C2001/3125, Transcript of Proceedings [2001] AIRCTrans 2111 (29 August 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

MUNRO J

C2001/3125

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

and

METROSHELF PTY LIMITED

Application under Section 170GB of the Act
for reinstatement of persons who had their
employment with Metroshelf Pty Limited
terminated on or about the morning of
Monday, 28 May 2001

SYDNEY

1.32 PM, WEDNESDAY, 8 AUGUST 2001

Continued from 6.7.01

PN1048

HIS HONOUR: Since this matter was last before the Commission on 6 July when I issued a statement, the parties have been in conferences held on 9 and 27 July, 3, 7 and 8 August. The last three of those conferences I think it was subject to the power in s.119. Is there any change to appearances?

PN1049

MR P. BASTIAN: If the Commission pleases, I appear on behalf of the Australian Manufacturing Workers Union.

PN1050

MR M. DIAMOND: Your Honour, I continue my appearance for Metro Products and Co Pty Limited and appearing with me is the company's operations director, MR J. CAUGHLAN.

PN1051

HIS HONOUR: Thank you. Yes, who wishes to report?

PN1052

MR BASTIAN: Your Honour, perhaps given that it's our application I think we need to record on transcript what forms the terms of the agreement. Can I indicate that what I'm about to outline will be the terms of settlement that the union and its delegates are prepared to recommend to its members involved in the dispute and given that that will be the tact that we take I'll be seeking today to have this matter adjourned to a further report back following that mass meeting and hopefully a return to work.

PN1053

If I can just briefly outline what those terms are. The first is that the 66 employees involved in the dispute will be offered re-employment with full continuity of employment for all purposes. Secondly, that that re-employment would be on the basis of their previous positions held within the company and that would mean no detriment or loss of position or status currently held or that was held by those workers prior to this dispute.

PN1054

Thirdly, in relation to the 46 individuals the company notified they made redundant in May this year, the terms of settlement provide for one week's extra pay at the individual worker's rate of pay regardless of what redundancy payment they received under the terms of the Metal and Engineering Award.

PN1055

Fourthly, with regard to the 22 workers that were not made redundant, the terms of settlement provide seven weeks pay on the individuals rate of pay apply and at the redundancy tax rate which would be paid in two instalments; one instalment of 3.5 weeks paid immediately upon return to work and the second instalment of 3.5 weeks paid two weeks later.

PN1056

The fifth element of the settlement is that with regard to the 46 workers that were made redundant, if any of those 46 opt not to return to work and take up a redundancy, the terms of settlement provide that such worker will be paid the difference between the amount of redundancy paid in accordance with the metal industry award that was applied by the company and the amount due in accordance with the unregistered redundancy agreement that exists with the company. There is, however, a caveat on that term of settlement on the basis that the company has indicated that should there be cash flow problems arising from the amount to be paid out, the number of employees who may seek to take that non-return to work offer up, if there is a cash flow problem, in those circumstances the company has indicated a commitment to consult with the union immediately with a view to work out a schedule of payments both in a timely and prompt way.

PN1057

The sixth element of the term relates to the 22 employees who were not made redundant. The company has indicated that there is no offer of redundancy for the 22 with the exception of two employees that the company had named in previous conciliation talks as individuals that they express some concern with their ongoing employment. Those individuals will be able to access a redundancy offer if they so choose and if they do so, it would be under the terms of the redundancy agreement in the unregistered agreement.

PN1058

The union and the company have agreed that there will need to be a staged return to work. At this stage it is anticipated if this terms of settlement is endorsed by our members that 50 per cent of those currently in dispute who wish to take up the employment will be returning to work first shift Monday morning the 13th, with the remaining 50 per cent returning to work first shift Wednesday, the 15th and the company will provide the union by hopefully tomorrow afternoon with a schedule of names of who they required to return on what day for their operational needs.

PN1059

The eighth term, your Honour, commits the union and its members to attend and be part of a seminar to be conducted prior to the commencement of work on both Monday and Wednesday where the company will outline the state of play with regard to the company and its future directions and its desire and our desire to build a constructive relationship for the future.

PN1060

The ninth term of the settlement, the company has indicated that it will indemnify workers against any claim by the tax officer should they deem the payments made in accordance with the terms of this settlement with regard to redundancy payments not being bona fide redundancies.

PN1061

The tenth element is that the company and the union are committed upon a resumption of work to immediately commence negotiations on the policies and process for future redundancies and the company has indicated, your Honour, that it is anticipating a downturn in its market of around the end of October, hence the need for those talks to commence as soon as possible.

PN1062

The eleventh term settlement, your Honour, the company has indicated that it will reimburse the union its cost for filing the unfair dismissal applications before the Commission. The twelfth term of settlement, both parties have agreed on the assumption that the terms of settlement will be endorsed by members and there will be return to work on the Monday,that we will proceed to withdraw and close down all proceedings in whatever forums at each party's cost and obviously that means that we would like to get a report back to the Commission to indicate firstly whether or not the terms of settlement have been found acceptable to our members and secondly to obviously indicate we would seek to withdraw from the proceedings we've got before the Industrial Relations Commission.

