C2001/4430, Transcript of Proceedings [2001] AIRCTrans 2482 (25 September 2001)

AUSCRIPT PTY LTD
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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 0279
A 25.09.01

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2001/4430

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

and

AUSTRALIAN TAXATION OFFICE

Application under section 170LW of the
Act for settlement of dispute re
failure to assist potential excess
employees and consult with ASU and
requiring staff to work below their
classification

MELBOURNE

10.09 AM, TUESDAY, 4 SEPTEMBER 2001

Continued from 3.9.01

PN606

THE COMMISSIONER: Yes, are there changes to appearances?

PN607

MR JAMES: No changes, Commissioner.

PN608

THE COMMISSIONER: Yes, thank you. Ms Powell, you had been excused, I think that was the point.

PN609

MS POWELL: Mr O'Connell isn't here today and I will have to leave at 11 o'clock today.

PN610

THE COMMISSIONER: Well, you would seek leave to - - -

PN611

MS POWELL: Sorry, I seek permission to leave.

PN612

THE COMMISSIONER: Yes. Okay. We will deal with that if and when we get there. Yes, thank you.

PN613

MR LAPIDOS: Yes, and Mr Maynall isn't with me today, Commissioner.

PN614

THE COMMISSIONER: Yes, thank you.

PN615

MR JAMES: I apologise, Commissioner, Robin Kemp who was here yesterday is not here today, just Mr Byrnes and myself.

PN616

THE COMMISSIONER: Well, I think that is a change to appearance, because Mr Byrnes didn't actually appear yesterday, at least according to my - - -

PN617

MR JAMES: Commissioner, I think - - -

PN618

THE COMMISSIONER: It may be a question of what is in the transcript.

PN619

MR JAMES: Yes, I think I did ask for an appearance, but it may not have been recorded on the paper, this paper, Commissioner.

PN620

THE COMMISSIONER: Yes, very well, thank you.

PN621

MR JAMES: Thank you.

PN622

THE COMMISSIONER: This matter was the subject of extensive discussions yesterday. I think the position that I want to take before we start, is just to recap what I believe to have been the result in regard to the four matters that the ASU raised in their notification. The first matter relates to the alleged failure of the Tax Office to consult, pursuant to clause 109 of the agreement in respect to the redundancies that were - the potential redundancies that were announced on Thursday of last week, prior to that time.

PN623

The difficulty I have with that allegation - because it comes to me under clause 122 where it is an issue of compliance - is that taken separately or apart, clauses 108 and 109 don't seem to produce a requirement to consult at a particular time prior to step 1 of the procedure that is outlined in clause 109. Some reliance was placed on clause 108. And what I say about clause 108 is that it seems, in it's terms, to be directed to either situations that involve transfer between capital cities or the equivalent of capital cities - and I say between not within - or to situations of excess staff in particular locations.

PN624

And where the anticipated solution to that excess staff or problems of people being located in a capital city and having to transfer - where the anticipated solution to those problems is re-deployment with redundancy, either voluntary or forced, as the second last or last resort and limited. And it doesn't seem that clause 108 is particularly suited to large scale redundancies where the scope for re-deployment is essentially a function of the numbers that are accepting voluntary redundancy, which is the situation that we are confronted with in the present situation.

PN625

The specific complaint - as I understand it, under 109 - is the failure to consult, particularly over measures to mitigate and avoid redundancies that are apparent. That arises - there are specific requirements set out for the unions and others to consult with management about measures that could be taken to remove or reduce the potential for excess employees. But that arises after - by it's very nature - after step 1, because it forms part of step 2. Step 1 is a requirement that management inform and provide employees, their nominated representatives, including unions bound by the agreement - certainly in situations where there is more than 15 employees involved, as here - to be informed and be provided with the following information:

PN626

(a) the reasons why employees are likely to become excess; and

PN627

(b) the number and categories of employees likely to be effected; and

PN628

(c) the time when or the period over which it is likely to occur.

PN629

Now, much was made of the result of the May 2001 budget and the potential that that budget had for reduction in staff in the Taxation Office. And it seems to be implicit in that submission that step 1 ought to have occurred much earlier. But there is nothing that I can see in clause 109 that activates step 1, other than management's own action. Effectively step 1 commences when management determines to provide the information that is required. Having done that, certain time limits are created and there is a requirement subsequent to that, for their to be consultation.

PN630

On that analysis there is, in my view, no lack of compliance by the Tax Office with the requirements of 109, in respect to consultation. But having said that, I am cognisant of my duty to attempt to prevent and settle disputes, and I believe that the parties, especially the union party, should really examine the clauses, with a view to having a clause more closely reflect the requirements of the union's claim, namely that consultation regarding mitigation and/or avoidance, should occur prior to the existing step 1, after some objective triggering event.

