C2001/5916, Transcript of Proceedings [2001] AIRCTrans 3429 (6 December 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2001/5916

CEPU

and

OPTUS ADMINISTRATION PTY LIMITED

SYDNEY

11.48 AM, THURSDAY, 22 NOVEMBER 2001

Continued from 21.11.01

PN889

THE COMMISSIONER: Yes, Ms Milligan?

PN890

MS MILLIGAN: If it pleases the Commission I seek to raise a matter which initially was raised yesterday. That is the notice to produce certain information. I want to inquire whether that information has in fact been brought to the Court today.

PN891

MR GOOT: The document, as I recall it, was marked as M1 is in Court. The short answer is, No. The long answer is that this is oppressive. Mr Commissioner, you have the evidence from Mr McIntosh given in the witness box yesterday as to what would be required to comply with this notice. It obviously cannot be complied with today. It wasn't suggested to him in cross-examination that it ought to be or could be. I can't recall precisely his detailed responses but I think one category of information he indicated would take up to a week.

PN892

Now there is no indication as to why this notice was given on 20 November; the application having been filed on 16 November. Arguably, if this material was relevant, it was relevant on 16 November and the application should have been accompanied by a notice to produce or, alternatively, an application for a summons or subpoena. There is no explanation as to why that didn't occur. We don't propose to comply with it.

PN893

THE COMMISSIONER: Yes, thank you, Mr Goot. Ms Milligan?

PN894

MS MILLIGAN: Commissioner, the terms of the notice were that the material was requested to be provided at 10.00am yesterday. There was some argument about the notice being received. In any event the notice was handed across the table at 10.00am yesterday. We believe that the provision of that information in those documents is essential to the determination of the matter. In a billion dollar organisation such as Optus, with the resources available to it, we don't believe that the request is oppressive. We are quite happy to take into account any timetable and issues that might be raised, as were raised in response to Mr Goot's question of Mr McIntosh yesterday. We do press the provision of that information. If the Commission at the end of the proceedings is minded to issue an order, then we would wish the consideration of that information to be included in the orders.

PN895

THE COMMISSIONER: You say that material is important for your case?

PN896

MS MILLIGAN: Yes, Commissioner, but I suppose at the time we are at now it doesn't appear to be made available today. Even if it were, we would have some difficulty dealing with it today, if it is everybody's intention to complete the matter today. But I think it is important in the overall consideration of the matter.

PN897

THE COMMISSIONER: How should I handle a situation, if I am persuaded to require the production of the material, how do I then provide the parties with an opportunity to address on the material that is produced?

PN898

MS MILLIGAN: Commissioner, I might put it this way. If it is possible, we make an application to amend our application to include orders that would require the provision of that information. If the orders were in the terms that we have applied for them in, that would assist with the processes of consultation that would follow from those orders.

PN899

THE COMMISSIONER: I follow. Thank you.

PN900

MS MILLIGAN: Commissioner, I propose to hand up a few cases and go through some points that I think are relevant to the application.

PN901

THE COMMISSIONER: Before you do that, I have put the parties on notice last night about some issues that I thought should be addressed, and nobody should be surprised that I did that. So should three of my colleagues have the good fortune to exercise their mind on the matters that have been before me, I would not wish to be thought of that I denied natural justice to anybody for not getting the opportunity to address on matters that are in mind. It is up to you whether you address on it or not. Really, I put people on notice so that they couldn't later say that they were taken by surprise with anything that I might deal with.

PN902

It appeared to me that there probably were some critical issues arising out of this, and you and Mr Goot might like to take this into account when you address, that in the context of 170GA one issue is; when is a definite decision made to terminate the employment of 15 or more employees? The second issue is; what specificity is required for 170GA (1), (2) and (3) with particular emphasis on what is meant by the number and category of employees? Does this for example require only broad identification or specific identification of individuals? Is there any impact on the quality of consultation between those two approaches, having regard to the concepts inherent in the Convention, and the terms of the Legislation?

PN903

Then another issue, and this is by no means meant to be exhaustive, but simply illustrative of the concerns that I raised last night. Is the quality of consultation determined by the decision made by the employer? Or is that a matter which is more properly challenged under 170CE? So there are important matters that fall for determination in this issue. I have done the best I can to avoid having to determine matters by encouraging you to see if you can resolve it. Unfortunately that hasn't been possible. So I do my duty, as they say.

PN904

MS MILLIGAN: Commissioner, I hadn't meant to give the impression that I wasn't going to deal with those issues - - -

PN905

THE COMMISSIONER: No, I just want to be absolutely clear if there is a need to read this transcript, if, I never assume anything, but if there is a need to read the transcript I certainly don't want to be caught by a novice trap.

PN906

MS MILLIGAN: Commissioner, if it is convenient I might deal with some submissions on those areas now.

PN907

THE COMMISSIONER: Yes, sure.

PN908

MS MILLIGAN: In relation to the convention, Commissioner, can I ask the Commission to go to 170CA, and that is the object of that division. It is 170CA(1)(b). That part of the object reads:

PN909

By those procedures, remedies and sanctions and by orders made in the circumstances set out in subdivisions D and E to assist in giving effect to the termination of employment convention.

PN910

Commissioner, subdivision E contains section 170GA, GB, GC and GD. Our submission is, that in construing the language of 170GA, GB, GC, GD, it is more than relevant to consider the language of the convention and the way in which the object of that part of the Act refers to the convention.

PN911

I can take the Commission to article 13 at schedule 10 and I would draw the Commission's attention to the terms of the article and compare those terms to the terms used in 170GA(1). In particular reading article 13 it begins:

PN912

When the employer contemplates terminations

PN913

In our submission we think that a significant term. It has received consideration in many agreements in relation to technological change. There are provisions for consultation at the contemplative stages of many agreements and decisions.

PN914

It is also followed in the next paragraph, paragraph A, by the terminology:

PN915

Provide the workers representatives concerned in good time

PN916

and we say that that use of term is significant too and it should be compared with the terminology used in 170GA(1)(a) which is "as soon as practicable". We would also say in relation to that - and I am sorry for jumping backwards and forwards - but again in article 13 paragraph B, the terminology is:

PN917

Give in accordance with national law and practice the workers representatives concerned as early as possible.

PN918

Not as early as practicable.

PN919

We say there is a significant difference in the terminology used in the convention to that used from the Act, and where there is a conflict in the terms of the convention and the Act, we say that the terms of the Act should be construed beneficially by the Commission, given that section 170GA is a remedial provision, and in any event having regard to the principal object of that section of the Act which is to give effect to the convention, then we say that that construction should be a beneficial one.

PN920

Commissioner, I think I will leave my submissions there in relation to the article of the convention, unless there is an issue that I can take. I think probably it's convenient to deal with the next matter that you raised, and that is the timing of the decision. When was the decision made to terminate the employment of the employees that are concerned in this application.

PN921

In doing that, Commissioner, I would ask you to go to exhibit G2 the statement by Mr McIntosh. At paragraph 3 of that statement it reads:

PN922

I have been involved in the redundancy program, the subject of the application made by the CEPU under 170GA etcetera.

PN923

Our submission is that the retrenchments that are the subject of this application, the retrenchments that I refer to as the November retrenchments are a distinct and discrete program of retrenchments. I will just take you also in this context to paragraph 13 of Mr McIntosh's statement. In amplifying what I mean is the distinct and discrete program of retrenchments, I would take you to that paragraph. It reads:

PN924

On 10 October all staff were informed by email that it was anticipated that approximately a certain number of people in Human Resources, Marketing, Product Management, Sales and New Businesses, would be made redundant.

PN925

It then goes down to say in paragraph B:

PN926

During the next phase it was expected that redundancies would occur in the areas of, Network Operations, Customer Service, Finance, Billing and Corporate.

PN927

And it goes on in paragraph C, it goes on to say:

PN928

The decision regarding the proposed redundancies was made following a detailed diagnostic analysis of the affected groups which identified overlapping functions and duplication across the business units.

PN929

The decision, Commissioner, to make the employees redundant in these areas of the business, that is Network Operations, Customer Service, Finance, Billing and Corporate, could not be taken until the review, the detailed diagnostic analysis of the affected groups had been completed. Again in Mr McIntosh's statement at paragraph 24, reference is made to material that went to the union and to the employees on 6 November and it is clear from that material that the review had not been completed by 6 November and that in fact the employees and the union are told that there was no decision at that time.

PN930

THE COMMISSIONER: What was that a review of?

