C2001/417, Transcript of Proceedings [2001] AIRCTrans 98 (28 February 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C 2001/417

AUSTRALIAN LIQUOR, HOSPITALITY
AND MISCELLANEOUS WORKERS UNION

and

WENTWORTH HOTEL

SYDNEY

1.40 PM, MONDAY, 12 FEBRUARY 2001
CONTINUED FROM 8.2.01

PN887

THE COMMISSIONER: Yes, Mr Magner?

PN888

MR LONGLAND: Commissioner, might I arise just before my friend commences his submission to seek your leave to tender two further documents as part of the employer's case. The documents are facsimiles which passed between the parties on 9 February and 11 February. They were passed in pursuance of the comments that the Commission, with respect, helpfully made on Thursday of last week. I seek to tender them only to bring the Commission up to date with what's occurred in the intervening period.

PN889

THE COMMISSIONER: Any objection, Mr Magner?

PN890

MR MAGNER: If I could be provided with a copy of the documents. I don't envisage any objection. Yes, I can confirm that we received that.

PN891

THE COMMISSIONER: The one of 9 February will be exhibit WH8 and the one of 11 February will be exhibit WH9.

EXHIBIT #WH8 FACSIMILE TO APPLICANT FROM RESPONDENT DATED 09/02/2001

EXHIBIT #WH9 FACSIMILE TO APPLICANT FROM RESPONDENT DATED 11/02/2001

PN892

MR LONGLAND: Thank you, Commissioner.

PN893

THE COMMISSIONER: Yes, Mr Magner?

PN894

MR MAGNER: Commissioner, the application before you today is for orders against the Wentworth Hotel under section 170GB of the Workplace Relations Act, that is orders by the Commission that the employer fails to consult with trade unions about termination. Commissioner, this matter was last before you on Thursday 8 February and since that time the union has again and repeatedly sought to meet with the Rydges Wentworth Hotel, the existing owner, and with City Freeholds, the purchaser, in order to consult about terminations as is required by section 170GA of the Act. All these attempts have been to no avail.

PN895

Providing further detail, on Friday 9 February the union telephoned Ms Mandy Pummer, who we're advised is the acting general manager of the Wentworth Hotel, and Mr David Warren, who also acts in a managerial capacity at the Wentworth Hotel. We telephoned Mr van de Wallen of City Freeholds. We telephoned all of these people on two occasions, in fact Ms Pummer on three occasions on Friday. We left urgent messages with mobile telephone numbers and instructions that we wanted an urgent meeting and advising that we were available to meet for the remainder of the day on the Friday, through the course of the weekend, and up until 1.00 pm this afternoon when this matter was due to continue to be heard before you. None of our phone calls to City Freeholds were returned.

PN896

My phone call to Ms Pummer was returned at approximately 10.00 am this morning. I had a brief telephone conversation with Ms Pummer, the spirit of which was that she was not able to provide any further and better particulars in relation to the selection criteria used. In relation to the classification and the names of the employees Ms Pummer advised the union that she was not aware of these people until the Friday prior to the date that these employees themselves were advised. She pretty much said to me that she felt almost as in the dark as the union was in relation to the way in which the sale of the hotel had been conducted. She was unsure as to her ongoing employment, in fact, after 12 March.

PN897

I discussed with her whether there was anything at all relevant to our proceedings that she might be able to advise the union of, to which Ms Pummer said she had no further information or particulars that would be of assistance to the Commission or to the union in its consultations, but I again repeat that the union has not had its telephone calls, its repeated and urgent telephone calls, returned from the purchasers, City Freeholds. This all affirms and corroborates the evidence that has been given by the union witnesses, Mr Jagath Bandara and Ms Fraser, that there has been and that there continues to be a complete failure to consult with the union in relation to the termination of the 20 Wentworth employees, many of whom were here before you on Thursday and many of whom are here again this afternoon.

PN898

The union also sought to meet with the PM Group, in fact the union contacted the PM Group prior to receiving the fax of exhibit WH8. You will recall that the PM Group were the consultants that were brought in by the existing owners of the hotel, AXA, for the purposes of, and I quote Mr Mison in his evidence, "Keeping Rydges at arm's length from the sale process". The union met with the PM Group yesterday morning at 8.00 am on a Sunday. This was the only time that all of the parties were able to attend a meeting. The union was represented by the union's state secretary, Ms Annie Owens, together with Jagath Bandara the union organiser, Juan Aggurre who is the site delegate, and a Mr Marvin Mabena who is one of the affected employees who has had their employment terminated. From the PM Group Mr Mison and Ms Kathy King were in attendance.

PN899

I think, Commissioner, that you would agree that the presence of the union secretary and the very fact that this meeting was held at 8.00 am on a Sunday morning goes some way to demonstrate the lengths to which this union has been prepared to go to find out the information that we think is necessary in representing our employees.

PN900

However, the PM Group really didn't purport to consult in relation to the redundancies because they said they simply had no instructions to consult, they had no capacity to do so. So, I guess these are what you might call the Clayton's consultants, the consultants you have who can't or won't consult. That leads us to the situation where we are here today, Commissioner.

PN901

It's just seven days since the Wentworth Hotel employees had their employment terminated and just seven days since the union was told, not consulted, but told about the terminations of the 20 employees and despite imploring the employer to suspend the termination of these employees repeatedly and as recently as yesterday asking for these employees to be reinstated, the union' attempts at consultation have not been at all effective. The union, therefore, seeks to press its application for orders under section 170GA of the Workplace Relations Act. I now tender an amended draft order, Commissioner.

PN902

THE COMMISSIONER: Yes, I'll mark this exhibit ALHMU5.

EXHIBIT #ALHMU5, AMENDED DRAFT ORDER

PN903

THE COMMISSIONER: Yes?

PN904

MR MAGNER: ALHMU5, Commissioner, is an amended draft order in that it seeks to reflect the advice that's been provided by Mr Longland as to the true employer, so it varies from the order that was provided to you on Thursday only in minor detail and the significant part of that minor detail being that the name of the employer, as we've been advised by Mr Longland, is, in fact, the Rydges Hotel. The previous draft order sought was in the terms of the Wentworth Hotel. I might just read the order. The draft order that the union seeks is that:

PN905

The Rydges Hotel Limited of 61-101 Phillip Street, Sydney of New South Wales must reinstate ...(reads)... in good faith, fulling the terms of the orders set out above.

PN906

And 7, we're seeking, Commissioner:

PN907

That this order come into force at 5 pm on 12 February 2001 and remains in force ...(reads)... or until such other time as the Commission may, by further order, determine.

PN908

In schedule A you will see there the 20 employees who the union represents and their classifications. Commissioner, the union's submission is that the Commission should grant these orders. It's clear, in our submission, that the employees were terminated contrary to the law and they're entitled to these orders because of the circumstances in which they were terminated. The evidence already confirms that on Monday, 5 February 2001, employees listed in schedule A of ALHMU5 were called into the workplace and were informed that, as of that day, their employment was to be terminated.

PN909

There was no attempt by the Wentworth Hotel to find alternative employment, there was no attempt to consult with the union in relation to the effect of the redundancies and, further, the ALHMU is entitled to, and does represented the individual interests of employees and the employer did not, as soon as practicable after deciding, and in any event, before terminating the employees' employment inform the union about the terminations, the reasons for them, the number and categories of employees likely to be affected and the time when the employer intended to carry out the terminations.

PN910

The employer was clearly aware, or at the very least should have been aware, at the time of the decision, that at least one or more of the employees were members of our organisation and this is clearly corroborated by the fact that the ALHMU spoke to the PM Group on 5 February 2001, a matter of hours before the termination notices were given, to discuss any available alternative remedies and we were advised at that stage that the decision would stand and that the terminations would be effective from 2 pm that day. If I can turn just very briefly to the evidence. We had evidence from three witnesses, Mr Bandara, firstly, from the union gave evidence that confirmed that despite repeated attempts by him to the employer for the employer to put off the decision to terminate employees, he was told that the decision was effectively a fait accompli and that there was no way possible that the employer would delay the notices of termination of employment going to employees so that discussions could occur.

PN911

None of the evidence of Mr Bandara was contested in any meaningful way by Mr Misan who was the company's witness. Mr Peter Fraser also gave evidence. You might recall, Commissioner, that he was the employee who had worked as a security guard at the hotel for some 30-odd years. He'd actually been at that building since when it was the Qantas building before it became a hotel and was there in various incarnations of the hotel prior to it becoming the Wentworth Rydges.

PN912

He gave evidence that he'd had an exemplary employment record over the 30 years, had had no disciplinary action taken against him and didn't have any confirmation as to why his name was chosen for termination. Mr Fraser gave cogent evidence that there had been rumours around the hotel about the imminence of sacking of employees some several weeks before the employees were terminated.

PN913

I think just touching on a couple of other relevant points in Mr Fraser's evidence was that, like many other hotels in this industry, the rate of turnover at the Wentworth Hotel is such that it would take no longer than a period of some weeks for 20 employees to leave the employer in any event making it unnecessary for the employer to impose redundancies upon employees but if their desire was to reduce their workforce by 5 per cent Mr Fraser's evidence corroborates what can be shown empirically in studies and certainly is confirmed by the union's own experience that the rate of turnover is such that 5 per cent of employees would easily leave the hotel within a period of some weeks, certainly in the period of a month or two.

PN914

The other I think interesting point that Mr Fraser gave evidence on and that was also confirmed by Mr Misan's evidence was that positions are actually being filled in the hotel in the same categories that are affected by the termination of the 20 employees that we are here to represent; that is, there's a revolving door situation taking place down at the Wentworth Hotel where employees are being told that their position is redundant and at the very same time the Rydges Hotel is employing people in those very same classifications.

PN915

Turning to Mr Misan's evidence, Commissioner, Mr Misan confirmed some of the technical arrangements in relation to who the owner of the hotel is and who the holding company is, that is Enalus Pty Limited we're told, it's a fully owned subsidiary of the National Mutual Life Association now trading as AXA Pty Limited, confirmed that City Freeholds was the purchaser of the hotel and confirmed that Rydges Australia is the employer and has the management contract to operate the hotel. Firstly, he confirmed really that no meaningful consultations took place prior to the decision being made or even prior to the decision being announced. He admitted this much because he said that he didn't have the information available to him that the union was requesting. He also gave evidence that he was aware that the decision to terminate 5 per cent of the workforce, 5 per cent being apparently 20 individual employees, was actually made as part of some commercial contract, a term of the contract for the sale of the hotel between AXA and City Freeholds Pty Limited, not informed by the requirements of the Workplace Relations Act or this Commission that decision was made in a vacuum at a commercial level concerned about extracting greater value from the asset that was being disposed of by AXA and without any consideration at all being given to the effect and the obligations imposed and to obey the requirements of the Workplace Relations Act.

