C2002/3202, Transcript of Proceedings [2002] AIRCTrans 2945 (31 July 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C2002/3202

THE AUSTRALIAN WORKERS' UNION

and

AGL RETAIN ENERGY LIMITED
and AGL ENERGY SALES AND MARKETING

Notification pursuant to Section 99
of the Act of a dispute re non-application
of due process for redundancy and redeployment
resulting in the termination of an employee

SYDNEY

9.36 AM, WEDNESDAY, 17 JULY 2002

Adjourned sine die

PN1

THE COMMISSIONER: Can I take appearances, please.

PN2

MR N. RUDD: If the Commission pleases I appear for the Australian Workers Union.

PN3

MR B. GEE: If the Commission pleases I am from Fisher Cartwright Berriman on behalf of the respondents named in the application. With me this morning is MS SAMANTHA FITT on behalf of the respondents named in the application.

PN4

THE COMMISSIONER: The matter has been called on this morning for conference but I have decided to formally record proceedings. The matter has been in conference with the parties before me, if memory serves me correct, on 4 July. A number of issues were discussed and the matter was adjourned and the AWU were to advise the Commission of the status of file - my office received advice from Mr Byrne on 15 July, I think Mr Byrne, seeking that the matter be called back on as the issue between the parties have not been resolved. So I suppose,Mr Rudd, you will advise me of where we are at and what the AWU seek?

PN5

MR RUDD: Thank you, Commissioner, the basis for the renotification of this issue is that our member, Mr Tsang, was applying for a position as administration officer at the Auburn site with the company and if successful would have been able to resolve this particular issue. However, unfortunately Mr Tsang was unsuccessful with that particular application for the position of administration officer. On Monday of this week, Mr Tsang was told that accordingly then he would be finishing up as of this Friday and was given a termination letter to that effect.

PN6

THE COMMISSIONER: This Friday, meaning the 19th?

PN7

MR RUDD: Yes, Commissioner. Accordingly, the issue is still in dispute between the parties. In particular, what the issue which we see as the reason for us notifying the dispute today, is that the company has abrogated its rights in terms of clause 20 of the agreement in place which is the AGL Retail ES&M Certified Agreement. In particular, the redeployment and redundancy clause of the agreement. Commissioner, briefly what we say is that the position which Mr Tsang has applied for and indeed another two positions which he has applied for should never have occurred - - -

PN8

THE COMMISSIONER: Could I just pull you back, Mr Rudd. You are talking about the position of the administrative officer and when did Mr Tsang apply for that?

PN9

MR RUDD: The actual interview was last Thursday, Commissioner.

PN10

THE COMMISSIONER: How did he become aware of the position, Mr Rudd?

PN11

MR RUDD: It's my understanding, Commissioner, that this position was advertised internally and that also there was an external applicant for this position as well.

PN12

THE COMMISSIONER: So it was advertised internally and externally, is that what you are saying to me?

PN13

MR RUDD: Commissioner, I am not completely clear on that.

PN14

THE COMMISSIONER: Well, it's enough for you to say that the position was advertised through an internal process.

PN15

MR RUDD: Yes, Commissioner.

PN16

THE COMMISSIONER: And expressions of interest were sought from employees I presume?

PN17

MR RUDD: And it is my understanding there was an external applicant for that position as well.

PN18

MR GEE: Commissioner, if I may assist. I don't want to interrupt, Mr Rudd. I am instructed that the external candidate became aware of the vacancy through a recommendation from an existing employee.

PN19

THE COMMISSIONER: But an external candidate was interviewed though?

PN20

MR GEE: Yes.

PN21

THE COMMISSIONER: Mr Rudd, that was the last position. You mentioned two others. Could you tell me were these positions that were advertised that your member applied to fill?