PN931

MS MILLIGAN: The areas of the business which hadn't been reviewed in October and those areas of the business are identified as being those as I specified before.

PN932

THE COMMISSIONER: What did the review constitute? As I understand the material, unless I am mistaken, the review constituted the identification of persons who would be told they would be made redundant. There has to be some time to go through a form of matrix for identifying persons. This is not something that's done in a cavalier fashion overnight. There has to be some time put into those questions. There has to be some consultation on those questions.

PN933

So there's just the letter to the union of 13 November reflected the people who were identified. Now, it is difficult to comprehend a situation that the decision making process was done at a time after 6 November, the decision making process in this connection I mean; the assessment of people, the identification of skills, the consultation with senior levels of management. It's difficult to comprehend that at 6 November none of that work had started and that some time after that it started to reach completion and to reach a decision where the union and the employees were told they would be made redundant. That's an awful lot of work.

PN934

MS MILLIGAN: I agree, Commissioner, but - - -

PN935

THE COMMISSIONER: If nothing else poor old Mr McIntosh had to produce this great long questionnaire thing and no doubt he had to send it up for somebody else to have a look at as well knowing that it might be used in evidence. That's not done overnight.

PN936

MS MILLIGAN: No, I agree but I think perhaps it is not intended to mean that the entire review had not commenced and got to a substantial stage by 6 November just that perhaps as indicated in evidence by Mr McIntosh yesterday that those reports that were to be considered by the decision makers amongst management had not been considered and a decision had not been made.

PN937

THE COMMISSIONER: But it seems to me it points to a decision not being made about who will be targeted, the individual, rather than a decision as to whether redundancies would or would not occur and that's one of the critical issues that I've identified and the conduct of the parties and how they saw it because if you say it's an individual circumstance on one that reading that letter evinces an intention by the employer that says we don't need to consult with you at this stage because a definite decision regarding further redundancies has not been made, if we look at it at two separate events.

PN938

MS MILLIGAN: Commissioner, can I take you to annexure N of Mr McIntosh's statement?

PN939

THE COMMISSIONER: That's from Mr Gillespie and Mr Sullivan?

PN940

MS MILLIGAN: That's right.

PN941

THE COMMISSIONER: Who are they?

PN942

MS MILLIGAN: I don't know, Commissioner.

PN943

THE COMMISSIONER: All right, we'll come back to that.

PN944

MS MILLIGAN: This is an e-mail dated 6 November to Optus employees. It says:

PN945

We have continued our review of each division. Last week we went through the findings of wave 2 diagnostics of the areas under review -

PN946

That is the specific areas under review in this phase:

PN947

- with the MDs and their management teams.

PN948

And the areas again are named as distinct from any other areas that have been reviewed before and it is said that there is an effort to reduce costs. It is said, under the heading wave 2:

PN949

You are already aware there will be redundancies in wave 2. It is important to remember in addition to ...(reads)... and data processing.

PN950

It goes on to say the next step:

PN951

Senior management teams of each division are now designing an implementation strategy for these plans ...(reads)... OWT update.

PN952

Commissioner, it seems clear from that that there are still a number of factors being considered which may influence the number and profile of any retrenchments that may be required. It doesn't on the face of that document indicate that, for example, in a particular area a particular number of positions have been chosen and that the task now was to put the individuals to the positions. It seems to me there was a greater deal of fluidity in the process at that point according to this document.

PN953

So, again,just to reiterate, this document is to the employees on 6 November, it refers to matters coming to finalisation over the coming week. You'll recall that in the advice to the union the end of November is referred to as being a likely date. Again, in relation to when a decision was taken about the results of these review, Mr McIntosh's evidence said that that was actually taken between 3.00 and 4.00 pm on 13 November, the day on which the company advised the union about these retrenchments and the day before the company issued retrenchment notices to the employees.

PN954

THE COMMISSIONER: But that decision was the identification of people, it wasn't the decision to retrench. Let me put it this way; that decision was not a decision that retrenchments were needed, that was a decision as to who would be retrenched.

PN955

MS MILLIGAN: Or the number of retrenchments needed without the identification of the individuals.

PN956

THE COMMISSIONER: No, they were identified on that day because the next day the people were told weren't they?

PN957

MS MILLIGAN: Yes, I'm sorry.

PN958

THE COMMISSIONER: That meeting was about ticking names.

PN959

MS MILLIGAN: We say that the advice to us on 13 November was the trigger for consultation. Prior to that decision there was no decision about retrenchments that was amenable to being consulted about that could provide an opportunity for genuine consultation. That was aimed at giving the opportunity to influence the way in which those retrenchments might be processed or might be distributed within a particular category.

PN960

THE COMMISSIONER: I'm sorry, you say there was no decision about how it would be processed or distributed in a particular category?

PN961

MS MILLIGAN: No, there was no opportunity for the union to influence the decision that the company had made.

PN962

THE COMMISSIONER: What time did you get the notice? 5 o'clock or something.

PN963

MS MILLIGAN: After 5 o'clock, Commissioner, and as I understand it the interviews took place from first thing in the morning. Can I take you to paragraph 36 of Mr McIntosh's statement? Can I say in relation to the information in paragraph 18C which relates to a number of employees some of whom have had their termination date postponed one of whom has refused redeployment and three of whom might be redeployed.

PN964

Commissioner, we say that that is evidence of two things, that given an opportunity for genuine consultation, the possibility of averting or mitigating the effects of the retrenchment on employees did exist. Some circumstances given the time have changed, we say that that evidences the possibility that consultation can influence the effect of the terminations on employees. Commissioner, we also say that that information in that paragraph does reveal the nature of the approach by the employer where individuals are given a clear notice that they are to be retrenched with little hope of redeployment and then in a few days time or a week's time, they may or may not be reprieved.

PN965

We see that as being a totally back to front process and a process that does not take into account the psychological and personal impact of that kind of decision on an employee's life and on an employee's family. We say that during a period of genuine consultation, we may have been able to influence the employer to deal with that process differently but we have not had that opportunity in relation to the retrenchments that were notified to the employees on 14 November.

PN966

THE COMMISSIONER: What do you say to the proposition that effectively comes from the employers evidence that over a period of time, the union were talking about redeployment and paragraph 13 is evidence of the fact that it has occurred.

PN967

MS MILLIGAN: I am sorry, Commissioner, I don't follow.

PN968

THE COMMISSIONER: That's all right. Part of the evidence of the employer was that they provided opportunities to the union to contribute to the process. Part of the evidence of Mr Cooper was that he had made a number of suggestions including redeployment opportunities. So what do you say to the proposition that paragraph 36 is simply evidence of the fact that that was taken into account and that there was redeployment opportunities arising out of the consultation and that there has been, if you like, mitigation of the impact of redundancy.

PN969

MS MILLIGAN: Well, Commissioner, again, the manner in which the process was conducted does not reflect any taking into account of any of the suggestions the union has made about how that process should be amended or improved and moreover again, the union has not had a genuine opportunity to put forward detailed proposals in relation to employees who were retrenched on 14 November.

PN970

THE COMMISSIONER: Can I take that in two parts for your comment and observation or your submission rather. I take the last bit first. You haven't had a genuine opportunity, I understand that submission. That's quite different from the first proposition that you don't think the employer has taken into account your views. One of the things I said earlier was, I can see a distinction where an opportunity has been given for consultation and in saying your view that has been ignored and they have come out with the wrong decision, it might be said that that wrong decision is not a matter for 170GA because the focus of GA is upon consultation. That wrong decision or inappropriate process is a matter that is more appropriately dealt with under CE and I can probably give you a reference - no I can't I haven't got it here with me. There was a Full Bench in August presided over by his Honour the President that reviewed extensively skills matrix and the like and simply found that the process was unfair. Why is that not a matter for close examination under CE to see whether the decision that has been made following consultation is a stupid one or a bright one.

PN971

MS MILLIGAN: Commissioner, if I can approach it this way, I think it still revolves around the genuineness of the consultation and the industrial reality that it is clear to the union that the suggestions made when they have been made have been dealt with in a manner that does not accord with the definitions of genuine consultation as provided by the decisions of the Commissioner over a long period of time.

PN972

THE COMMISSIONER: Yes, well just as long as it's not your submission, that the definition of meaningful consultation is one where the other side agrees with you.

PN973

MS MILLIGAN: If only that were the case, Commissioner but that has never been our submission unfortunately and it is not the reality.

PN974

THE COMMISSIONER: Thank you, Ms Milligan.

