C2002/1741, Transcript of Proceedings [2002] AIRCTrans 1900 (31 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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


O/N VT04135
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

C2002/1741

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

and

NETWORK DESIGN AND CONSTRUCTION LIMITED

Notification pursuant to section 99 of the
Act of a dispute concerning Form A
(Notified Redundancies) - provision of
supporting material to justify positions
being declared surplus

MELBOURNE

2.34 PM, TUESDAY, 14 MAY 2002

Continued from 15.4.02

PN162

THE COMMISSIONER: Is there any change to the appearances?

PN163

MR ELLERY: Commissioner, the only change will be Mr Absolum is absent at the moment, he should be here at some later stage. I was expecting him at about half past 2 but he isn't here.

PN164

THE COMMISSIONER: All right. And this matter comes back on as a result of the letter of 7 May. So Mr Ellery, do you want to have something to say about what it is you seek?

PN165

MR ELLERY: Yes, Commissioner. I have called the matter back on because there has been some correspondence between the parties and if you like I will put that correspondence up to you.

PN166

THE COMMISSIONER: Yes, very well.

PN167

MR ELLERY: And I will talk to that correspondence as well. Mr Booth would then like to continue the presentation in regards specifically what we would like out of the day so if I could commence by providing a document that I wrote to Laura Mazin, General Manager of NDC. That document I think should be with NDC but there should be sufficient copies there for the Commissioner and NDC as well.

EXHIBIT #CEPU12 LETTER TO NDC FROM MR ELLERY OF 7.5.02

PN168

MR ELLERY: A further document I will hand up that Mr Booth wrote to Laura Mazin on 2 May along similar lines to CEPU12.

EXHIBIT #CEPU13 LETTER TO NDC FROM MR BOOTH OF 2.5.02

PN169

MR ELLERY: There is a response that was provided to myself by Laura Mazin dated 2 May which was directed to our branch, the T and S branch.

EXHIBIT #CEPU14 RESPONSE FROM NDC TO MR ELLERY OF 2.5.02

PN170

MR ELLERY: And there is a final document that I have here that is a document dated 6 May that was provided to Mr Booth for the P and T branch.

EXHIBIT #CEPU15 DOCUMENT DATED 6 MAY TO MR BOOTH

PN171

MR ELLERY: They are the documents that I will be referring to here. We received a pack of documentation via our national office and in fact the document was marked confidential and I don't have any other copies of that document, I don't know whether it is worthwhile.

PN172

MR BOOTH: I have got a copy of that. Do you want to refer to that?

PN173

MR ELLERY: Not particularly, no, not at the moment. Maybe we will deal with that in terms of - - -

PN174

MR DALTON: I have got spares.

PN175

MR ELLERY: Okay. Yes.

PN176

MR DALTON: Maybe I can hand over some.

PN177

MR ELLERY: That document was provided to us and I certainly saw it around about 23 April where I got a copy from our national office and the document had a number of attachments in it and based on that document I - - -

PN178

THE COMMISSIONER: Well, I have written it as document X but are you going to - do you - Mr Dalton has given you some copies but - - -

PN179

MR ELLERY: Okay. Yes. Look, Mr Dalton has got some copies, thank you.

PN180

THE COMMISSIONER: I don't mind you putting it in your own way.

PN181

MR ELLERY: That document - - -

PN182

THE COMMISSIONER: Which is now CEPU16.

EXHIBIT #CEPU16 CONFIDENTIAL DOCUMENT

PN183

MR ELLERY: Is the document that was provided and it had some broken down figures in it regarding - - -

PN184

THE COMMISSIONER: Yes, I might say it has it has some attachments.

PN185

MR ELLERY: Overtime and a few things that we requested. Also there was some comments in it. When I sat down and analysed what was presented to us in that document the - CEPU12 resulted and in that CEPU12 I requested that NDC provided us with some of the - some of the very basic documentation that we were seeking based on previous correspondence that we had tabled last time we were here.

PN186

But in addition I highlighted in the letter to Ms Mazin on 1 May that one of the cornerstones of NDC's argument was all about how much unproductive time was being charged and this to us was of great interest because this, in our view, would really only provide the required defining amount of redundancy that was really being sought by NDC so I asked for what was known as the VNPUT data and I wanted that broken down into who was being charged against that etcetera.

PN187

What bands, given that we were told that within each band there were certain amounts of unproductive time. I wanted to see the real figures so I highlighted, for instance, in my first paragraph or my second paragraph there to NDC that:

PN188

Really if you are going to argue that these positions are indeed redundant, you really need to provide us with actual data that is based on the levels that you are looking at to declare redundant.

PN189

And even further to that when I did a very initial analysis of the data provided to us from NDC, I looked at an appendix and it is out of CEPU16, the appendix is attachment 3D and it was a simple bar chart on the total amount of VNPUT in full time equivalent days in each centre and I looked at the Bendigo area because I know that fairly well bearing in mind that we had a form A of 8 March of 27 staff mainly band 5, 7 and 8s and with my calculation I could be wrong and I that is why I needed the further information.

PN190

I looked at that and did a few divisions and came up with around about 15 full time equivalents per working day in February were being booked to VNPUT. At one stage there, there might have been some other numbers but clearly I couldn't see the two numbers coinciding with the 27 staff being required to be made redundant the fact that in February which was just prior to the positions being declared redundant that in fact only 15 people were allegedly on NDC's figures and which I still have some dramas with, around 15 staff were actually allegedly doing nothing.

PN191

And I also made some comments to NDC that in fact that would then therefore - if that was mapped across to all the other data that had been used to generate redundancies across the Victoria/Tasmania region over the last five or six months it would clearly identify that the amount of redundancies that NDC were after was way in excess the amount of work that - the amount of people that were sitting there idle. So in that - I also asked for in that letter of CEPU12 of 1 May, I also asked for some further information on the breakdown which I raised in the Commission the last hearing, how these so called RASS R-A-S-S orders would be - would give us some indication about the amount of work that was there and none of that was provided.

PN192

I also was after some information on the amount of optical fibre repair work that generated work; generated jobs and again that data was not provided.

