C2001/5475, Transcript of Proceedings [2001] AIRCTrans 3199 (22 November 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS

O/N 1131
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2001/5475

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING
AND ALLIED SERVICES UNION OF AUSTRALIA

and

NETWORK DESIGN AND CONSTRUCTION LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re employment of three
trainees in the Customer Wideband Design section

MELBOURNE

2.17 PM, WEDNESDAY, 7 NOVEMBER 2001

PN1

MR S. BOOTH: I appear on behalf of the CEPU and with me is MR S. KAYE.

PN2

MR J. PRITCHARD: I appear on behalf of NDC Limited.

PN3

THE COMMISSIONER: Yes, Mr Booth.

PN4

MR BOOTH: Yes. What I might do, with the indulgence of the Commission, is just go through the background of this dispute and then perhaps hear from the company and then proceed into conference if the Commission wishes.

PN5

THE COMMISSIONER: Sure.

PN6

MR BOOTH: If I can just for the record state some of the background to this matter. Trainees started to be employed by NDC through a company called Geelong Group Traineeship in Victoria in the second half of '99 and the beginning of 2000. Relevantly, the three that are in issue today were employed, as I understand it, in February 2000. In the Customer Design area of NDC some 15 trainees were employed. Essentially the deal was for the trainees to be employed for up to two years and attain what is called a Certificate 4 in Telecommunications.

PN7

When the trainees were first put on by NDC there was no agreement, as I understand it, with the CEPU about the terms and conditions by which the trainees were to be employed, and there followed, after they were progressively employed, numerous discussions between the union and NDC about what those terms and conditions ought to be. Those negotiations ultimately resulted in July of 2000 in a settlement in respect of particularly the 15 that were in the Customer Wideband and relevantly for today, and I might just provide the Commission with a copy of the letter - or some documentation which includes that particular letter.

EXHIBIT #CEPU1 DOCUMENTATION

PN8

MR BOOTH: And it is - in particular the second letter is a letter from NDC dated 17 July 2000. That letter to Mr Absolom of our national office went through what the trainees would be paid, what their career progression would be and other relevant matters. It was really a without prejudice matter; in fact, the matter was then more widely dealt with by NDC and the CEPU in the course of enterprise negotiations that occurred later that year that ultimately resulted in the certification of the NDC Agreement 2000 which I think was, in fact, certified by yourself, Commissioner.

PN9

The relevant paragraph that has caused the dispute that is before you today is in the second paragraph of the opening page of that letter of 17 July 2000 and I will just quote. It is in the second sentence of that and it says, if I can quote:

PN10

On successful achievement of Certificate 4 level and two years satisfactory on the job performance, suitable trainees would be offered a job in NDC as external plant design learners in Customer Wideband at the band 3 level.

PN11

Subsequent to that particular settlement, progressively as trainees came out of their traineeship, 10 were in fact employed by NDC in the Customer Wideband Design area. Two, as I understand it, trainees in fact dropped out of their traineeship during the course of those two years and we are left today with that are in question and in dispute in this particular matter.

PN12

I might note there that as part of that deal there was no - there is nothing there about termination benefits and so forth. Because of that understanding that I have just read out that provided they successfully completed a Certificate 4 that those trainees would be offered a job in NDC.

PN13

The three trainees that are subject of this matter today were advised I think two weeks ago - three weeks ago that in fact their employment would not be in fact taken up by NDC and in fact that their employment would be terminated this Friday, 9 November. The CEPU understands that this is due to a downturn in work as stated in a letter from NDC to the national office of the union dated 24 October, and I might just for completeness hand that up.

EXHIBIT #CEPU2 LETTER FROM NDC TO CEPU DATED 24/10/2001

PN14

MR BOOTH: CEPU2 goes through some of the correspondence that has occurred in relation to this particular matter as the union has sought to use the disputes procedure to try and resolve the matter that has been brought to you today. In essence, as can be seen in that letter of the 24th to Tony Absolom, NDC cites significant reductions in work volumes have led to the decision not to employ the trainees in question.

PN15

We bring the dispute to you really on two grounds. One, first of all, the dispute is not so much about the existing work relationship between the employees and their employer; indeed, their employer is Geelong Group Training. The dispute is really between NDC and the CEPU about the trainees' future employment prospects as was outlined in that letter of 17 July 2000. We have attempted in following this dispute to go through the disputes procedure, but the reality, we would say, Commissioner, is that there has been no real discussions between the parties, there has been the letters that are now before you, but there has been no attempt we say by NDC to negotiate possible different scenarios, different solutions to the issue, negotiate possible alternate end dates.