PN22

MR RUDD: Commissioner, if I can just take instructions on that for one moment. Commissioner, Mr Tsang has applied for another two positions. The first position he applied for was as administration officer at Frenchs Forest. It's my understanding that that position was advertised internally and externally and Mr Tsang also applied for a contract administration officers position - - -

PN23

THE COMMISSIONER: First off, when did your member apply for the Frenchs Forest position?

PN24

MR RUDD: Approximately eight weeks ago, Commissioner, April.

PN25

THE COMMISSIONER: Unsuccessful in that?

PN26

MR RUDD: May, sorry.

PN27

THE COMMISSIONER: Approximately May.

PN28

MR RUDD: Yes.

PN29

THE COMMISSIONER: I only presume, unsuccessful.

PN30

MR RUDD: Yes, Commissioner.

PN31

THE COMMISSIONER: What was the other one?

PN32

MR RUDD: As a contract administration officer at Five Dock.

PN33

THE COMMISSIONER: When was that?

PN34

MR RUDD: Approximately June, Commissioner, and I am advised that that position was also advertised internally and externally. It's my instructions, Commissioner, that Mr Tsang for that particular position did not even receive an interview for the contract administration officers position.

PN35

THE COMMISSIONER: The positions that Mr Tsang has applied for, are they within Mr Tsang's classification level?

PN36

MR RUDD: Yes, Commissioner, all the positions are within his range. In fact even the last position he applied for last Thursday, was below his competency level so what we would submit, Commissioner, is that the positions that he applies for are in the same level.

PN37

THE COMMISSIONER: And one was below his level?

PN38

MR RUDD: Approximately the same, Commissioner.

PN39

THE COMMISSIONER: So what you are saying is, all the positions, well the three - - -

PN40

MR RUDD: Are the same, Commissioner.

PN41

THE COMMISSIONER: The three that have been applied for are the same as Mr Tsang's level, within the range of his classification level?

PN42

MR RUDD: Yes.

PN43

THE COMMISSIONER: Can I ask you another question and apologies for interrupting your submissions. Mr Tsang, commenced employment with AGL in about 1995 I think you had advised me?

PN44

MR RUDD: Yes, Commissioner.

PN45

THE COMMISSIONER: He's been performing functions within the classification of scheduler within the classification of an administrative officer, what level was that?

PN46

MR RUDD: 3.3, Commissioner.

PN47

THE COMMISSIONER: That's in the agreement?

PN48

MR RUDD: Yes, Commissioner. It's my understanding that in terms of the classification structures that we're referring to they're not formally incorporated into the enterprise agreement but they refer back to the underpinning award.

PN49

THE COMMISSIONER: I don't know that it's disputed. I'll hear if it's disputed. The level is administrative officer level 3.3.

PN50

MR RUDD: Yes, that's correct, Commissioner.

PN51

THE COMMISSIONER: Mr Tsang has been performing administrative officer level 2.3 and then if memory serves me correct he was seconded to another area of the AGL operation and that would have been about in January 2002.

PN52

MR RUDD: December, Commissioner.

PN53

THE COMMISSIONER: December 2001?

PN54

MR RUDD: Yes.

PN55

THE COMMISSIONER: It was for a period of approximately three months the secondment?

PN56

MR RUDD: Yes, that's correct.

PN57

THE COMMISSIONER: Performing administrative officer duties?

PN58

MR RUDD: Yes. Commissioner, that's a brief history of the positions that Mr Tsang has applied for. As we stated previously it's our contention that Mr Tsang should not have been even applying for these positions. It's our submission that Mr Tsang being made redundant was an employee eligible for the redeployment process as per clause 20 of the agreement. In accordance with that process Mr Tsang should have been afforded the opportunity to trial positions which are within his skill range. Indeed, it is our submission that the positions which we have outlined fall within that particular area and skills and capabilities of Mr Tsang. It's our submission that he has not been afforded any opportunity to trial those positions. In fact as stated previously these positions have been advertised which in our contention is not what our understanding of redeployment is all about.

PN59

THE COMMISSIONER: What do you say should have happened with those three positions?