PN975

MS MILLIGAN: But it is the reality that with many employers, I can confidently say, we have enjoyed genuine consultation in relation to these matters. Again before I am accused of giving evidence from the bar table I think Mr Cooper's evidence goes to the quantum of that.

PN976

THE COMMISSIONER: He expressed a view, yes.

PN977

MS MILLIGAN: Commissioner, one of the next issues that you sought some submissions on or you invited submissions on, is the categories of employees, is the level of identification of categories of employees I take that to mean.

PN978

THE COMMISSIONER: Is there a difference between a category and an individual?

PN979

MS MILLIGAN: Yes, Commissioner, in our submission there is a significant difference if a number of retrenchments are advised in relation to a category of employee, it is possible to contemplate a number of ways of dealing with that. If retrenchments are individualised then that's a different concept to the one that is provided for under this section of the Act. Commissioner, again, if I could just refer to M2, slightly easier than Mr McIntosh's statement. You will see at the first letter in M2 dated 9 October numbers of employees are identified on a state basis and that's the sum total of the categorisation of employees.

PN980

THE COMMISSIONER: Why isn't the categorisation of the employees those in primary sales, marketing and human resource roles, why is that not the categorisation?

PN981

MS MILLIGAN: I am sorry, Commissioner, that would be, that is a broad categorisation. Could I contrast that however with, I think that categorisation goes to the areas in the business where it has been decided retrenchments are necessary. Those areas of the business and if that is contrasted with the letter of 13 November.

PN982

MR GOOT: That is annexure P to Mr McIntosh's affidavit.

PN983

THE COMMISSIONER: Yes, it is contained in M2 as well. Thank you, Mr Goot.

PN984

MS MILLIGAN: The identification of employees appears to lack that general categorisation but identifies again employees to be retrenched on a State basis and in response to the CEPUs earlier requests, further categorises the employees by way of job function. Commissioner, can I just say at this point - - -

PN985

THE COMMISSIONER: But wasn't that also the effect of their letter of 9 October?

PN986

MS MILLIGAN: No, Commissioner.

PN987

THE COMMISSIONER: Weren't there, if I take the ACT, was it your understanding that there were three jobs to go out of X number of jobs, or were three people identified in the same way as the approach taken on 13 November?

PN988

MS MILLIGAN: Commissioner, I am not sure what that means. I would take it ordinarily to mean that there were three positions identified for retrenchment in the ACT. In the broad areas of sales, marketing and human resources.

PN989

THE COMMISSIONER: I would be surprised if there weren't three people tapped on the shoulder.

PN990

MS MILLIGAN: Well, it may be, Commissioner.

PN991

THE COMMISSIONER: If the process is being consistent that is the way the process operated on the 13th.

PN992

MS MILLIGAN: Yes, Commissioner, that is how it must have operated if the individuals were able to be identified and called in for their retrenchment notices the following day.

PN993

THE COMMISSIONER: You see essentially you are putting this difference. If you have got a category of employment of field services persons and you have got 100 of them and somebody comes to the union and says, look we have got to cut costs and we have got to get rid of 15. What you say is you ought to sit down and be able to talk about ways of doing that. As opposed to somebody coming to you and saying we have got 100 here are the 15 people we have now told are likely to be made redundant. That is the distinction between the two positions, isn't it?

PN994

MS MILLIGAN: Yes, Commissioner, and as we have seen from this conversation that is a preconception that one has because that is how it is usually done. In fact I would say that that is how it is mandated by that section of the Act.

PN995

THE COMMISSIONER: Well, if that's right, then you haven't got a case.

PN996

MS MILLIGAN: Well, Commissioner, I think the opportunity for genuine consultation means that there is an opportunity to influence the decision. There is no opportunity to influence the decision if it is right that the example of 10 field technicians within a group of 100 have to be identified and those individuals have to go come what may, irrespective of the unions suggestions which may be accepted about a number of other ways in which that situation could be dealt with.

PN997

I don't know whether I have clarified that, Commissioner.

PN998

THE COMMISSIONER: That is all right, thank you.

PN999

MS MILLIGAN: Does that also deal with the issue of positions versus persons, Commissioner?

PN1000

THE COMMISSIONER: Yes, thank you.

PN1001

MS MILLIGAN: There was another issue that you raised yesterday, Commissioner, and that is in relation to 170CL and I wasn't sure what was required in relation to that.

PN1002

THE COMMISSIONER: I was just identifying CL as if you like, a relevant indicator to the employers approach because there are certain requirements that are requirements under CL. I know your view that it is an inherent or if you like a requirement of the Act that the employer must, I think that is arguable. I think what the Act provides is an opportunity for the Commission to issue orders in relation to that matter. But certainly CL provides a duty upon the employer to do it. To the extent that CL is relevant it may only be relevant in giving me an idea of how the employer approached the matter because there are duties imposed upon the employer and how the employer considered its obligations under the Act. That is the reason I raised it.

PN1003

MS MILLIGAN: Commissioner, I don't know if it is of assistance, but I would - - -

PN1004

THE COMMISSIONER: On one argument it supports your proposition that there were two events.

PN1005

MS MILLIGAN: Well, I think, Commissioner, that argument is also supported by the two separate notifications to the union and to Mr Shergold of the two separate sets of retrenchments. Commissioner, I might move on to the cases before I get into any further and deeper water. Commissioner, I will just for the briefest possible purpose hand up a copy of the Telstra Corporation Enterprise Agreement 1995/1997 and I don't - - -

PN1006

MR GOOT: Yes, I have got that, you gave it to me, thanks.

PN1007

MS MILLIGAN: It will become apparent and it is again simply related to the definition of consultation. It may be an awkward way to introduce it, Commissioner, but on page 5 of that document in the body of sub clause 7.4 there is a quote from the Commissioner's currently constituted in another matter which is quoted and adopted by - - -

PN1008

MR GOOT: Just hold on, sorry.

PN1009

THE COMMISSIONER: They have put that in their agreement, or is this a decision?

PN1010

MS MILLIGAN: It is from a decision put into the agreement.

PN1011

MR GOOT: Where is it?

PN1012

THE COMMISSIONER: Page 5 of 8.

PN1013

MR GOOT: I am terribly sorry, right.

PN1014

MS MILLIGAN: The parties adopted that as a suitable definition for consultation in the operation of that agreement, Commissioner. The only point I wish to make is it is a definition that has been adopted by the Commission and one which we rely on. I will just read the - - -

PN1015

THE COMMISSIONER: This is the Certified Agreement?

PN1016

MS MILLIGAN: It is the Certified Agreement.

PN1017

MR GOOT: Quotes you, Mr Commissioner.

PN1018

MS MILLIGAN: It quotes as I understand it the Commissioner as constituted from another matter.

PN1019

MR GOOT: Yes, but not in relation to the statute.

PN1020

MS MILLIGAN: Commissioner, the definition of consultation provided there is in relation to the concept of consultation. I wish to make it clear that this involves more than a mere exchange of information. For consultation to be effective the participants must be contributing to the decision making process not only in appearance but in fact. Commissioner, that approach to consultation specifically in relation to the section of the Act that this application is made under, is also supported by a Full Bench decision which I would like to tender also.

PN1021

Commissioner, this is a decision of the Full Bench which is print number R0234 and it is the CFMEU v Newcastle Wallsend Coal Company. It is from 21 December 1998. Commissioner, just very briefly to jog over the relevant facts of the decision which start at paragraph 7, in this instance the sequence of events went in this way; on 2 July the company invited the union to enter into consultation about terminations and how they might be averted, on 3 July there was an internal company meeting and a decision that the mine would close and the union was notified of that decision on the same day, on 7 July the union filed a 170GB application about the failure to consult, on 8 July the company expressed surprise and asserted that the union had failed to take up previous offers of discussion and consultation with the company not unlike the assertions that are made I believe in this matter.

PN1022

On 10 July the matter was listed in the Commission. It goes through a process in the Commission of conciliation and reporting back, etcetera, and the orders are then pressed on 17 August. A final decision is handed down by Commissioner Harrison that in fact no breach of the obligation to consult had occurred and the Full Bench deals with an appeal against that decision. At paragraph 24 the Full Bench makes some comments about the proper construction of the section and the jurisdictional facts required for the operation of the section and to paraphrase they are that the employer must have decided to terminate for the reasons stated in the section and, secondly, that the employer did not notify the union about the details of the terminations or the employer failed to give the union an opportunity to consult about the matters specified in the section.

