C2001/3249, Transcript of Proceedings [2001] AIRCTrans 2026 (23 August 2001)

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:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 8699
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2001/3249
C2001/3450

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION-AUSTRALIAN
CAPITAL TERRITORY BRANCH

and

TOTALCARE INDUSTRIES LIMITED

Application pursuant to section 170LW of the Act
for settlement of dispute re redundancy provisions,
consultation, rostered days off, overtime payments
and selection and recruitment processes

TOTALCARE INDUSTRIES PTY LIMITED

and

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION-
PRINTING DIVISION ACT REGION and OTHERS

Notification pursuant to section 99 of the Act of
a dispute re industrial action being taken against
Totalcare

MELBOURNE

12.45 PM, THURSDAY, 2 AUGUST 2001

Continued from 11.7.01 in Canberra

PN73

THE COMMISSIONER: Good afternoon. We have Mr Campbell from the CFMEU, and Mr Cook, Mr Cotterill, and Mr Shaw, is that right?

PN74

MR COOK: That is right, Commissioner.

PN75

THE COMMISSIONER: Thank you. Now, Mr Cook, I got your message. Mr Campbell, Mr Cook has indicated, he left a message on the Commission's voice mail, that from his perspective, Totalcare's perspective, there has been some understanding reached with the CFMEU regarding their member. Is that correct?

PN76

MR CAMPBELL: That is right, Commissioner. We just need clarification from the particular area.

PN77

THE COMMISSIONER: Right.

PN78

MR CAMPBELL: The housing area of ACT Government, but we said we travelled along fairly well.

PN79

THE COMMISSIONER: Okay. Good. Thank you for that. I also got a message from you, Mr Cook, regarding the AMWU. Now, Mr Faulks did ring me yesterday and indicated that he did have a difficulty in being here today. I asked for him to contact you, to see whether or not, an alternative arrangement could be made. I understand that that wasn't possible, and I must say it was going to be difficult any way for the Commission, but Mr Faulks did indicate that if no arrangement could be made with yourself, then he would have another union represent the AMWU. Mr Campbell, are you representing the AMWU?

PN80

MR CAMPBELL: Commissioner, with the discussion we had this morning, the AMWU did ask if we did represent him. However, Mr Faulks was going to call me back. Mr Faulks is obviously out of range with his mobile because I have tried ringing him several times since then. The previous engagement he had is actually out in the scrub, so - - -

PN81

THE COMMISSIONER: Right.

PN82

MR CAMPBELL: - - - I will be happy to get him, but - - -

PN83

THE COMMISSIONER: I think he said he had to go to - - -

PN84

MR CAMPBELL: Idminbulla Tracking Station.

PN85

THE COMMISSIONER: Yes, that is right.

PN86

MR CAMPBELL: You generally don't get signal out there, Commissioner, on your phone.

PN87

THE COMMISSIONER: So, Mr Cook, from Totalcare's perspective, what has happened with the AMWU? How many members are they representing in this particular point, about two?

PN88

MR COOK: Two, Commissioner, yes.

PN89

THE COMMISSIONER: Right. So, what - - -

PN90

MR COOK: A Mr Geremia.

PN91

THE COMMISSIONER: Yes.

PN92

MR COOK: And a Mr Chater.

PN93

THE COMMISSIONER: Right. And what has happened with them?

PN94

MR COOK: Well, as a result of a meeting this morning, nothing was progressed. In the formal meeting first up, the issue that had initially arisen was that there was some concern about the handing out of gazettes to employees, so they could identify job opportunities individually. And that was the first issue which was being pursued by Mr Faulks. The company indicated that several copies of gazettes were available down in the housing area, where these employees worked, for them to look at, at any time. And that is how the issue was kept going. So, Totalcare then left that meeting, then subsequently the CFMEU met with Totalcare representatives, and agreement has been reached into that process, subject to the formalisation of material from the housing area, where the position is declared.

PN95

THE COMMISSIONER: Right.

PN96

MR COOK: There was no further conversation then with the CFMEU, however, Mr Chater then approached Mr Shaw individually, and he expressed a desire to continue the job swap with Phil Bladen's position at Sign and Lines. However, the difficulty with that is that Mr Bladen said that given that Mr Chater had only turned up for no more than one and a half days, over the scheduled two week period that he was to do the on the job experience, so to speak, he felt that the job swap had gone and he subsequently has sought a position within another government agency. And it will be quite a few weeks before that position is determined. And as a consequence, he felt that there was no job swap going ahead, so he has sought to do something alternatively.

