subject of an agreement between the company and the employee, did they not?---Absolutely.
PN595
Can the witness be shown - I wonder if it is still in the witness box, Mr Scanlon, the document marked movement of employee. Sorry, your Honour, I have run out of copies of it. That for the record, Mr Scanlon, is - - -
PN596
THE SENIOR DEPUTY PRESIDENT: Could you just hang on a second, Mr Lyons. Yes, Mr Lyons.
PN597
MR LYONS: Your Honour, perhaps for the record if we record Mr Scanlon is looking at attachment A to the statement of Ms Rennie.
PN598
Are you familiar with this document at all, Mr Scanlon, have you ever seen it before?---The first I saw this document was last Saturday.
PN599
Last Saturday?---Yes.
PN600
What cause did you have to see it on Saturday?---I was shown this document by Fay Faulkner.
PN601
Are you familiar with the form itself, that is, excluding Jacqui details, are you familiar with that form as a Blue Star form?---Probably to be honest with you, probably not.
PN602
And have you had any cause to fill one of those forms in in the course of moving an employee?---I don't recall not movement of employee. Alterations to salaries and so forth, increases, that type of thing, but not movement of employee, no.
PN603
And yet it is headed movement of employee?---Yes. Yes, well look, it is one that, you know, I don't really recall whether or not I have seen a document movement of employee before.
PN604
Does it say anywhere on that document that the move was temporary?---No, it does not.
PN605
Finally, Mr Scanlon, the payment of overtime for the warehouse employees, they are employed under a certified agreement?---Sure.
PN606
And if they work over their normal hours they automatically get paid, do they not?---Certainly do.
PN607
And there is no authority needed to get that payment?---No.
PN608
Because their contract says they are entitled to it, their enterprise agreement?---Yes, the need for overtime within the Ericsson area, as we are all aware, it is fairly great because of the nature of the business so, yes.
PN609
My question was not the volume of overtime. It was if I am rostered till 4 o'clock and I am still there at 4.30 I get paid if I am an Ericsson employee?---Yes.
PN610
And from the time Ms Rennie was employed in the area those conditions applied to her, did they not?---Because of sheer volume of work. The Ericsson business was growing at an absolute rate of knots and you couldn't expect - - -
PN611
All hands on deck?---Well, you couldn't expect someone to work two hours every night for the love of the company I wouldn't have thought.
PN612
I agree whole heartedly, Mr Scanlon?---Every now and again, fine, but not every night.
PN613
She was paid overtime on the same basis as everybody else, was she not? Is that correct?---Yes. My understanding is that is correct, yes.
PN614
And that overtime was the overtime contained in the certified agreement, is that correct?---That may have, yes. Well, I am not disputing that, if that is the case, that is the case. That may in fact be an error on Blue Star's behalf.
PN615
Well, I am asking whether you know, Mr Scanlon. You were the direct manager. It has been given evidence by Mr Ryan that Ms Rennie was paid overtime in line with the certified agreement. Are you in a position to contradict that evidence?---No, no. Absolutely not.
PN616
Mr Ryan said in evidence, Mr Scanlon that you told him in conversation at the time or around the time Ms Rennie was transferred that the transfer was temporary - sorry, was permanent. Do you recall saying that to Mr Ryan?---To be totally honest with you no, I do not recall saying that.
PN617
Is it possible that you did say that and the conversation or that part of it has slipped your mind in the intervening period?---It would be very doubtful.
PN618
But it is possible?---Anything is possible.
PN619
Thank you, your Honour.
PN620
PN621
MR MILNE: Thank you, your Honour.
PN622
Mr Scanlon, payment of overtime, is overtime needed to be approved?---We have a team leader in Ericsson and it is his responsibility because of his role that if there is a need for overtime to be worked that we were quite happy for him to make that decision.
PN623
Thank you. Mr Lyons has raised with you in cross-examination the fact of an employee being able to choose just to say I want to go and work over there. In your experience as a manager is there a difference between an employee electing arbitrarily just to disappear off and carry out a different function as opposed to an employer exercising their right to transfer a person within their classification to another job or same job in a different location, is there a difference?---Of course there is.
PN624
And what is the difference?---Well, the employee just can't make that decision. That employee has to go to that person's supervisor, manager if they have got a problem and then you discuss it through and come up with some of agreement.
PN625
So in this circumstance of this case here today would it be unusual for Ms Rennie to be able to say I just wish to go back there and work in the customer service team, would that be unusual? No, sorry, let me rephrase it. Could she do that, just arbitrarily go off and say no, I want to go now back to the customer service team?---That would have to be discussed with her supervisor, come manager, and an agreement would have to take place between the two parties.
PN626
So there would be agreement on that. However, does management in your view and is it your experience that management can transfer people to other areas within their classification as long as their skill levels are up to that?---Certainly, yes.
PN627
Thank you. No more questions, your Honour.
PN628
PN629
MR MILNE: Your Honour, I have - - -
PN630
THE SENIOR DEPUTY PRESIDENT: Can you just hang on a second.
PN631
MR MILNE: Certainly.
PN632
THE SENIOR DEPUTY PRESIDENT: There is one matter I want to raise with the parties. It is the status of the certified agreement. What has been marked as exhibit L3 is the Blue Star NUW Port Melbourne Certified Agreement 2000 to 2002 which my associate advises me is not a certified agreement.
PN633
MR MILNE: Your Honour, yes, it is.
PN634
THE SENIOR DEPUTY PRESIDENT: Is it?
PN635
MR MILNE: Yes, it is and in fact I have here should you wish to satisfy yourself of it the certification of that agreement.
PN636
MS FAULKNER: By yourself.
PN637
MR CURNOW: I was at the certification, your Honour.
PN638
MS FAULKNER: I was too.
PN639
THE SENIOR DEPUTY PRESIDENT: It was obviously a memorable event. Very well. Sorry, my apologies to the parties. It appears it is a problem with the Commission's case management system. That might be a convenient time for the adjournment. You have got one more witness, have you?