PN1023

The Full Bench decided that an opportunity to consult as required by section 170GA(1)(b) had not been provided to the union by the company and that the jurisdiction existed for the Commission to exercise the powers to make the orders sought. Importantly, it's the definition of consultation adopted by the Full Bench in this decision that I wish to take you to. That discussion we wish to emphasise is at paragraph 74 and I'll just read a brief extract:

PN1024

Section 170GA(1)(a) speaks in terms of providing an opportunity to consult with the employer on ...(reads)... mere formality.

PN1025

If I can just take you down to paragraph 78 and begin with:

PN1026

The respondent in the proceedings before us did not refuse to discuss the decision to terminate the employees ...(reads)... any meaningful way.

PN1027

Again in paragraph 79:

PN1028

An offer made the day before an irrevocable decision is taken to terminate the employees employment ...(reads)... to consult.

PN1029

Just again briefly at paragraph 81, in the middle of that paragraph:

PN1030

In our view the offers to consult made after 3 July were irrelevant as they were not real or meaningful.

PN1031

And in 82:

PN1032

In our view the Commission did have jurisdiction to make the orders sought.

PN1033

Commissioner, those definitions of consultation are key to our submissions and our case.

PN1034

THE COMMISSIONER: Can I put this proposition to you; what do you say about the circumstances of this case where persons are told they will be made redundant in a week's time and where the employer is able to demonstrate that some persons were redeployed and therefore not terminated and the argument being it's not an irrevocable decision to terminate; it can't be irrevocable by definition that some people weren't terminated.

PN1035

MS MILLIGAN: Commissioner, if I can answer that question in two parts in relation to the employees; some employees on receipt of the letter of termination issued on the 14th would form the view that that decision was irrevocable. They are told in that letter that there is very little possibility of redeployment and that if they had any ideas about how they might be redeployed then that could be put forward.

PN1036

In the real world once an employee receives a notice of that kind there is a fundamental lack of motivation to come back and explore those very minimal opportunities of redeployment. In fact many employees form the view that that is a futile pursuit. So in the minds of the employees who received that letter, in some employees minds, that decision is irrevocable. It is acted on as such by the employee from that time.

PN1037

In relation to the union I can only repeat my submission that once an employer has determined that individuals will be retrenched it is very difficult for the union to have an opportunity to convince the employer to deal with the retrenchments in a different way. It is a fait accompli, it is - - -

PN1038

THE COMMISSIONER: You're seeking to alter a decision rather than to contribute to one?

PN1039

MS MILLIGAN: Absolutely, Commissioner. It is hard enough to contribute but once the decision is made the psychology of unmaking it is very difficult with most employers and very difficult in my experience with Optus. I think that the act recognises that and that is one of the reasons why there is an emphasis on consultation prior to final decision making. If I can just tender one more case? Again, it's a case that the Commission is very familiar with and very fresh. It is print number PR911257 and it is the decision in Vodafone made on 14 November 2001 via the Commission as currently constituted. Commissioner I don't seek to draw any other parallels between this case and that one, other than to draw the Commission's attention once again to the definition of consultation as adopted by the Commission in that case. That definition is provided in the conclusion at paragraph 25. Starting at the second sentence, Commissioner, I just highlight the following:

PN1040

Consultation is not perfunctory advice on what is about to happen. This is a common misconception. Consultation is providing the individual or other relevant persons with a bona fide opportunity to influence the decision maker.

PN1041

Again, Commissioner:

PN1042

Consultation allows the decision making process to be informed, particularly as it may affect the employment prospects of individuals ...(reads)... who will be the subject of the exercise of that power.

PN1043

We say that that definition is consistent with the definitions adopted by the Commission in relation to consultation and that is the definition of consultation that should be applied in the application before you today.

PN1044

Our submission of course is that we have not been provided with an opportunity for genuine consultation under 170GA(1)(b) of the Act. We have made an application under that section of the Act for orders. We urge the Commission to exercise its jurisdiction and discretion in issuing those orders or any other orders that the Commission sees fit in these circumstances. If it please the Commission.

PN1045

THE COMMISSIONER: I just raise two matters with you. As I understand the position that you've adopted in relation to exhibit M1, is that if I were minded to make an order about consultation, then that order should include an obligation to disclose this information.

PN1046

MS MILLIGAN: That's correct, Commissioner.

PN1047

THE COMMISSIONER: The order you have submitted in 6, directs Optus not to take any further steps in relation to terminations. That's over.

PN1048

MS MILLIGAN: Yes, Commissioner, I was considering that earlier. I am not sure whether it is necessary or appropriate to amend the application to - how to amend the application to effect the objective of reinstatement, if I can put it that way - which is the effect of issuing an order to put the parties back in the position that they were in prior to the retrenchment taking place.

PN1049

THE COMMISSIONER: So it's to reinstate all those persons dismissed as a result of redundancy.

PN1050

MS MILLIGAN: Yes, Commissioner.

PN1051

THE COMMISSIONER: Now, Mr Goot, should we break for 15 minutes.

PN1052

MR GOOT: Yes, apparently my instructing solicitor tells me she needs to speak to me to tell me what to say because she's been listening carefully to you, Commissioner, formulating and reformulating the interrogation. So what time, 10 past?

PN1053

THE COMMISSIONER: I hope it wasn't perceived as that, but I hope it was perceived as the Commission putting itself on inquiry to establish information from the parties.

PN1054

MR GOOT: I have been psyching myself up for the Spanish Inquisition, Commissioner.

PN1055

THE COMMISSIONER: Thank you. Quarter past be convenient? Very well, we'll adjourn till then.

SHORT ADJOURNMENT [12.52pm]

RESUMES [1.19pm]

PN1056

THE COMMISSIONER: Yes, Mr Goot?

PN1057

MR GOOT: Thank you, Commissioner. Can I deal firstly with the submissions by my friend in relation to the convention. The convention which is schedule 10 to the Act contains a number of articles. The Act in its terms as we have already been told, section 170CA(1)(e) and I'll just go there, states as one of the objects of the division which is division 3 dealing with termination of employment:

PN1058

By those procedures, remedies and sanctions and by orders made in the circumstances set out in subdivisions D and E to assist in giving affect to the termination of employment convention.

PN1059

Then one travels to the convention. Article 13 adopts terminology which is in material respects different to that which appears in the Act. My friend has highlighted some of those differences. For example, the use of the word "contemplates termination" as opposed to "deciding" for the purposes of section 170GA and CL. "In good time", instead of, "as soon as practicable", after so deciding. That's for the purposes of 170CL, and:

PN1060

As soon as practicable, after so deciding and in any event before terminating.

PN1061

in 170GA. Similarly with "as early as possible".

PN1062

We say that the statute has to be interpreted on its face. That is article 13 has no work to do in terms of construction of section 170CL and section 170GA, because of paragraph 2 of article 13, which my friend didn't go to. Paragraph 2 of article 13 says:

PN1063

The applicability of paragraph 1 of this article may be limited by the methods of implementation referred to in article 1 of this convention.

PN1064

And then let's just go to article 1. Article 1 says:

PN1065

The provisions of this convention shall insofar as they are not otherwise made effective by means of collective agreements, arbitration awards or court decisions or in such other manner as may be consistent with natural practice be given effect by laws or regulations.

PN1066

They are given effect by laws or regulations including 170CL and 170GA.

PN1067

THE COMMISSIONER: Can I just ask you on that, is that language, "give effect by laws or regulations", referable to the Parliament's capacity to make laws or regulations or is it referable to collective agreements, arbitration awards or court decisions that may be given effect to by laws or regulations. Do you see the distinction?

PN1068

MR GOOT: No, it is the capacity of the Parliament, not just the capacity but the fact of this is a head of power for the Federal Parliament to enact 170CL or 170GA which it has done. Having done so, and this is where we come back to paragraph (2) of article 13, which says:

PN1069

The applicability of paragraph (1) ...(reads)... or a percentage of the work force.

PN1070

So what the Parliament has done has said well, look we see what article 13 says. We will give effect to it in this way and we will limit its operation by nominating a specified number of people, i.e., 15 in the case of section 170GA. I am not sure whether - - -

PN1071

THE COMMISSIONER: Is that the effect of (2)?

PN1072

MR GOOT: Yes.

PN1073

THE COMMISSIONER: Simply identifying the numbers to which - - -

PN1074

MR GOOT: Because you identify a number you can then limit the applicability of the operation of the article.