PN97

Peter - Mr Peter Cotterill and Greg Shaw spoke to Neil Smith, who you might recall, is the general manager for engineering maintenance, about whether or not there were any positions available with the contract coming up, and it was identified that there was already someone in Signs and Lines who would step into Bladen's job now. And as a consequence, there is no other position available. And what the company seeks in accordance with the directions that were previously issued to be undertaken by the end of this month, is that certainly Mr Chater and Mr Geremia be declared excess. Once they are declared excess, they are then allowed to start the 13 month retention period, with Totalcare. During that 13 month period, they can continue looking through the gazette for alternative employment.

PN98

But that process of declaring them to be excess, is what we require from the Commission, in relation to the directions which came out of the 3 July Commission.

PN99

THE COMMISSIONER: Did Mr Chater give any explanation as to why he only attended for a day and a half?

PN100

MR CAMPBELL: Commissioner, if I may answer that?

PN101

THE COMMISSIONER: Yes, Mr Campbell.

PN102

MR CAMPBELL: I had a chat with Mr Chater this morning, Commissioner.

PN103

THE COMMISSIONER: Yes.

PN104

MR CAMPBELL: Regarding this issue. There are a couple of issues that actually saw a fall out in this morning's discussion. As Mr Cook indicated to you, the issue of gazettes, which I spoke to three people concerned this morning about. Those three people indicated that they weren't aware that there was gazettes actually there. There had been some confusion over the fact - the only gazette that my member had ever seen, was in fact ..... VIDEO SOUND INAUDIBLE ..... That was the issue with that and that is probably why there was a bit of excitement this morning, if you could say that.

PN105

MR COOK: Well, if I can just end that point, Commissioner, without interrupting my friend, but an e-mail was sent to all staff on 17 May, indicating employment opportunities within the ACT Government, are published in the ACT gazettes, which are available on line. The gazettes are also available in hard copy, where these three employees actually worked, and they all have computers to which they can access, so they are aware of the process. And Mr Davis indicated to Mr Shaw that he in fact was aware of the gazettes, but looking at the gazettes as a side issue, the more important aspect is that these employees are excess and should be declared, in accordance with the process originally agreed upon.

PN106

MR CAMPBELL: Commissioner, if I could finish what I started there. The other issue was the retention periods that Mr Cook also indicated he would like people to start on. We have a bit of confusion also about the retention periods. Previously in Totalcare building maintenance, the retention periods were in fact 11 and 19 months. We say that if there is a retention period, it should be that ..... VIDEO SOUND INAUDIBLE ..... retention period and not the 13 months as indicated by Mr Cook.

PN107

THE COMMISSIONER: Sorry, Mr Campbell, you faded away there for a minute. I just couldn't quite pick up what period you were saying?

PN108

MR CAMPBELL: Sorry. Previous reviews at Totalcare have, particularly the facilities management side, which is obviously who we are discussing now, were 11 and 19 month retention periods, not the 13 months as indicated by Mr Cook. Now, we are of the review that if people go down the retention route, then it would have to be those retention periods, not the 13 months.

PN109

THE COMMISSIONER: Mr Cook, where did the 13 months come from?

PN110

MR COOK: Commissioner, clause 8 of the Australian Public Service Re-deployment, Retirement, Redundancy Award 1987 provides that:

PN111

Except with the concern of the officer, and subject to clause 8.1, an excess officer shall not be retired until the following retention periods have elapsed.

PN112

In the case of an officer who has 20 or more years of service, or who is over 45 years of age, 13 months. In the case of other officers, 7 months. In relation to - sorry, Mr Chater is 47 years and gets 17 months. Mr Davis gets 13 months. Mr Geremia gets 13 months. And in relation to the alternative or the extended periods of retention that were given to employees, that was based on a previous viability review, and this has nothing to do with what was worked out or agreed upon, in relation to that viability review.

PN113

MR CAMPBELL: The point is, Commissioner, if you go right back to the start, is that we never ever agreed on the outcomes of the viability studies undertaken, and that was why we found ourselves in this mess in the first place. If Totalcare hadn't adhered to the - or breached the EBA in the way they went about conducting that review, so - - -

PN114

MR COOK: Well, what is important there, Commissioner, is that this was never a viability review. This was a loss of contract under the EBA and didn't require the viability review process. And without going through and dragging up all the previous material, is that all these issues were clearly identified in relation to the directions which came out of the Commission, in relation to our hearing on 3 July. The process was put in place and the parties agreed to it, that all this would be completed by the 31st, which was on Tuesday.

PN115

MR CAMPBELL: Commissioner, I, like Mr Cook, don't want to drag up the past, by their own hand and their own paperwork delivered from that review, on top of paperwork stated "Viability Study", "Facilities Management Viability Study/Impact Study". And that was our understanding from the start, however, all I am basically outlining here, Commissioner, is the grievances raised this morning with Mr Faulks.

PN116

THE COMMISSIONER: Yes.

PN117

MR CAMPBELL: And I have been asked to raise those yet again. I actually agree with Mr Faulks in these issues also, being as I was involved in these reviews.