PN631

I didn't take it that the unions were seeking to have discussions about re-deployment prospects, the appropriateness of using voluntary redundancy, and the methods of identifying an employee as in excess, to be the subject of discussion prior to step 1 where the information is provided. And indeed that seems to me to be logical. That the point at which that debate and discussion should take place is after management produces the information that step 1 requires. However, that is a matter for them to consider.

PN632

I understand that the negotiations for the next agreement are continuing, and certainly in regard to both clause 108 and 109, there is capacity for further discussion. The second matter is that the parties - and I think this arises out of their discussions yesterday - should meet to discuss the time scale for the consultations that are required under step 2, and the nature of the matters to be resolved regarding the processes, especially the process of voluntary redundancy. The parties have had some experience - unfortunate experience I might say - in these matters before, so I think they can be much better placed to deal with that.

PN633

The second - and I think that deals with the first matter that was raised by the ASU. The second matter is the issue of the alleged failure to assist potential excess employees prior to - that were recognised prior to last Thursday's announcement. Now, that raises the issue of clause 108 in a real sense, because they were excess situations that at least arguably came within the scope of clause 108, as I discussed earlier. As far as I am concerned that is a matter of evidence, and further submission to deal with the specifics, particularly whether or not vacancies within business - a particular business line - have not been brought to the attention of persons potentially in excess in other business lines.

PN634

And I think that is where we did leave it yesterday. And it is a matter for the evidence. There is then the question of the application of clause 93, and the allegation that staff have been required to work at a level below their classification in a way that does not comply with clause 93. I think it is common ground that the employees can carry out duties below their classification levels. The time and - it really is a question of degree that is in issue. And again on that point, further evidence is needed, and both sides to the argument should have an opportunity to present their argument.

PN635

The final matter which I indicated my view - I think I have indicated my views on all of these matters before, but not on the record - but the final matter is the allegation of staff being intimidated to accept regression. And I would simply indicate - and I think it has been accepted off the record - that there is nothing before me to justify an allegation of intimidation regarding that matter. On that basis it is over to you to put your positions. Mr Lapidos.

PN636

MR LAPIDOS: Thank you, Commissioner. Following yesterday's discussions, Commissioner, I presumed - I understood that the Commission was looking for us to continue the hearing today, and for us to present evidence to you about the issues that are in dispute. And on that basis I have been making inquiries this morning about having witnesses available to be able to present evidence. And I am in a position to call some witnesses. The issues that I was in a position to address was about matter 3, clause 93. And I am in a position to call an officer from the Moonee Ponds office of the Tax Office.

PN637

And I have in fact put in an application for leave for him to attend to give evidence of the work that he was doing until recently, and that his area was doing until recently, and the work that they are now being required to do, as a result of these changes that were raised in our dispute notification. In relation to point 2 - and I dare say we could call additional people if necessary, but I thought one would probably be enough unless there was some reason to call - unless there was a need for more.

PN638

In relation to point 2, the failure to assist potentially excess staff - because of the shortness of the perceived time - because I understood that you were looking for us to continue today while there was time available - I have got some evidence to call, but it really is in relation to someone - well, it is in relation to the Cheltenham call centre people. I have got evidence about them becoming potentially excess but not before - the evidence I have got about them being potentially excess and the availability of vacancies, isn't about before Thursday. It is since Thursday.

PN639

So, in the short time available this morning, I wasn't able to actually produce evidence about before Thursday. But the evidence is that - just briefly - I can prove we have got potentially excess staff. And I can prove - I believe that there are vacancies available as of this morning, and that these vacancies haven't been notified to those potentially excess staff. These potentially excess staff are in a different location from the vacancies and a different business line from the vacancies. I have mentioned these things to the Tax Office this morning, in our meeting beforehand, and my understanding is the evidence that I would put before you is consistent with the Tax Office position that they put to you yesterday.

PN640

So, it doesn't prove that they were telling you the wrong thing yesterday, but it does prove what the situation is, that there was a potentially excess person that had made inquiries about this particular job previously. Whether he was potentially excess when he made those inquiries might be unclear. He was definitely considered excess by the Tax Office on 30 August. And I have confirmed that these vacancies are available today. I haven't had an opportunity to pursue the question of evidence in relation to intimidation to regress. I just haven't had an opportunity to check that.

PN641

I am still troubled in relation to clause 109 and that requirement to consult, and the view that you have expressed this morning, which is consistent with what you were saying yesterday. From what I can understand in general terms that you were saying, that there isn't an explicit reference to the timing issue. It is clear that there is not an explicit reference, but it still seems to me that in terms of the application of the clause, I don't agree that the Tax Office can just notify us at any time that they choose, the step 1 notification.

PN642

Otherwise - and this is what they have in fact done - is they can just tell us whenever it suits us, wait until they have explored all the things that they would normally be expected to consult with us about under step 2, until they believe that they have explored everything, and then push through to force everything through in a month's time. Now, I am not saying that that is necessarily what they have - the reasoning behind it. That is not necessarily their reasoning behind it, but it seems to me - I did refer yesterday to the definition of consultation in the agreement in clause 5. And you - - -

PN643

THE COMMISSIONER: It seems to me like you are starting to cavil with what I have said, Mr Lapidos.