PN916

Mr Misan's evidence also established that no subsequent discussions have taken place about finding employees alternative employment in the Wentworth Hotel or within the Rydges Group and he also gave evidence that the existing management of the hotel did not make the selection of the 20 employees that were affected. So I don't think there's any doubt that no consultation in any meaningful sense was entered into and no opportunity was really extended to the union or in fact even Mr Misan to avoid these terminations and while Mr Misan admitted that he was not aware of the exact terms of the contract he gave evidence that the contract did not actually require City Freeholds to terminate these 20 employees. He gave evidence that it was merely an option.

PN917

Despite the credible nature of Mr Misan as a witness no evidence was led in relation to the precise terms of the contract. We haven't seen a copy of this contract, we haven't seen the relevant provision that imposes this obligation upon City Freeholds so it may be open for the Commission to make an inference in accordance with the rule in Jones v Dunkel that the failure of the respondent to actually bring evidence in relation to this particular fact may be relevant to the union's application seeking orders pursuant to section 170GA.

PN918

Commissioner, I also want to make it clear if it isn't clear or apparent enough already that there is certainly a human element to this particular application. We are talking not about a commercial contract in isolation; there is an intrinsically human element to this matter. There's 20 employees and 20 families and 20 livelihoods that have been affected. There are a number of employees who had served loyally with the hotel for up to 30 years and rather than going through them individually, and each individual has a particular case, each individual has a story to tell and each individual has individual cases of hardship that deserve to be listened to and deserve to be afforded the time and some contemplation by the employer and an opportunity that the union simply hasn't had and an opportunity that the employer simply hasn't provided. Rather than go through in detail which might take up more time than is required in my submissions it's interesting to note that the severance pay that was actually offered, Commissioner, to these employees, there's just no golden handshake in this particular case, there's no gold watches to be granted to some of these employees that had 30 years of service. It's interesting that pretty well all of them, 95 per cent of them in fact, had more than two years of service. 73 per cent of them had more than 10 years of service with the company and in total the severance pay, the cost to the employer amounted to would you believe $70,272. $70,000 for a total of 289½ years of service from these 20 employees.

PN919

You might be interested to know, Commissioner, that it actually works at about $13 per year of service which is pretty extraordinary, particularly when it's contemplated in light of the fact that this hotel was exchanged for a price of $108 million and my calculator didn't have enough zeros. I think it's .00065 per cent of the sale price, $70,000 represents. The employers made no attempt to soften the blow on some of these employees. They only sought to provide the absolute minimum that they are required to provide in relation to severance pay. They certainly haven't taken into account the circumstances of each individual employee.

PN920

There are a couple of further points that I think are relevant to this application. The union has about a third of the workforce that are members of our organisation working down at the hotel. We've got about 100 employees that are members of the union out of about 300. It's interesting though that 13 out of the 20 which is close to twice the proportion of membership that are members of the union or put another way, more than 5 per cent of the employees - out of the 5 per cent of employees that were sacked, the employer effectively took out 13 per cent of the union's membership.

PN921

Now, it may well be, Commissioner, that there is some explanation for all of this. It may well be that there's some logic, there's some transparent selection criteria, that the employer applied in choosing these 20 employees. It might just be an unfortunate coincidence, Commissioner, that we happen to have a disproportionate number of union members; that we have a disproportionate number of people from non-English speaking background. Over half of them have been from non-English speaking background.

PN922

It may just be a coincidence that the employer has chosen some of the employees that have served for the longest period of time and some of the older members of the workforce. The union just doesn't know. The Commission couldn't know because we haven't been consulted in relation to any of this. In the absence of any meaningful consultation, it's only reasonable that an inference could be made as to how these people are chosen and it's no surprise that we've got 20 pretty bewildered employees that have come to the union and they're pretty upset and they're pretty angry that they have had their livelihood taken away and they've just had no explanation as to why they've been chosen in the way that they have.

PN923

Commissioner, if I can turn to the statute. I don't think there's any real contest here. There's no quarrel with the proposition that the employer fails to - that it has failed to comply with the requirements of section 170GB. It's clear from the evidence that the employer made an in principle decision at the very least some weeks ago and possibly some months ago to terminate 20 employees but yet that decision was only communicated in any effective or meaningful sense hours before the employees themselves were told. It's a clear and unambiguous breach of the requirements of section 170GA.

PN924

What is worse, that information when it was eventually provided to us, Commissioner, was provided to us or presented to the union as a fait accompli. Clearly that contradicts both the obligations to give proper notice to the union under section 170GA and fails to pay regard to the extent to which the employer is obliged to discuss the proposed changes under that section. In particular, section 170GA obliges the employer to discuss the proposed changes, the effect of the changes on employees and obliges the employer to give prompt consideration to matters raised by employees and/or their unions in relation to the changes that are proposed.

PN925

Section 170GA, subsection (1)(a), paragraph (i) was not complied with, that is, they were required to give us information about the terminations and the reasons for them. Failed to comply. Paragraph (ii), the number of categories of employees likely to be effective; that was given to us a couple of hours before the terminations took effect and was given to us in circumstances where it was a fait accompli. (iii), the time when or the period over which the employer intended to carry out the terminations. Well, that was put to us in the form of - it's a number of hours, it's happening at 2.00 o'clock and this is at a meeting that took place at 11.00 o'clock. My friend might try to characterise that as complying with that particular paragraph but it doesn't comply with the spirit of that section. The next part, there's just no way imaginable - - -

PN926

THE COMMISSIONER: Mr Magner, just on that. Wasn't the evidence of Mr Mison that, at the meeting on Friday 2nd, he informed the union and was able to confirm that 20 employees - that Kenteal would exercise its option and 20 people would not be engaged?

PN927

MR MAGNER: That's correct.

PN928

THE COMMISSIONER: I think his evidence was, he knew the names or had been supplied with the names of some of them but did not divulge them because not all of them had been confirmed. Now, there was some discussion I think on the Sunday with the union or some communication but the first meeting that occurred after 2nd at which Mr Mison and I took it to mean - as far as Mr Mison knew, the first opportunity that he had to tell the union as to the 20 was actually Monday, 5th.

PN929

MR MAGNER: That's correct.

PN930

THE COMMISSIONER: Mr Mison's evidence is that he - well, I think it is, that he thought - but what he knew is essentially what AXA and what Ridges knew and they might be some debate about that but there's nothing to suggest - there's certainly nothing before the Commission to suggest that AXA or Ridges knew anything more than Mr Mison, that's the first thing. Given that, how can it be said that the employer, either Ridges or their agent did not as soon as practicable after so deciding and in any event before terminating employment inform the Trade Union.

PN931

I mean, if you listen to Mr Mison, it was not until some time between 5th and 8th - sorry, 2nd and 5th, that they became aware of the employee to be terminated consequent upon Kenteal's decision and as soon as practicable on the Monday at 10 o'clock they in fact said these people will be terminated and however unpalatable or unacceptable it might be, even to Mr Mison, the reason is that Mr Kenteal is not going to engage them. The number and categories, I thought, was explained on that morning and you were told, the union was told it's going to happen later on today, 2 o'clock I thought. So, how can it be said that the employer did not as soon as practicable after deciding the event which is a consequence of Kenteal's decision that they did not act and inform?

PN932

MR MAGNER: Sub-paragraph (i) imposes an obligation to not only advise the union and their representatives about the termination, it also imposes an obligation to disclose the reasons for them. That certainly wasn't complied with, that part of the Act.

PN933

THE COMMISSIONER: What is the reasons for them?

PN934

MR MAGNER: That's the question that the union would certainly like to have an answer to and it's one that we haven't been able to obtain.

PN935

THE COMMISSIONER: Without making it too complex can't we take it and isn't it your understanding that the reason that Rydges sacked these people is because Kenteal is not going to engage them?

PN936

MR MAGNER: Why was Mr Fraser sacked? Why was Marvin sacked? Why were each of the individuals sacked? The obligation that that section imposes is to provide an explanation as to the reasons why individuals were sacked, not just providing an excuse and I remind you of our submission earlier that they didn't provide us with a copy of that particular section of the Act, so we're not even to know if that was the valid reason. We're only relying upon Mr Mison's secondhand evidence that that was the reason.

PN937

THE COMMISSIONER: I appreciate that but other than Mr Mison's secondhand evidence there's nothing else. So I take his evidence to be the evidence. Now, I appreciate nothing was - the specific terms of the contract is not before me, I don't think, but when I say that the reasons for the sacking of the 20 people was that Kenteal would not engage them let me rephrase that. The reason for the sacking of each and every one of those employees in your schedule A, wasn't it made clear to you that the reasons that they were being terminated was because Kenteal was not engaging them?

PN938

MR MAGNER: They in a local sense perhaps but not they in an individual sense. Further, the spirit, and my submission will refer to article 13 of the Termination of Employment Convention, but clearly the spirit of that is that the employer provided within a reasonable period of time prior to the decision, as soon as practicable after the decision has been made, and then to provide in good time so that the relevant information can be evaluated by the employees and their representatives, and so that meaningful discussions can be entered into. It's not sufficient for the employer to say a matter of hours prior to announcing to the affected employees that they've complied with the section because they've told us that.

PN939

The purpose, the intent of communicating it isn't just to comply with that requirement. The intent is to communicate it as soon as possible and it's questionable whether or not that list of names had been drawn up some matter of days prior to the Monday. It's not accepted by the union that this information wasn't known. Whether it be known to Mr Mison - Mr Mison's evidence may be credible, he may not have known, but it was clearly known to someone earlier or if it wasn't it should have been known to someone a substantial period of time earlier than the Monday.

PN940

But even if it wasn't, and it's hard to believe that it wasn't, but even if you accepted it was only known then, the purpose of informing the union, the purpose of informing the employees and their representative is actually to then allow the next step, which is covered in the second part of section 170GA, that it allows meaningful consultations to take place. That isn't going to occur when you're given a number of hours and you're told that it's a fait accompli and there's no scope for any negotiation or change of those names or contemplation of individual circumstances.

PN941

In any event, the reasons for them are not clear. There hasn't been any evidence led in relation to the particular requirements or obligations imposed upon these big businesses that have entered into this agreement to lose 20 employees without any regard to the requirements of section 170GA. If section 170GA is to mean anything it must mean that the employees are advised with good time in order to enter into meaningful consultations to contemplate measure to avert or mitigate the impact upon those employees at the termination and those other provisions or obligations that are contemplated in subparagraph (1)(b) of section 170GA.