PN1075

THE COMMISSIONER: Yes. So we are not dealing with any enterprise with less than 15, for example?

PN1076

MR GOOT: Precisely. Because the Parliament in section 170CL and 170GA has specified the figure of 15, it can depart in terms of the terminology from the terminology used in article 13.

PN1077

THE COMMISSIONER: Is (2) permissive of that approach?

PN1078

MR GOOT: Yes, in our submission. In that respect it is not surprising that for example in the Newcastle Wallsend decision which I will take you to, Mr Commissioner, the Full Bench has focused on the words actually within 170GA. I mention in the same context 170CL because an obligation is imposed on an employer in almost identical terms in section 170CL to that obligation or requirement which appears in 170GA(1)(a) but for the words appearing in the latter subsection and, in any event, before terminating an employee's employment.

PN1079

It seems that under 170CL you can notify the department post termination, but you can't notify the union post termination under 170GA. That is the only difference as we perceive it. So then the question of how the statute operates is a matter of construing the plain English in 170GA. Now as you, Mr Commissioner, have foreshadowed there are decisions, and there are decisions, and there are decisions. 170GA talks about a very specific decision, in my submission.

PN1080

In the proceedings here we say that 170GA talks about in fact two decisions. My friend would be happy to hear that. One, is a decision which was given effect to in October of this year and another separate decision was given effect to in November of this year. I should foreshadow that we would submit that in the alternative the October decision was - sorry, I will put it this way. The events that occurred in November of this year were in the alternative part of the October decision.

PN1081

We say it doesn't make much difference here because it is clear that there was an opportunity to consult given either in relation to a decision made in November or, on the alternative view, if the decision to take effect in November was made in October the opportunity consult occurred all the way through October and November. Now the decision to which section 170GA refers is clearly a decision to terminate the employment of 15 or more employees for the reasons specified.

PN1082

It is a decision which we submit gets its quality and nature from the words appearing in subsection (1)(a) and (1)(b) of section 170GA. That is, it is a decision which would enable, as soon as practicable after it has been made, each trade union to be informed of the matters in subparagraphs (i) to (iii) inclusive of subsection (1)(a). Or, would enable an opportunity to consult being provided in relation to the matters in subparagraphs (i) and (ii) of subsection (1)(b).

PN1083

In our submission when you look at the decision in that context, the decision to which the subsection refers is the decision of 13 November, 14 November or thereabouts because the detail required to be imparted formed part of that decision and only became available as a result of that decision. If on the other hand the decision to which the section refers is a less specific decision then the decision made in October that there was to be, or probably would be, a second wave of similar magnitude in departments A, B and C could be such a decision.

PN1084

If it didn't need the specifics that were later supplied on 13 November. In either event, as we have said, an opportunity to consult was provided. Here, in the proceedings before you, Mr Commissioner, the applicant union makes no complaint about the first decision of October and insofar as any complaint is made about the second decision of November - - -

PN1085

THE COMMISSIONER: Could I just ask you to pause there. My recollection, correct me if I am wrong, of Mr Cooper's evidence was that he didn't agree with it but that in order to adopt a conciliatory approach, he was hoping to mend fences for the next one.

PN1086

MR GOOT: I am not talking about the evidence, Commissioner, I am talking about the application.

PN1087

THE COMMISSIONER: I am sorry.

PN1088

MR GOOT: The application does not attack in any way shape or form, the October decision. The application is limited to the November decision and in that respect is limited only to subsection 1B - opportunity to consult.

PN1089

THE COMMISSIONER: But if I adopt your secondary position, I can import the circumstances surrounding the earlier decision to this application, can I?

PN1090

MR GOOT: Yes, but only in respect of the November retrenchments.

PN1091

THE COMMISSIONER: I follow. I can't seek to undo the earlier retrenchments.

PN1092

MR GOOT: No, and there is no application made in relation to that. Precisely. So it's a question of when Optus made the decision in respect of the retrenchments that in fact occurred yesterday and the answer to that question is either on 13 November in accordance with Mr McIntosh's unchallenged evidence or if you take a broader view as to the nature of the decision and the timing of the decision, it was in October when it was foreshadowed that there would be a second wave. That it would affect named departments and that it would be of similar magnitude and numbers.

PN1093

THE COMMISSIONER: Would I be correct then that the primary position that you put forward as to the time the decision was made is at one with the union's proposition.

PN1094

MR GOOT: Correct.

PN1095

THE COMMISSIONER: Thank you.

PN1096

MR GOOT: I don't think I need to elaborate any further on that. I rather gathered yesterday, Commissioner, that you thought that a decision for the purpose of section 170GA could be the decision in which a view was expressed that there had to be a saving of $100 million, a decision as to reduction in costs.

PN1097

THE COMMISSIONER: I put it higher than a view. I put that forward for debate.

PN1098

MR GOOT: I deal with that now. There is very little evidence about that decision. There is certainly no evidence as to when it was made, one could infer that it was made some time prior to 9 October.

PN1099

THE COMMISSIONER: Reasonably infer?

PN1100

MR GOOT: Yes, reasonably infer. There is nothing which would enable, Commissioner, you to infer in my submission that it was a decision of the sort contemplated by section 170GA. That is a decision to terminate 15 or more employees for the prescribed reasons. Such as involved a determination of the number and categories of employees likely to be affected and the like. We just say that was not a decision to which section 170GA applies, because it lacked any specifics as to name rank serial number, if I can use that terminology or numbers. If I say, we are going bad, we need to cut costs and we will cut costs, that is not a decision for the purpose of section 170GA.

PN1101

THE COMMISSIONER: No, but if you say, I am going bad to the tune of $75 to $100 million dollars and I look at the material that is provided, you are asking me to draw the conclusion that that can be done without the possibility of 15 or more persons being made redundant.

PN1102

MR GOOT: Well, let's assume that cost cutting of that magnitude must involve the termination of more than 15 employees, assume that. It is nevertheless not a decision to which section 170GA applies because there is no determination as to numbers, departments and the like. That is why I say, there are decisions and there are decisions. If on the other hand, Commissioner, I said, we are going out backwards, we being a mining company. We are putting the mine on care and maintenance, that would be a decision for the purpose of section 170GA because it is an irrevocable decision.

PN1103

You are closing the business down and that was the fact and that was the position in Newcastle Wallsend and indeed it was a decision based on an admission in the witness box from the relevant executive, Mr Casey, I think on behalf of the company who conceded that that decision in itself was an irrevocable decision. It was all over red rover from that point on. It was a very different position to a decision here that we need to cut costs of the magnitude that I have indicate. Indeed, there were other decisions taken subsequently which clearly were decisions for the purpose of section 170GA and as you have observed yourself, Commissioner in relation to the November retrenchments they still haven't been finalised as we speak.

PN1104

THE COMMISSIONER: Yes, but can I take you to tab G. The message from Chris Anderson, who I am told is the Chief Executive of both companies. He announces to his staff on 10 October that they have identified the need to reduce the cost base by $75 to $100 million. In the next sentence, he announces that this has resulted in a number of unforeseen but essential cuts to our workforce. Not ambiguous.

PN1105

MR GOOT: No.

PN1106

THE COMMISSIONER: Then two paragraphs down, identifies the numbers of full time positions, number of contract roles in departments. Then in the same paragraph says, he is going to move to other departments and says, we expect further redundancies. Why do you say that that decision whenever taken prior to 10 October, is not a decision to make redundant 15 or more persons.

PN1107

MR GOOT: Because he is simply reporting on events on 10 October which have already been the subject of the correspondence of 9 October, annexures B and C to Mr McIntosh's statement and I have conceded that clearly on my alternative view, I have conceded that annexure G would support a view that the October decision in relation to the 250, might also be a decision in relation to the X number who were to be retrenched in November.

PN1108

I have to make that concession, Commissioner, because of the very terms of annexure G. But that brings us back and I say it is not my preferred view, but it is a view clearly open to you, Commissioner, to take. The question that then arises is was - and this is the real question in the proceedings. Did the employer as soon as practicable after so deciding (on or about 9 October) and in any event before terminating the employees employment pursuant to the decision (on 21 November), give the CEPU an opportunity to consult with the employer on the measures referred to in (i) and (ii) of 170GA1B. That is the question.