PN640
MR MILNE: Yes, I have, your Honour, and just so that you make your arrangements for the afternoon that will only take - that witness will take a very short period of time. He is only simply going to talk about the meeting, so it is not a long - - -
PN641
THE SENIOR DEPUTY PRESIDENT: It depends on the cross-examination I guess.
PN642
MR MILNE: Yes, I am aware of that.
PN643
THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn the matter until 2 o'clock.
LUNCHEON ADJOURNMENT [12.50pm]
RESUMED [2.09pm]
PN644
THE SENIOR DEPUTY PRESIDENT: Mr Milne.
PN645
PN646
MR MILNE: Mr McFarland, have you made a statement in this matter?---I have.
PN647
Have you got a copy of it in front of you?---I do.
PN648
Your Honour, that statement was attached to the original application, if I could enter that into evidence.
PN649
PN650
MR MILNE: Thank you. Mr McFarland, could you just for the purposes of the record state your position at the current time?---Certainly. My position is State Manager Boise Cascade Office Products, State of Victoria.
PN651
Thank you. If I could refer you back to October last year, what was your responsibility for the Port Melbourne site at that time?---I had none. I joined Boise Cascade January 22 this year.
PN652
Sorry, okay. My apologies. Subsequent to January this year what were your responsibilities down at Port Melbourne?---Subsequent to January, yes. I had been involved in commuting between Mulgrave and Port Melbourne in essence primarily with the responsibility for customer service and internal sales and in fact sales representation, but I did assume a broader responsibility.
PN653
Thank you. On 27 april did you conduct a meeting of the group of employees known as the Ericsson team?---I did.
PN654
What was the purposes of that meeting?---The purpose for the meeting was to communicate the results of a meeting held with the Ericsson group on 23 April which was in fact conducted between Ericsson and Boise Cascade to determine the future work relevant to Ericsson.
PN655
Was that a communication meeting only?---The meeting on the 27th was a communication meeting, yes.
PN656
Thank you. Prior to that meeting occurring were you questioned by Mr Ryan as to whether Ms Rennie should attend that meeting?---Yes, John and I had briefed - in fact I had shown John copies of notes that I had put on a whiteboard in preparation for the meeting because I thought in courtesy and good faith that I should in fact run by that John. It was a chronology of events and as such I felt it was appropriate to have John in and John inquired as to whether we would have the whole team and I said there was no need to preclude anyone from the meeting.
PN657
The question of precluding anyone from the meeting that relates particularly to Ms Rennie and your decision was to include her in that meeting as a matter of courtesy, is that - - -?---As a matter of courtesy. In reality it was a communication meeting because I realised there was real urgency associated with the group in wanting to know their future and as such the intent of the meeting was clearly to communicate the status of future work.
PN658
Did you at that meeting speak to any individuals about their specific circumstances?---No, I did not because this was specifically a group communication and as such it was intended to be a broad communication on the basis of future work.
PN659
Were you able to speak to any person or in fact were you authorised to be able to speak to any person about their individual circumstances at that meeting?---I did not speak to people individually and nor at that time would I have been authorised to provide alternative employment offers.
PN660
Why were you not able to do that?---We are still in the position of concluding those offers even now with posting opportunities in the business.
PN661
Thank you. So if I could perhaps just ask you one question in response to all of your answers. Now, what was the purpose of the meeting?---The purpose - in good faith the purpose of the meeting was to meet the expectations of the group and that was to determine in their minds the future status of work in Ericsson in relation to the Boise Cascade Office Products business and acquisition of Blue Star.
PN662
Thank you. I have no further questions for this witness, your Honour.
PN663
PN664
MR LYONS: Thank you, your Honour.
PN665
Mr McFarland, you said you joined the business on 22 January, is that right?---That is correct.
PN666
So you have no direct knowledge of the original transfer of Ms Rennie to the warehouse?---I do not, no.
PN667
Mr McFarland, I would like to ask you some questions about the company's decisions in relation to the Ericsson contract. You have given evidence that there was a meeting or a series of meetings between Ericsson and Boise concerning the contract?---There was an original plan to have meetings and I believe a meeting prior to my joining. To the best of my knowledge there have been three scheduled meetings which have been cancelled and to that end and by Ericsson themselves I hasten to add. At that time it led us to the meeting whereby we achieved a date of the 23rd for a meeting with Ericsson.
PN668
Okay. And for whatever reason your business has chosen to sever its relationship with Ericsson as of the end of this week?---It has indeed.
PN669
And that is presumably a commercial decision?---It is a commercial decision, yes.
PN670
And as a result of that the work that was performed at Port Melbourne that we have been referring to as the Ericsson team or the Ericsson contract that is no longer required?---That is correct. It ceased to exist.
PN671
So that will result in a restructure of some form at the Port Melbourne facility?---It will involve the Ericsson business being redeployed to a new supplier at that point. At this point I can't convey categorically who that new supplier will be.
PN672
I was more concerned, Mr McFarland, with the effects on your business at Port Melbourne rather than what Ericsson may do with its contract. The decision for Ericsson to move will mean a restructure of the Boise business at Port Melbourne, is that right?---No, it will not because in effect the business which was early life failure and spare parts, that business will be given to another organisation with the agreement of Ericsson, therefore our business will be continued to supply stationery, office products from that location.
PN673
Perhaps as a matter of emphasis, Mr McFarland, I was not suggesting your whole operation disappears but that the Ericsson business will no longer be at Port Melbourne?---That is correct.
PN674
And as a result of those, I think it is five or six positions, five enterprise agreement positions certainly?---Certainly. I understand it is five, yes.
PN675
Those positions will disappear, is that correct?---Yes, they cease to exist as a result of the decision taken on the 23rd.
PN676
And the reason that they cease to exist is that you no longer require that work to be done by anybody, do you?---We don't require that work to be done. It is no longer part of our business.
PN677
And in actual fact those employees are being made redundant tomorrow, are they not?---They are indeed.
PN678
And they are being paid in accordance with the certified agreement, is that correct?---They are to the best of my knowledge.
PN679
So they are not being redeployed?---The intent and as I understand it is that those persons being made redundant tomorrow some three people will in fact be available to continue some work in good faith for some two weeks duration and that is an understanding, a business understanding between Ericsson and Boise Cascade that should the process of redeploying the work extend past 29 June we would make provision to assist.