PN16

I might say that Mr Mock on behalf of NDC did extend the trainees' notice period by a matter of two weeks to 9 November from the original date which was 26 October, but aside from that, there hasn't - and that wasn't, I might say, negotiated with the union, but rather communicated directly to the trainees concerned after a meeting that they had with them. There hasn't been any discussions really pursuant to either the disputes procedure or the consultative mechanisms that are outlined within the NDC agreement in clause 5 which basically suggests that where there are significant changes in work practices and organisation matters that NDC would, in fact, negotiate that with the people concerned and with the union. Instead all we have had is letters which basically indicate that they have made a decision and that they stand by that decision.

PN17

So first of all, what we are seeking out of today, Commissioner, is really first of all obviously we would wish that NDC abide by their letter of 17 July. There was a commitment negotiated as a result of a dispute between the parties in relation to the terms and conditions of trainees. A clear part of that was a clear and open statement by NDC that there would be employment for trainees should they complete their time. I think there is no question between the parties as to the work performance of the three people concerned; indeed, NDC have made it clear that that is not the case, the case is purely one of, as they state there, work volumes.

PN18

Certainly, we would say that that wasn't something that was contemplated within the original agreement and that is why in part there is no issue of - sorry - there was no issue in the original dispute settlement of issues of termination and so forth, payments, because of that clear commitment that was undertaken by NDC back in July of last year.

PN19

I guess in the alternative, if the Commission is not somewhat minded in relation to - to enforce that agreement or to recommend that the agreement be followed, we would certainly be seeking that the parties engage in constructive negotiations about a true settlement in relation to the three trainees. We are willing to negotiate in relation to the matter. We would ask that it be done within the auspices of the Commission and that it be done reasonable expeditiously given that the trainees in question only in fact now have two days left in which to work.

PN20

I might say that the trainees are in a unique position of - unique to NDC, either staff or other contractors, that they are the only ones that will not receive any redundancy benefit or other such payment because of the downsizing exercise that Telstra has enforced, if I can put it that way, on NDC, and that certainly is an issue I think in itself.

PN21

So that is really the short background to it. I certainly would appreciate a conference to see whether we can explore any of those options further, but I will leave my comments there unless the Commission has got any particular questions at this time. If it please the Commission.

PN22

THE COMMISSIONER: Thanks, Mr Booth. Mr Pritchard.

PN23

MR PRITCHARD: Commissioner, at the outset I would like to state that we have jurisdictional concerns in relation to what the union may be seeking and we reserve our position on that matter. We are prepared to put our position on the record here today and, if necessary, move to a conciliation conference.

PN24

NDC did initially engage the 15 trainees via Geelong Region Group Training Limited. Geelong Region Group Training is the employer and NDC is the hirer of trainee resources in that relationship. I have here a copy of a Memorandum of Understanding between NDC and Geelong Region Group Training which I would tender as exhibit, Commissioner.

EXHIBIT #NDC1 MEMORANDUM OF UNDERSTANDING BETWEEN NDC AND GEELONG REGION GROUP TRAINING

PN25

MR PRITCHARD: Geelong Region Group Training also subsequently entered into employment agreements with the trainees, Commissioner, and those are separate agreements, but contain essentially similar information as is in that Memorandum of Understanding. Neither the MoU nor the employment and training agreements with the trainees make any mention of a guarantee of employment at the end of the training arrangement. It was not part of our agreed understandings with Geelong Group Training and it certainly was not part of any implied benefit that was made to the trainees upon their taking up a trainee role.

PN26

NDC entered into the arrangement with Geelong Group Training willingly and with an expectation that with the achievement of two years experience and with Certificate 4 level of competence, we would be in a position to offer permanent employment to the trainees. The document signed by Barry Mock which was tendered by Mr Booth on 17 July 2000 was addressed to the CEPU in response to their demands as to how trainees should be administered. Now, because there was no formal arrangement existing within NDC as to the use of trainees or even that there should be trainees, Commissioner, there was quite a degree of toing and froing in relation to how trainees should be administered within NDC. I tender a document to you which is a correspondence with our General Manager, Barry Mock, of the Vic/Tas Region, which his letter dated 17 July is a response to.

EXHIBIT #NDC2 CORRESPONDENCE WITH BARRY MOCK, GENERAL MANAGER OF VIC/TAS REGION

PN27

MR PRITCHARD: At the time that Mr Mock's response of 17 July was drafted, it was NDCs intention to offer permanent employment to the trainees upon successful completion of specified requirements. Unfortunately, NDC circumstances have changed and changed considerably and dramatically since that time. We have been obliged to enact large-scale job losses as a consequence of significantly reduced work volumes in the telecommunications industry. We have sought to achieve these job losses via voluntary redundancies, but unfortunately we did not have enough volunteers and we have now had to resort to management initiated retrenchments.