PN1109

That might be a convenient time to look at the meaning of consult because we say that consultation in the context of 170GA is quite specific and certainly is not that which the union has defined. Can I start the discussion by reference to the decision of the Privy Council and Port Louis Corporation v The Attorney General of Mauritius reported in 1965 appeal case at page 1111. You will be glad to know, Commissioner, that Mauritius does not appear to have the equivalent of section 170GA and the consultation with which the Privy Council was concerned is that which appears in the head note. Namely, a requirement under section 73(1) of the Local Government Ordinance 1962 of Mauritius that the Governor and Council made by proclamation, alter the boundaries of any town, district or village after consultation with the local authority concerned.

PN1110

The question for determination by the Privy Council was whether there had been consultation and what does consultation mean. If one travels to page 1124 and I haven't reproduced the whole of the report, for obvious reasons. Their Lordship said this:

PN1111

Section 73(1) of the Local Government Ordinance does not prescribe any set machinery for consultation -

PN1112

Just interpolating there, nor does section 170GA.

PN1113

- no formalities are laid down which must be followed.

PN1114

Interpolation, neither here.

PN1115

Their Lordships were referred to observations made in regard to consultation in certain decided cases.

PN1116

There are references to them.

PN1117

Helpful as the citations were, the nature and the object of consultation must be related to the circumstances which call for it. ...(reads)... what they think.

PN1118

Now, here making the necessary changes between local authority and CEPU and the nature of the information and the like. It simply cannot be said that the CEPU was not given an opportunity to consult in relation to the matters, the subject to section 170GA1B. They were many times and often and we say that on the basis of Port Louis Corporation which talks about consultation as opposed to an opportunity to consult, that the applicant simply cannot succeed.

PN1119

THE COMMISSIONER: So if take your primary position, namely that the invitation of 13 November presented itself with an opportunity to consult, you say that the persons had been identified, the union had been given an opportunity to consult on measures to avert the terminations. You say those terminations didn't occur till yesterday as evidenced by payment in lieu and they had had an opportunity during that week to put forward proposals to mitigate the adverse effects of terminations.

PN1120

MR GOOT: Not only that, Commissioner, but they did so. Because there was a meeting on 14 November as deposed to in paragraph 31 of Mr McIntosh's statement, exhibit G2, including details about redeployment and details about looking for jobs in Sing Tel and all the rest of it. Not only was there an opportunity but there was in fact consultation. Can I say this. My friend has said, look there wasn't consultation and wasn't genuine consultation. There is evidence from Mr Cooper as to what he regards as consultation. As I said at the time that is interesting but at the end of the day, you Mr Commissioner, have to determine what consultation in the context of section 170GA means.

PN1121

We say, it means the Port Louis Corporation type of consultation. Mr Cooper's evidence was that the union put up amongst other things a proposal and I don't want to do him a disservice when I use the shorthand expression, voluntary redundancy, because he was at pains to indicate it wasn't simply calling for voluntary redundancy and I appreciate that. But there was a proposal regarding voluntary redundancy and there was a proposal regarding swaps. Now, we know that those proposals put forward by the union in consultation with Optus were rejected by Optus. The fact that they were rejected by Optus does not mean that there was no consultation. It means it is entirely consistent with consultation but Optus and the CEPU reserve their rights obviously to disagree with each other or not to follow each other's approach.

PN1122

There is nothing unusual about that. If on the other hand Optus had said, look we are just not interested in anything you want to say, we don't need to explain to you why we think this is not a good idea or that is not a good idea, or why we don't want to go down this path or that path. Or why we don't want to even try to redeploy people. If any of that had occurred then maybe, maybe there would be a possibility to assert or to submit by the CEPU that the opportunity wasn't genuine, it was just a charade, it was perfunctory. But there is none of that. Mr McIntosh has given evidence. There are letters which say why they don't want to do A, B and C.

PN1123

He was never cross-examined that that wasn't a bona fide view or that that was job a fob off or that they didn't look at it. Or that the gentleman who attended the meeting with him, Mr Hardy, I think his name was, the evidence was a senior executive of Optus. Was simply there for window dressing and to make it look good, but none of that. The fact that they didn't agree, the fact that there was no co-determination doesn't mean that there was no consultation. There was consultation and plenty of it. The other point to note in relation to consultation is this.

PN1124

Clearly you would be able to infer from the evidence that Optus had gone to some trouble to consider redeployment. It had a redeployment resource centre set up for that very purpose. That it redeployed as many people as it could and indeed that against the possibility of people being redeployed it extended in the case of 11 employees the termination from yesterday for two days to exhaust the possibility. Now, for the union to come along and say well we suggest you look at redeployment, with the union really running into an open door, because that is precisely what Optus was already doing. It was well ahead of them in that respect.

PN1125

So that there was as we say, an opportunity to consult and further that there was consultation. If I can take you to the decision of Toohey J in the Federal Court in TVW Enterprises v Duffy. It is at volume 60 of the ALR page 687 and that's 1985, 60ALR. His Honour there was concerned with - actually it was a converse argument. His Honour was concerned with obligations of a Minister under section 82(1) of the Broadcasting and Television Act and section 111C of the Act provided that one of the Minister's responsibilities was to plan the development of Broadcasting and Television Services in Australia. In so doing he was obliged to consult with television stations in relation to matters effecting those stations.

PN1126

The question was whether the Minister had an obligation to consult with the proprietor of a television station prior to publishing a notice under section 82(1) of the Act calling for an inquiry into a certain matter. So it was an issue of whether consultation went that far. At page 694 at the middle of the page his Honour said:

PN1127

Consultation is no empty term. The requirement of consultation is never to be treated perfunctorily or as a matter of mere formality.

PN1128

There is a reference to Port Louis Corporation and other cases.

PN1129

All of which make it clear that a responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account.

PN1130

I emphasise the words, "may be taken into account". Not that they will be or must be but that they may be. The decision continued.

PN1131

It would be a somewhat curious result if the Act having constituted a Tribunal to consider within the framework of a public inquiry whether there shall be an additional commercial television station and if so who shall receive the license. ...(reads)... sought to establish.

PN1132

So that his Honour by virtue of that reasoning said that the Minister had no obligation to consult in the context of a section 82 inquiry.

PN1133

THE COMMISSIONER: What am I to draw from that?

PN1134

MR GOOT: You don't have to draw anything from that except that in so deciding he decided that because if consultation had occurred the Minister may have as a result of the consultation made a decision which would have pre-empted the inquiry. Therefore there couldn't be consultation. There was no requirement for there to be consultation. But, Commissioner, the section of the judgment upon which I rely is the first part of that decision.

PN1135

THE COMMISSIONER: So their views may be taken into account.

PN1136

MR GOOT: May be taken into account.

PN1137

THE COMMISSIONER: Yes, and that is a timing question, isn't it?

PN1138

MR GOOT: Yes and it doesn't travel further than that. Then we come to the decision of a Full Bench in the CFMEU v Newcastle Wallsend Coal Company, print R0234 to which my friend took you earlier. I am sure you are familiar with it, Commissioner. There was an issue of whether Commissioner Harrison below had got it right in determining that the date of termination was at the expiration of the notice period as opposed to the date upon which notice was given. That was one of the issues and much of the judgment was involved in determining when termination occurs in such circumstances because clearly that being relevant consultation and giving of notice under the Act.

PN1139

At paragraph 28 the Full Bench said this:

PN1140

It seems to us that the effect of this provision -

PN1141

They are referring to 170GA2.

PN1142

- is that the end of the time frame for the provision of the specified information and the opportunity to consult is before terminating an employees employment. ...(reads)... took place.

PN1143

So here there is no issue about that date. The consultation or the opportunity to consult with which you are concerned, Commissioner, is an opportunity that must occur before the afternoon of 21 November and we say that it did, there is no question about that, including on the 19th and 20th of this week. Then if I can jump to paragraph 60 of the decision. The Full Bench after going in the interim, going through some argument as to what the relevant date was said that:

PN1144

For the reasons given we have reached the same conclusion as the Commissioner below, namely that the terminations of employment in this case took effect when the notice periods expired. That is on either 11 or 18 August depending on the length of the employees service.

PN1145

Then on the next page and I don't deal with it, I just mention that that's the basis of the finding of an irrevocable decision and the evidence in support of that. Then they come to the question of consultation and in paragraph 75, cite Port Louis Corporation and in 76, some comments of Lord Justice Sachs. Then in 80, 80 is the important part of this decision. Paragraph 80 my learned friend skipped. She started, when she analysed this decision, at 74, went to 75, 79, 81 and 82. Eighty is the critical passage. In this regard we wish to emphasise that to establish that a real or meaningful opportunity to consult has been provided, it is not necessary to show that consultation actually took place. The first point and here we are well ahead of the game in that respect.