PN680
Yes, but that is very short term until - once Ericsson gone it is gone though, is that - - -?---Correct.
PN681
But they are only back after Friday to finish off the Ericsson work?---Yes, I believe that to be true. I would like to add though that it is hopeful and desirable that should those people work out with the new supplier that that might be an opportunity but I can't be categoric about it and we would have to hope that that was the case.
PN682
That is with whoever else gets the Ericsson business?---Sure.
PN683
I see, right?---That is true.
PN684
Now, Mr McFarland, are you able to tell the Commission the broader future for the Port Melbourne site?---Yes, I can. The Port Melbourne site as a result of the acquisition will in fact cease to operate mid to late August based on our schedule of activity. That means that we will be relocating those personnel to Mulgrave, 636 Wellington Road, Mulgrave.
PN685
All those employees?---The employees that have been - the predeterminate employees, yes.
PN686
My understanding is that the union has been advised that the site will cease operating on 17 August in respect of its membership, is that a date you believe is accurate?---I believe that is accurate.
PN687
Do I take it to mean that the company has a view that a job at Port Melbourne is the same as a job at Mulgrave?---The company would hold the view that work is of equal importance.
PN688
Are you aware how far apart Port Melbourne and Mulgrave are, Mr McFarland?---Not in kilometres but I know it is a fair drive and we know that is an hour or so, yes.
PN689
Yes. Just one moment, please?---Sure.
PN690
Mr McFarland, would it surprise that the distance to Mulgrave is approximately 35 kilometres?---It doesn't surprise me, no.
PN691
Do you believe it is reasonable for the company to say your job is now 35 kilometres away from where it used to be?---I believe the company has a right to predetermine where its work be conducted.
PN692
Without limitation?---Within fair and reasonable intent.
PN693
Well, sure. I mean you cannot say your job is now in Townsville presumably and expect someone to turn up on Monday?---No, no. Understand that.
PN694
Do you have any view about where that reasonable limitation might be?---No.
PN695
Well, I put it to you that a move of 35 kilometres for a person who works in Port Melbourne is an unreasonable move?---Some are doing it.
PN696
Yes, Mr McFarland, some people may agree to do it. I put it to you that to require an employee to do it against their wishes would be an unreasonable requirement, would you agree with that?---No, I do not.
PN697
So you accept that you if close the Port Melbourne the persons there are redundant?---I accept that the work that is associated with that site ceases to exist. I don't accept that it makes the personnel redundant.
PN698
Nothing further, your Honour.
PN699
PN700
MR MILNE: Thank you, your Honour.
PN701
The meeting that you conducted on the 27th addressed the redundancy of the Ericsson team, is that correct?---Can I have the question again, please?
PN702
Yes, the meeting of 27 April, your communication meeting that you have given evidence about, addressed the redundancy or the - perhaps if I rephrase that. That there was no longer a requirement for the Ericsson team to exist, is that correct?---That is correct. That is correct.
PN703
Did you at any stage indicate to the individuals that their jobs - that they were no longer required by the company?---I indicated - - -
PN704
As individuals?---As individuals, no. As a group I indicated that their jobs would cease to exist at June 30.
PN705
That is jobs within the Ericsson team?---Correct.
PN706
It has been raised with you the distance between Port Melbourne and Mulgrave as being an unreasonable distance to travel by an employee. Are you aware of where Ms Rennie lives?---I am not. I may have been told, I can't recall, but to be honest I do not know.
PN707
In your opinion would it be shorter to travel from Carrum to Mulgrave than from Port Melbourne to Mulgrave?---Carrum is Frankston way so it sounds a similar type distance.
PN708
Are you now aware where Carrum is?---No, not I am not particularly. Not in kilometres.
PN709
I am aware of the kilometres?---Geographically perhaps not very good on that I am afraid.
PN710
Okay. Would you assume that it was a reasonable response - should the distance between Carrum and Mulgrave be a far shorter distance than Port Melbourne to Mulgrave would you expect that a reasonable request to ask a person to travel that distance?---Very reasonable request.
PN711
Thank you. I have no further questions, your Honour.
PN712
PN713
THE SENIOR DEPUTY PRESIDENT: That completes the evidence?
PN714
MR MILNE: It does from my side, your Honour. Thank you.
PN715
THE SENIOR DEPUTY PRESIDENT: Submissions.
PN716
MR LYONS: Thank you, your Honour. If I may just briefly deal with that last point that came out in evidence. My understanding is there has not been any formal indication to Ms Rennie that her job will be relocated to Mulgrave. It is simply a notorious fact among the employees that Port Melbourne is closing, so I think that last exchange that was sparked by my cross-examination probably is a matter through to the future that is not currently - the employees have not been advised they are going to be required to move to Mulgrave. So that is rather a new issue that has come up I think.
PN717
THE SENIOR DEPUTY PRESIDENT: Yes.
PN718
MR LYONS: If I can start, your Honour, by dealing with that issue which you invited the parties to address during submissions and that is in relation to the interrelationship between the award clause and the certified agreement redundancy provision.
PN719
THE SENIOR DEPUTY PRESIDENT: Yes.
PN720
MR LYONS: I might say that your Honour did refer us to a particular Full Bench decision which, if I might say, we are still absorbing. However, and I understand this to be - - -
PN721
THE SENIOR DEPUTY PRESIDENT: Do you want 10 minutes to absorb it?
PN722
MR LYONS: It would be of great assistance. It was provided both to my friend and myself.
PN723
THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter until quarter to three.
SHORT ADJOURNMENT [2.25pm]
RESUMED [2.49pm]
PN724
THE SENIOR DEPUTY PRESIDENT: Mr Lyons.
PN725
MR LYONS: Firstly, thank you, your Honour for the adjournment to give us the opportunity to absorb that decision. In addressing it I may start by referring directly to the issue of award and agreement overlap. The union submits and I understand this is not opposed, that the effect of clause 5 of exhibit L3, which is the relationship with parent award, is that the provisions of 18.3 of exhibit L3 overriding the entirety of the redundancy provisions of the relevant award in that they do provide for severance pay, time off during periods of notice, refers to those matters that the employer ought take account in attempting to find an alternative to redundancy and also picks up the provision that it does not apply in cases justifying summary dismissal.