PN28

These MIRs have commenced using Telstra's resource rebalance model to select the MIR candidates. In these circumstances, we have been forced into some hard decisions in relation to the use of contractors and the Geelong Group trainees. It is not rational to continue to engage contractors at the same time as reducing our permanent workforce. Accordingly, those trainees who have not yet completed their two years of experience - and as Mr Booth indicated the trainees here in question, had they remained, would complete their two years experience in February next year - those trainees who have not completed their two years experience have been advised that NDC will not be continuing with their traineeship arrangements via Geelong Region Group Training.

PN29

Initially, the trainees were advised with two weeks notice that they would be ceasing with NDC on 26 October, but as a result of personal representations to the General Manager, it was agreed to extend the cessation date to 9 November. This was done to enable the trainees to have more time to seek alternative employment before the termination of their placement with NDC. In summary, Commissioner, NDC did initially envisage offering permanent employment to the trainees once they had met certain qualification criteria, but the changed business circumstances that confront us make it impossible to offer permanent employment to these trainees or other contractors, it must be said, at the same time that we are reducing permanent employee numbers by very large numbers. Thank you, Commissioner.

PN30

THE COMMISSIONER: Thanks. You don't mind going into conference?

PN31

MR PRITCHARD: No, Commissioner, we do not mind.

PN32

THE COMMISSIONER: Thank you. Very well, I will adjourn into conference.

SHORT ADJOURNMENT [2.35pm]

RESUMED [3.53pm]

PN33

THE COMMISSIONER: I have conferred with the parties and I propose to make a recommendation to the parties and I would authorise production of transcript so the parties can have copies of the transcript and I will also subsequently issue this as a statement and recommendation.

PN34

In this matter I entertain very serious doubts about the jurisdiction of the Commission as it may affect NDC Limited. However, that said, I have considered the merits. Three young men have undertaken with NDC a traineeship in communication. That two-year traineeship is to conclude on 26 February 2002. NDCs business is now contracting and this has created the necessity for forced redundancies, a situation which is not enjoyed by either NDC or its employees.

PN35

Against this background, NDC wish to bring to an early end the traineeship agreement it has with Geelong Region Group Training Limited. Geelong Region Group Training Limited has advised me that it will confer upon these young men the qualification for Certificate level 4 Communications, although some experience will be lost by them not completing the full two years.

PN36

The three persons concerned seek to rely upon a letter written by Mr Mock in July 2000 where he stated, and I quote:

PN37

On successful achievement of Certificate Level 4 and two years satisfactory on the job performance, suitable trainees will be offered a job in NDC as external plant design learners in Customer Wideband at band 3 level.

PN38

At that time, the letter reflected an intention of Mr Mock. Mr Mock has now demonstrated that circumstances have changed dramatically and adversely for NDC and therefore he is not longer able to make such an offer. I have examined the letter written by Mr Mock and have formed the view that it does not constitute a contract of employment with these young men, merely a commitment to make an offer. That commitment can no longer be implemented for good reason and NDC are acting reasonably, in my view, in examining all alternatives.

PN39

However, I do recommend that the three young men be given the opportunity to complete their two years and that the agreement with Geelong Region Group Training not be brought to a premature end. In making this recommendation, I would expect the three persons concerned to continue in employment on the terms and conditions that they have been enjoying and that they would cease employment on 26 February 2002 where there would be no entitlement to any additional payment.

PN40

Now, having heard that recommendation, what is your attitude, Mr Booth?

PN41

MR BOOTH: Yes, on behalf of the three trainees concerned and the CEPU, we are quite happy and accept that recommendation, if it please the Commission.

PN42

THE COMMISSIONER: Thanks, Mr Booth. Mr Pritchard.

PN43

MR PRITCHARD: Commissioner, NDC will accept the recommendation.

PN44

THE COMMISSIONER: Thanks, Mr Pritchard. Well, I thank you both for your co-operation and your efforts in seeking to resolve this dispute by making what I regard as significant compromises. The matter is adjourned sine die.

ADJOURNED INDEFINITELY [3.56pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CEPU1 DOCUMENTATION PN8
EXHIBIT #CEPU2 LETTER FROM NDC TO CEPU DATED 24/10/2001 PN14
EXHIBIT #NDC1 MEMORANDUM OF UNDERSTANDING BETWEEN NDC AND GEELONG REGION GROUP TRAINING PN25
EXHIBIT #NDC2 CORRESPONDENCE WITH BARRY MOCK, GENERAL MANAGER OF VIC/TAS REGION PN27