PN1063

That, of course, means, which is the 13th term, that we would like to see the current proceedings for the 170GA application being adjourned to allow those meanings to take place with a further report back, as I have said. The 14th term, your Honour, is that the AMWU has given a commitment that our position is one that, if there is a return to work on Monday, we want to work with the company on a constructive relationship for the future. I don't think I need to say any more than that. It goes for all parties involved in the dispute.

PN1064

The 15th term of settlement, your Honour, is one that we have raised with regard to some minor concerns with two individuals who currently for medical and personal reasons would not be able to take up an immediate return to work. The company has indicated on both those individuals that they should be able to accommodate those individual needs and the union will provide the necessary detail immediately for that to be processed.

PN1065

The only other thing that I would indicate, your Honour, is that at this stage the union proposes to meet its members on Thursday, 9 August, at 6.00 pm. I would also like to record, your Honour, the AMWU's appreciation for the role and assistance shown throughout this dispute, particularly in terms of communication and liaison by the New South Wales Vietnamese community. I think without their assistance it would have been much harder to gain a settlement and we would like to acknowledge their role in helping to bring about the settlement.

PN1066

We would also, your Honour, acknowledge the role played by yourself in assisting the parties to facilitate this settlement. Again, without that involvement it would have been a much more difficult task and to put it shortly, your Honour, I am hopeful that we will be able to put this to rest and I am hopeful that we should be able to come back to the Commission if not on Monday afternoon then on Tuesday with a very positive result.

PN1067

HIS HONOUR: Are you seeking that report back next week, Mr Bastian, or the week after?

PN1068

MR BASTIAN: I am in your hands, your Honour. I am more than happy to ring your associate on the Friday and advise him of the outcome of the meeting and that could perhaps assist your diary.

PN1069

HIS HONOUR: You want to report back in person, I take it, or would you prefer to report by remote contact or is it best to put it on record?

PN1070

MR BASTIAN: If there is no problem and the settlement has been agreed to we are happy to do that via remote contract or correspondence.

PN1071

HIS HONOUR: I think by correspondence, because we would need also something for the 170CE files, so perhaps there could be a generic facsimile reported and copied to Mr Diamond at least and to the Commission if all goes well with it.

PN1072

MR BASTIAN: Indicating its acceptance and discontinuance in the matters before the Commission.

PN1073

HIS HONOUR: Yes, and that way I can go to the respective files. Thank you, Mr Bastian.

PN1074

MR DIAMOND: Your Honour, the position that has been put to you by Mr Bastian accurately reflects the agreement that was reached between the parties following their negotiations which you have facilitated. We await the outcome of the mass meeting to see whether that does approve the deal. If it is approved and if agreement is reached my client hopes that the constructive and co-operative relationship foreshadowed by Mr Bastian between the union and the company becomes a reality, we wait to see, and the only other thing I think that needs to be said is that we are in no doubt that had your Honour not intervened in the way that your Honour did on 6 July and following, a settlement of the matter probably would not have been reached. We would like to thank you for that, your Honour.

PN1075

HIS HONOUR: Thank you, Mr Diamond, for my part I would make some points. I note the progress toward a settlement and welcome that I think from all the participants' view and I would like to express appreciation for the way in which the negotiations were conducted, this matter had a lot of heat in it and a lot of difficulty and the Commission's task can be very awkward on these occasions, particularly with the mix of interests and emotions.

PN1076

I want to make it clear that I consider that the direct participants operated with a great deal of professionalism and kept the lid on emotions in a way that I consider commendable. I don't normally go to that length of effusion but the task has been a great deal easier, particularly when things broke down and I had reason to fear. Finally in that context, although he has to go away, I would express the Commission's appreciation to Mr Than Nguyen for his making available his time, I think he has been at least a helpful catalyst and I believe probably a good deal more in relation to the co-operative relationships that perhaps have been developed or will develop.

PN1077

I would add the Commission's endorsement to the idea that some real effort should be put into minimising both the demarcation and membership competition difficulties that could arise between the unions. Both of the unions are professional and regularly work in harmony with each other. I would hope that that sort of harmony can be readily achieved.

PN1078

The more difficult problem, I think, is the one for the employees with the mix of ethnic backgrounds to assist themselves in coming to terms with the company's need to maximise its productive use of the workforce. Both sides have a responsibility in that respect and hopefully you can go forward possibly from where you have reached. I will stand the matter over on the basis that there may be a report back either in writing or on application in person. In the meantime the matter will be stood over. A copy of the transcript will be ordered and supplied to the parties.

ADJOURNED INDEFINITELY [1.50pm]