PN726
So I think it is a joint submission of the parties that the agreement covers the field and therefore that much of the provision which the Full Bench was dealing with in the authority that has your Honour referred us to has no application in that much of that argument other than the jurisdictional question, which we do not see as applying, dealt with whether or not the adequate alternative employment provision ought to have been exercised in the Commission's original decision.
PN727
Now, we say in this instance that is not the case. In any case the company says the agreement has no application in any case. Even if it does, which obviously we say that it does, the redundancy provision does not contain an equivalent provision to that which the Full Bench relied on in making its judgment. So what I would say though, your Honour, is that if I can take you to paragraph 7 of the decision - page 7 of the decision.
PN728
THE SENIOR DEPUTY PRESIDENT: Yes. I have got the sort of internet copy so whereabouts are you? Perhaps if you go by the footnotes it might assist.
PN729
MR LYONS: Yes. Around footnote - the paragraph below footnote 20
PN730
THE SENIOR DEPUTY PRESIDENT: Right.
PN731
MR LYONS: The paragraph beginning, "In the alterative Mr Hungerford".
PN732
THE SENIOR DEPUTY PRESIDENT: Yes.
PN733
MR LYONS: Now, we say this gets to the element which does have similarity to this case which is whether or not there was an actual true redundancy in the situation or merely a movement of the same job. So we differentiate on the facts here. It is in evidence that the Ericsson job is gone, it is redundant. The job is no longer to be required to be done by anybody anywhere. Much of the logic in this decision appears based on the fact that a factory was being picked up and moved from one suburb to another and that in effect the jobs were largely the same.
PN734
Now, we say that the evidence in this case is that the job itself is gone and that is uncontested from the employer and that there is no requirement of anybody to perform the Ericsson role which Ms Rennie currently performs. If I could take you then to around about footnote - the paragraph below footnote 36, your Honour.
PN735
THE SENIOR DEPUTY PRESIDENT: And it begins?
PN736
MR LYONS: "In the circumstances we conclude that the contract of employment".
PN737
THE SENIOR DEPUTY PRESIDENT: Yes.
PN738
MR LYONS: I might read that paragraph, your Honour -
PN739
In the circumstances we conclude that the contract of employment of each of the employees who gave evidence ...(reads)... could require transfer to St Mary's.
PN740
Now, your Honour, we leave aside for the minute the question of transfer to Mulgrave as there has been no formal request to do that. But in terms of transfer between one area to the other we say that this is exactly the approach your Honour ought adopt, is to examine what we have before us about Ms Rennie's contract of employment and whether or not there is any implied term which allows the employer to unilaterally require her transfer and in fact the evidence is the opposite, that they cannot unilaterally require transfer because on the one occasion that has been done, which is in evidence as attachment A to Ms Rennie's statement, that has required her agreement.
PN741
There is unfortunately I think nothing in evidence about her original letter of appointment or contract of employment so we can only go on what we have before us and what we have before us is in October 2000 the company acted such that it required Ms Rennie's agreement to be transferred. Now, other than some change to the human resources structure of the company nothing has altered between October and now which allows a different approach. We say it would be unfair to Ms Rennie to there have been one process for her move to Ericsson but a fundamentally different one if and when the company requires her to be moved.
PN742
We say that is consistent with the approach the Bench adopted in the decision to which your Honour has referred. In the following paragraph below where I was just referring your Honour to the Bench then discusses some observations of Lord Denning in respect of repudiatory breach of contract where essentially that because an employer has unilaterally sought to vary the contract, if the employer does not accept that the contract has effectively been repudiated, and I think that is the logic that flows from the point.
PN743
Now, we say that in effect that would be what has happened here given Ms Rennie's refusal to move back into the customer service role and we say that that follows from the evidence that is before us, that her contract was as of 2 October 2000 with Ericsson rather than in a more general customer service position. Your Honour, unless there is anything else that you specifically seek me to address out of that decision I leave my remarks there.
PN744
In relation to the general submissions, your Honour, we say that on the evidence that you ought determine that the facts of the case are as follows, that Ms Rennie was employed until October 2000 as a customer service person, or a customer service employee, that the term customer service is not one that relates to a classification of an award or agreement, that it is a term of job title or a term of convenience that is utilised by the company without necessarily any contractual status because there is no evidence of that, that prior to October she was employed under what might loosely be termed staff, or probably more accurately, non award conditions, that on 2 October 2000 Ms Rennie and her direct manager, Ms Hetherington executed an agreement which amounted to a variation to her contract of employment, that variation was that she was now employed as a customer service - if I might start that again - she was now employed under the description Ericsson customer service on duties that involved functions in the warehouse which were fundamentally to what she had previously been employed as.
PN745
Specifically, all contact with customers was removed from her job and on Ms Rennie's evidence which was supported by Mr Ryan and unable to be contradicted by Mr Scanlon, from the time she commenced in the warehouse her duties were data entry and what we came to describe as the broader warehouse functions which was the picking and the packing, the more traditional warehousing type functions. We say that is what the variation was. That was a variation which the company acknowledged at the time required her agreement and we say cannot be undone by unilateral action of the company.
PN746
At the time that that document was executed it was open for the company to express that as either being probationary, as it being temporary, as it being for a limited time or for the duration of a task. None of those things were done and in both the written evidence says that it was - the written evidence is expressed with no qualification and Mr Scanlon on the evidence of Mr Ryan said that it was permanent. Ms Rennie has given evidence that she was told it was permanent and we say that evidence ought be preferred to the qualified evidence of Ms Hetherington that she had intended it to be only temporary.
PN747
We say that until the possibility of the redundancies was raised, your Honour, everyone treated Ms Rennie as if she was a permanent employee in the area. Her direct and other managers at all times since 1 October have treated Ms Rennie as if she was a permanent employee in the Ericsson contract. The issue of her being treated as being a temporary or it being a temporary assignment has arisen only since the redundancies were announced, or in fact some two days before.