PN942

So, section 170GA specifically imposes an obligation upon the employer as soon as practicable after so deciding and in any event before the termination of employees' employment. Pursuant to the decision, whenever that decision might have been:

PN943

give each such trade union an opportunity to consult

PN944

and opportunity to consult emphasise those words with the employer on subparagraph (i) reads:

PN945

measures to avert the termination

PN946

not even contemplated by the employer or

PN947

avert or minimise the terminations.

PN948

No regard was had to that obligation by the employer and no attempt has been made to present any evidence to the effect that they did try and comply with that section. (ii) goes on to say:

PN949

measures such as finding alternative employment to mitigate the adverse effects of termination of employment.

PN950

The only suggestion that there might have been some attempt to comply with that was in the form of a couple of advertisements that were plucked out of the paper and presented as evidence here on the day of the Commission. None of that information was communicated either before or after the terminations took effect. So, really there has been no attempt at all to look at measures such as finding alternative employment to mitigate the adverse effects of the termination of the employees.

PN951

So, the union's submission is that section 170GA imposes, amounts to an obligation to consult with the union and to give real and proper consideration to any proposals that may be advanced by the union which may require the company to take steps that stop short of wholesale redundancies that are in contemplation.

PN952

The duty to consult embodied in this section of the Workplace Relations Act is not an empty obligation, Commissioner. It must have some real and tangible content and operation. It is not a charter for a mere rectification of a decision which has come into effect. At this stage, it has been communicated to the union and its employees have fait accompli. Simply put, Commissioner, the union has shown that these employees at the Wentworth Hotel have had their rights, as provided by the Workplace Relations Act, stripped away.

PN953

There are rights as provided for in the Act have been denied and the employer seems to be under some belief that they just simply aren't required to obey the law in this particular case. In such circumstances, Commissioner, it is the union's submission that this Commission's jurisdiction is attracted and should it intervene, it must intervene to ameliorate the effects of the company's wholesale disregard in this case of its obligations under the Act. Referring to some authorities in this particular matter, I found a convenient statement of what entailed in the duty to consult in a decision of Beasley J in the matter of Quality Bakers Australia Limited v Goulding and Others. I can provide a copy of that decision.

PN954

This is one of the leading authorities in relation to redundancy, Commissioner, and I think some of the relevant extracts to this particular matter can be found on pages 334 and 335, where you will see in the second paragraph after the heading, Whether the Termination was Harsh, Unjust or Unreasonable. It reads, the judgment of Beasley J, is that:

PN955

A failure to consult with an employee or a union about the issue of redundancy may mean ...(reads)... on that ground is harsh, unjust or unreasonable.

PN956

and refers to the authority there of Corkery v General Motors Holden Limited. Further, it goes on to say:

PN957

The determination may also be harsh, unjust or unreasonable because the employee may have ...(reads)... but was not offered suitable alternative employment with the employer.

PN958

I think the facts in this case are analogous to those that employees at the Wentworth Hotel have found themselves in, in that it may well have been that there were alternative positions with the employer, as you suggested Commissioner, either at the Wentworth Hotel or perhaps even somewhere else within the Wentworth Group of Hotels of which there are several across Sydney. The next paragraph goes on to read that:

PN959

The need for consultation with employees and, if applicable, the employees' union

PN960

which is applicable in this case

PN961

in the case of workplace change or restructuring has consistently been recognised ...(reads)... in the relationship between employers and employees.

PN962

I think that speaks for itself. Another relevant part, you will find on the beginning of page 335, where Beasley J refers to a separate decision in White v Douglas Diagnostics in the South Australian Industrial Relations Court or reported in the South Australian Industrial Reports which reads that:

PN963

Given the employees relatively senior status fairly narrow specialisation of work activity ...(reads)... transitional employment for a brief period might have been proffered.

PN964

I provided you earlier with the fact of the employees affected, some number anyway were over 45. Some disproportionate number of them I might add were over 45 years of age and clearly in this case there has been no attempt to take into account those particular employees' circumstances and the widely acknowledged difficulty of employees who are over 45 years of age being able to find alternative employment in the labour market. Some of these positions are positions that are in high demand. Each individual circumstance needs to be looked at.

PN965

A general statement was made and some sweeping generalisation was put to you that the hospitality industry is such a growing and prosperous one that these employees will easily find jobs. That is just not the case. It may be the case in or two of the categories of employment that were affected but there are a number of others where alternative employment will not be easily found, particularly under circumstances where the employee is over 45 and particularly under the circumstances where these employees have been made redundant and there has been no counselling. There has been no transitional employment. There has been no offer of out replacement and the like, as referred to as being desirable in that authority.

PN966

I have a number of other authorities if I can take you to those. In the case of the decision of Deputy President Acton, Commissioner, in June 1998 which dealt with section 170GB and was an order which gave effect to articles 12 and 13 of the Termination of Employment Convention of the ILO. It was in relation to an application by the Flight Attendants' Association, Commissioner, and it concerns a dispute not dissimilar in some respects from this particular one that the Flight Attendants Association had with Ansett International. There's only just a couple of paragraphs, or a couple of sentences in fact if I can draw your attention to those on the second page of the Osley printout. The first substantial paragraph you'll find on that page in the third line it says:

PN967

While the FAAA had some discussions about the excess number of flight attendants employed by Ansett International those discussions had occurred in a vacuum devoid of knowledge by the FAAA about precisely how many flight attendants were in excess to Ansett International requirements.

PN968

So again similar to this situation the FAAA had these consultations with Ansett but they weren't consultations in any meaningful sense in that they weren't provided with the information that section 170GA requires and so it's been described there in circumstances which, we would submit, are similar to these as being discussions occurring in a vacuum devoid of knowledge. In the last three lines of that particular paragraph the judgment goes on to say that:

PN969

Ansett International had failed to adequately consult the FAAA about the matter and accordingly the FAAA maintained that Ansett International had failed to comply with the requirements of section 170FA and GA of the Act.

PN970

That decision granted orders as sought by the FAAA. So the union relies upon that in support of its submissions. If I can take you now to my next authority which has already been tendered for your benefit and I provide a copy to Mr Longland now. It's in the case of the Textile Clothing and Footwear Union of Australia and Australian Dying Company. It's a decision of Senior Deputy President Williams in the Australian Industrial Relations Commission on January 28, 1999 and it was arose from an application by the TCFU for orders pursuant to section, in this case 170FA and the relevant part of that decision that I'd like to take you to is on page 249, Commissioner. Where in the first full paragraph on that page the judgment refers to the obligations under the ILO convention concerning the termination of employment at the initiative of the employer. In particular article 13 of that convention that:

PN971

Imposes obligations upon an employer in circumstances where the employer contemplates termination for amongst other things, reasons of economic or similar nature.

PN972

Now this case is exactly that. There's no technological change in this case. There's no restructuring of the workforce as such. This is an economic decision. This is all about the purchaser squeezing "more bang for their buck" out of $108 million purchase price that they paid and seeking to squeeze further efficiencies in some way. A way which the union cannot be sure it is a wise one because we haven't had the opportunity to consult with them. But the relevant part of that decision there is that it contemplates the terminations. Article 13 refers to contemplation of the terminations. Now, the evidence of Mr Fraser is corroborated by the evidence of Mr Myson that the reduction in the number of employees was contemplated at the very latest, some time in January. I think the relevant date might have been 18 January or some time very early in January, Commissioner.

PN973

At the very latest and more likely some substantial period earlier when these negotiations were first entered into. They were contemplating sacking people when they purchased this hotel. Now, if they were contemplating it the convention, the article 13 of the ILO convention which as you would be aware is imported. Section 170GA has its origins in that convention, it's imported into the Workplace Relations Act pursuant to section 3K of the Act. That is the objects of the Act import into the Workplace Relations Act various ILO conventions including this one and it's referred to often. We're not drawing a long bow here. This is an integral part of section 170GA. It imposes an obligation as soon as they contemplate these changes to advise the union and to comply with what are really equitable and decisions that any employer in good conscience would comply with. That is to at least tell the people that might be effected by some of these commercial economic decisions.

PN974

The other part that is relevant in this particular decision you'll find in the second last paragraph on page 249, Commissioner, where it refers to the obligations again imposed by article 13:

PN975

Include an obligation to provide the workers representatives with certain information and opportunities.

PN976

It goes on to define the appropriate workers representative. In this case there's just no doubt that the LHMU, you know we're the only game in town down at the Wentworth Hotel. We are the union, they are aware that we're there, there's no question about that. We are the acknowledged representatives of employees down there. Provide us with certain information and an opportunity, not just provide us with the information, but an opportunity to use that information in some type of meaningful way. That is the obligation that article 13 and therefore section 170GA imposes upon the employer.

PN977

Nothing further in relation to that particular decision. My last authority that the union would rely upon in our submissions, is a decision you've already got, in the Industrial Relations Court of Australia. It's a decision in ..... v Australian Submarines Corporation Pty Limited number 2. The relevant sections of that decision, that was a judgment of a Full Bench comprised of Ryan, Beasley and North JJs. On page 372 and that particular case dealt with termination of employees and redundancy and the onus upon the employer to prove the necessity for redundancies. I think interestingly, although it's not quite on point in the first paragraph on page 372, in the second sentence the judgment reads:

PN978

Clearly some were more satisfactory to the respondent than others otherwise the respondent would ...(reads)... or some other non-evaluation criterion.

PN979

Just the relevant part there is that it's ordinarily contemplated where you've got to reduce your workforce that the most fair and proper way to do so is by in the first instance calling for volunteers, something that the union certainly suggested was a more appropriate way in which this process should be handled. If in fact 20 employees were to go, which isn't something that the union accepts but if that was to be the case and if the employer could satisfy the union of that, the union would certainly accept the first approach that the employer should take would be just to simply call for volunteers.

PN980

And it's something that Mr Fraser I think gave evidence suggesting that if that was an offer that had been made it may well have been taken up by a sufficient number of employees at the hotel but it wasn't an approach that was contemplated, or we're not aware of whether it was contemplated. It was certainly something that the employer wasn't prepared to consult with the union about or give any reasonable consideration to and our submission is they should have.

PN981

The next paragraph there that I think is relevant, Commissioner, is the second last one on page 372 where it refers to the onus. The appellants submit that the respondent carried out their onus of establishing that there was a valid reason for terminations of the appellant based on the operational requirements of the respondent. Then skipping forward two lines:

PN982

The respondent carried the onus of establishing that there was a valid reason for the selection ...(reads)... and the appeal would succeed on that aspect.