PN1146

It is only necessary to show that there was a real or meaningful opportunity to consult. A union could not refuse to take up an offer to consult and then claim that the employer did not satisfy 170GA(1)(b), nor is it necessary for the consultation process to result in any change in the employer's decision. Section 170GA(1)(b) relates to consultation not codetermination and that, Commissioner seems to me is the critical difference between the parties. In my submission there was much in Mr Cooper's evidence, given, doubtless bona fide that he really thought that some of these things should be jointly determined.

PN1147

THE COMMISSIONER: I don't perceive that to be the case and I don't perceive the submission of the union to be that. I perceive it this way. What they are really putting is, that once the company had identified through a significant process the people whom it wished to terminate, it really then believed that consultation about that decision was futile and that it was putting forward another proposition that the consultation should take place prior to the identification of individuals. That's as I apprehend it.

PN1148

MR GOOT: Well, just dealing with that in reverse order, the evidence was and Mr Cooper gave this evidence himself, that his response to the earlier October information that there is a second wave, it will involve these departments similar number. It was, don't talk to us until you've got the detail. So we could be excused in that regard. Dealing with the first matter, whether he, Mr Cooper thought that further discussion about the matter was futile or not, is not to the point. An employer is entitled to form a view as to how best to do these things provided it is a reasonable view, not arbitrary or capricious and notwithstanding a contrary view, via voluntary redundancy, swaps etcetera, put to it, to maintain its view.

PN1149

THE COMMISSIONER: With this question, it's always seemed to me to be critical to the resolution of the controversy between the parties as to whether consultation occurs prior to the identification of individuals, in circumstances where you are talking about a category or class of individual. If you say, I am sorry, we have got to get rid of our professional scientists, how many have we got, one, okay that's the person. Or circumstances where you have identified people and those persons are then put on notice that their termination is imminent. That's what I see to be the real issue between the parties.

PN1150

MR GOOT: But, Commissioner, on either test, we pass.

PN1151

THE COMMISSIONER: I understand your submission, yes. I agree with the observations of their Honours in paragraph 80 about the opportunity. It's like natural justice. I give you the opportunity, if you choose not to take it, then it's a matter for you.

PN1152

MR GOOT: Commissioner, I know that my friend referred to the Telstra enterprise agreement.

PN1153

THE COMMISSIONER: That's only relevant insofar as it refers to an earlier statement of mine. In itself, it's not relevant because what the parties agree to is a matter for the parties.

PN1154

MR GOOT: Precisely, but to the extent I understand that but to the extent that the statement made by you which is extracted in the agreement without meaning any disrespect to you, Commissioner, firstly it was not made in the context of 170GA and secondly, I don't think that you would wish it to be elevated - to the extent that it is inconsistent with the Full Bench then the Full Bench prevails. It's not necessarily inconsistent, I just don't want to not mention it. So we say that as we have consistently - - -

PN1155

THE COMMISSIONER: In any event, on your submission, you say you are consistent with that.

PN1156

MR GOOT: Indeed. Now, that brings us really to one small issue and that is the role of 170CE. An individuals rights under section 170CE is not in any way affected by the exercise by a trade union of rights under section 170GA. If, for example, and this also goes to the question of consultation about what for the purpose of section 170GA, you will recall that there was discussion about criteria, selection criteria and the like. It's worth noting that there is no evidence that anything about which the union sought to consult would have averted one termination or minimised one termination, not a jot of evidence. But in any event, returning to 170CE - - -

PN1157

THE COMMISSIONER: Could I just, on that point, I thought about that because the proposition that can be enlarged in cases like this is that I have decided that ten have to go and so it doesn't matter whether I pick people with green eyes, ten have to go and how do we avert or minimise that if ten have to go. Now, two things need to be said, don't they. One is that the second round hadn't been identified in numbers whereas the first round had and the second point about that - - -

PN1158

MR GOOT: Correct, that is up until about 13 November.

PN1159

THE COMMISSIONER: Yes and that is picking up your secondary submission.

PN1160

MR GOOT: Yes, indeed.

PN1161

THE COMMISSIONER: The second point is that the decision that ten have to go may well constitute a valid reason for termination but does not constitute an appropriate selection for the persons who are to be terminated.

PN1162

MR GOOT: Indeed and that would enliven their rights under 170CE. If Optus was wrong in its selection criteria and then that's the remedy for the individual.

PN1163

THE COMMISSIONER: Yes, having consulted if it decides to do something which is subsequently found to be improper that is dealt with more under CE than GA.

PN1164

MR GOOT: Precisely. That's the only way it can be dealt with because that's the only sensible or practical way that individual's circumstances can be addressed in that sort of situation. The sort of thing that - - -

PN1165

THE COMMISSIONER: Is there a distinction to be drawn between a sensible addressing of individual's circumstances in the CE context as opposed to the addressing of the approach in a more representative context for a trade union?

PN1166

MR GOOT: Yes, because firstly the regime under section 170GA is not a regime the benefits of which are available to an individual. It is a regime the benefits of which are available only to the union; that's clear. It follows then in my submission that what - - -

PN1167

THE COMMISSIONER: I'm sorry. Can I go to GA2? GA2 says:

PN1168

The Commission may make whatever orders it thinks appropriate in the public interest.

PN1169

MR GOOT: I'm sorry, I withdraw that submission. I've just looked at GB; an individual can apply.

PN1170

THE COMMISSIONER: Yes.

PN1171

MR GOOT: But the sort of thing that 170GA(1)(b) looks at in terms of averting or minimising terminations is alternatives to termination, for example, changed hours, that sort of thing, reduced hours, those sorts of things. Working out who's going to get off the Titanic by jumping from the front or the back won't avert or minimise terminations and as far as measures such as finding alternative employment to mitigate the adverse effects of termination or terminations nothing has been suggested, as I've already said, which would have gone further than what we already did.

PN1172

THE COMMISSIONER: Is a swap alternative employment?

PN1173

MR GOOT: Yes. If someone swaps it's an alternative and that was put forward - - -

PN1174

THE COMMISSIONER: As a proposition?

PN1175

MR GOOT: - - - as a proposition and it was rejected and no one has suggested, there's no evidence, that the rejection was capricious, arbitrary or other than reasonable. These are matters upon which reasonable - although Mr Cooper wasn't sure, I think he accepted it ultimately - minds may differ. There's no right way necessarily in every given situation and as everyone appreciates redundancies are unfortunate and ought to be avoided as far as possible.

PN1176

THE COMMISSIONER: They are traumatic.

PN1177

MR GOOT: Indeed they are.

PN1178

THE COMMISSIONER: Unless somebody is in a happier position to be, say, 64 and three quarters after 45 years service.

PN1179

MR GOOT: They are and we don't suggest anything to the contrary. We do say, however, there is not a jot of evidence before the Commission which suggests that the process adopted by Optus which the evidence says was consistent with its obligations under the enterprise agreement, paragraph 5.8 as I recall it, was more or less traumatic than any other process; there's just no evidence notwithstanding what Ms Milligan submits.

PN1180

That brings me to the orders. If you're against us, Mr Commissioner, on the question of opportunity to consult we say it doesn't follow that you would make any of the orders sought under subsection (2). Those orders, and they repay a re-visit, seem to be in any event to be entirely otiose. There's just no submission made in relation to 4.1 and it has no work to do and it seems to be out of place and in any event the union can't get the names of people who are eligible to be members of it through this method.

PN1181

THE COMMISSIONER: There's no issue is there that those persons - there may be an issue that those persons who were terminated do or do not fall within the eligibility of the union.

PN1182

MR GOOT: Or are otherwise caught by the terms of the Act. Indeed, Mr McIntosh has given evidence of, and I'll just remind you where it is - - -

PN1183

THE COMMISSIONER: There's a report in one of the papers today, in The Australian I think it was, in the business section that identified some senior persons who had been made redundant and there was some comment about it only affected a handful of person, the CEPU application which I have to raise with you because I'm not immune to reading the papers.

PN1184

MR GOOT: I haven't read the papers but clearly there's always that potential because I think I said this on day one. Firstly, there's just no evidence as to how many of these people are members of the union. Secondly, the class is narrowed even further by virtue of regulation 30B(1)(f) and that's dealt with in paragraph 29 of Mr McIntosh's statement at the top of page 6.

PN1185

THE COMMISSIONER: Yes.

PN1186

MR GOOT: We know that about 100 of the 344 are not covered by the agreement.