PN748
So in fact we say that it is open for you to find that this argument is actually one of convenience for the company because it does two things. One, it saves them money because it involves them not paying a redundancy, and secondly, it enables Ms Hetherington to plug a hole which she says she has in her customer service line, but it is an argument which is contrived based on how Ms Rennie was originally treated in the period since her transfer of employment.
PN749
If I can point out to your Honour that - and I understand this was not in evidence but I understand it not to be an argued point, that the package that would apply to staff is capped at some 16 weeks severance pay. There is an uncapped four weeks per year package contained in exhibit L3 which would otherwise apply to Ms Rennie in the event of her termination through redundancy.
PN750
THE SENIOR DEPUTY PRESIDENT: Do you understand the other employees, the other five, are tomorrow to receive severance pay in accordance with clause 18 of the agreement?
PN751
MR LYONS: Yes, your Honour, and my understanding is that was Mr Ryan's evidence or part of Mr Ryan's evidence. I think his evidence was that they had been given the figure earlier this week and would receive the cheques tomorrow.
PN752
THE SENIOR DEPUTY PRESIDENT: As part of that, have they been given - clause 18 also provides for notice. Have they been given notice?
PN753
MR LYONS: My understanding, your Honour, is that the employees were given a month's notice. However, I am instructed that there may be still some possibility that the notice is also paid out as well. But the employees were advised a month ago that their employment would be terminated tomorrow. It was put in earlier proceedings before your Honour and touched on in the written outline filed by my friend that the employer has some general right to move employees around as they wish. We dispute that.
PN754
We do not say that there is any general common law right of an employer to simply move employees. The rights of the parties need to be grounded in the actual form of a contract. Now, as I said earlier, the evidence we have of the contract that applies here is that movement of the nature that we are talking about has required the agreement of the employee and I note that there has been no authorities referred to to any sort of general power of employers through management prerogative I presume to simply move people around and we dispute that that in fact exists.
PN755
We say that the approach of the courts and tribunals to this general question of the contract of employment has been quite a simple one which is that there is an examination of the facts of the case as to whether or not that has actually constituted either first of all a variation or in some cases a new contract entirely. We say that there is good evidence before you that there was a substantial variation of the contract in October 2000 which was the result of a genuine agreement between the employer and Ms Rennie and that the subsequent actions of the employer amount to an attempt to unilaterally repudiate that contract by variation of it and that whatever the original intentions of Ms Hetherington, the reality is that Ms Rennie has in the period since October 2000 become an employee who was engaged in the warehouse on a range of duties which are far removed from her original functions in customer service before he transfer to Ericsson's.
PN756
She is now employed, we say, under the certified agreement, as a member of the union performs the same duties as the other members and is paid overtime on the same basis as the other members. The distinction that is there is that she retained her pay rate, which is not unusual in the circumstances, and she has some variation of the hours of work. Specifically she is not provided with an RDO, however she still retains a slightly different break provision on the Friday which is in evidence.
PN757
We say in the circumstances that none of that is necessarily inconsistent with the enterprise agreement, but where something greater than her previous conditions have applied, for example, in respect of overtime, since her transfer in she has been provided with that higher standard and we say that is evidence that from the period of October 2000 the enterprise agreement has represented her contract.
PN758
In closing, your Honour, we do stress that the other five persons who were performing the same types of roles as Ms Rennie on the Ericsson contract are all to be made redundant tomorrow and we say it would be on that basis unfair that given that she does not wish to transfer back to the other employment for Ms Rennie to be excluded from the operation of what we say are her conditions under the certified agreement. Clearly I think it would be preferable if Ms Rennie had been comfortable with the transfer because it is always better for people to have a job, but in the circumstances where she does not wish to do so we say she is entitled, as are her fellow workmates, to receive the severance entitlements under the agreement.
PN759
Unless there are any questions, your Honour, we would rely on the evidence and the written submissions that we have filed.
PN760
THE SENIOR DEPUTY PRESIDENT: Mr Milne.
PN761
MR MILNE: Thank you, your Honour.
PN762
PN763
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Milne.
PN764
MR MILNE: Your Honour, if I could address that decision that your associate was kind enough to give us to during the proceedings. In the limited time I have had to look at it, it appears to me that that decision particularly relates to a set of circumstances where a group of employees was expected to transfer a significant distance from one plant to another. The Full Bench made its decision on the basis of that in particular and we would say to you, your Honour, that in the circumstances here that is not - and I will address some of the principles that the Commission has put in that decision, but in this circumstances that we are talking about, the transfer that is required at the time is simply a matter of about 10 feet, or perhaps a little bit more than that, but literally from one side of the wall into another side of the wall.
PN765
So the Full Bench's decision relates to exercising its discretion as to whether a redundancy payment should be, or in fact a redundancy did occur, and it did find that there were redundancies occurring but was it was in the particular circumstances of moving from one plant to Annandale as I understand it. Now, interestingly enough in the decision - - -
PN766
THE SENIOR DEPUTY PRESIDENT: But the customer services officer - - -
PN767
MR MILNE: Sorry, your Honour?
PN768
THE SENIOR DEPUTY PRESIDENT: The customer services officer administration, which I think is the position you wish to transfer Ms Rennie to.
PN769
MR MILNE: Yes.
PN770
THE SENIOR DEPUTY PRESIDENT: In around the middle of August that is to transfer to Mulgrave.
PN771
MR MILNE: Well, it may occur or it may be a redundant position. That is a fact, your Honour, yes. It may transfer to Mulgrave but Ms Rennie as I understand it lives in Carrum anyway.
PN772
THE SENIOR DEPUTY PRESIDENT: But the alternative is the position transfers or it is a redundancy in the middle of August?
PN773
MR MILNE: Well, it is in two stages as we see it, your Honour, and the matter that is before you currently is whether she transfers, for want of a better term, or redeployed as we put it, from the Ericsson team to the customer service administration. That is the fundamental problem at the moment. The issue of whether she gets a redundancy package if she is made redundant when the customer service team moves - that is the customer service administration moves to Mulgrave, is a separate issue. The matter before you is whether we are entitled to transfer her at the current time to the customer services team administration.