PN983

We rely upon the decision in Kenifek v Australian Submarines Corporation Pty Limited insofar as it establishes that the employer bears the onus, it's not a heavy onus, but it's an onus that clearly they haven't satisfied in this case. Just very briefly, and I've touched on it already in conclusion, the convention, convention 158 concerning the termination, the convention on the termination of employment at the initiative of the employer which already submitted is imported into the Workplace Relations Act pursuant to section 3, paragraph K, that being the objects of the Act. In particular, and that's attached in an attachment to the CCH version of the Workplace Relations Act. My friend has a copy of that. The convention was ratified in June 1992 and it has been ratified in Australia.

PN984

Article 4 of that convention reads as follows, and it's relevant to these proceedings, article 4 provides that:

PN985

The employment of a worker shall not be terminated unless there is a valid reason for termination ...(reads)... undertaking establishment or service.

PN986

Self-explanatory obligation imposed upon the employer that in our submission hasn't been complied with in this case. There's been no explanation of any reason. There's been no correlation between any alleged incapacity or misconduct or otherwise of each individual employee and there's been no adequate explanation about the operational requirements of the establishment beyond that which has been referred to but evidence hasn't been led on that. It was an obligation imposed by the contract for the sale of the hotel.

PN987

Article 13, Commissioner, refers to consultation with the workers representatives and again, and I referred to it earlier in response to your questions, it imposes an obligation. I'll read from article 13:

PN988

When the employer contemplates terminations for reasons of an economic, technological, structural ...(reads)... are intended to be carried out.

PN989

Then paragraph (b) goes on to reflect the provisions in subsection 2 of section 170GA to make attempts to mitigate the impact upon employees. Article 14 then provides that when the employer contemplates the termination for reasons of an economic, technological, structural or similar nature he, and it reads he:

PN990

Shall notify in accordance with the national law and practice the competent authority -

PN991

that's us, the union:

PN992

as early as possible giving relevant information including a written statement of the reasons for the termination -

PN993

a written statement, not just a phone call, not just a meeting over cups of coffee and pecan danish but a written statement of the reasons for the termination, the number and categories of workers likely to be affected and the period over which the termination is to be affected. So that actually imports an obligation which goes somewhat further in that it asks that information, that relevant information be given in a written statement. No such written statement was provided to the union. Article 14 was clearly not complied with and we rely upon that in support of our submission.

PN994

I have one further authority, it's not an authority but it's a consent order, Commissioner. It's a consent order by Commissioner Bacon. I provide this just to demonstrate that this is not breaking new ground. The order that the union is seeking is not going somewhere that this Commission has not previously been. This union was involved in a matter where the respondent was the Coralben Hotel Resort. Commissioner Bacon, well you know Commissioner Bacon, he granted this order and the order is in very similar terms to the order that the union is seeking here today. So I only tender that to illustrate that this Commission is certainly accustomed to granting such orders where the law has not been complied with by the employer. That was the case in Coralben and it's again the case here.

PN995

In conclusion Commissioner, employers and employees are required to comply with the law. The evidence in this case that has been presented, is clear and unambiguous. The Wentworth Hotel have failed to comply with section 170GA. Having failed to comply with the letter of the law and having failed to respond to reasonable requests for information from the union, the Australian Industrial Relation Commission's jurisdiction should be attracted to intervene in this matter. It should intervene, Commissioner, in the terms as set out in the union's draft order and reinstate each of the Wentworth Hotel workers back to the jobs that they had before the events of Monday last week. And they should be reinstated, Commissioner, without loss of pay.

PN996

Union members have been, have always been, are up until this time and will continue to be ready willing and able to sit down with the hotel, the employer, and to have proper consultations, in a real sense and look at each individual department, look at each individual employee and consider their individual cases. If it is the case that there must be redundancies, at least start calling for volunteers.

PN997

The application before you today, is for orders to be made against the Wentworth Hotel under section 170GA of the Workplace Relations Act. Orders by the Commission where the employer fails to consult the trade union about terminations being in submission, Commissioner, is that these orders should be so made.

PN998

THE COMMISSIONER: Thank you, Mr Magner. Mr Longland?

PN999

MR LONGLAND: Thank you, Commissioner. It is necessary, unfortunately for me to traverse some very basic ground which has been overlooked in the union's submission. Factual matters were misleadingly omitted in the submission, and direct questions of the Commissioner were evaded and incorrectly answered by my friend. Can I take the Commission to exhibit LHMU1. My friend tendered this exhibit, Commissioner. It's a copy of a letter which one of the 20 employees with whom we are concerned today received, and it makes it clear who the owners of the hotel are. It says:

PN1000

As you are no doubt aware they have entered a contract to sell the hotel.

PN1001

And it advises who the purchaser is and the planned hand-over date. The end of the second paragraph, it advises that:

PN1002

Kenteale, the purchaser, has not advised us who the hotel operator will be from that date i.e. that Rydges won't operate the hotel. It advises that you are currently employed by Rydges Hotel Limited.

PN1003

A matter which, notwithstanding my friends submissions, I can't understand that this union doesn't know who its members are employed by. I recall that applications for membership of unions require people to write who their employer is. It goes on to say that the sale decision has been made by those two companies, the owners, and not by Rydges:

PN1004

Accordingly, and to facilitate the sale arrangements, Rydges has appointed the owners as its agent to manage and implement the changes as is required under the sale contract and notice is given that your employment at the hotel is terminated.

PN1005

You asked my friend during the course of that submission, what evidence is there of the reason for these terminations. He said to you that Mr Mison had given some second hand evidence. It should be very clear the reason for the termination of 380 peoples employment, is because Rydges no longer has a contract to operate that hotel. It's contract has been terminated by the owners and the new owners haven't engaged it. That's the start and the end of the reasons for these terminations.

PN1006

And there's this gigantic fudge that is made by my friend to try and ignore that. His own evidence that he tenders makes it crystal clear. Rydges Australia Proprietary Limited and the owners are the only two parties that I represent, Commissioner. And 380 employees have been terminated by Rydges. Rydges has not selected which employees will be terminated and which employees will not be terminated. There is no evidence by which any finding to the contrary can be made.

PN1007

Exhibit LHMU3 is to a similar effect, where the union is advised in a page and a half of the reasons. It follows, and I am reading Commissioner from the fourth and fifth paragraph:

PN1008

It follows that Rydges will no longer require any employees to perform work at the Wentworth Hotel after its contract to operate the hotel has terminated. ...(reads)... that their employment would terminate on account of redundancy on 12 March 2001.

PN1009

The reason is clear as a bell. From the very document that my friend tendered to this Commission. Yet when asked by this Commission, he actively misled the Commission by omitting to bring that evidence to its attention.

PN1010

THE COMMISSIONER: Mr Longland, just on that point. In respect of these 20, they were terminated on 5 February, weren't they.

PN1011

MR LONGLAND: That's correct. I know that in the authorities on this section, there is a propensity to look at the Saigon Steel about when a contract of employment is terminated. I am happy to accept for the purpose of the argument that that was the termination date for these 20, yes. The termination date for the remaining 360 odd would be 12 March.

PN1012

THE COMMISSIONER: Yes, but it's probably not great, but there may be significance in it, that why the other people were terminated effective 13 March is as you say, Rydges no longer can engage anybody at that site, it's not though clear why Rydges sought to terminate this 20 on 5 February and not on 12 March.

PN1013

MR LONGLAND: I accept that that is not there Commissioner, but nothing flows from that we say, because they've all been paid till 12 March. I will take you later in my submissions to the authorities on this. There is no duty on an employer to provide physical work.

PN1014

THE COMMISSIONER: No there isn't, but there is - - -

PN1015

MR LONGLAND: Provided the employer pays the wages, which here it has done.

PN1016

THE COMMISSIONER: Yes, but if this matter is not settled and there is unfair terminations going forward, it is probably something you need to consider. It may very well be that the compensation available to employees will only be between 5 February and 12 March, but I guess that's for somebody else to draw that conclusion. But there is a little point there, isn't there?

PN1017

MR LONGLAND: Absolutely. Although these 20 are in the same position as the other 360, to the extend that after 12 March, their entitlement to wages under their contracts with Ridges is at an end, and between now and 12 March, the other employees are working out their notice, these employees aren't, the payments are the same.

PN1018

Can I just make a few introductory comments? We get this submission about Jones and Dunkel. Well, there's no evidence about this contract. It's part of this gigantic fudge, it's as though Thursday never really happened, and the very documents that my friend himself tendered, now don't suit him for whatever reason, so he's going to neglect to bring the Commission's attention to them. Paragraph 5 of exhibit LHMU3, my friend tendered, says as follows:

PN1019

The contract by which Ken Teal acquired the hotel, required Ken Teal to make ...(reads)... by Ken Teal into the future.

PN1020

Now, my client advises this union, and my client is the only company that the union has endeavoured to bring to this Commission, notwithstanding our efforts to extend this guarantee to every employee of the hotel, he doesn't challenge that, in fact he puts it before the Commission. The purchaser insisted on an option to elect 20 employees to whom it would not offer ongoing employment. The contract by no means required that 20 employees would not be offered ongoing employment, but merely gave the purchaser that election.

PN1021

We thought these matters were all understood and uncontested on the evidence. My friend gets up and says, "What contract? No one knows anything about any contract." It's incumbent upon me in those circumstances to bring that to your attention. There are a range of other matters that I'll deal with, but I have prepared a written outline. I'll just talk to you to make the submissions, easier, Commissioner.

PN1022

THE COMMISSIONER: I need not mark this, do I?

PN1023

MR LONGLAND: No, I don't seek to have it marked, Commissioner.

PN1024

THE COMMISSIONER: Thank you.

PN1025

MR LONGLAND: I have just made some observations regarding section 170GA, and before I go to those, Commissioner, one could be mistaken for thinking that I've walking into the wrong courtroom this morning, or this afternoon. We get article 13 read out to us, and section 3K and we are told that article 13 is imported into this act, patently incorrect. 3K states as an object of the act to give effect to that. 170FA is the means by which it is given effect. 170FA mentions the convention, analyses the convention and specifically says, the powers given to the Commission to make order to give effect to it.

PN1026

We are not here on a 170FA. Absolutely irrelevant, misleading, Commissioner, with respect. The section is 170GA, and just like my friend likes to treat the purchasers, people who made the decision not to employ these 20, as though they were National Mutual and Ridges, he now also like to treat all these sections of the act as though they are really just the same. The obligation is evident from the Commission's comments during my friend's submission, apply to an employer. They apply to Ridges, after Ridges has decided to terminate.

PN1027

We suggest, in our submission, that care must be taken to identify the point at which a decision has been made. The union's letter of 6 February talks about some in principle decision, and correctly, when my friend reads from the 170FA case, 170FA is different. That might affect an in principle decision. 170GA does not. It refers to an employer having decided, and in paragraph B I say that analysis is uncontroversial, because you've got to advise of the names and categories.