PN60

MR RUDD: In accordance with clause 20 of the agreement and the accompanying appendix D, the redeployment process, what should have occurred, Commissioner, is that when Mr Tsang was notified that he was being made redundant - - -

PN61

THE COMMISSIONER: You might explain that to me for the record please.

PN62

MR RUDD: In accordance with appendix D, the redeployment process of the agreement, it's our submission that an employee to be made redundant the redeployment committee will then search for a position that the employee who is being made redundant would be able to trial that particular position. It's our submission that the redeployment committee is the appropriate mechanism for this to occur. The redeployment committee consists of employer and employee representatives. What we are suggesting, Commissioner, is that Mr Tsang was not afforded that opportunity.

PN63

In fact it's our submission that the redeployment committee only ever met once over Mr Tsang and that particular meeting it was only as a result of the intervention of the union that Mr Tsang wasn't being afforded the provisions in the agreement, in particular, the redeployment process.

PN64

THE COMMISSIONER: When was that meeting?

PN65

MR RUDD: Approximately five or six weeks ago, Commissioner.

PN66

THE COMMISSIONER: So about the second week in June?

PN67

MR RUDD: Commissioner, it's our instructions that it was the first or second week of June.

PN68

THE COMMISSIONER: So it would be early June, Mr Rudd?

PN69

MR RUDD: Yes, Commissioner.

PN70

THE COMMISSIONER: What happened?

PN71

MR RUDD: It's my understanding that the issue of Mr Tsang was talked about at the redeployment committee but nothing actually occurred in terms of looking for an alternative position for Mr Tsang.

PN72

THE COMMISSIONER: Mr Rudd, it's my understanding, and I'm sure the applicants will correct me if I'm wrong, that Mr Tsang was seconded to another area for approximately three months out of his substantive administrative officer level 3.3 position that he was holding in the area that he was working in. He returned to his substantive position on my understanding approximately March 2002 and it was at that point that he was advised that his position had been declared redundant for the simple fact that two positions in that area had been merged to make one position and Mr Tsang was not considered the appropriate person to hold that position and I don't know that that is a disputed issue between the parties.

PN73

It was not raised with me that Mr Tsang should not have been considered for that restructured position. As it wasn't raised with me I presumed it wasn't an issue. That's what commenced the situation of Mr Tsang being advised that he would be terminated effective 25 May. Am I right to that point?

PN74

MR RUDD: Yes, Commissioner, Mr Tsang applied for that position that amalgamated the - - -

PN75

THE COMMISSIONER: The restructured position?

PN76

MR RUDD: The restructured position and was unsuccessful with re-applying for the restructured position.

PN77

THE COMMISSIONER: The termination didn't take effect because the parties held discussions and AGL deferred the termination date?

PN78

MR RUDD: Yes, that's correct, Commissioner.

PN79

THE COMMISSIONER: I think it might have been just after that - well, the parties have been having discussions then from that period until the dispute was first notified in the Commission on 21 June.

PN80

MR RUDD: Yes, that's correct.

PN81

THE COMMISSIONER: So you say that clause 20 appendix D was not afforded to Mr Tsang. You do say that the redeployment committee met once. However nothing flowed from that meeting in relation to alternative positions for Mr Tsang to trial in.

PN82

MR RUDD: Yes, if I can clarify that point, Commissioner. It was a meeting which was at the instigation of the union and it wasn't a meeting which should occur as per the agreement. What should have occurred was that the redeployment process should have been instigated and by that I mean that the redeployment committee would then look for alternative positions that Mr Tsang could be trialled in and it's my understanding that this has not occurred at all during the course.

PN83

THE COMMISSIONER: I thought you said to me that the redeployment committee met only once in relation to Mr Tsang.

PN84

MR RUDD: That's correct.

PN85

THE COMMISSIONER: Yes, that's what I thought, and nothing arose out of that meeting in relation to any alternative positions you say?