PN774
THE SENIOR DEPUTY PRESIDENT: But the customer service team administration is going to move to Mulgrave?
PN775
MR MILNE: Eventually it will, yes, your Honour.
PN776
THE SENIOR DEPUTY PRESIDENT: In the middle of August?
PN777
MR MILNE: Well, yes. My recollection is that it was 17 August or something of that nature. Yes, and it may happen. Well, it will happen. Now, whether Ms Rennie is located closer and chooses to go there or not it is something that has not been discussed yet. Now, your Honour, if I could go back to the Full Bench and interesting in how it can be read in a number of different ways. The Full Bench - and if I could perhaps refer you to footnote 36.
PN778
Now, that is just above that paragraph that was read out Mr Lyons, but under - - -
PN779
THE SENIOR DEPUTY PRESIDENT: Are you reading a paragraph above footnote 36?
PN780
MR MILNE: Well, actually the part commencing, "Under the terms of the award".
PN781
THE SENIOR DEPUTY PRESIDENT: Yes.
PN782
MR MILNE: The Full Bench makes a fairly categoric statement there, "Under the terms of the Award" - and we accept that this award is a different one, but it says:
PN783
It is open to an employer to require performance of work away from the normal place of business.
PN784
Now, the Full Bench has adopted a principle in the next statement and it says:
PN785
However, we take that provision to refer to a change of site of particular work rather than to a change of the normal place at which the work is carried out.
PN786
Now, that is the whole essence of where it made its decision. We are saying that there is no change of site. Ms Rennie is being required to move 20 feet, or whatever it may be. So the determination of the Full Bench does not have application in that sense to this particular circumstances. But what it has done is recognised, if you look at that in perhaps the reverse, the Full Bench has recognised that the employer has the right to move a person within their classification and to do those duties that they are qualified to do, and these are my words, your Honour, but we would read that to have certain application to this in that the reverse applies; that where an employer is not required to move to another site then the employer can expect them to move within their classification.
PN787
Now, Mr Lyons also referred to Lord Denning's quotes and that is if the employer - if I could quote and that is just under that, your Honour, just underneath footnote 37 in the Italics in the quote:
PN788
The employer is guilty of conduct which is significant breach going to the root of the contract of employment ...(reads)... by reason of the employer's conduct.
PN789
We would say the opposite applies as well, your Honour. Now, if the employee essentially repudiates the contract of employment by not moving as required, as I think I have tried to point out to you what we believe the Full Bench meant in the previous part of that decision that I went through with you, your Honour, we would say that equally applies to the employee. And the Full Bench has accepted that or has made that commented - I am sorry, Lord Denning has made that comment which has been relied upon by a number of Full Benches as I understand it.
PN790
So our submission to you, your Honour, is if the employer by altering the contract of employment or refusing to accept parts of it repudiates the contract then so does the employee. We are saying the employee, given the previous comments of the Bench, is required to move to another job or another position, whatever it may be called, within the same location in accordance with these sort of principles and therefore if the employer/employee does not accept that then they have repudiated the contract of employment, as the employer would have.
PN791
If I could then take you, your Honour, to just underneath footnote 38 and in fact it includes footnote 39 and footnote 40. The Bench again has dealt with this matter and it says:
PN792
It is a matter of degree whether an employer's relocation of a place of work is a breach which goes to the root of the ...(reads)... termination of employment.
PN793
I would say, your Honour, that if the reverse is applied again that particular principle means that an employer, if there is not two fundamental that existing and that is, a change to a further away establishment or - sorry, if it is not a relocation of the place of work within the same general locality, it would not be held to be sufficiently fundamental. We are saying that there is no relocation of any significance and therefore it is open to you to determine that Ms Rennie is required to move at the employer's discretion from one location to another within the same site.
PN794
If one was to take Mr Lyons submissions to the nth degree one could argue that you could not tell a maintenance fitter to move from that machine and work on it to that machine and work on it. The employer has, and we think that is what the Full Bench is saying here, under circumstances where there is a significant distance to be travelled it may be yes, a repudiation of the contract or the employee may be entitled to redundancy under those circumstances. But I think the decision has to be read in relation to those particular comments that I have made regarding that and I think the reverse applies.
PN795
What the Full Bench did in this case, as I understand it, your Honour, is consider the whole range of issues and I think the major issue was the relocation. It also found that work had been offered to the employees at Annandale and therefore there was some reduction in the entitlement that was payable to the employees as a redundancy. It recognised that the employees had a right or that the employer had offered employment and therefore there was some mitigation as to the amount of payment that the employees were entitled to.
PN796
We are saying that in this circumstance Ms Rennie is simply being moved a small distance and therefore there should be no payment in accordance with this agreement and the fundamental principles of this apply if you read them in the reverse. I do not know whether I have confused myself or your Honour more but I think that is what we are saying, as relates to that decision. We think that the decision can be read in a favourable light and it is simply not sufficient to pluck out a part of it and must read the context and apply it to read the decision in the context of what is occurring here today, or the circumstances of this particular case before you.
[3.19pm]
PN797
Your Honour, if I can just move on then, unless you have got some questions on that. If we could move on to the general submissions. It is quite clear that Ms Rennie has refused to return to the customer service team. We are currently before you for that particular reason. Ms Rennie has claimed that she has been employed under the current certified agreement applicable to the warehouse. We have heard evidence from a number of people that Ms Rennie was not employed under the terms of the certified agreement.
PN798
It is quite obvious that the certified agreement, had it implied, would have applied to RDOs. It would be unusual for us to be sitting here today and not have a union having made a claim for an RDO for an individual should they be working under the agreement. Now, we are saying that this particular exercise must be looked at in the context of what occurred. Now, you have heard evidence and it has not been refuted about Ms Rennie's performance. You have heard evidence and which has not been refuted about Ms Rennie being moved to the Ericsson team to give her a chance to - I think it was put in the terms of get her life together and we have heard evidence that it was not of a permanent nature, although it was not ever specified that it was a casual nature in writing.