PN1028

If the Commission were to interpret the paragraph A as an in principle decision, in many cases it would be impossible to comply with the second part of sub A, because you wouldn't know the names, numbers and categories. Paragraph C, we move to this other fudge that there is some obligation in this act in 170GA to consult. The LHMU is incumbent upon an employer to consult with its employees. That's relevant in unfair dismissals. It's relevant in FA cases. It's not relevant in GA cases, because it's not what the act says.

PN1029

It says in sub B, that:

PN1030

The employer must give each employer must give each such trade union an opportunity to consult.

PN1031

So once the employee is given the opportunity, the employer has complied with its obligation. Commissioner, that's a point that you raised when you read section B on Thursday afternoon, and to state the matter quite simply, proving no consultation occurred, gets you nowhere. You must prove that the employer has not afforded the opportunity. It would have been a simple matter for the legislature to use the words, "The employer must consult," or, "The employer must meet and confer." They are used elsewhere in the act.

PN1032

Those words are conspicuously absent in the provision that the unions decided to rely upon in these proceedings. No effort has been made in these submissions to say the employer didn't give the union an opportunity to consult. The words are there in black and white, and we would suggest that not even an effort has been made to persuade you that that's the position here. In paragraph D, we make the point, again it's unexceptional. In a legal sense, it's because of the use of the word, "May", in sub section 2.

PN1033

It is not incumbent upon the Commission to make orders, even if there is a breach. I think, Commissioner, you made this observation within minutes of coming on to the bench last Thursday. The Commission doesn't make orders that are going to have no effect, just for the sake of it. The discretion that the Commission has, needs to be exercised, having regard to the facts of each particular case.

PN1034

I will come to this submission later, but my friend seeks to have the order made against Rydges, yet Rydges have told him, through Mr Misan, in fact Rydges said on 23 January, it is the uncontested evidence, in a conversation that the hotel manager had with the union delegate. We don't know why they purchaser has chosen these 20. We have not got a clue. Now, is there some magic wand that's going to come down upon the earth when the Commission makes an order against Rydges so that all of a sudden we will know. We can't tell you things we don't know. An order in these circumstances just cannot change the position but I'll go into that more later but the significance of making the submission now is that in a discretionary sense that's a matter that the union has got to overcome in order to persuade you if you're satisfied there's a breach that something should be done about it and in particular an order in these terms should be made.

PN1035

In paragraph 2 I've summarised what I've called clear facts. I apologise that I've used the words Mr B, I didn't have the transcript when I dictated this. That refers of course to Mr Bandara the union's first witness. A, B and C say things which are not - I didn't think before my friend made the submission there was any contest about it. No one has tried to hide from these employees that they're not employed by the owner of the hotel, they're employed by Rydges and Rydges are simply operating it by virtue of the owner wanting it to operate it. There's never any guarantee that if there was a new owner that new owner would appoint Rydges or anybody else.

PN1036

In fact the offers of employment that have been made, Mr Mison's evidence, the offers come from the purchaser itself Kenteale. Now, if there is any inference that can be drawn that is that Kenteale must intend to operate this hotel on its own. We don't know.

PN1037

Paragraph (f) is an important one that's also ignored by the union. The only people that the union have summoned to the Commission in these proceedings - and they could have issued a section 99, they could have sought orders that the Commission require - the Commission has power to compulsorily require people to attend here - are Rydges and National Mutual. People that have no say in what happens at the hotel after 12 March.

PN1038

I make the point in (g) that every employee has been given notice of termination. Section 170GA, Commissioner, is about termination of employment. It's not about engagement. Every employee was terminated. These 20 here, because Kenteale has decided that they will be here, Kenteale hasn't terminated them, it's refused to engage them. So that this is not a section 170GA case with respect.

PN1039

Can I take the Commission to exhibit WH3 which is an e-mail. It is interesting in the sense that it's the only objective contemporaneous statement of any intention as at this date. It is as early as 24 January at 3.40 in the afternoon. The Rydges manager, Mandy Pummer, says in response to a request about tax forms:

PN1040

No panic but if we are going to re-employ all the staff and they have to fill in new tax declaration forms we have to order at least six weeks in advance as they have to come from Canberra in bulk.

PN1041

Now that, one presumes, refers to the fact that when one changes employer a new tax declaration form needs to be filled out as a clerical matter. The significance of this e-mail, Mr Commissioner, is that Rydges didn't know on 24 January whether or not Kenteale would choose anybody not to make an offer to which really brings the time period into perspective.

PN1042

I say here in submission Mr Mison's evidence was that he knew that the purchaser would use its right to not make an offer to some people on the Wednesday or the Thursday, 31st or 1 Feb, he got a list on 2 Feb and Commissioner you brought these points up when my friend was making his submission. Additionally Mr Mison gave evidence that he telephoned the union on Sunday, 4 Feb. He told them he had the list and they met on Monday morning. So we acknowledge the Commissioner's analysis that that is the proper time frame. Mr Mison had the list. There's no evidence that Rydges or AXA knew anything more than Mr Mison and you have made that point, Commissioner. On the 5 Feb in the evening, a telephone call is made to the union on the Sunday. My friend doesn't tell you about that part of the evidence when the Commission specifically raises it.

PN1043

Mr Mison's evidence you recall was a chronological detail of each daily event. The union have to satisfy you that Rydges didn't provide them with an opportunity to do something to consult. Mr Mison's first meeting, I think he said occurred on 23rd, his uncontested evidence he raised that and said we have to talk to the union. On the very following day the union received a notice. It's exhibit WH4. It is addressed to Mr Aaron Magner. He didn't bother to draw your attention to this, Commissioner. It's incumbent upon him to satisfy you that this is not affording him an opportunity. That was the second day that Mr Mison was across the matter and some time before, a week and a half, before the termination date.

PN1044

We say in paragraph 3 Commissioner there can be no doubt on the basis of the evidence before you that the union was notified of the number and category of employees who would not be made offers of employment by the purchaser on the very next working day after they had that information themselves. It's difficult for the employer to have done more.

PN1045

There's no question that the union were advised of this information before the terminations. The section says in any event before the terminations and given the circumstances as soon as practicable after the employer itself learned that information. Now we make a concession but we say it's a frank concession Commissioner. The employer could have notified the union and the employees as soon as it learned that there was a possibility that the purchaser would not make an offer of employment of up to 20 employees.

PN1046

That was a meeting before Mr Mison's appointment on 23 January. I say it would have been in the vicinity of 23 or 24 January. The Commissioner has got to ask what value that is, what could the employer have said? We've just found out the hotel is sold. We've just found out we're not going to be operating it. We know that there's a guarantee that you will all have jobs on the same terms and conditions et cetera except maybe up to 20 of you might not. In any real life practical situation an employer would almost be negligent to put its workforce through that sort of uncertainty.

PN1047

The union were contacted on the next day an told this was happening. They were told that the employer might exercise its rights on 31 January. There's discretionary factors, we say, that mitigate against the making of an order and I'm taking you briefly to the first one that I mention in paragraph 4(a). I don't wish to take you to the High Court judgment referred to because the point is that even if an order is made to reinstate, Rydges can still not require these people to come to work and keep paying them. That's exactly what the reinstatement order would lead to.

PN1048

Now, my friend, he's changed the goal posts again this morning with a new draft order that has paragraph 2, I haven't got it but it's the same paragraph that appears in the consent order that was made in the Commissioner Bacon matter. It's interesting that an employer in another state in another year in completely different circumstances consents to the making of an order and all of a sudden on my friend's submission that gives the Commission some jurisdiction to do the same thing over the employer's opposition.

PN1049

The Commission, we say, doesn't have power to reinstate and then to vary the contracts of employment that it's reinstating by saying as well as putting the contract of employment back on foot you need to change the terms of the contract so that you're actually required to permit these people access to your premises and provide them with work. That's never been what a reinstatement order has been about. In terms of a consent order that's made at the conclusion of the Commissioner Bacon proceedings that provides no pre-suited value whatsoever. My friend might address why the parliaments look specifically at the circumstances where the Commission can vary contracts of employment in section 127A.

PN1050

This situation doesn't come within those circumstances at all and we say that the invitation to make order 2 is an invitation to accede the Commissioner's jurisdiction. The Commission can avoid that simply by looking at what is said in B about consultation. We don't know why these people were chosen but that's not the only role that consultation has, Commissioner. Indeed, Mr Mison has informed me and my friend was given some latitude to give some update evidence as it were from the bar table that when he met with Mr Magner and the other union representatives on Sunday, yesterday, he told them and he said to me, it's the fact, he has wide authority to negotiate a settlement with these people which involves a payment of money. The union said, well, we're not interested in that we think we're going to get our orders, we don't want to talk about it.

PN1051

MR MAGNER: Objection. That's pretty extraordinary that Mr Longland is giving submissions about things that were said at a meeting that he couldn't get out of bed on a Sunday morning to come along and attend. That wasn't what was said at all and it wasn't any part of my submissions that that was put. So unless he's got some affidavit or some other evidence that he's relying upon he should desist from making any such submissions about conversations that were had at a meeting that he wasn't in attendance at.

PN1052

MR LONGLAND: Commissioner, in addition to misleading you - - -

PN1053

MR MAGNER: That's an objection.

PN1054

MR LONGLAND: You don't object during a person's submission, that's rude, you say it in your reply, this is not evidence.

PN1055

THE COMMISSIONER: I will let you go, Mr Longland, but what people said at a meeting that you didn't attend, I mean, this is going to be a bit - - -

PN1056

MR LONGLAND: Well, Commissioner, my friend gave evidence about that. He got up here in his submission and I let him do it and said, this is what happened on Sunday, we had a meeting and he talked about a phone call he had from Mandy Pummer and what's good for the goose is good for the gander. I ought to be able to tell you what our version of those events is.

PN1057

THE COMMISSIONER: I appreciate, I'm allowing you to tell me but just understand that Mr Magner has made the point, you weren't at the meeting so it's a bit secondhand but anyway, go on.

PN1058

MR LONGLAND: Yes, exactly, those are the instructions that Mr Mison has given about what occurred at the meeting and he was there. In addition, we're told that some newspaper articles are pulled from the paper about re-employment that's another essential part of what needs to happen with consultation in this matter. That wasn't the evidence at all. If my friend took you accurately to the evidence he would have told you that Mr Mison gave evidence that he was actually contacted. The two hotels that place the advertisements which are in exhibits WH1 and WH2 actually rang Mr Mison and said, we are interested in these 20 people, we've read in the paper have no longer got work in the hotel.

PN1059

So the employer hasn't ripped any advertisements out of newspapers. The evidence before the Commission is that there is an actual approach being made by perspective employers. Now, one would have thought that this consultation which the union complains hasn't happened would include some effort on its part, on the union's part, to pursue that, to find out how many positions there are, what sort of positions they are, where they are and at least give their members an opportunity to have that, to make that decision, an election about their future.

PN1060

But instead we get this attitude, well you know we're not quite sure that once the Commission makes an order we'll come back here again and you can tell us all the same thing. We don't know why you were selected, we're happy to negotiate with you a financial settlement and we'll do whatever we can by providing you with an eminently experienced consult to assist you getting some re-employment. We've said that to this union time and time again and any order that's made to the Commission as to consultation will meet with exactly the same response because there's nothing else we can say.

PN1061

In subparagraph (c) on that page 4, I talk about the dilatorily efforts of the union or lack of efforts but before I do, I remember the Commission describing in its observations to us last Thursday the possibility that the union's order would be made as a Pyrrhic victory. Well, we respectfully agree with that and as much as the state illustrates that this is a misguided exercise in futility, we would not say such an order would be described as a victory for the reasons we've indicated but in any event we can't do anything more than tell the union and the employees what we've already told them.

PN1062

I will go to paragraph (c) now. The union's evidence was that they read in the newspaper more than a month ago this was happening. They can't produce one letter, evidence of one phone call. We have got members at that hotel and we are concerned about them. Can you please let us know what is as to City Freeholds, Mr Kenteale, let us know what you have got in store for our members please. Not one. It's incumbent upon the employer to give the union an opportunity to consult about three names and facts. The union can't establish that they have even tried to contact the purchaser.

PN1063

After the Commissioner's advise to the union on Thursday, they say they made a phone call on Friday. Two phone calls. Well the LHMU are obviously feared by hospitality employers throughout the land. They make two phone calls and they disappear. As I said, the LHMU could have summonsed those people to appear here today, Commissioner. They could have made a 170FA application, they could have made a section 99 application, they could have gone to the Federal Court to get injunctions under the freedom of association provisions, they could have gone to the Anti-Discrimination Commission for urgent relief.

PN1064

But we are here, in this exercise in futility which can only result in the union being told in consultation exactly what it has already been told before. The union, over the page, it has not even been able to demonstrate that it has consulted for one minute concerning options for re-employment. This is not withstanding Mr Misan's evidence to the effect that positions are available elsewhere in the industry. Now that is uncontested evidence. It is all very well for my friend to get up and say his union doesn't accept it. His union has brought no evidence by which is can be contravened.

PN1065

Mr Misan didn't make an unconsidered and sweeping generalisation, yes there's employment there. Firstly, (a) he is in a position to know, (b) he comes along with written communications that other hotels have made with him. That's a proper basis for a finding that the consultation about re-employment is far from being futile in this case. Now we say, in the last subparagraph there that:

PN1066

The union should not be permitted to come here and seek orders where it is clear that it has not itself exhausted the opportunities that are available to it to achieve these outcomes

PN1067

The balance of convenience is a term that I have used, Commissioner. It is a discretion. We say that all the factors point one way. The union should be told or directed to take up the offer that the employers made and get down and talk about how these people can actually be helped, because the people against whom they seek orders can do nothing after 12 March. You wouldn't know it listening to my friend's submission, but the plain facts are - and he is unable to demonstrate otherwise - that my clients are not responsible for the plight that these 20 people find themselves in.

PN1068

We don't for one moment derive any pleasure from hearing about redundancies that employees have to go through and indeed employees that have up to 30 years service. It's disingenuous of my friend to come here, bring us here and lecture us about the hardship that they are going through. We know that and this is a situation where there is nothing we can do. They don't accept, they say, that Ridges had nothing to do with the selection of these employees. They said nothing about Mr Misan's evidence and anyone with any commercial experience knows that what a due diligence means is that the vendor gives the prospective purchaser a whole lot of information.

PN1069

Now it's always the case that that information includes employee files. Someone at Kenteale has gone through a bunch of employee files and for whatever reason, decided who they wouldn't make offers to. That is the implication that is blatant on the evidence. There is just no way a finding can be made that Ridges had anything to do with this. The evidence is on the 24th they didn't even know it was going to happen. So we say that it's Kenteale's actions which is the real and obvious reason that these 20 employees are suffering this hardship.

PN1070

None of that is going to be rectified by an order against our client that it can't comply with. I should say, Commissioner, that in a very real sense if the Commission did reinstate these people, they would have to be terminated again by Ridges to give effect on or before 12 March. So there would be an effect in the sense that the notice period would be reactivated and there would be a week or two pay in it for each of them. So I don't say that there's no effect. That would be the real effect and then we would be in the same room talking about the same things.

PN1071

There are a range of other quite surprising submissions that were made:

PN1072

The employer took out 13 per cent of the union membership

PN1073

My friend actually came here and made that submission to you, bordering on professional misconduct if he was a solicitor. The employer terminated the employment of every union member and of every non-union member and for whatever public relation reason he likes to come up here and wave his hands about and make misleading statements like that, they shouldn't be accepted:

PN1074

They have had their livelihood taken away

PN1075

We don't need to be told that, we are not the party that has done that. The union has made no effort to secure the attendance of the party who has:

PN1076

They have been terminated unlawfully and that is why they are entitled to this remedy

PN1077

That's a submission that you make in an unfair termination case, Commissioner. I don't think I need to bother you about going through Quality Bakers and Australian Submarine Corporation. They are well known redundancy cases that have just got absolutely nothing to do with why we are here. They are cases where an employer has made a selection as to which employees in it's workplace it is going to terminate. The employer here has not done that. They are cases which are decided under unfair dismissal provisions, different provisions in the Act.

PN1078

Concepts of harshness and unjustness and unfairness are involved in those cases, not concepts of providing information as soon as practicable or by no later than the day of termination, concepts that have nothing to do with providing an opportunity for the union to actually do something and they're irrelevant. He says Mr Fraser gave evidence there were rumours about sacking of employees some weeks prior to this. I'd be indebted if he'd take us to the transcript where that evidence appears because my recollection is Mr Fraser's evidence was that there were rumours that the hotel was to be sold back as far as the Olympics in September last year. He also gave evidence that in his experience it was often the case that all employees were transferred across. He didn't give the evidence that my friend refers to at all. That's another sweeping generalisation that's part of this great fudge that's given rise to this case.

PN1079

He actually submits that the decision, that is the 170GA decision, is made in commercial negotiations. The decision wasn't made in commercial negotiations at all. Kenteale had a certain right about who it would make offers to. We don't know when they made the decision about which 20 would be made offers, we certainly know which 20 wouldn't be made offers. We certainly know they didn't communicate that to us until 2 February, in the evening, we certainly don't know the basis on which they've exercised that right and we do know from exhibit WH3, I think it is, I took you to before, that Mandy Plummet from Rydges didn't even know whether they'd choose anybody as late as 24 January.

PN1080

It was months after any commercial negotiations. If my friend can take us to the transcript reference for where he says that evidence is given, we'd also be indebted. Can I just say in conclusion, Commissioner - Sorry, before I do, there are just some brief authorities. I don't intend to go through these in any detail. I stress that these cases and, as the Commission's no doubt aware, they're decided on the basis of the facts and the exercise of the discretion that's vested in the Commission so there's nothing that a prior decision said as to that discretion, which is inalienable or binding in that sense.

PN1081

The first is not an authority, it's actually just an excerpt from McCracken and Saffidean's latest edition of, The Law of Employment. I won't go through it, it just concerns that point, I think we're at one with that, Commissioner, I did raise that. The point that there's no duty on Rydges to provide work, even if a reinstatement order is made, provided wages are paid. It's won't change the current position at all except these employees might get another week or two's pay because of additional notice. The Commissioner Harrison decision concerns the Gretley Colliery closure in the Hunter Valley. It was a situation where a certified agreement couldn't be reached where the employer thought it was going to give it the flexibilities needed to profitably operate the mine.

PN1082

There were eight drafts, I think, Commissioner, and the employer ended up saying, Well, look, if you don't vote for the certified agreement, we're going to close the mine. Commissioner Harrison went through the evidence in some detail, I don't need to take you through it, but the observations that he made at the end, under the heading, Findings and Decision, we say, are apposite in the current matter. He's not satisfied that the employer has breached it's obligation in respect of providing relevant information and the opportunity to consult. My friend can correct me if I'm wrong, every case on 170GA, not even termination case and every FA case, every case on GA recognises that the obligation is to provide an opportunity. They're the words that the act uses.

PN1083

If we go down to the last paragraph:

PN1084

The union genuinely believed it had constructive alternatives to ...(reads)... proposal is not, in my view, a matter which offends the requirements of 170GA.

PN1085

The fact that this union wasn't able to, when it was given the opportunity, and won't be able to if the orders are made, convince Rydges that it should employ these people after 12 March, is really a strong factor that mitigates against the making of these orders. Rydges doesn't have a contract, it hasn't got a hotel that it can employ them in. These sweeping statements are made about, Oh, you know, there's Rydges Hotels everywhere, they'll find them a job. The union's not consulted with us about that, there's no evidence before you about that. Mr Misan's here, he's been available every single day.

PN1086

If the union wants to seek employment for these people at other Rydges Hotels it should say so, and we'll address that immediately. Can I just say that this glib analysis of $13 an hour, per year of service and the .00 per cents of the purchase price, I mean, that's not accepted by us. My friend objected on the basis that I gave evidence but he didn't have the professional courtesy to put those figures to Mr Misan when he was in the witness box. Mr Misan's calculated, his organisation has calculated what he thinks the entitlements are, he's aware of them, and my friend gets up and makes a point about these statistics before even giving Mr Misan an opportunity to comment.

PN1087

That submission shouldn't be accepted. Those are the employer's submissions, Commissioner.

PN1088

THE COMMISSIONER: The difficulty I have is this. If you look at GA1(b). After Rydges decided to terminate these people, consequent upon Kenteale's decision, but prior to the termination of the employment, did they give the ALHMU an opportunity to consult as to measures to avert the termination and stuff like that?

PN1089

MR LONGLAND: Yes, Commissioner. We say that's evidenced by the letter that is in evidence in annexure WH4, "I am pleased to advise of the following requested information". So, clearly, some prior communication had occurred.

PN1090

THE COMMISSIONER: I think we're reading the wrong page?

PN1091

MR LONGLAND: And, see, it's an e-mail headed, "Dear Paul", its dated 25 January and the e-mail discloses that the attached letter was sent to Aaron Magna of the union.

PN1092

THE COMMISSIONER: Yes.

PN1093

MR LONGLAND: Now that clearly advises that there's going to be a transfer.