PN193

THE COMMISSIONER: Have you spoken to Ms Mazin about that since you wrote that letter, Mr Ellery?

PN194

MR ELLERY: No, because I received the letter which I will go through which was 13, which said basically: sorry, Mr Ellery, we don't really particularly see any advantage in giving you any further information. That is contained in CEPU14. Last sentence of CEPU14 dated 2 May which was in response to my letter was clearly that I believe and quote:

PN195

I believe NDC has provided enough information in response to your previous requests. I do not believe there is any constructive purpose served in providing you with any further information about our decision.

PN196

Based on that letter, Commissioner, and the other letters that were responded to Mr Booth, I requested that the hearing be brought back on so I guess from my point of view and from the point of view of the members that are out there looking at the - and knowing fairly intimately the details of who is working and who is not, I mean, their argument simply is that the amount of non productive time really is not as serious as what NDC are claiming and therefore in fact their assertion that the positions are indeed redundant is incorrect and I guess that is where we are at at the moment.

PN197

If I can be provided with some more information which actually proves they are actually redundant I will be happy but at this stage unless that information is provided, based on what has been provided to me, my initial analysis of it is pretty much that the positions are in fact not as - the total number of positions are not as redundant as what NDC claim. I think Mr Booth has some further - no, look, I will leave some further examples of the - for instance the argument about what is actually being charged to VNPUT, I will leave those examples until perhaps a bit later when we might say go into conference regarding some of the discussion, if that is that is what you would like to do Commissioner. Mr Booth.

PN198

THE COMMISSIONER: Is that what you want to put, is it, Mr Ellery?

PN199

MR ELLERY: Yes, yes.

PN200

THE COMMISSIONER: Thank you. All right. Is there something you want to put Mr Booth?

PN201

MR BOOTH: Yes, yes, just a few words of elaboration on top of what Mr Ellery had to say and I will use the same exhibits I think Mr Ellery has already provided to you. As he has pointed out, following your Commissioner hearing of 15 April, on 19 April the NDC provided a whole - to our national office, a series of attachments which they say is data which backs up their contentions in relation to need for redundancies on the scale that was provided - notified to us on 8 March.

PN202

They go through a series of charts as you can see there depicting revenues for various groups, wireless, access and radio groups and so forth. I might just quickly take you through some of those, if that is possible then and I have explanation of why we say that these as within later I am right, that the information really wasn't what was required by us to make any sort of reasoned assessment about the redundancy situation within there. For instance on the first chart of what is happening in their market they talk in general terms about decreases in revenues.

PN203

We certainly understand that that is the case and they also talk - and that bit talks in terms of the wireless region, access and cable radio, mainly country regions where there is various decreases that have happened through that time. Again we would say that that is a rather broad brush approach, it doesn't actually specifically address situations about why redundancies occurred in any particular place, why for instance there was more redundancies in Shepparton for instance than there was perhaps in Ballarat or indeed the metropolitan areas.

PN204

It just talks about the market in the broad. We certainly accept and understand that they have had decreases.

PN205

THE COMMISSIONER: Well, that is all this purpose is, isn't it? It is not the market in Bendigo or - - -

PN206

MR BOOTH: No, well, and that is exactly the point, Commissioner.

PN207

THE COMMISSIONER: All right.

PN208

MR BOOTH: Yes, that is exactly the point. It doesn't address those particular situations.

PN209

THE COMMISSIONER: Yes.

PN210

MR BOOTH: And indeed the fact it then explains it in dot points on the following page exactly that particular point. The following one is in relation to Y-lying country and customer products, country, that is that second attachment 2A, I think of that documentation of CEPU16. It again gives a broad brush approach to the market situation that faces NDC and again I certainly wouldn't dispute the overall financials that are affecting them in that particular - in that way.

PN211

Within - going in terms of attachment 3A, they then talk about VNPUT. This is more contentious in terms of our particular situation and in particular they present first of all via various regions VNPUT, that is basically not productive time as they would put it, if I can put it in layman's terms, like all the telecommunications industry there is lots of acronyms that fly around the place that after two years I am still getting used to but you see there that for the various areas, Ballarat, Bendigo, Geelong, Morwell, Shepparton, the country radio and so forth, that there are varying degrees of non-productive time that have been registering according to the NDC system in relation to that.

PN212

And that goes through - the first one I think is in relation to over the three month period, I think that is the three months - maybe NDC can help me from what December through to February was it?

PN213

MR DALTON: Yes, that is right.

PN214

MR BOOTH: Following that is the one in particular for December, that is over the Christmas period, 3C is in relation to January and 3D is in relation to February. Now, I think Mr Ellery made some comments in relation to that. I think the essence of what he was saying is - and I will reiterate this point: that again it talks about VNPUT in the broad situation within particular country localities. As we will see in documentation that has already been presented to you and I will take you through this, Commissioner, that in fact at the same time NDC have indicated to us in a number of ways and in fact they don't look at staffing arrangements in terms of particular - first of all in terms of geographic localities and I will come to an example about Ballarat Design in a minute but you note that within these attachments that they already in fact talk about non-productive time for particular geographic localities.

PN215

But secondly because there are different functional work groups within each of those localities, what these figures don't show is that, you know, within particular work groups within say the Ballarat area or the Bendigo area or the Shepparton, what is in fact the non-productive time for each one of those particular work groups so it is hard to explain but there is really two sort of factors at work which - - -

PN216

THE COMMISSIONER: Well, how many work groups are there, Mr Booth, in say Shepparton? There are a lot of - - -

PN217

MR BOOTH: Well, I probably know Ballarat better but there is like a design - if I can take Ballarat which I have spent a bit more time on? Maybe Mr Ellery can - he is much more conversant with Shepparton, it is more his branch's area.

PN218

THE COMMISSIONER: All right.

PN219

MR BOOTH: But in Ballarat, for instance, there is a design section, for instance, that I am aware of. There is also what is called a plough team and there is also radio work, you know, that goes on in the area. Mr Ellery covers people, technicians who perform - John, you might be able to help me?