PN799
But the inference and the discussions that occurred and the discussions that occurred between Ms Hetherington and Ms Rennie, and as I understand it, Mr Scanlon and Ms Rennie, related to her questioning of whether she could come back and indeed she has been told that yes, she could but it was essentially - and I am paraphrasing here, your Honour, that that would be subject to her performance improving. Now, it has also been put to you and I do not think it is arguable that Ms Rennie's performance has improved as a result of a formal warning, a formal warning that was taken in March, as I understand it, and that was to address a significant problem with Ms Rennie's performance. Marked improvement I think was the term that was used subsequent to that particular warning being issued.
PN800
It is a matter of agreement I think that there is - or perhaps not agreement, that is perhaps too strong a word, but I think it has not been contested that there is a need for a customer service officer in the customer service team. It has also not been contested that Ms Rennie is the most experienced customer service officer in the establishment. It would be logical and in fact is appropriate for Ms Rennie to pick up that position. Ms Rennie is capable of doing so. The evidence that we have put before the Commission is that Ms Rennie is still classified as a customer service officer and was prior to her move and would be again should she return to the customer service team.
PN801
There is no change in her job description or role. She is simply being moved from one seat to another seat to perform the same functions. We would say to you, your Honour, that Ms Rennie agreed to that and agreed that her staff conditions remained. In fact was active in pursuing her staff condition as a prerequisite to moving to the Ericsson team. My Lyons had indicated to you that it was only relating to the hours of work and the wages. Well, I would suggest, your Honour that the two most significant issues that any employee would deal with would be the hours and the wages and both of those aspects of the contract of employment have remained as per her staff agreement.
PN802
PN803
MR MILNE: Thank you, your Honour. But, your Honour, if I could take you to the certified agreement and I think we are in agreement with Mr Lyons on it and we have had brief discussions about it relating to whether the award applies. I think it is appropriate to say that both Mr Lyons and myself and the company believe that the redundancy provisions contained in this agreement do override the redundancy provisions in the award in total and in fact that was the intent of it as I understand. So what we are talking about is that the terms governing redundancy are contained in our view in this particular clause which is clause 18.
PN804
THE SENIOR DEPUTY PRESIDENT: Yes, although I assume both yourself and Mr Lyons understand that because you say it does not mean it is so as a matter of law.
PN805
MR MILNE: Absolutely, your Honour. Yes, I do. If I could take your Honour to clause 18. Now, this is a certified agreement and it is an agreement that is certified with the NUW as party to it and indeed the company and indeed all of the employees, persons and parties bound refer to all the employees whether union members or not and it is the traditional thing, the company and the NUW.
PN806
Now, the second sentence or small paragraph within that redundancy provision refers to - and if I could read it, your Honour, it says, "If this occurs", and this referring to retrenchments -
PN807
the employer shall investigate all alternatives to retrenchment including redeployment at the same level or lower ...(reads)... final decisions are made.
PN808
Now, your Honour, we would say that the company is duty bound, well, in fact is bound by the agreement to carry out that process. We would say that the union is bound to accept that that process will be carried out and the employees are bound to accept that that process will be carried out. We would also it is inferred in that, your Honour, that should the employer find alternatives to redundancy then it is bound by this agreement to explore those redundancies - those alternatives and we would say as a result of that it is inferred that they should implement those alternatives.
PN809
Now, it quite specifically talks about redeployment. That is what we are saying is occurring here. Now, what we are saying, your Honour, is that Ms Rennie is not working under this agreement. However, if you find that she is working under this agreement then she is bound by this agreement in its totality as is the employer and the union and it is incumbent on each of the persons or each of the parties to accept that redundancies once they are occurring are subject to persons being redeployed, etcetera, as in paragraph 2 of the redundancy provisions.
PN810
Now, if you find that that is the case, that Ms Rennie is covered by this agreement, we would say the employer has acted in accordance with this certified agreement and has put in place an alternative to redundancy for Ms Rennie at the current time. Now, it would be I think fair of me to say without referring to any case histories that this Commission, and indeed most certified agreements, the intention is to avoid redundancies. It is not the position, I would submit to the Commission with the greatest respect, for the Commission to accept that someone should be made redundant simply because they want to be made redundant for their own particular reasons.
PN811
This agreement puts in place a process and indeed the employer has abided by that and has found a redeployment for Ms Rennie that is appropriate within her skill levels and in fact within the same classification that she does and indeed within her current locality. Now, as I have said, this is a certified agreement and we believe that Ms Rennie is bound to accept that, as is the union bound to accept it, and as is the employer to go through that process. I think I have already said to your Honour that we do not believe she is currently working under it and she is working a staff thing but I am reminded to reiterate that point.
PN812
Your Honour, we think that Ms Rennie has been employed for a lengthy period of time under what are, I suppose, colloquially known as staff terms and conditions and she is still working to them. We would say that it is unfair for Ms Rennie to take a position that requires the company to make her redundant when there is other employment available to her. We would also say that it is unfair for Ms Rennie to claim redundancy payments under the terms of this agreement that for the last 15 years, apart from eight months, that she has been employed under different terms and conditions.
PN813
That is reflected I think, your Honour, perhaps in the principle in that Full Bench decision where the Bench made some sort of reduction in entitlement, if I can use that term, because the employer had made some offer of employment although albeit some distance away. But if we look at this particular case in its case and that is that Ms Rennie was transferred in our view for one reason and one reason alone and that was to allow her to perhaps get herself together and to be able to come back into the customer service area.
PN814
There was another alternative which was not pursued and obviously that was a more serious alternative. We are now saying that she has lifted her level of performance according to Mr Ryan as we understand it to an acceptable level which would require her to come back - or would enable her to come back into the customer service role that she is qualified to carry out. Your Honour, I think we have canvassed most of the aspects of it so I will not go through any more. If the Commission pleases, that is our submission.
PN815
THE SENIOR DEPUTY PRESIDENT: Mr Milne, the employer is Blue Star Pty Ltd, is it?
PN816
MR MILNE: No, that has actually changed, your Honour. It is now Boise Cascade, as I understand it, trading as Blue Star. Blue Star was an acquisition of Boise Cascade and ceases to be - I am sorry, I am reminded that it is actually National Office Products trading as Blue Star. Boise Cascade must be another trading name.