PN1187

THE COMMISSIONER: Do they have to be?

PN1188

MR GOOT: Yes.

PN1189

THE COMMISSIONER: Why?

PN1190

MR GOOT: I'll explain why. If I can take you to regulation 30B. Firstly, the use of the word "employees" in this part of division 3 is caught by regulation 30B. And 1F excludes - persons cease to be employees for the purpose of the Act if inter alia 1F applies. That is, if they are not covered by a Federal Award or an instrument, and per 170CC(3) or (4) their remuneration is more that 75,200.

PN1191

THE COMMISSIONER: That is as I noted in Vodafone.

PN1192

MR GOOT: Yes.

PN1193

THE COMMISSIONER: The GA was constrained further by the operation of 170CC and Regulation 30B.

PN1194

MR GOOT: In any event, returning to the form of the auditors, and I think it has been conceded that 4.2, 4.3 and 4.4 are no longer pressed. They are the 1A matters, 170GA(1) matters. At 4.5:

PN1195

Advise the CEPU of measures which have been considered by Optus in order to avert or minimise the terminations.

PN1196

Well, that has been done on the evidence. 4.6:

PN1197

Advise the CEPU of measures such as finding alternative employment to mitigate the adverse effects of the termination or terminations.

PN1198

And, on the evidence, that has been done as well. There is heaps of evidence about it.

PN1199

So that really the orders sought are completely otiose. We now learn for the first time that the CEPU seeks to have 344 people reinstated until 31 December to enable consultation to occur when, on any view, the sorts of things that they want to hear in 4.5 and 4.6 they have heard probably ad nauseam. I mean Mr Cooper's evidence is that there is not much point in any further discussions because the parties don't agree.

PN1200

We say that if you are against us to this point you wouldn't make any of the orders sought because of: The extent of consultation that has taken place up to and since 19 November. The measures that were adopted by Optus in any event. The fact that the CEPU specifically invited Optus not to provide specific information concerning the second wave until the particular information could be provided on 13 or 14 November. Mr Cooper's evidence, to the effect that discussions had been exhausted. The possible effect of the orders as sought on Optus, and there is some evidence about that in paragraph 37 of Mr McIntosh's statement. The fact that reinstating 344 people in the circumstances would be impracticable. There is all sorts of issues about recovery of money, and moneys paid, and repayable. There is no details about that.

PN1201

THE COMMISSIONER: But that would almost follow in every termination for redundancy, wouldn't it?

PN1202

MR GOOT: Of course it would, but we are talking about 344.

PN1203

THE COMMISSIONER: We are talking less than that, aren't we?

PN1204

MR GOOT: I am sorry, we are talking about 244. We are still talking about substantial administrative impost and impact. For what purpose? So that we can be told again. So that the parties can disagree, having their reasonable views about swaps. And where an individual who thinks he or she has been unfairly dismissed inter alia because of the criteria adopted can go down a couple of floors or up a couple of floors and lodge an application for an unfair dismissal now.

PN1205

THE COMMISSIONER: Yes, but isn't there a qualitative difference between individuals lodging applications for unfair terminations and, if I could say, a collective redundancy situation. In the case of individuals the experience of the Commission is the matter is probably not dealt with in six months. If you're talking about collective, you're talking two years. Mount Thorley was two years from start to finish.

PN1206

MR GOOT: And these people want to get it done in five minutes.

PN1207

THE COMMISSIONER: But that is why I'm saying isn't GA directed to a more immediate issue if the circumstances and jurisdiction warrant it, rather than leaving it to a CE approach?

PN1208

MR GOOT: Perhaps I only have to deal with this aspect, if the circumstances warrant it.

PN1209

THE COMMISSIONER: That is right. I am only reflecting on your observation that in any event that can use CE.

PN1210

MR GOOT: Yes. Well, the individuals can use CE.

PN1211

THE COMMISSIONER: Yes.

PN1212

MR GOOT: We don't know how many individuals would want it. What the union is doing is taking a blunderbuss and just firing it. There is no indication as to whether there is one member of the union agreed. No evidence of it whatsoever. It may be that if they went down the 170CE route, there would be two or three people, five, or a handful, I don't know. I'm guessing, speculating, there is no evidence. But on the basis that there might be, and on the basis that notwithstanding an opportunity to consult, in fact consultations, and two consultations this week, all of the people should be reinstated, however many that is, a substantial number. It ought not happen. There is just no basis for it, and none has been put forward. They are our submissions.

PN1213

THE COMMISSIONER: Thank you, Mr Goot. Ms Milligan?

PN1214

MS MILLIGAN: Commissioner, it won't surprise the Commission if the union says the retrenchments should not have happened in the way that they have happened, but if there has been any use of any blunderbuss, it has been used by Optus of a blunderbuss to retrench the employees first. On Mr Goot's submissions this document contains an awful of irrelevant information. Mr Goot's submission is that the convention contained in here has no work to do.

PN1215

Mr Goot's submissions really amount to the fact that 170GA has no work to do because everybody can lodge an unfair dismissal application in the end anyway. That mirror Optus' approach to the issue of retrenchment. Everybody is out the door and then there may be some options within a set period of time for people to get back in the door, but it is a reverse way of dealing with a situation. It is reverse to any reasonable way of approaching it.

PN1216

Commissioner, the decisions that Mr Goot referred to about town boundaries and public transport timetables, etcetera, they are not made in the context of section 170GA and they are not made in the context of decisions which effect peoples lives. So in that way we say that those decisions ought to be considered in today's context. Commissioner, I might repeat a lot of the submissions that were made before but in the paragraph 80 that Mr Goot refers to in the coal decision, I think the emphasis in that paragraph is not something we would disagree with. The key to it is real or meaningful opportunity to consult. Mr Goot says they are ahead of the game, Optus is ahead of the game in that respect. We say that that is precisely the issue and they are behind the game. There has not been a real or meaningful opportunity to consult about averting or mitigating or minimising the effects of the terminations on the employees who were given their retrenchment notices on 14 November.

PN1217

Commissioner, I don't think anybody in the CEPU has ever expected co-determination when it entered into negotiations with any employer or entered into any form of consultation with any employer. That doesn't happen and it is an unfair representation of the unions position to say that it means by consultation co-determination. The union means by consultation, Commissioner, a real and meaningful opportunity to put views which are considered in a careful way. Those views, I have to say, are often rejected. We are used to rejection, Commissioner.

PN1218

THE COMMISSIONER: You live with rejection.

PN1219

MS MILLIGAN: We live with rejection on a daily basis and we are not delicate about it but what we are delicate about and what we do demand is the entitlement in the provision of the Act, in 1701B, the provision of the Act which does, we say, there is an implied entitlement, there is a specific entitlement to be given consultation and it is implied that that consultation be meaningful. We have not been given that opportunity, Commissioner. We have been engaged this week in proceedings before the Commission but at no time have we been provided with concrete verifiable information about the redeployment options provided by Optus.

PN1220

A lot of verbal interchange has occurred but we have no documentation. We have no evidence of what the Optus resourcing centre does, what it has available to it, what it considers. We have no evidence about any of these matters. We still have no evidence about the selection criteria. If we haven't got any evidence about that, how could we have offered up any meaningful suggestions in consultation. In these proceedings we have sought to get to the core of those issues, Commissioner, and it has not occurred.

PN1221

So, Commissioner, again I cannot say very much more about it other than that the unions position is that in fact there has been a meeting on 14 November at the unions request, but that meeting did not in any way constitute an opportunity for a meaningful consultation in the terms as we define them and as is defined in the relevant decisions of the Commission. Those are the submissions of the CEPU, if the Commission pleases.

PN1222

THE COMMISSIONER: Well, thank you for your submissions. I regret that my efforts to have you reach some agreement has not been fruitful so I don't welcome the opportunity of deciding between the submissions.

PN1223

MS MILLIGAN: Commissioner, I am sorry to interrupt you. Just in relation to the discussion about the employees who may be caught by the order. I don't think I did hand up a copy of the unions eligibility rules. It may be that that is of some use in determining that issue.

PN1224

THE COMMISSIONER: Do you have any objection - - -

PN1225

MR GOOT: No, I have got no objection. We said on day one that the union had constitutional coverage.

PN1226

MS MILLIGAN: Thank you, Commissioner.

PN1227

THE COMMISSIONER: Thank you, I will do my best to resolve the issue. I will reserve my decision and the matter is adjourned sine die.

ADJOURNED INDEFINITELY [2.41pm]