PN644

MR LAPIDOS: Yes.

PN645

THE COMMISSIONER: Well, you know - I mean, I will reduce what I have said to writing in making the decision, if you like. I mean, it is just not open to you to cavil. You can appeal but you can't cavil.

PN646

MR LAPIDOS: All right. Very well.

PN647

THE COMMISSIONER: I mean, I make it very clear that from a practical point of view - and I think I actually said this in the course of discussions, but perhaps I didn't - that if there was an obligation to go to step 2 before step 1, then the agreement would say so.

PN648

MR LAPIDOS: I accept that.

PN649

THE COMMISSIONER: And if there was an obligation to go to step 1 at some earlier date, then the clock would have started ticking back in June or May - well 24 May arguably. And if that is what you want your - if your members really want it done, I think then - I would be very surprised. But that is neither here nor there in terms of the reasoning behind what I put this morning. The reasoning behind what I put this morning is that there is nothing in there that says when step 1 is to be entered into, that I can see. Absolutely nothing of a temporal nature. And it is your agreement. I am simply trying to give it meaning.

PN650

Well, how do you want to proceed? I am in your hands. Perhaps I had better hear from Ms Powell and the Department, and then we will perhaps go off record and see how we are going to proceed.

PN651

MS POWELL: Yes, Commissioner, in relation to the two outstanding issues, the first one, the alleged failure to assist potential excess employees. We have no evidence in relation to that matter. The other issue, clause 93. As I said yesterday, we have concerns about that. And as you mentioned, there is a question of degree and time. And members are still considering that. So, I don't have any evidence to present here today on that issue either, Commissioner. Thank you.

PN652

THE COMMISSIONER: Yes, thank you. Mr James. Well, yes, Mr Byrnes.

PN653

MR BYRNES: Commissioner, there is two matters that Jeff, I understand, is bringing evidence on. On the matter - I am not sure of the name of the witness - but the issue of someone as of last Thursday maybe potentially excess and haven't yet been notified. The ATO is quite willing to concede that is an exceedingly likely event. We have a redundancy program of over 1300. A large number of people who are potentially excess. And it only happened last Thursday. So, I don't really see an advantage in bringing before the Commission - I am sure there are many cases where people haven't just yet been notified, purely by the basis of time.

PN654

So, the ATO doesn't have a position that anyone that is now potentially excess, regardless of which line that they live in and which location, has a right to the provisions under 109. We fully accept that. So, there is no argument about this being confined to business lines or anything else.

PN655

THE COMMISSIONER: Well, that is why - I think, you know, I actually said it and maybe it didn't - I thought that the application in 108, in situations like you have been confronting since last Thursday, is extremely limited.

PN656

MR BYRNES: Yes.

PN657

THE COMMISSIONER: It seems to be setting up a process which you are going to be discussing under step - which may or may not be adopted as part of the discussions under step 2.

PN658

MR BYRNES: Yes.

PN659

THE COMMISSIONER: And really what I was concerned about and what I was understanding, was that there were people who had been getting - not people - there were situations of excess people existing prior to last Thursday where - and there were also vacancies that were being filled. And we were taken to exhibit L8, I think from memory. Yes, where it was alleged that certain positions had been filled without them being brought to the attention of people who were in a potential excess situation. And that was back in early August.

PN660

It was that sort of situation - now, I just don't know whether it wouldn't be just an academic debate if we are dealing with people who were made excess after 6 August. But that might be better for us to talk about off record.

PN661

MR BYRNES: I think, sir, it is a way forward, Commissioner, because the ATO are quite happy to concede there would be a large number of people potentially excess under 108 given your reasons to our application. They haven't yet been notified, because we have got small teams doing large volume. It will happen as soon as we can.

PN662

THE COMMISSIONER: Well, it raises that issue, which I say I don't think that 108 is designed or intended to cover that sort of situation. Or if it was it is a very poor mechanism, because it would conflict with - potentially conflict with what comes out of step 2. That is the real difficulty, I mean ultimately, with 108 applying to a significant redundancy situation. Look, we might - unless there is more that you wish to put on record? There is the other matter.

PN663

MR BYRNES: On the second matter, Mr Lapidos indicated he has a witness to do with people on the temporary transfer system. We are quite happy to - we agree that it is a fact and degree question. And we are quite happy to explore that either in conference if he has - because I think our understanding of - as an organisation of what we are attempting to do - there may be different - and it may be different in practice from what we believe we are doing. So, that could probably be explored in conference. But we are quite happy to hear that evidence if it is desirable. I just don't see a value in bringing the first witness, because the ATO will concede they will be beaten on that position.

PN664

THE COMMISSIONER: Well, perhaps we will go into conference to discuss how we are going to proceed. Because there is something I want to say about that issue off the record to the parties, because I think there is a serious matter involved in that, that you may want to contemplate. We will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED