C2002/1333, Transcript of Proceedings [2002] AIRCTrans 1247 (12 April 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HODDER

C2002/1333
C2002/1345

FINANCE SECTOR UNION OF AUSTRALIA

and

BANK OF QUEENSLAND LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re proposed termination of employment

FINANCE SECTOR UNION OF AUSTRALIA

and

BANK OF QUEENSLAND LIMITED

Application under Section 170GB of the Act for orders to
consult unions re employer fails to consult union
about terminations

BRISBANE

10.06 AM, THURSDAY, 28 MARCH 2002

Continued from 6.3.02

PN699

THE COMMISSIONER: Could I have the appearances, please?

PN700

MR J. MURDOCH: I continue my appearance for the Bank of Queensland.

PN701

MR M. CLIFFORD: I appear on behalf of the Finance Sector Union of Australia. Appearing with me today is MS G. COX.

PN702

THE COMMISSIONER: Now, the intention of today's proceeding was for the parties to report back obviously on negotiations that they had in the period of time since the Commission last had this matter before it on 6 March. In that regard, who would like to start? Mr Murdoch?

PN703

MR MURDOCH: Commissioner, the position is that the things that we undertook to do when the matter was last before the Commission have been done. Initially, you'll recall that there was an agreement to meet with the union the next day to provide information: that meeting took place and, indeed, has been followed by several further face to face meetings and contacts by phone and correspondence. The matter of an undertaking has be attended to in terms that enabled the parties to reach acceptable wording and that matter is closed.

PN704

THE COMMISSIONER: Yes, thank you.

PN705

MR MURDOCH: So far as the matter of incentive payments is concerned, there were two issues there. Firstly, the gross amount and the parties settled on that in an amount of $411,000, then the distribution formula was proposed by the union and my client accepted the union's distribution formula: that matter is also closed.

PN706

THE COMMISSIONER: Yes.

PN707

MR MURDOCH: So far as the provision of information as to terms and conditions with EDS is concerned, those matters have been extensively communicated to the union and to the affected employees. Not only have the terms been provided, but they have been provided with various comparative tables etcetera. For those reasons, Commissioner, I am able to report that everything that was required to be done as a consequence of the earlier listing before you has been done.

PN708

THE COMMISSIONER: Thank you. Mr Clifford?

PN709

MR CLIFFORD: Thanks, Commissioner. Commissioner, since we were last before the Commission, we have met with EDS and received a copy of all the terms and conditions at least those contained in the Certified Agreement that will apply to our Bank of Queensland members when they commence employment with EDS. We have asked EDS for further information around policies and procedures and have some of that information but EDS seems reluctant to hand over the complete set of policies and procedures that would apply to our members. We met with members and heard their concerns about the terms and conditions, Commissioner, before we met with EDS and our members raised a range or concerns.

PN710

I think it's fair to say that there are a number of conditions in EDS which are better than those in Bank of Queensland. There are some conditions which are worse and we didn't seek to go into each and every one of those, but focused on a few of considerable concern to our members. Those conditions are around changing of people's hours of work. EDS has said that people will normally work Monday to Friday, 8.30 to 5 o'clock, which is consistent with the work arrangements that they have at Bank of Queensland now, except that in EDS it will be a 37½ hour work by virtue of getting a longer lunch break whereas in Bank of Queensland it's a 38 hour week.

PN711

Our concern, however, is in the EDS Enterprise Agreement where it states that normally your hours of work are Monday to Friday, 8.30 to 5, but where there are particular customer needs in a particular location those hours may change. And there are no restrictions on how those hours might change or to what those hours might change. So we've gone back to EDS and asked them for a commitment that there would be a process in place for the changing of hours similar to that in Bank of Queensland where there would be consultation, that where people are consulted that their personal circumstances would be taken into account and further to that that people's hours of work would not unreasonably be altered.

PN712

They have phoned us this morning to say they can do the first two of those things; that they will consult with people and they will take into account their personal circumstances but will not provide a commitment that their hours will not be altered unreasonably. The other issue around that - - -

PN713

THE COMMISSIONER: What are they saying that they will alter them unreasonably?

PN714

MR CLIFFORD: Well, we asked the question about why there is such an aversion to the word "reasonable" and there's no real explanation for that, Commissioner. They do seem to have an aversion to the word "reasonable" because it also comes into the second matter that we'll raise. The other issue we raised with them was the fact that in Bank of Queensland, if your hours are altered to work on a weekend, then you would receive a 50 per cent loading. We're asking for some undertakings from EDS that if people's hours were altered so that they worked a weekend that they would not receive less than that that would be entitled to in Bank of Queensland.

PN715

THE COMMISSIONER: Does that in any way interface with the undertaking given by the Bank of Queensland?

PN716

MR CLIFFORD: It does and in fact, Commissioner, depending on how we proceed today, we do have a set of words that we would ask for recommendation from the Commission around certain things. And part of that is that the undertaking that the bank has given to employees is that they will use their best endeavours to ensure that the terms and conditions - I might be corrected on the wording, but the essence of it is that the terms and conditions will be comparable but people won't be worse off.

PN717

THE COMMISSIONER: Well, perhaps you misunderstood me. I understood Mr Murdoch to say that the undertaking has been agreed. Now, what I'm saying to you is: is there any way then or is there an understanding of the parties that the questions you're raising about change of hours and the differential between what you say exists under the Bank of Queensland regime as opposed to EDS, does it find its way in some way into the undertaking?

PN718

MR CLIFFORD: And the undertaking that I understood Mr Murdoch to be talking about was one which says that the Bank of Queensland will use its best endeavours to ensure that the terms and conditions are comparable, equal or whatever the words are. And the way we see this working in is that if we identify areas of considerable concern, we would hope that the Bank of Queensland would use its best endeavours to try and fix those things. At the same time we'd be discussing it with EDS.

PN719

THE COMMISSIONER: Well, this is sounding a bit like that to me.

PN720

MR CLIFFORD: Yes, well, and in fairness, Commissioner, there are - I mean the bank would argue that the terms and conditions are comparable because there's a range of things which are better. We say there are some things which are worse, but what we have tried to do is single out those things which potentially have a substantial impact on people. So, for example, bereavement leave is one thing we could say is worse. But we're not going to press for equality of bereavement leave, for example, because it's a matter which may affect people on a fairly irregular basis. Whereas hours of work, for example, is something which if hours of work are changed so that you work a weekend it has a substantial impact on somebody - - -

PN721

THE COMMISSIONER: Well, it's a more fundamental issue than bereavement leave, I would have thought.

PN722

MR CLIFFORD: That is our view - - -

PN723

THE COMMISSIONER: And more likely to be acted upon during the life of an employee's employment with EDS than you would hope bereavement leave.

PN724

MR CLIFFORD: That's our view, Commissioner.

PN725

The other one which we've sought an undertaking from - there's a lot of concern from our members about the fact that they will work at the existing site at 229 Elizabeth Street, for up to two years, I believe. The concern, then, is what happens after that two years and where do we go and EDS has provided some undertakings that you won't move - if they relocate outside the Brisbane metropolitan area, then they would talk to people about their personal circumstances and whether it's possible to redeploy or not.

PN726

Our concern was if they move within the Brisbane metropolitan area and you have a situation where you have a person who travels from the Gold Coast and it's possible to travel to the city but quite onerous to travel to Aspley, for example, if they move out there, would they provide an undertaking that they would not require somebody to relocate if it's not within a reasonable commuting distance? And again, there seems to be an aversion to the word "reasonable" being included in any undertakings.

PN727

THE COMMISSIONER: Yes. But I don't know that that would - essentially, though, that seems to me to ignore about the commercial enterprise that EDS might conduct which is not something the Bank of Queensland could get involved in, surely.

PN728

MR CLIFFORD: Only to the extent that they could use their best endeavours to try and urge EDS to give an undertaking to employees to include a commitment that they won't be relocated.

PN729

THE COMMISSIONER: Yes. I'll tell you, I don't put a lot of faith in that. I mean, that's really saying that the Bank of Queensland could, in some way, interfere with the commercial rights of EDS.

PN730

MR CLIFFORD: Well, they have given an undertaking that they will use their best endeavours.

PN731

THE COMMISSIONER: Yes, but best endeavours, to me, don't seem, to me, to go as far as you're suggesting, frankly, Mr Clifford, in terms of, if EDS, at some time in the future, decides to move its operations to somewhere, I can't see how the Bank of Queensland could, in some way, be interfering in that. I mean, in terms of the pure industrial matters, I just see an overlap of commercial and industrial relations matters.

PN732

MR CLIFFORD: We're not suggesting the Bank of Queensland should interfere in two years time. What we're suggesting is that they should use whatever persuasion they have to seek an undertaking from EDS that EDS will give an undertaking to people that any relocation won't be beyond a reasonable commuting distance and it's - - -

PN733

THE COMMISSIONER: Look, frankly, I think you're on a loser there, to be honest with you.

PN734

MR CLIFFORD: And Commissioner, I realise that it's not a strong position. It's not a strong position - - -

PN735

THE COMMISSIONER: Well, you're right about that.

PN736

MR CLIFFORD: Yes. We're simply asking the bank to use its best endeavours - - -

PN737

THE COMMISSIONER: On a scale of 10, it rates pretty low, I would have thought.

PN738

MR CLIFFORD: Well, can I perhaps hand up the draft of the undertaking that the Bank of Queensland has provided? It was included - - -

PN739

THE COMMISSIONER: These are the agreed words, are they?

PN740

MR CLIFFORD: This was the agreed words, Commissioner, and Commissioner, if I could hand up a letter supplied to me by Mr Yateman?

PN741

THE COMMISSIONER: Thank you.

PN742

MR CLIFFORD: The words are slightly amended in that letter. That was the final letter that went to employees with this undertaking in it and there's a slight amendment to the undertaking but the - - -

PN743

THE COMMISSIONER: So the draft undertaking isn't accurate?

PN744

MR CLIFFORD: Well, there's a slight amendment but the meaning is the same.

PN745

THE COMMISSIONER: Well, I only want the - - -

PN746

MR CLIFFORD: The final?

PN747

THE COMMISSIONER: - - - the final, not the - - -

PN748

MR CLIFFORD: Yes, and we didn't have the final. I apologise, Commissioner. The final version actually went to employees.

PN749

THE COMMISSIONER: You want this marked as an exhibit, do you?

PN750

MR CLIFFORD: That may be useful, Commissioner.

PN751

THE COMMISSIONER: That will become FSU exhibit 1.

EXHIBIT #FSU1 LETTER THAT WENT TO EMPLOYEES WITH UNDERTAKING

PN752

THE COMMISSIONER: Mr Murdoch, I understand you've got a commitment at 10.30.

PN753

MR MURDOCH: Yes, Commissioner. Commissioner, might I say that, in relation to the issues that Mr Clifford has raised, we have approached today on the basis that it was as listed, a report-back. Now, some of the issues - well, most of the issues raised today appear to be matters that are on-going between Mr Clifford and EDS.

PN754

THE COMMISSIONER: Yes, I don't disagree with that.

PN755

MR MURDOCH: If at the end of the day there are legitimate matters that are referred to the bank on the basis that it triggers our commitment to use our best endeavours, we don't shirk from that but frankly, it seems premature, with the on-going discussions that Mr Clifford seems to be having with EDS that we're not really involved in - - -

PN756

MR CLIFFORD: Commissioner, could I - - -

PN757

THE COMMISSIONER: Well, there might be a need, also, to have someone from EDS here.

PN758

MR CLIFFORD: Well, Commissioner, could I - and we invited EDS here and they said they wouldn't attend but - - -

PN759

THE COMMISSIONER: Well, you issued the wrong invitation. You should have got one from me to them. Then they would have been here.

PN760

MR CLIFFORD: Yes. Commissioner, the concern we have is that the bank continues to assert, this is acceptable alternative employment and there are certain tests that need to be applied. If they're going to deny a retrenchment payment to people which they say they are going to do, then they need to meet certain tests. So the undertaking is one thing but the other thing is that they do need to demonstrate to this Commission that the employment that they offering people at EDS is in fact acceptable alternative employment and, as I said, we're not seeking to raise a whole series of issues.

PN761

In fact, I foreshadowed we'd raise three. I've now raised two. The most important is yet to come but it's not simply a matter of saying, "Well, these are now matters that deal with EDS."

PN762

THE COMMISSIONER: Well, look, Mr Clifford, you had better raise those because, essentially, Mr Murdoch was right about the other issue he raised. This is only for report-back; this isn't for some full-scale hearing - - -

PN763

MR CLIFFORD: No, that's right.

PN764

THE COMMISSIONER: - - - and all of the things that you were raising today seemed to me to be matters that the bank should be alerted to and obviously they're on-going in terms of EDS but I would have thought that, out of today, what you should be asking the bank to do - the Bank of Queensland to do - is to use their best offices with EDS to see whether or not some further undertaking can be reached and if, then, that's not successful and the bank is of the view that they can take it no further, well, then, perhaps what I should do is, when you put this other matter on the record for the bank's information, is adjourn this and give you the right to have it re-listed next week and, at that time and inherent in that, I would expect to have from you subpoenas you wish to be issued upon the appropriate EDS personnel.

PN765

MR CLIFFORD: Yes, Commissioner, and in fact - - -

PN766

THE COMMISSIONER: And that seems to me to be the best way to proceed with this now.

PN767

MR CLIFFORD: Yes and in fact we're not trying to turn it into a full-blown hearing, Commissioner. If we were to later assert that this is not acceptable alternative employment, then we would endeavour to have it listed for formal hearing but we are reporting back on the issues of concern to us and nothing more than that and we're simply stating that, in terms of the undertaking that Bank of Queensland has provided, that's what we intend to do. We intend to press Bank of Queensland to use its best endeavours - - -

PN768

THE COMMISSIONER: All right. Well, look, can I say this to you: that, in technical terms, I think what you need to do is file a fresh notification, naming EDS because, essentially, EDS are not a party to these proceedings and to bring them along here under subpoena would be inappropriate under those circumstances and I think that if you're not satisfied with the progress you're making, I suggest you file a further application to have EDS - and I will join that matter to these matters.

PN769

MR CLIFFORD: The difficulty we face there, Commissioner, is that EDS has informed FSU, we think incorrectly, that they do not recognise FSU as an appropriate union for EDS. So what that becomes is a full scale - - -

PN770

THE COMMISSIONER: Well, I'll see if they'll recognise this Commission in the appropriate manner.

PN771

MR CLIFFORD: Yes, Commissioner.

PN772

THE COMMISSIONER: They had better come along here and tell me that and give me the reasons for that.

PN773

MR CLIFFORD: So Commissioner, perhaps I should move, then, to the final issue which is the issue about redundancy arrangements. Now, we flagged this to the Commission at the last hearing where the enterprise agreement refers to a particular policy position on retrenchment and given that the Commission is pressed for time today, I have - - -

PN774

THE COMMISSIONER: Well, Mr Murdoch is pressed for time today and - I don't know - I assume he didn't anticipate this matter going for very long.

PN775

MR MURDOCH: Commissioner, can I - - -

PN776

MR CLIFFORD: Well, I don't know why that would be the case.

PN777

MR MURDOCH: I don't want to cut my friend off but what has emerged is that the union have disputed with the bank the bank's interpretation of the Bank of Queensland certified agreement in relation to the entitlements that people got under it in relation to redundancy pay. We take a view; the union take another view. At the end of the day, it may be an issue that the union will want to take to the appropriate Court to get the agreement interpreted. It really is a question of black and white. Either we're right or the union are right. Yes, it is an issue but, with respect, it's not an issue that we should be troubling you with.

PN778

THE COMMISSIONER: All right. So you're flagging jurisdictional objection, in any event, Mr Murdoch?

PN779

MR MURDOCH: That's the appropriate place to take it, Commissioner.

PN780

THE COMMISSIONER: Yes.

PN781

MR CLIFFORD: Commissioner, it goes directly to the issue of whether it's acceptable alternative employment or not. It is an appropriate issue for this place.

PN782

THE COMMISSIONER: Yes, but you see, there are two issues there. There's either interpretation or enforcement which this Commission isn't empowered to deal with.

PN783

MR CLIFFORD: And Commissioner, there is a range of ways that we could seek to deal with it. Today, we're just seeking to report back on the issues. There are other applications we could make to have it dealt with in this place. I don't accept Mr Murdoch's - - -

PN784

THE COMMISSIONER: Look, Mr Murdoch is running out of time. I think Mr Murdoch has put the position pretty succinctly, though. You and the bank disagree about the application the bank wants to apply as to the certified agreement terms if redundancy occurs.

PN785

MR CLIFFORD: Yes.

PN786

THE COMMISSIONER: Well, that's pretty clear on the record.

PN787

MR CLIFFORD: Yes. And it does got to the heart of whether it's acceptable alternative employment and in terms of our application about consultation, we stated, when we were before this Commission last time, that our concern about the signing of the contracts was that we would be in a position where we were trying to overturn decisions already made. So in terms of the consultation issues that are before this Commission, that has now been demonstrated to be true because when we've approached EDS about this - because what the Bank has said was, "You'll get the terms and conditions when EDS is ready for you."

PN788

So we got them, after a contract is signed, when we raised concerns about the redundancy arrangements and how we don't believe that they are equal to the arrangements which people are entitled to in Bank of Queensland. The response we get from EDS is, "Well, that's bad luck. The contracts are signed. We can't do anything about it." So we are in the very position that we flagged to the Commission that we would be in which is: we are seeking to overturn decisions already made which goes to the heart of our application around the bank's failure to consult with this union. We now have these issues. We now have Mr Murdoch who wants to go off to another appointment that he has, despite the fact - - -

PN789

THE COMMISSIONER: Well, no, he hasn't got an appointment but he's got another hearing in the courtroom beside this one.

PN790

MR CLIFFORD: But despite the fact that we have flagged these issues to the bank, that we have notified them that we'll be raising these issues here today for discussion and preferably for conference so we can have further discussions about the way we might address them - and Commissioner, I think that we do need to be heard on these issues so that you know the - - -

PN791

THE COMMISSIONER: Well, you do but it won't be today. That's the point I'm making. I mean, I'm happy to list it for next Tuesday if that's what you want to do.

PN792

MR CLIFFORD: Well, I don't think we're in a position to go to hearing on it, Commissioner, so we're not seeking that but we are seeking to have a further conference and in fact our recommendation goes to the issue that there are certain things we need to make sense of this. We need access to the bank's files on their redundancy and redeployment arrangements which we've asked three times for and been told that we can't have those.

PN793

THE COMMISSIONER: Why not?

PN794

MR CLIFFORD: Well, I'm not sure, Commissioner, why we haven't had access to those.

PN795

THE COMMISSIONER: Can you tell me, briefly, why not?

PN796

MR MURDOCH: Commissioner, my understanding was that the bank had put its interpretation of current entitlements before the union. I didn't know there was any issue over further material that the union wanted. If there is, I am sure that can be discussed.

PN797

THE COMMISSIONER: All right.

PN798

MR MURDOCH: The problem as I understand it is that it has been discussed quite a bit, and the parties have ended up disagreeing. And the position is, frankly, if down the track if the Federal Court says our interpretation of the agreement is wrong and the union is right, yes, that may well have an impact on what EDS have built into their package. Because EDS have built in something that is better than what the certified agreement provides, but not as good as what the agreement says the certified agreement means.