PN86

MR RUDD: Yes, Commissioner. What I'm also suggesting is that that particular meeting even wasn't constituted to look for alternative positions for Mr Tsang which is what the agreement provides for.

PN87

THE COMMISSIONER: But the redeployment committee did meet though?

PN88

MR RUDD: They did meet. Can I just have one minute please, Commissioner? Sorry, Commissioner, just to clarify that meeting. It was a discussion about the Frenchs Forest position that I outlined previously and the option of Mr Tsang applying for that position.

PN89

THE COMMISSIONER: And what about clause 19 of the agreement, Mr Rudd? I don't - while in a sense appear to sit by themselves are they connected, clause 19 and clause 20? Does one flow into the next?

PN90

MR RUDD: Yes, Commissioner. Clause 19 refers to the change process and in particular a change proposal form that's to be given to the employee and indeed the union receives a copy of when a change such as what we've been talking about is foreseen by the company. At the time that Mr Tsang was being told that his position was being restructured the union hadn't received any change proposal form as per clause 19 of the agreement. However, following the intervention of the union subsequently the union did receive a copy of the change proposal form.

PN91

THE COMMISSIONER: Associated with Mr Tsang's situation?

PN92

MR RUDD: Yes, that's correct, Commissioner.

PN93

THE COMMISSIONER: Do you have a copy of that form for me?

PN94

MR RUDD: Yes, we do, Commissioner.

PN95

THE COMMISSIONER: Do you have a copy for me?

PN96

MR RUDD: If we could seek to tender that proposal form.

PN97

THE COMMISSIONER: We'll mark it AW1. When did you receive it, Mr Rudd?

PN98

MR BYRNE: I requested that around 25 March and received it on 27 March, Commissioner.

PN99

THE COMMISSIONER: Thank you, Mr Byrne. Did I get an appearance for Mr Byrne? Mr Rudd, did you announce - - -

PN100

MR RUDD: No, I didn't, sorry, Commissioner, Mr J. Byrne and Mr Tsang are with me today.

PN101

THE COMMISSIONER: Thank you. We'll mark the change proposal form as AW1, thank you.

EXHIBIT #AW1 CHANGE PROPOSAL FORM

PN102

THE COMMISSIONER: It's dated 5 March.

PN103

MR RUDD: Yes, that's correct, Commissioner.

PN104

THE COMMISSIONER: And when, Mr Byrne, when did you say you received it?

PN105

MR BYRNE: 27 March. I think there's a fax date up the top there, 27 March.

PN106

THE COMMISSIONER: It's not clear to me. So what is the union seeking, Mr Rudd?

PN107

MR RUDD: Commissioner, what we're seeking is that the company perform its obligations as per the clause 20 redeployment process of the agreement. As I've indicated there's been three positions which Mr Tsang has applied for. We say that under the agreement and redeployment process those shouldn't have been positions that Mr Tsang should have applied for. In fact he should have been trialled as a redeployee.

PN108

Additionally it's also our understanding that there have been other positions which have been discussed in the company in terms of other employees looking for expressions of interest to take a redundancy and leave the company and those employees have skills and perform duties which are within the range of Mr Tsang's skills and capabilities.

PN109

THE COMMISSIONER: The company hasn't announced a voluntary redundancy program, has it, Mr Rudd?

PN110

MR RUDD: No, Commissioner. These are expressions of interest that the union has heard.

****

PN111

THE COMMISSIONER: Yes, but I don't think the company is seeking expressions of interest for voluntary redundancy. I hear your point and I hear what you're saying to me but I think that that particular issue we had discussed on a previous occasion. I don't know that there's - and taking me to it if I'm wrong but I don't know that there's anything in your agreements of the awards or the awards that places an obligation on the company to accept expressions of voluntary redundancy.

PN112

MR RUDD: Commissioner, it's my understanding it's an informal arrangement, practice that was undertaken.

PN113

THE COMMISSIONER: Yes, but I don't know that I can do anything in regards to that.