PN1094

THE COMMISSIONER: Yes.

PN1095

MR LONGLAND: And that subsequent to this letter being sent Rydges advised the union that Rydges wasn't going to be the operator of the hotel beyond the transfer date. The key Commissioner is that where it was about the union being advised that there was this issue with up to 20 people that may not be offered employment, the union knew all along that everybody would be terminated by Rydges and transferred and that only these 20 might not.

PN1096

THE COMMISSIONER: Yes but when it knew that as of Monday the 5th the company says through its representatives the company says:

PN1097

These 20 are not going to be engaged and by the way at 2 o'clock this afternoon these 20 are going to be terminated.

PN1098

What I'm saying to you is where's the opportunity given to the union to have discussions about measures to avert, basically to minimise the number to go and also to minimise the effects of that.

PN1099

MR LONGLAND: We say that occurred earlier than this week in Mr Misan's meeting with the union. His evidence was that every employee was going to be terminated and that Rydges couldn't employ them because it had no hotel to operate. You see my friend will try and confuse the situation with the 20 not given engagement letters with the situation about advice and terminations.

PN1100

The terminations that GA talks about are the 380 terminations. There's never any doubt that the union knew that Rydges were making 380 people redundant. While my friend is taking us to the relevant pages of the transcript Rydges don't operate the hotel any more, they have no jobs for these people, that's what a redundancy is and then my friend will try and say, well we didn't know about the 20 until - - -

PN1101

THE COMMISSIONER: Well that brings me to the other point, you see for one reason and another, and it can only be for reasons that occurred somewhere between 2 and 5 February the company came to the conclusion that 20 people, these 20, would not be moved over after 13 March to Kenteale.

PN1102

MR LONGLAND: Well Kenteale came to that decision.

PN1103

THE COMMISSIONER: Yes but Rydges came to that decision as a consequence of Kenteale's decision, it's not Kenteale's decision, they were terminated by Rydges.

PN1104

MR LONGLAND: Yes we say that the union were advised well before that everyone was to be terminated.

PN1105

THE COMMISSIONER: I'm not worried about the union at this stage. Somewhere between the 2nd and the 5th Rydges is appraised that these 20 will not be transferred on 13 March. It decides to terminate them.

PN1106

MR LONGLAND: No, Commissioner, it decided to terminate them weeks before.

PN1107

THE COMMISSIONER: Well no because it did not know that it was going to terminate.

PN1108

MR LONGLAND: Commissioner, it terminated everybody, it knew that it was going to terminate everybody and it told the union that in the week commencing 29 January. Rydges knew it had no hotel to operate .

PN1109

THE COMMISSIONER: Well if the union felt that every one of the employees were going to be transferred to Kenteale with full entitlements observed why would it bother to show much interest, the fact is it could only show an interest in respect of the 20 people who are not going to be given a pretty easy ride into the next - - -

PN1110

MR LONGLAND: Exactly and I think that explains to a large extent why we're here.

PN1111

THE COMMISSIONER: I don't understand why you - - -

PN1112

MR LONGLAND: The union were told that everyone from Rydges will be terminated, that everyone will be re-engaged by city freeholds Kenteale but that there was this little option about 20 and the union would have thought well look it's only an option, we don't know anything yet, we won't worry about it. I mean that's a inference that's open on the facts and it wasn't until the weekend that you've referred to that they thought, hang on, everyone's not going to be transferred now we've found out that Kenteale's not going to make this offer and that's when the union gets active, that's entirely consistent with the point that the Commissioner has raised.

PN1113

If the union were pro active they would have said to Mr Misan in the week commencing 29 January, well what's going to happen if the purchaser doesn't employ these 20 people, let's contact the purchaser and talk about that but the unions thought, well look we won't worry about it, it probably won't happen and unfortunately it did but I need to stress Commissioner that the decision that 170J is concerned about is not Kenteale's decision it's our decision and our decision was to make everyone redundant and as soon as the union knew that there was a transfer the union knew that everyone was being redundant and the numbers and categories is everyone, every number in every category.

PN1114

It follows Commissioner that even if you're concerned about that aspect of the matter there's still the discretionary - the Commissioner wouldn't be in error if it failed to make an order notwithstanding that there was a chance that there was some contravention, some technical contravention.

PN1115

THE COMMISSIONER: Well it's not a technical contravention, I just don't see how, I mean you told me earlier that the company was unaware that 20 were going until about Wednesday or Thursday of the week before and they were unaware of which 20 were going till Friday and they then proceed to take action, it's not Kenteale's decision, it's theirs, and the action is this, they took two decisions, one is to terminate 360 people effective 12 March. The other one was to terminate 20 people effective 5 February. Now what I want to know is in respect of that termination of that 20 people a group of employees greater than 15, where was the opportunity given to the union to consult about measure to avert.

PN1116

MR LONGLAND: Commissioner, I think we're poles apart, Rydges had made a decision to terminate everybody including these 20 well prior to 5 February, that's why the union was contacted, that's why Mr Misan said, there's going to be this transfer, we've got to contact the union. The union don't and shouldn't deny that they knew that Rydges would terminate everyone's employment. My clients comply with its obligations then. My client didn't get the list of 20 and then take any steps - - -

PN1117

THE COMMISSIONER: Yes but this provision is about minimising hardship. You've already said to me that the reason that Rydges did not publicly tell everybody that they were going to be terminated was that there was a pretty strong chance that they would all get their jobs carried over so why create problems where there is none and I agree with that but it seems to me where there was a problem, that is for the 20 people, it only emerged over that weekend period and yet the company for some reason makes a decision to get rid of them on the 5th, it doesn't have any consultation with the union about measures to avert.

PN1118

MR LONGLAND: Well, Commissioner, 20 is Kenteale's responsibility.

PN1119

THE COMMISSIONER: No, 20 is your responsibility.

PN1120

MR LONGLAND: We had decided to terminate everybody including the 20 well prior to getting that list. As soon as we knew that there were going to be 20 we said to the union, let's talk about what we can do for this 20 and we've been saying it every single day since.

PN1121

THE COMMISSIONER: Except that you didn't treat them the same. These 20 went out the door on the Monday.

PN1122

MR LONGLAND: Yes.

PN1123

THE COMMISSIONER: The others are still there presumably.

PN1124

MR LONGLAND: And will continue to be there. Well that's the difference.

PN1125

MR LONGLAND: It is a difference, I concede that, but it's not a difference which, given that these employees are being paid until 12 March it's not a difference which - - -

PN1126

THE COMMISSIONER: Well they're only being paid their entitlements.

PN1127

MR LONGLAND: Absolutely, I don't say it's any more than that. But if they were reinstated they may well be doing tomorrow exactly what they're doing today, still getting paid.

PN1128

THE COMMISSIONER: I'm not worried about whether they are being reinstated. I'm more worried about what would have happened. I don't know what the - why Rydges took the decision that it would terminate them instead of sitting down with the union and having some discussions. See with the others you say to me there's a time frame and in order to give them a proper notice, I think it's probably four weeks which might be the maximum that needs to be given or five weeks, they had to move on 5 February so they would be in place for 12 March.

PN1129

MR LONGLAND: Yes.

PN1130

THE COMMISSIONER: Given that these 20 as far as Rydges was concerned were never going to be around on 13 or 14 March, they could very well have not been terminated by Rydges and just entered into negotiations with the union to see if something could be done. This gets back to this comment, perhaps what could be done is not very much but that's not for me to say from here.

PN1131

MR LONGLAND: Commissioner, I can't emphasise enough the evidence is that these 20, the decision was made to terminate these 20 and everybody else before 5 February. If Kenteale hadn't given us a list on 5 February there still would have been employee meetings and the letters that had been prepared still would have been distributed. It's just that everybody would have got two letters, one from Rydges and one from Kenteale. That was always going to happen. Mr Mison gave evidence that he prepared them and he talked about each day getting information from Rydges, from their files, checking entitlements so that he could prepare these letters. That was always going to happen.

PN1132

The only significance of the list of 20 on the 5th is that in addition to the termination, in addition to the pre-existing decision to terminate Rydges were now advised that Kenteale wasn't going to make them an offer. Now the whole reason Mr Mison contacted the union when he did was to consult about these matters and sure enough he thought that hopefully the only consultation he'd need to do was about getting people's entitlements right.

PN1133

THE COMMISSIONER: But you see you can't, even if I take your point that the decision to terminate these people and the others was in mid-January or early January or whatever, the fact is, I'm just looking at the Act, in any event before terminating employment give each such trade union an opportunity to consult. Now how can any consultation be meaningful with the union if the union is unaware who we're talking about. I mean if the discussions are about people who have been on the job for two weeks, that's obviously relevant and if they're discussing somebody who's been there for 30 years that's obviously relevant.

PN1134

Obviously the first thing a union would want to know is, you've decided to terminate people well let's talk about measures to minimise it and in any kind of discussion like that you need to know who it is, don't you and you and they did not know, you didn't know until after 2 February and they didn't know until 5 February and they get sacked on 5 February so where's the opportunity for the union to consult.

PN1135

MR LONGLAND: Commissioner, as I say in my written submissions there is one absolutely perfect way to mitigate the harsh effects of a termination and that is to locate the same employment at the same hotel on the very next day with all your service being counted. Rydges did that, or AXA did that when it signed the contract, National Mutual. So when the union were informed that these redundancies were happening, Rydges are leaving the hotel, they were also informed that the harsh effects had been mitigated because we hope all of them, and all of them except a maximum of 20 will be given alternative employment. The union don't deny they were told that.

PN1136

See what happened is you can't consider mitigating the harsh effects of the termination for these 20 till (a) you know there are going to be 20 and (b) you know who they are. So make no mistake, we did, we being my clients collectively, make efforts to mitigate the harsh effects of these terminations. Can I say that those efforts were spectacularly successful in the case of 360 people. In the case of 20 that first perfect mitigation, alternative employment, couldn't be obtained. We are interested in looking at other mitigation and the union won't let us look at it because they won't meet with us because they say well we're going to go and get an order.

PN1137

THE COMMISSIONER: Yes, thank you, Mr Longland. Mr Magner, anything in reply?

PN1138

MR MAGNER: Yes, I think it's incumbent upon me to respond to a couple of the points. I could take point by point a number of submissions that were made that I do take issue with but they're perhaps not relevant to your arriving at a decision as to whether the application sought by the union should be granted. But I can say this, I was at those meetings on the Friday. I had discussions with Mr Mison in this matter and it was always couched in the terms that we're not really sure whether or not 20 employees will be terminated. We hope, we hope that they're not and Mr Mison who I think is a pretty decent fellow actually said we hope that that doesn't occur and he said he didn't know.