PN799

THE COMMISSIONER: But I thought the concern was more about those people who didn't take the EDS offer, and ended up back under Bank of Queensland where there is the suggestion then they wouldn't get any redundancy.

PN800

MR MURDOCH: I don't think that is the issue, Commissioner, because it is an issue as to the entitlements that the people take forward with them into EDS.

PN801

THE COMMISSIONER: I see, all right.

PN802

MR MURDOCH: But it is an issue that, for example, affects people who remain with Bank of Queensland because there is a dispute over the interpretation of the certified agreement.

PN803

THE COMMISSIONER: All right, well, look, it seems to me that what we better do is relist this matter for Tuesday morning, and then there will be time, Mr Clifford, for you to fully ventilate what it is you say you want the Commission to be made aware of, and for the negotiations with the Bank of Queensland.

PN804

MR CLIFFORD: I am happy with that approach, Commissioner. Could we seek a recommendation from the Commission that the bank will in fact supply information to the union that it has on the redundancy and retrenchment arrangements, and also make - - -

PN805

THE COMMISSIONER: Well, specifically, what documents do you want?

PN806

MR CLIFFORD: Well, in a - - -

PN807

THE COMMISSIONER: Well, can I put it this way? I will adjourn this matter to allow Mr Murdoch to go to his other hearing. You indicate to the bank what is the material that you want, once we go off the record. In the event they refuse to provide it, provide us with a subpoena and this Commission will issue a subpoena on those documents. Now, is Tuesday morning convenient to the parties?

PN808

MR MURDOCH: Commissioner, I can't be here Tuesday, and Ms Deans can't, but - - -

PN809

THE COMMISSIONER: What about Wednesday?

PN810

MR MURDOCH: Well, Ms Deans is away until 15 April, but if the matter needs to be relisted by the Commission, well, it would be better to have her here, but she has a commitment overseas until 15 April.

PN811

THE COMMISSIONER: Mr Clifford?

PN812

MR CLIFFORD: Commissioner, I - - -

PN813

THE COMMISSIONER: Well, if you got the documents that - - -

PN814

MR CLIFFORD: I would be - in fact, what we were asking in terms of recommendation was that we do meet again on 19 April, but we needed the documents in the meantime, and we needed to have access to people who were in the negotiating team.

PN815

THE COMMISSIONER: Well, if the Commission adjourns this matter now, what is the bank's position in conferring with the union today and providing those documents?

PN816

MR MURDOCH: Excuse me.

PN817

THE COMMISSIONER: Yes.

PN818

MR MURDOCH: Commissioner, we are happy to talk to the union. If we can assist them with documents, we will, but ultimately if we disagree on the interpretation handing over some documents isn't likely to change that.

PN819

THE COMMISSIONER: No, but then again, it may give the union some further information which might satisfy them of the position the bank is taking.

PN820

MR MURDOCH: Commissioner, we don't have any objection to having a talk to the union after the report-back is over. I personally won't be involved but others there will.

PN821

THE COMMISSIONER: Well, look, what I can do, I will adjourn this now and give the union leave to have the matter relisted at short notice, and that way then nobody is tied down, and the union will be aware this afternoon as to whether they need a hearing next week, and for what purpose. Would that suit you, Mr Clifford, if I did that?

PN822

MR CLIFFORD: Yes, that suits, Commissioner.

PN823

THE COMMISSIONER: Okay. Well, on that basis then I will adjourn these proceedings on the grounds that the parties will confer, once the adjournment is attended to, and the union is given leave, or the bank for that matter is given leave to have this matter relisted at short notice if that becomes further necessary. And at that time the Commission would program a full day so that the parties would have an opportunity to ventilate any issues they wish to. And also, Mr Clifford, you might consider what you want to do about EDS being involved in any of those proceedings. So on that basis I will adjourn these proceedings.

ADJOURNED ACCORDINGLY [10.33am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #FSU1 LETTER THAT WENT TO EMPLOYEES WITH UNDERTAKING PN752