PN817
THE SENIOR DEPUTY PRESIDENT: Okay. So the employer is actually National Office Products Pty Ltd trading as Blue Star, etcetera?
PN818
MR MILNE: Yes, trading as Blue Star.
PN819
THE SENIOR DEPUTY PRESIDENT: And the employees who are to be made redundant tomorrow in the warehouse or from the warehouse, have they been given notice of - - -
PN820
MR MILNE: Yes, they have, your Honour. I am advised that they have been given a month's notice and have worked out that month's notice and the cut off date is 30 June, so yes, they were given formal notice and have worked that notice out.
PN821
THE SENIOR DEPUTY PRESIDENT: So they were given the written notice that is required by clause 18, were they?
PN822
MR MILNE: I understand that to be the case.
PN823
THE SENIOR DEPUTY PRESIDENT: But that was not given to Ms Rennie?
PN824
MR MILNE: No.
PN825
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Lyons.
PN826
MR LYONS: Just very quickly, your Honour, two things. In relation to the submissions that were made on the Full Bench decision we note that those passages that you were taken to relate to the Full Bench's interpretation of actual written terms within the award and we say that as a result of that submission there is no application. My friend spent much of the time making a submission in relation to the location of the move. We have no complaint about the move of location within Port Melbourne.
PN827
Our complaint is in relation to Ms Rennie's movement out of a job she applied for as an advertised vacancy and it relates to the change in role and not the change in location. We may have a subsequent complaint about a move to Mulgrave but at this stage our complaint is about role and not location. My friend made a submission in relation to hours of work and said that the RDOs would have been - or Ms Rennie ought to have been employed under an RDO. Can I refer your Honour to clause 10 of exhibit L3 which is on the fourth page, ordinary hours of work and overtime, wherein that first paragraph says:
PN828
The method of implementation of ordinary hours will be by agreement between the employee and the employer but no work in excess of 10 hours ordinary time on any day will be implemented.
PN829
So we say although she did not have an RDO Ms Rennie's hours of work were entirely consistent with the enterprise agreement. The last thing we say, your Honour, is that - and it is the first time we have heard this submission, it was contained in the outline, but that some reliance has been placed in the alternative on the use of the term investigate alternatives within clause 18.3. We say, your Honour, all that means is that the employer has some obligation to not simply make people redundant without due consideration of alternatives.
PN830
It is impossible, we say, without wildly extrapolating on the actual terms to interpret 18.3 to mean an obligation on the employer to offer any particular job or even an obligation on an employer to accept a particular job. The only obligation that appears in 18.3 is that there be some investigation given as to circumstances and we say it is not supported by the actual text of the agreement to adopt the interpretation you are invited to by my friend that, you know, provided the job can be found under the investigation that the employee has got an obligation to take it, the union has got an obligation not to object and the employer has got an obligation to offer it. We say that is not supported by the actual text of the agreement.
PN831
Just finally, your Honour, there was a submission made that because Ms Rennie's work performance had improved dramatically that this was the reason that she was fine to come back inside now. Well, that appears to be a submission that because her work performance had improved she ought be forced to a transfer that she does not want. So are we to suggest that had she maintained a low standard of work that she would now quite happily been made redundant and we would not be here? It seems to me a quite remarkable submission.
PN832
Your Honour, unless there are any questions on that point around 18.3 we rest our submissions. If the Commission pleases.
PN833
THE SENIOR DEPUTY PRESIDENT: I will adjourn briefly.
SHORT ADJOURNMENT [3.38pm]
RESUMED [3.55pm]
PN834
THE SENIOR DEPUTY PRESIDENT: In this matter I am satisfied the Blue Star/NUW Port Melbourne Certified Agreement 2000 to 2002 applies to Ms Jacqui Rennie and I have decided that National Office Products Limited trading as Blue Star Office Products, Blue Star, is to provide Ms Rennie with the notice and severance pay provided for in clause 18 of that agreement. In brief, I have so concluded because I am satisfied there was a variation to Ms Rennie's contract of employment in early October 2000. I am not satisfied Blue Star has obtained acceptable alternative employment for Ms Rennie. I now adjourn.
ADJOURNED INDEFINITELY [3.56pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
JACQUI RENNIE, SWORN PN40
EXAMINATION-IN-CHIEF BY MR LYONS PN40
EXHIBIT #L1 STATEMENT OF MS J. RENNIE PN45
CROSS-EXAMINATION BY MR MILNE PN89
WITNESS WITHDREW PN162
JOHN RYAN, SWORN PN164
EXAMINATION-IN-CHIEF BY MR LYONS PN164
EXHIBIT #L2 STATEMENT OF MR J. RYAN PN168
CROSS-EXAMINATION BY MR MILNE PN215
RE-EXAMINATION BY MR LYONS PN268
FURTHER CROSS-EXAMINATION BY MR MILNE PN288
WITNESS WITHDREW PN296
EXHIBIT #L3 CERTIFIED AGREEMENT PN299
PATRICIA HETHERINGTON, SWORN PN307
EXAMINATION-IN-CHIEF BY MR MILNE PN307
EXHIBIT #M1 STATEMENT OF MS P. HETHERINGTON PN383
CROSS-EXAMINATION BY MR LYONS PN383
RE-EXAMINATION BY MR MILNE PN507
WITNESS WITHDREW PN525
PETER SCANLON, SWORN PN527
EXAMINATION-IN-CHIEF BY MR MILNE PN527
EXHIBIT #M2 STATEMENT OF MR P. SCANLON PN531
CROSS-EXAMINATION BY MR LYONS PN569
RE-EXAMINATION BY MR MILNE PN621
WITNESS WITHDREW PN629
JOHN McFARLAND, SWORN PN646
EXAMINATION-IN-CHIEF BY MR MILNE PN646
EXHIBIT #M3 STATEMENT OF MR J. McFARLAND PN650
CROSS-EXAMINATION BY MR LYONS PN664
RE-EXAMINATION BY MR MILNE PN700
WITNESS WITHDREW PN713
EXHIBIT #L4 WRITTEN SUBMISSION OF MR LYONS PN763
EXHIBIT #M4 WRITTEN SUBMISSIONS OF MR MILNE PN803
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