PN1139

Now the submissions of Mr Longland suggest that in fact, if I can take you to point three of his submissions, it says half way through paragraph three:

PN1140

It is true that the employer could have notified the union and employees as soon as it learned ...(reads)... vicinity of 23 or 24 January.

PN1141

So they had a pretty clear idea at that point in time. The union wasn't advised with any degree of certainty until at the earliest on the Friday but even then there was some possibility that the union was presented with that it mightn't be the whole 20 and we certainly weren't given the names of the 20 until the actual Monday following that Friday meeting. So it was available to the employer to provide an opportunity. It's not an adequate opportunity even they'd told us on 23 and 24 January which Mr Longland's submissions suggest that they could have. It still wouldn't have been adequate but it certainly would have been more adequate than the opportunity or the complete absence of opportunity really that was given to the union being told some hours prior.

PN1142

I do need to respond to a couple of points. They may not be relevant but it's news to this union and it's news to the employees that Rydges aren't going to be the operator. Mr Longland suggested that that decision has been made and he referred in support of that to LHMU1 where it says at this stage, Kenteal Pty Limited has not advised us who the hotel operator will be from that date and suggests that an implication can be made that the union should have known that Rydges won't be the employer.

PN1143

What we were in fact told was that there's every likelihood that Rydges could continue to be the employer, could continue to be the operator. We were told that the management of the hotel has been put out for tender and that there were a number operators that had been invited or had applied to win that contract and Rydges was one of them. There was this suggestion that was certainly made to the union in various soothing tones that in all likelihood it may well continue to be Rydges. Now, that's all just bye the bye because in fact the employer is Rydges. Rydges continues to be the employer up until 12 March. Rydges terminated the employees and so this order is sought against Rydges.

PN1144

The submission from Mr Longland was that the union hasn't made any attempts to contact Rydges and tried to make some light of our attempts to make telephone contact. Mr Bandara - we're represented by a delegate. We've got an organised delegate structure at the Rydges Hotel. We are a presence at that hotel. ..... is a regular face at that hotel. He's well known by the management of that hotel. He's in regular contact with management of the hotel as are the union's delegates, in fact on a daily basis. It's incumbent upon the employer in section 170GA to notify the employees and their union.

PN1145

There were certainly opportunities for them to notify us. There's ongoing questions about issues that might be relevant to the employment of our members that are raised and at no time - and keep in mind that this is in a climate of ongoing speculation. It had always been on, that something is going to happen. Something is uncertain about what's happening at this hotel. We were always vigilant about ensuring - this union is very vigilant about representing the interests of its members and increasingly so and certainly no contact was initiated by the employer in this regard.

PN1146

There is another point that does trouble me. In Mr Longland's submissions, he suggested and referred to the fact that if orders were to be made, that the employer might just continue to pay them because they'd already budgeted for that anyway and the employees continue to receive an income up until 12 March.

PN1147

The orders sought are very clear and this is something that Mr Mison alluded to as well in the discussion that we had with him as recently as yesterday morning where it was suggested that the employees - that the order would be complied with but that there wouldn't be any work for the employees to do and that the order would merely impose an obligation upon Rydges or the employer whoever that may be, to sit down and talk with the union and to then kind of post factum, justify the termination of the 20 employees; that's not how we envisage the order that we seek. We envisage the order being effective in bringing the employees back into the workplace consistent with paragraph 2 of the draft order being sought.

PN1148

We are asking that each of the said employees shall be required to work in their previous position or in alternative position, not just merely to be re-employed in some kind of technical sense but not in any meaningful sense in that they're not actually returned to the workplace so they're suspended with pay effectively while these discussions occur. In relation to the pyrrhic victory point. It's all very well for Mr Longland to give submissions that make a value judgment as to the relevance of some order or the relevance of these proceedings because in any event these people are going to be terminated anyway. All the union is seeking is that the law is obeyed with.

PN1149

If the law is obeyed with and at the end of the day 20 employees lose their jobs, that's all we're seeking. At this stage, we've got 20 people that have lost their jobs in defiance of the law. This Commission has an obligation to impose upon employers and employees the requirements of the Workplace Relations Act. We're willing to comply with that. There seems to be this view that hotel operators in this city don't need to comply with the requirements of the Workplace Relations Act and in particular, section 170GA.

PN1150

Of course, we know that they do, notwithstanding whatever commercial contracts they might enter into that impose other obligations upon them but those obligations must be complied with in accordance with Contract Law. It's also incumbent upon the employer to comply with its obligations pursuant to Employment Law, that is, the Workplace Relations Act. The point was made that the union has not made its application under the right section. If I can just address that point.

PN1151

There could be no more appropriate section for the union to make this application. This is a text book example of the situation in which this section should be used by unions. It envisages mitigating the impact upon small operators so that's why it's got the exception for 15 or less employees. This is for big businesses, that is, businesses that have more than 15 employees or at least terminates more than 15 employees which implies that they are going to be big businesses to be able to do so and it is quite clear in our submission that this is the appropriate section and that the jurisdiction of the Commission is attracted in the facts in this case.

PN1152

Also, can't help but refer to the authority. I notice that Mr Longland didn't at all refer or dispute the precedent value of any of the authorities that the union drew your attention to in our submissions - - -

PN1153

MR LONGLAND: Well, I did, Commissioner. My friend didn't listen. They are all on different sections and that is a challenge to their precedent value.

PN1154

MR MAGNER: In any event, I'll refer to his authority in support of our case. That was a case in the coal mining industry, a decision of Commissioner Harrison. In that case, and the reason why it's been chosen selectively is an authority I can only assume is because in that case, the application by the union wasn't granted. It wasn't granted - - -

PN1155

THE COMMISSIONER: Actually, Mr Magner and Longland, it wasn't granted and it went on appeal and the appeal overruled the Commissioner but because the time has passed and the employees were well on with their life and the coal mine had either closed down or it was much smaller, they chose not to issue the orders. Go on. So either of you needn't trouble me much with Commissioner Harrison's decision. With due respect to him.

PN1156

MR MAGNER: All right, well, the only point that I wanted to make was that 14 July to 20 August is the period in that case for consultation and it was held even though notwithstanding the fact that it was appealed subsequently, that that was adequate. If the appeal did in fact find that that wasn't adequate that only goes to amplify the unions submission that clearly a matter of hours. If a matter of over a month is considered inadequate, ultimately on appeal then it's clear that a matter of hours is not going to be considered an adequate opportunity and that is the circumstance that the union found itself in.

PN1157

Also in relation to these submissions and just in response to these submissions about so called due diligence process. That is how the owner was able to find out which employees were chosen. The new owner was able to arrive at the decision to terminate the 20 employees. We don't accept that. It's impossible to believe that the due diligence process would inform a purchaser to the extent that they were able to make any proper selection of who the appropriate employees should be. Further, if they were to choose who the employees were to not be offered employment, then that should have been something that a process that commenced when they became the owner from 12 March. They come in, they say, it is our intention in taking over the ownership of this hotel to reduce our workforce. We have purchased this hotel with a bank loan or for whatever reasons, for economic reasons our budget requires us to do that. We believe we can, you know whatever the arguments might be. Far be it for the union to come up with them.

PN1158

But if that is the case then that should be a process that commences from 12 March by the new owner. It just will not wash that the existing employer terminates employees and then absolves themselves of any responsibility for complying with the requirements of section 170GA. They are either the employer or they're not and if they are the employer they've got to comply with the law. If they're not the employer which they clearly are, but when they're not the employer after 12 March it would be encumbered upon the new owner to then comply from that time on with the requirements of section 170Ga. One of the members that is present here today was perhaps not relevant to our application directly, has asked me to draw your attention to the fact that there's actually a requirement imposed upon the employer not to provide any employment records to anyone without the permission of the team member concerned. I am advised that no permission was granted.

PN1159

So in any due diligent process they clearly haven't complied with their own requirements not to disclose this information on privacy grounds which may suggest an absence of bona fides and mala fides in this case. Just in conclusion there couldn't be a clearer case. This is clearly a situation where the Commissions jurisdiction should be attracted. The employer hasn't complied with section 170GA in any way, apart from providing us a number of hours before the terminations took effect of the number and categories of employees effected. There was no meaningful attempt, no attempt at all, to invoke measures to mitigate the effect of the termination or measures to find alternative employment, none at all that's been communicated to our members. So in such circumstances time is of the essence. We're only seven days after these terminations took effect.

PN1160

Now, our members are here today. They've obviously got a keen interest in these particular proceedings. They're ready, they're keen to get back into the workforce. Their co-workers are keen to see them back. They are ready to go back and it is for that reason that we are seeking the orders before you today.

PN1161

THE COMMISSIONER: Yes, thank you. The Commission will issue a written decision possibly tomorrow but it does indicate that at least at this stage it will issue an order which will hopefully be available at or about 5 o'clock. In doing so I just want to stress that the Commissions attitude is to focus very much on Rydges being the employer and it is with them that the responsibility for the termination lies. If the advocates to look at the draft order in exhibit LHMU5 you will see the form of order that I propose to publish as I said in a hour or so. It will read:

PN1162

The Australian Liquor Hospitality and Miscellaneous Workers Union, LHMU, has made an application which seeks that the Commission issue orders pursuant to section 170GB of the Workplace Relations Act (1996) of the Act. The Commission makes the following order:

PN1163

(1) Rydges Australia Limited shall reinstate each employee whose names appear on schedule A hereto and treat such employees as having continuity of employment and as having not been terminated on Monday, 5 February 2001.

PN1164

(2) For the term of this order Rydges Australia Limited must refrain and desist from terminating the employment of any such employees in order to allow the following events to occur.

PN1165

(3) Rydges Australia Limited must meet and consult with the LHMU about measures to avert or minimise the terminations and measures (such as finding alternative employment) to mitigate the adverse effects of the terminations.

PN1166

(4) Rydges Australia Limited must provide to the LHMU sufficient information to inform the consultation referred to above.

PN1167

(5) Rydges Australia Limited must meet and consult with the LHMU in good faith in fulfilling the terms of the order set out above.

PN1168

This order comes into force at 5.00 pm on 12 February, 2001 and remains in force until 5.00 pm on 5 March, 2001 or until such other time as the Commission may by further order determine. Then the schedule A sets out the names as set out. On that basis these proceedings will now adjourn.

ADJOURNED INDEFINITELY [4.04pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #WH8 FACSIMILE TO APPLICANT FROM RESPONDENT DATED 09/02/2001 PN892
EXHIBIT #WH9 FACSIMILE TO APPLICANT FROM RESPONDENT DATED 11/02/2001 PN892
EXHIBIT #ALHMU5, AMENDED DRAFT ORDER PN903