PN220

THE COMMISSIONER: Well, look, just round off what you know, Mr Booth. You see it is your - I would like to understand some of these things.

PN221

MR BOOTH: Yes.

PN222

THE COMMISSIONER: So talk about the ones that you do know because I want to understand what the basis of the criticism is, this information has been provided - - -

PN223

MR BOOTH: Well, if I can. I mean Mr - - -

PN224

THE COMMISSIONER: Are you saying it is too specific or not specific enough.

PN225

MR BOOTH: It is not specific enough.

PN226

THE COMMISSIONER: All right.

PN227

MR BOOTH: It is short of a - to understand it, I mean, it is a complication of the way our union is set up. I look after particular people within the NDC, Mr Ellery looks after others so my focus is necessarily a little bit different but I, for instance, am concerned with people who work in radio work, design work, all plough teams, all of which are represented within say Ballarat for instance. If you look at those Ballarat figures - - -

PN228

THE COMMISSIONER: Well, there we are, I can see the Ballarat - - -

PN229

MR BOOTH: Yes, you can see the Ballarat ones there. There is a particular amount of - - -

PN230

THE COMMISSIONER: So it is 120 days?

PN231

MR BOOTH: Yes, on that 3D(1) or 3C.

PN232

THE COMMISSIONER: Full time employee?

PN233

MR BOOTH: Yes, that is right.

PN234

THE COMMISSIONER: That is represented?

PN235

MR BOOTH: That is right but that in fact represents all of those groups that I have mentioned.

PN236

THE COMMISSIONER: Yes.

PN237

MR BOOTH: Plus the groups that in fact Mr Ellery represents as well. Within those, Commissioner, we actually know and as I will come to in correspondence that follows this, there are actually are very different levels of non-productive time within those particular groups. For instance in the Design cell and that is one area that I have my members in, there has been no non-productive time at all and in fact they have been taking on people from other areas yet at least up until very recently it was envisaged that in fact people would, at least one person would be made redundant from that particular area.

PN238

As we will also see in the correspondence and I will come to that, within the plough area, a similar situation arose so my concern with this data was simply there was - again while it was nice; we got the data and I certainly I think indicated that we appreciated - I certainly appreciated their effort in getting that together, nonetheless it didn't actually tell me how they arrived at a decision that for instance one of my members was going to go in the Design cell in Ballarat, how people were going to go from the plough team, how people were going to go from the various radio groups and in fact further to that in some of the correspondence later on from this data, NDC in fact indicated well in fact they hadn't considered on a regional basis, sorry, on a city basis, you know, like Ballarat or Bendigo, but rather on a whole of Victoria basis.

PN239

And that obviously meant that some of this data was pretty much useless in terms of finding out what exactly was the pattern of their decision-making in arriving at why certain people were going from certain areas or from certain functional work groups. I hope that is - that that explains - - -

PN240

THE COMMISSIONER: I understand what you put.

PN241

MR BOOTH: Yes. Okay. So the rest of the data pretty much, I think, follows along follows along similar sorts of lines that were provided. They talk about country overtime in particular areas and so forth. I think that is the main essence of the data that they have provided on that so on the - Mr Ellery has talked in terms of the 9th - there is his response. If I can go to my response which I understand was CEPU13. The Commission has got that there in front of you while I get it there in front of me as well. Have you got that there in front of you, Commissioner?

PN242

THE COMMISSIONER: Yes.

PN243

MR BOOTH: Yes. I note in the second paragraph first of all. I reiterate that point that the VNPUT data, that is the data - the non-productive time data does not in the branch's view support the contention that there is a number of redundancies - why there has been the number of the redundancies in any particular regional work group. I then go through some examples which I have just gone through with you, Commissioner, that for instance in the Ballarat Design cell, I go through what I understood to be the situation there that there had been no booking to non-productive time.

PN244

I then quote and this is probably important in terms of, Commissioner, of understanding where the union's thinking is in terms of how NDC should be approaching the redundancy issue, I quote what I believe to be the relevant paragraph from the redundancy agreement, that is:

PN245

Accordingly a potential redundancy situation where deemed to exist where the operational requirements of AOTA -

PN246

or their successor, obviously in this case, NDC -

PN247

for employees to carry out work of a particular kind have ceased or significantly diminished and the AOTC has determined that the function being undertaken by an employee will no longer be undertaken within the AOTA or that location.

PN248

Now, we say in terms of the Ballarat Design cell, clearly that paragraph wasn't fulfilled by NDC. The work hadn't ceased or had not even significantly diminished and in fact the work was continuing on at the same level. Therefore we said there clearly was no redundancy situation operating in the Ballarat Design cell and I use this, Commissioner, by way of an example because there were others. In fact I - over the page, I drew another example and this again was the Ballarat plough team which is the fourth paragraph down on that second page.

PN249

You might recall, Commissioner, I did raise the issue of the plough team in Ballarat at the previous conference and again said of the test of the redundancy agreement that followed, it is clear that there is no redundancy situation on offer, in fact they have a contractor at work in that team so it is not even a permanent employee as such therefore the terms of the redundancy agreement should apply in the sense that redeployees should be given the opportunity to move into that plough team.

PN250

There was certainly no information given to the union that the plough team in Ballarat was under any sort of threat of being disbanded or anything else like that.

PN251

THE COMMISSIONER: Mr Booth, can I ask you: in that paragraph in relation to the plough team, you say:

PN252

It is the union's understanding that contractors will be laid off prior to looking at redundancy for NDC staff -

PN253

MR BOOTH: Yes.

PN254

THE COMMISSIONER: Where is that understanding?

PN255

MR BOOTH: That has been in - - -

PN256

THE COMMISSIONER: Is that found in an agreement?

PN257

MR BOOTH: It is more found - well, it has certainly been the issue of an understanding between myself and NDC in relation to previous exercises in relation to these sort of redundancy situations.

PN258

THE COMMISSIONER: And who have you reached that understanding with, Mr Booth?

PN259

MR BOOTH: Basically with Mr Pritchard and Mr McHugh.

PN260

THE COMMISSIONER: Thank you. Yes, go on.

PN261

MR BOOTH: And that has been particularly, of course, on my side, the line side if you like, there was a large component of temporary or contract staff that was there because of particular peaks and lows in that situation.

[2.57pm]

PN262

So certainly, I say there was another example again where rather than looking at the broad - saying that over the whole of Ballarat we have this problem with VNPUT, in this particular section, in fact, there is no problem and, in fact, you have contractors doing work where under previous understandings there should have been a case for one of the other line staff to be redeployed into that person's job. And I go through other examples there. Another case in Bendigo where someone, I believed, was made redundant and then someone from Camp Road which is one of the main depots in Melbourne, someone was actually placed within that position.

PN263

I will go through the company's response. I know they will be all agitated about some of the things I am saying and they certainly gave a full response to some of these issues that I have raised. But the main point again was one of - the job wasn't, in my view, actually made redundant as in the terms of 2.2. They should determine that the job that that person is doing is no longer going to be done by anyone. In fact, what happened in our view, was that someone else actually did take over that person's job in Bendigo effectively.

PN264

Okay. I go through other questions there which probably aren't pertinent to what we are after today. I should go, therefore, to the response by Ms Mazin. I think that is contained in CEPU15, because I think the responses were quite, if I can say, interesting. First of all - sorry, I will let the Commissioner have a chance to get to CEPU15.

PN265

THE COMMISSIONER: CEPU15, yes.

PN266

MR BOOTH: Yes. That is the response from Ms Mazin to - - -

PN267

THE COMMISSIONER: Yes, well, I have not had chance to read all these of course, but you will lead me along.

PN268

MR BOOTH: Yes, I will take you through them slowly. Yes, I will take you through them. This is a response to those specific questions and also to the - well, I had hoped the larger issue that I had raised about how 2.2 operates in relation to all of the redundancies that are taking place, certainly within the line side and indeed, in terms of the technical side of the union as well. This letter, in fact, generally just answered the specific examples that I raised, rather than addressing the broader question that the examples were supposed to highlight.

PN269

First of all, in terms of the Ballarat design staff, it - Ms Mazin says that, in fact, the Ballarat design pool is, in fact, part of the larger design pool which includes Melbourne, so rather than the data that we saw before in CEPU16 which talked about unproductive time for Ballarat, in fact it seems now in this letter, that the design pool has been measured against some other set of data and that raised initial concern straight away for myself. But, in fact, rather than being done on a regional basis, now I was being told formally that, in fact, the design staff in Ballarat weren't being measured against anything other than the overall design pool across Victoria.

PN270

Secondly, it says - it then goes on to say in the paragraph beginning however - that is the second last paragraph there, Commissioner:

PN271

However, NDC has received several expressions of interest from Melbourne based design staff who have volunteered to enter the redundancy process rather ...(reads)... existing staff who may want to stay.

PN272

Well, I can say first of all that I certainly agree with the last sentence. I much prefer volunteers to the permanents, but it raised to me the issue about - that all of a sudden people were exiting from a completely different place and therefore this was offsetting what was supposed to have been told to us in the first place about Ballarat, and in fact, we had been given all this data saying how Ballarat hadn't been performing in the broad, and you know, that is the data that was contained in CEPU16, and yet now we are finding that there are volunteers exiting from another place and this somehow now offsets what is going on. What was supposed to happen in - - -

PN273

THE COMMISSIONER: But within that - but within that department - broader department.

PN274

MR BOOTH: Yes, but within that - what I would call a functional work group.

PN275

THE COMMISSIONER: Yes, yes.

PN276

MR BOOTH: And as I say, I - in itself I don't have a problem with what they have done in terms of that particular instance, but it is - in the sense that volunteers left. What I do have a problem with is that somewhere along the line they have changed the decision making about how they actually measure who is supposed to be going and who is not, if you can understand that particular point, Commissioner. That rather than - before they were telling us that Ballarat was a problem; that people had to go from Ballarat.

PN277

Now I had a situation where, in fact, people in Melbourne were being offset against that situation and in fact, my understanding was that Melbourne was pretty much being left alone in this whole exercise. Now all of a sudden I find that there was people leaving from Melbourne and that people were, in fact, staying in Ballarat. Secondly, they then go on to the plough team, and that is over the page. And that is at point 2 there, and in particular, it acknowledges that I raise the issue about the contractor engaged on a plough team. It then goes on in that second paragraph at point 2:

PN278

NDC is conducting a review of the use of contractors in an effort to cut costs and create meaningful job opportunities for deployers in the MIR process.

PN279

Well, this is a review I hadn't heard of before until I got this letter. We had raised issues about the use of contractors before and indeed, Commissioner, you may recall that we had raised that issue at the previous Commission hearing and that there were potentially contractors out there that we believed should be put off and indeed, redeployers put into that. How - we had indeed received a list of contractors, but we have never been told that, in fact, they are willing to undergo a review. We don't know what this review means. At this point - - -

PN280

THE COMMISSIONER: It is doing what you want them to do, isn't it? I would have thought it is to see if contractors can be shared and employees held.

PN281

MR BOOTH: Well, I don't know. This is what - - -

PN282

THE COMMISSIONER: Well, that is what the - - -

PN283

MR BOOTH: This one line just tells that there is something going on there and that - - -

PN284

THE COMMISSIONER: Yes, all right.

PN285

MR BOOTH: Yes, and - but - - -

PN286

THE COMMISSIONER: Would they normally ring you? Is that your idea of consultation that they have got to ring you and say - you see, I want this to be a bit fair dinkum, Mr Booth.

PN287

MR BOOTH: No, no, I - - -

PN288

THE COMMISSIONER: And because you will see I will be with you to a certain point in relation to consultation, but if you say they have got to ring and say "We have had an idea about the contractors" and you have expressed a view about that, that this is of a standing position of the union that you have expressed from the last occasion - doubtless you have expressed it before and it is the sort of thing that one might even imply, that it would be a union's view in the relationship you have got, you could assume that they would think that you would have a preference for your members who are employees of NDC.

PN289

But is this the case, that thinking over recent times or since the last hearing, well, we will have a look at these contractors and see if we can get rid of some of them. What should they - because you are saying you don't know what this review is in a formal sense. Should they have rung you? What does it mean to say that? Should they have rung and said "We are going to have a review or we are going to just have a good look around"? What do you want them to do in that respect?

PN290

MR BOOTH: Well, in essence, to be able to say yes, we agree with - as they have done previously. And I must say they have been good generally about the use of contractors in our view and about the need for permanent people to maintain their jobs wherever possible and that contractors ought to go - if you like, go first, and then permanents later. We have had particular problems in this instance because we have known that there are contractors still within the system.

PN291

We have been told that for various reasons, and even indeed following the last Commission hearing, in telephone calls that I have had with particular operational staff that know these contractors are going to say. I have said "Well, look, this is a problem" and then - and indeed, what I then hear is this review as such going on. What I was after is simply them saying to me - I want to say "What are these people that are going to be redeployed? Is there any way we can slot them into these positions?" And just look at, you know, across the - - -

PN292

THE COMMISSIONER: Well, that is what Ms Mazin is saying, isn't it?

PN293

MR BOOTH: Mm?

PN294

THE COMMISSIONER: Isn't this - her communication with you saying that?

PN295

MR BOOTH: Well, I don't know if that is - seriously, Commissioner, I don't know if that is what that is saying - is, in fact, what it is saying or if it is a review that says, as I have seen in other places and once or twice within NDC, they say well, no, this contractor has got particular skills and therefore there is no redeployee that can go into that particular position. I don't know if that is what their thinking is or indeed - and as I said, this is just an example, of course.

PN296

And there are other examples, I think, within the design team itself within Melbourne and in other places. But what I want to do is ensure that there is a genuine opportunity for people who are going through the resource rebalancing MIR process to say "I can do this job in the plough team" and that they say "Okay, yes, we believe that maybe with some training" or "Yes, you already have those skills. We will place you in that team." and the contractor will go.

PN297

To simply say we are conducting a review and we will tell you at the end of it what that review says, I would rather it be a more up front thing so that I know what they are doing and I can help my members apply for these sort of positions. At this stage, I don't know whether - because I certainly know that there are members of mine who are interested in the plough team, but I don't know whether the NDC believes they have the requisite skills or what their skills deficiencies may be.

PN298

THE COMMISSIONER: Well, all right, but - - -

PN299

MR BOOTH: I think - - -

PN300

THE COMMISSIONER: Well, it may be that there is not as much controversy as one might think because in relation to the plough team, a number of things are said in this letter. That:

PN301

NDC is conducting a review of contractors in an effort to cut costs and create meaningful job opportunities for deployees in the MIR process. The use of a contractor on the plough team is currently under review.

PN302

So that is, I would have thought - I was going to say quite specific:

PN303

In the meantime, we will be soliciting views, including that of the plough team in Ballarat in relation to the impacts on that team of operating in a reduced staffing environment.

PN304

So they are going to be talking to your members about that.

PN305

MR BOOTH: About whether they need four or three staff.

PN306

THE COMMISSIONER: Yes:

PN307

I am happy to keep you informed once we have resolved this particular situation.

PN308

Now "resolved" foreshadows the past tense, so in you come, I suppose. But is - - -

PN309

MR BOOTH: I guess what I am saying is - - -

PN310

THE COMMISSIONER: But do you see that as an unhelpful piece of advice?

PN311

MR BOOTH: No, no. I mean, it is good that they are conducting a review. What I am concerned about is, in fact, that last sentence about when we have finished all of that, then we will tell you what we have done. And I was saying, well, there may be issues. I know that, for instance, within the plough team itself, and I don't want to get too sidetracked about the plough team. It is four people and is an example of a larger issue - - -

PN312

THE COMMISSIONER: I don't know if it is a sidetrack.

PN313

MR BOOTH: No, but there is an issue about whether it should be four or whether it can operate with three people. I know from the people in the team that have communicated with me believe it is four, and maybe NDC believes it three. I don't know what they think about that. And what I would like is the opportunity to make sure that those people's views are represented, that I know that there is a fair and open communication going on within there, and that secondly, if there is an opportunity for people to move into that plough team, that again, there is a fair and equitable opportunity for people to apply for those positions. And in that sense that is all I am asking for.

PN314

THE COMMISSIONER: Well, I think - - -

PN315

MR BOOTH: For here and indeed, not just the plough team, but also identifying similar such positions throughout Victoria and the plough team is really an example of where - again, as I was saying before, we had particular data saying there was problems with non-productive time and so forth. Clearly, nonetheless, we have contractors working in this particular area. This is, you know - that is what I am saying. Here is one example where there is a contractor that can be potentially moved, someone else come into it. It is good that they are undertaking the review, but I want to make sure that if there is a review, that I understand what is going on.

PN316

THE COMMISSIONER: But isn't that what Ms Mazin is saying? Because she is - she indicates she is happy to keep you informed once she has resolved - to be sure, that phrase is there, this particular situation. Now you look back - I do, and you think well, what is the situation she is referring to? And that is the review of the impact on the team of operating in a reduced staffing environment. So when she is - we will see what Mr Dalton says about this. When she has solicited the views of people in this situation, including the plough team in Ballarat, considered that - presuming she has got to cogitate - sit on it for a little while, consider it - she is going to keep you informed.

PN317

MR BOOTH: Once they have resolved it, though. And I guess that is the hook - - -

PN318

THE COMMISSIONER: Well, what is the situation? But the situation refers to the solicitation of views, I would have thought.

PN319

MR BOOTH: Yes. It is good that they go away and have a look at it, and I am certainly not disputing that, Commissioner.

PN320

THE COMMISSIONER: Yes.

PN321

MR BOOTH: I guess I am saying, you know, that it is - once the situation was resolved, and again remembering this is, again, an example that was put forward by myself, but I would like an opportunity for members to input during that process. Obviously they are saying in part that that is happening because they are talking to the plough team, and I encourage that. That is a good thing.

PN322

THE COMMISSIONER: Yes.

PN323

MR BOOTH: But I wouldn't like a situation which has happened in some instances before, of the company turning around and saying no, we are going to have - we are getting rid of the contractor and we are going to have three people on the plough, and the plough team may say well, no - as they have already written to me, for instance, saying no, we can't operate economically in that situation. So if you like, in a sense, I am backtracking the argument, whereas - they have made the decision and now I am having to try and argue against them already having made the decision as against letting me have some input before you have made that decision. I guess that is the essential point I am hoping to make out of that. Before they have resolved the situation, we would like to have that input.

PN324

THE COMMISSIONER: Yes, I understand what you are putting.

PN325

MR BOOTH: And then - and as I say, that is an example again of potentially other places where the similar situations may be arising. In terms of the band 5 - sorry, the third situation I raised, there was also - they responded to that by saying that, in fact, again as against data that was provided before where there was - they talked about non-productive time for Bendigo and so forth, indeed, in terms of this lines person - this is at point 3 then, the next paragraph down, that in fact, again they are looking at the pool across Victoria.

PN326

And so I guess what I was after is, you know, what are the decisions that are arrived at that they are looking at the pool as a whole in that sense, and why particular people are going from particular areas. So again, that was interesting that it was again different from the data that was, in fact, provided, certainly to myself. That is a long-winded way of sort of saying that - if I can just reiterate my point that I think necessarily talked about going into conference about it.

PN327

But it highlights on my part that data hasn't - that has been presented to us, hasn't been helpful enough in me helping members in particular units and particular areas, even on particular levels, from actually deciding whether there is, in fact, a true non-productive situation going on, whether they are, in fact, truly redundant. Indeed, in a couple of instances that I have highlighted there, we certainly believe that that has not been the case. And other data is certainly needed in respect of other areas.

PN328

That is why, Commissioner, we would like the Commission to look at a particular draft order and I will present that to the Commission. We propose a draft order at this time because we are very conscious of the fact that we are now getting to a situation, both, I think, from the company's viewpoint and also from our viewpoint, that we need to see some sort of final resolution to this.

EXHIBIT #CEPU17 DRAFT ORDER

PN329

MR BOOTH: Because we are getting to a stage where there is a number of people that have already either been made redundant as a result of this process because they have been what is termed non-translating employees, that is, within the terms of the NDC agreement, they weren't eligible for the three months job transition period that is contained within the Telstra redundancy agreement because they were post-1998, if I can paraphrase it that way, employees.

PN330

And also for those existing Telstra employees who were moved over to NDC and therefore were what is called translating employees, they kept all the benefits of the redundancy agreement. That is the argument of this today. They are now starting to go through the stage of going through the job search period and some, I think, are coming up to their third interviews at this stage. So we are getting to a stage where people have been selected. They are now starting to go through a process of job search and so forth.

PN331

We are obviously concerned, in that sense, that people are starting to go from the system. On that basis, this draft order if I can just quickly go through it, Commissioner, does really nothing more than reiterate particular parts of the redundancy agreement itself. It would ask the parties to confer as a matter of course. One of my concerns has been we have been exchanging letters rather than actually sitting down and going through particular situations like the Ballarat ones, the plough, and so forth.

PN332

THE COMMISSIONER: Have you sought to meet, Mr Booth? Have you - - -

PN333

MR BOOTH: Yes, well, I sought to, but - and more particularly what I have done is actually tried to get hold of individual work group managers within particular areas to sort out particular situations that had arisen. But part of my problem is, and I just don't have all the information in front of me - I am getting bits and pieces from members saying this is happening, that is happening, and I am sort of reacting rather than doing things in a systemic way. And so certainly point (a) there is just simply - sorry, point 1(a):

PN334

That we confer in relation to the number of employees that NDC plan to make redundant as set out in the notification.

PN335

Point (b):

PN336

That the use of contractors be reviewed.

PN337

In other words, rather than NDC conducting a review entirely on their own, and I guess this reiterates the concern I had before, Commissioner, that they involve us in that review period, if you like. (c):

PN338

The background -

PN339

this is a direct take, I think, from - - -

PN340

THE COMMISSIONER: Well, this is - if it is your intention that it do that, I wouldn't have thought that it does, because it - this would require - this would require NDC to confer with you about the use of contractors, wouldn't it, and the possible use of - - -

PN341

MR BOOTH: Well, I should say it is all within the form of that - the notification of - the form A notification. If it is not - I am not simply trying to make a broad-based sort of you must talk to us about all contractors. And I apologise if - - -

PN342

THE COMMISSIONER: No, no. That wasn't the point. It was - it was you - in speaking of 1(b) extrapolated to say that what was sought was that they involve you in the review. Well, if you are successful and get this order, that wouldn't be what - that is not the work done by 1(b) it seems to me, but that is your request.

PN343

MR BOOTH: Well, that is my intent. That is the intent of what I am trying to get at.

PN344

THE COMMISSIONER: All right. All right, thank you.

PN345

MR BOOTH: (c) really is a take from 6.5 of the redundancy agreement:

PN346

That we look at the background to excess staff in situation in each functional work group, area or level -

PN347

and I have got to say, that is my inclusion to make it specific about what our concerns are -

PN348

as identified by NDC and the measures, if any, which could reduce the incidents of employees becoming excess to requirements and any planned recruitments.

PN349

So that basically again looks at that situation about how do we look at redeployees and also why people are going in particular areas. And also (d), which is really 6.6 of the - of the redundancy agreement:

PN350

That redeploying, retraining, relocation and retrenchment options for employees that are affected in each work group are identified.

PN351

Secondly, the second point there is probably the one I am struggling with most in addressing the issue with NDC. We don't believe we have received all of the relevant data and documentation that is needed, that was used by NDC in determining the number of employees that were made redundant in each functional group, area or level, as set out in their form A notification. What we see instead on two occasions now, is they generalise information that I have talked about.

PN352

I can't believe that NDC would have used exactly the same information in relation to making decisions about why particular levels within particular work groups within particular regions ought to be going, and certainly the indication that we have received is that there is an array of information out there that can assist us and assist us in negotiating with the company to look at why people are going within particular areas. And after all, we say that is really the requirement under 2.2 of the redundancy agreement, that they do need to clearly identify why - the fact that people are, indeed, redundant within that particular area. You would remember I quoted that section within, I think, CEPU15.

PN353

THE COMMISSIONER: Please, can you repeat that last point.

PN354

MR BOOTH: Sorry, I will just - I will just throw that section to him. Have you got the redundancy agreement in front of you. 2.2 says:

PN355

Accordingly, a potential redundancy situation be deemed to exist for the operational requirements of AOTC for employees that carry out work of a particular kind have ceased or significantly diminished, and - - -

PN356

- so there is not an "and/or", it is:

PN357

- - - and AOTC has determined the function being undertaken by an employee will no longer be undertaken within AOTC or that location.

PN358

So the significant part really has that the work of a particular kind have "ceased or significantly diminished". And what we are saying, really, in terms of the data that is presented to us so far that they haven't fulfilled that requirement and that we believe that certainly the data the NDC have used themselves in relation to determining those redundant situations, that is the data we would like to see for ourselves. To make sure that that section has in fact been complied with.

PN359

Thirdly, over the page, is that:

PN360

NDC not proceed to any final termination of any employees as a result of the process undertaken as a result of form A notifications.

PN361

That is really to say - and I have got to say, for the non-translating employees that has already happened to them. But in terms of the translating employees, what we don't want is - well, for a start, I don't want a dragged out situation, which is why the fourth point says we should be back here in two weeks time, reporting to you about what we have done. But, certainly, during that time we are mindful of the situation that there may be other employees on the point of being terminated as a result of this whole process.

PN362

THE COMMISSIONER: Yes.

PN363

MR BOOTH: If it please the Commission, that is the - - -

PN364

THE COMMISSIONER: Yes. Thanks, Mr Booth. Thank you. Mr Dalton?

PN365

MR DALTON: Thanks, Commissioner. It appears that there are two key areas where the parties are fundamentally in disagreement. The first one is circumstances in which the employer can identify people being surplus to requirements in terms of time, the temporal aspect of the identification. And the second point is circumstances in which the employer can identify the people that are surplus to requirements in terms of the work they do and the area in which they might be working.

PN366

And it is because of this fundamental disagreement that it appears that no amount of further information being provided or no amount of further conciliation about these specific issues are going to take the matter much further. In my submission the union is taking an artificially narrow view of both of those points, Commissioner. The first point, in terms of the temporal circumstances, or the temporal aspect of identifying surplus to requirements, it seems the CEPU is in effect saying, "You can't issue a form A identifying certain people as surplus to requirements until you are able to demonstrate by looking in back time that they have already been sitting around doing nothing or being underutilised."

PN367

Now, that is not our reading of the obligations under the redundancy. It is our view that the decision is made looking at the overall circumstances at a particular time. That obviously can include taking into account historical work patterns and identification trends, based on that. But it, I think, can certainly take into account current projections on work levels into the perceived future. It is absurd, in my submission, to suggest that you can't take some account of likely workloads based on the business's current projections. And that seems to be a fundamental area of disagreement. This - - -

PN368

THE COMMISSIONER: It is not one that I thought was - you say that is a characterising feature of the union's view, do you?

PN369

MR DALTON: I think it is because they are asking, in effect, for NDC to prove - based on previous work levels - that there are people in fact surplus to requirements. So implicit in that is that you must have a large period between actual identifying people being under-utilised for a long enough period for you to say, "Yes, they are excess to requirements," before you can issue form As.

PN370

It is to be also looked at in conjunction with the second aspect, the key area of disagreement, which is looking at the circumstances in which you can identify surplus to requirements by reference to the work being done by a particular person and where they are doing it. And when you look at both of those aspects together it seems to me that the parties are just in fundamental disagreement about the nature of the obligations NDC has.

PN371

This second aspect is saying: not only do you have to look back in time, but you have to look back in time in relation to a particular individual and what - and you need to demonstrate that the person, over the last couple of months or so, has been significantly under-utilised; or that that particular group allocated to the Ballarat area have been significantly under-utilised. Now, NDC doesn't agree that it has to do that.

PN372

NDC says that it identifies its overall resource requirements that takes into account the particular service provided in country Victoria. Now, of course, it is not going to draw on resources necessarily from, you know, the western region of Victoria to consistently be doing work across the other side of the state. There needs to be some sort of reasonable spread of resources. And those resources are then based in - most of them are based in a particular provincial centre.

PN373

But NDC is not saying, it never has said, that its decisions in relation to how many people are to be reduced in a particular provincial centre is based on a blanketed view of the particular work requirements that may come up in the future in that particular province, provincial area of Victoria.

PN374

THE COMMISSIONER: Which is to say that is this proposition, that, Mr Dalton, Ballarat could be going to plough group - and I must say I don't know what the plough group does but I am sure they do it very well - but they are going along, doing their work, and we will say they are fully engaged. They are doing - it is just going well. And if I understand Ms Mazin's position, and this is what is - and I haven't had a chance to look carefully at these letters that were exchanged.

PN375

But you say the capacity to put someone off from the plough group at Ballarat turns, or can turn, because I think - and I can well understand why you want to have a flexible position - on an appraisal taken across perhaps the State of Victoria in relation to either work generally or work done by fellow people doing work that is of a similar sort. It might be that you throw the net even wider, I don't know. So, it doesn't really matter how well they are going up there, does it?

PN376

MR DALTON: It doesn't, Commissioner. And also depending on the type of work there may be a more frequent requirement for that work to be done in a particular location which would, of course, justify devoting some resources to that particular provincial area.

PN377

THE COMMISSIONER: Well, you might want to cut someone from that group and if there is a deficit, a commercial deficit that attaches to it, wear it. Is that right?

PN378

MR DALTON: That is right. And there might be some more people, let us say, based in Melbourne - - -

PN379

THE COMMISSIONER: Who have to supplement something.

PN380

MR DALTON: - - - who come up from time-to-time when projects are required to be done in that particular area. So, it depends on an analysis of, you know, based on the current circumstances the business looking at it and saying, "Well, based on our previous history and the trends and workflow, etcetera, across Victoria, we have got an overall pool of resources in particular areas. How many people do we need." That pool is not limited, necessarily, to Ballarat or Bendigo or the particular areas.

PN381

The form As have been compiled, I think, largely by reference to provincial areas. But that doesn't mean that the company then has to demonstrate a particular macro business case as to why that many people are being identified as surplus in that particular location.

PN382

THE COMMISSIONER: That is a micro case, isn't it?

PN383

MR DALTON: Yes.

PN384

THE COMMISSIONER: That would be the micro situation, wouldn't it?

PN385

MR DALTON: Well, it would be a - - -

PN386

THE COMMISSIONER: I understand you to say "macro".

PN387

MR DALTON: It would be a macro view of a, in effect, a - this silo mentality that the unions seem to have, that is: "That you must demonstrate that those positions in Ballarat are surplus to requirements. And the only way that we are going to be satisfied that you have identified that is by looking back in time at the work done at Ballarat." And we are saying that is not the analysis that we have to do and so no amount of further information on, for example, VNPUT figures in Ballarat are going to take that issue any further.

PN388

The VNPUT figures are a useful guide as to overall utilisation rates across the state. We have provided those figures, looking back over the last three months, or December, January, February, and we did that by reference to the provincial centres at the request of the union. But it is nt a conclusive answer to the particular resource requirements.

PN389

THE COMMISSIONER: All right. Well, I want to - you say the VNPUT for plough people and people in the plough section in Ballarat is not a conclusive - - -

PN390

MR DALTON: No.

PN391

THE COMMISSIONER: - - - there is no causation and you don't accept any linkage. Do you say it is a relevant consideration?

PN392

MR DALTON: Yes, it is relevant.

PN393

THE COMMISSIONER: And relevant if the VNPUT figure is up in a particular region for a particular section, it might attract the attention of the Ms Mazin and her colleagues?

PN394

MR DALTON: Well, what we have said is that - well, the plough - to take the plough example, there is a - I think they form part of a broader group that is allocated across Victoria - is it, the plough?

PN395

MR BOOTH: Yes, yes.

PN396

MR DALTON: Yes. So that is actually probably not a good example of where VNPUT figures in Ballarat would be relevant or useful.

PN397

THE COMMISSIONER: Well, it could be any example. Sure. Yes. All right.

PN398

MR DALTON: There might be some other examples where, you know, it is fair to regard that information as relevant. And that is why NDC is providing that information. But, for example, to break it down into a further analysis of band levels, for example, doesn't take the matter any further. What NDC has tried to do, in fact, is to provide some information that went to those issues in dot point analysis in relation to each of the work areas.

PN399

Not looking at it by reference to the particular provincial centre but what the - by how we are travelling in that particular area, that particular project work that we do in Victoria. What is the overall trend and prognosis for that and what type of work are we doing in Victoria. That is, you know, do we know band 7s or 8s or do we need, you know, people of lower bands. And some attempt has been made to try and clarify those resource requirements in the dot point analysis that was provided to the union to provide further explanations to the charts that were provided.

PN400

So, it is these - it is these two points, the temporal aspect and also, I guess, the work function/geographical aspects, where the parties just simply don't agree as to the nature of NDCs obligations. NDCs view of it, as I have explained, means that it thinks that it has provided enough information that complies with its obligations under the redundancy agreement and it can't really take the matter much further.

PN401

I mean, ultimately decisions will be made by NDC of how many people, in a macro sense, it does need to reduce as part of this wave of management-initiated redundancies. It will follow the selection criteria and apply that criteria in accordance with the resource rebalancing process which has already been the subject of Commission proceedings. And I understand that that process is not in dispute. People have a process which involves several weeks before there is any threat of them leaving the organisation.

PN402

Just to - I think I outlined this to you last time, but there has been a process of starting the application of the criteria for particular people. And there will be meetings held and then once people are ranked then there will be, I think, the third meeting they call it. Where those who are ranked in the zone where they are going to be forcibly retrenched are told of that and then told of their rights under the AOTC Redundancy Agreement, if that agreement applies to them. That is the non-transitional - sorry, the transitional employees.

PN403

And they have a week to decided whether they want to voluntarily leave the organisation with a retrenchment package at that point, or whether they want to take advantage of the redeployment process which gives them three months additional employment in which time the company will pursue their redeployment options. It is only at the end of that process that they are actually forcibly retrenched.

PN404

So, NDCs position is, Commissioner, that this process of providing the information has gone as far as it can go - certainly as far as NDC is prepared to go. And in relation to the order that is sought by the CEPU there is a number of reasons, both jurisdictional and merit, why such an order shouldn't be made. I am content at this stage just to rely on the merit reasons, obviously reserving a position in relation to jurisdiction if we need to get there at a later stage.

PN405

But the timing considerations that I have already outlined - this is not an urgent matter. There is a process. But also - - -

PN406

THE COMMISSIONER: What do you mean by that, Mr Dalton? That - well, why do you say it is not an urgent matter?

PN407

MR DALTON: Well, because these - - -

PN408

THE COMMISSIONER: You mean such as to require an order?

PN409

MR DALTON: Yes. I think if the Commission identifies any area where in the Commission's opinion, you know, some further information is going to be useful and to take the matter further, then certainly my client will take that under careful consideration. But in terms of orders which in effect are designed to replicate existing obligations under a certified agreement, in my submission that is not going to take the matter much further.

PN410

THE COMMISSIONER: Yes. Is that all you - thank you, Mr Dalton. All right. Well, we will go off the record now.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CEPU12 LETTER TO NDC FROM MR ELLERY OF 7.5.02 PN168
EXHIBIT #CEPU13 LETTER TO NDC FROM MR BOOTH OF 2.5.02 PN169
EXHIBIT #CEPU14 RESPONSE FROM NDC TO MR ELLERY OF 2.5.02 PN170
EXHIBIT #CEPU15 DOCUMENT DATED 6 MAY TO MR BOOTH PN171
EXHIBIT #CEPU16 CONFIDENTIAL DOCUMENT PN183
EXHIBIT #CEPU17 DRAFT ORDER PN329