PN118

THE COMMISSIONER: Well, I - in the times that the Commission has had the parties, I know that the term "viability study" has been used by the unions and Totalcare took the view that it was a loss of contract. As part of the overall directions that were issued, the - and I don't have it at hand, but the Commission recalls that the next review in fact would be determined, I think, by a viability study. Is that right?

PN119

MR COOK: Yes, Commissioner. I think we decided the next review would be.

PN120

THE COMMISSIONER: Yes. Okay. Well, the Commission would have to indicate that it heard the union's argument in terms of it being deemed a viability study, but the Commission took the view that it wasn't dealing with this issue as a viability study. It was dealing with it because of a loss of contract. And if that being the case, then Mr Cook indicates that the 13 months retention period is the most, well is in fact, the appropriate period for each of Mr Chater, Mr Geremia, and Mr Davis. Is that correct?

PN121

MR COOK: Yes, Commissioner.

PN122

THE COMMISSIONER: Is that right, Mr Campbell?

PN123

MR CAMPBELL: Well, I would argue that point, Commissioner, given that the previous reviews in those areas, stated that 11 and 19 months.

PN124

THE COMMISSIONER: But the previous reviews did arise out of a viability study. The review in this period had to take place, because there was a loss of contract.

PN125

MR COOK: That is correct, Commissioner, however, we, as I said, we would still view that the same retention periods would apply, given that some people have left with those retention periods. And you know, it would seem to a certain degree, I suppose, unfair that these people are being treated differently.

PN126

THE COMMISSIONER: The Commission hears what you say, Mr Campbell, but it would have to say to you that the premise in which the Commission has been operating from, is that, yes, there has been a review, but the review has arisen because of a loss of contract, not because of some review that is required to determine an ongoing viability. Now, having said that, and understand that there appears to be some understanding in principle regarding Mr Davis, and it is just a matter of fine tuning that with Totalcare. The Commission would have to determine that appropriate opportunities have been made available, in terms of trying to settle this particular issue.

PN127

And in order to bring this issue to an end, the Commission would determine that Mr Chater, Mr Geremia and Mr Davis be declared in excess, and that they would be provided with the appropriate 13 month retention period. In order to put beyond any doubt this issue regarding the gazette, and the Commission hears the arguments of the union and Totalcare, what it would require is that each of those three individuals be provided with a memo, spelling out very clearly the issue of the gazette, how they are able to obtain, whether it be hard copies of the gazette or whether it is copies on some internal communication system, so that there is no misunderstanding at all in regards to them having access to the gazette as a means of trying to find suitable placement within the ACT.

PN128

Mr Cook, are you clear on that?

PN129

MR COOK: Yes, Commissioner.

PN130

THE COMMISSIONER: Mr Campbell.

PN131

MR CAMPBELL: Commissioner, all I would ask for that, is that, I mean, I certainly agree with that, but what I would ask is, I don't think it would be too much trouble for Totalcare to actually give a hard copy to each of those personally, so that they have got it, and that way there is no argument, there is no dispute what goes on, given that it was indicated to me that particularly my member has had his taken - has actually had his computer removed from his desk in a cost saving exercise within the Facilities Management area.

PN132

THE COMMISSIONER: Well, Mr Cook, that sounds reasonable.

PN133

MR COOK: Commissioner, the problem with the gazettes is that they come out every week.

PN134

THE COMMISSIONER: Yes.

PN135

MR COOK: And what I am saying is that there are several copies available for all employees, already known in existence, plus it is available on line. I mean - - -

PN136

THE COMMISSIONER: Well, Mr Campbell has indicated that his member has had his computer taken away.

PN137

MR COOK: Well, I suppose, to know that the seven copies and all the back log of copies for all the previous weeks for all this year are still available, and will be available in the future. I am not trying to make it difficult, Commissioner, I am just looking at the practicality of it. If you provide three copies every week for three employees, we will be providing, let us say if there is 50 employees in five years time that might have to be declared redundant or whatever, you are providing another 50 copies every week.

PN138

THE COMMISSIONER: Well, let the Commission make it abundantly clear. In order to end this particular matter, and in this circumstance only - - -

PN139

MR COOK: Okay.

PN140

THE COMMISSIONER: - - - it would expect that each employee, the three in question - - -

PN141

MR COOK: Okay.

PN142

THE COMMISSIONER: - - - would be given a hard copy of the gazette.

PN143

MR COOK: Thank you, Commissioner.

PN144

THE COMMISSIONER: And Mr Campbell, I would make it clear, by doing this you can't then come back and argue it in some future case, that the Commission did it in this instance, therefore they should do it again.

PN145

MR CAMPBELL: I have no intention of doing that, Commissioner.

PN146

THE COMMISSIONER: All right. The Commission thanks the parties very much. Thank you. The Commission will stand adjourned.

ADJOURNED INDEFINITELY [1.00pm]