PN114

MR RUDD: No, Commissioner.

PN115

THE COMMISSIONER: So what you're seeking is that the company perform its obligations under clause 20 in appendix D in relation to Mr Tsang's situation?

PN116

MR RUDD: Yes, that's correct, Commissioner.

PN117

THE COMMISSIONER: And how do you seek that?

PN118

MR RUDD: What the union proposes to advance this matter forward is that given that this issue is one that has been, well, is applicable not only to Mr Tsang but also to other employees which may fall under the agreement, we see it as an issue that would be best advanced before the Commission. What we would respectfully suggest is that given that Mr Tsang is currently undertaking his duties in the position that has been earmarked for restructure we would seek that Mr Tsang continue in those operations until this particular issue is determined.

****

PN119

What we respectfully suggest, Commissioner, is that this issue - allowing for Mr Tsang to remain in his position until this matter is determined we would then proceed down the path of an arbitration of the issue of Mr Tsang. I did foreshadow that the issue of the interpretation of the agreement is something that will occur during the course of the proceedings. We would submit that section 170LW procedures for preventing and settling disputes would allow for that process to be undertaken.

PN120

I should also indicate to the Commissioner that the agreement at clause 30 provides for the Commission to exercise arbitral powers for a dispute when it is referred to the Commission, in particular clause 30 subclause C of the agreement. This dispute, Commissioner, we say could be then determined or arbitrated as per the dispute resolution allowed for and that the agreement would be interpreted in the course of the arbitration of the dispute which of course being our allegation that the redeployment process hasn't been afforded to Mr Tsang.

PN121

THE COMMISSIONER: Have you spoken to AGL about what you would be seeking today - flowing from the Conference?

PN122

MR RUDD: No, not at this stage Commissioner. If it was appropriate we could go off record to discuss advancing this matter forward as to proposals the union has put today and we haven't put that to the company at this stage.

PN123

THE COMMISSIONER: Well I might just ask Mr Gee - do you have any instructions on that at all?

PN124

MR GEE: In relation to how the matter might proceed before the Commission in response to Mr Rudd's most recent submissions we have a very different view about what section 170LW means and we say that it is not relevant to the current proceedings. In relation to the operation of clause 30 of the agreement that covers Mr Tsang's employment we say that it is quite clear in that clause 30(c) establishes:

****

PN125

In the event of a dispute between the parties it may be referred to the Commission for conciliation but ...(reads)... the event that the parties agree that is to occur.

PN126

My instructions are that the respondent companies to this notification do not consent to this matter proceeding to arbitration before the Commission. But we are prepared to continue and participate in good faith in relation to the matters in dispute in conciliation.

PN127

THE COMMISSIONER: I might just ask Mr Rudd. Mr Rudd, in reading clause 30(c) of your agreement do you dispute what has been put to me on behalf of the company?

PN128

MR RUDD: Commissioner, it is my instructions that the wording of clause 30(c) doesn't accurately reflect what was the intention of the parties when the agreement was struck. But I hear what Mr Gee is saying in respect to what their position would be in advancing - or not advancing this matter in this particular forum. In those circumstances the union would then reconsider its position in terms of where to advance this matter.

PN129

What I am trying to say, Commissioner, is that if Mr Tsang is terminated as of this Friday - and there is a jurisdictional argument over whether or not the union can or cannot advance the argument under clause 30 of the disputes resolution clause in this agreement - well obviously the unfair dismissal provisions of the Workplace Relations Act would be something that the union would have to consider.

PN130

I did hear the submissions of Mr Gee that the company was acting in good faith. I'm not sure of the companies position but if they were acting in good faith Mr Tsang's position wouldn't be in jeopardy until this particular matter is finalised. Our submission is that this matter could be dealt with under clause 30 of the Agreement. We would still firstly hope that that would be the position, although failing that then the union would have to - as I've stated previously - reconsider its

****

position. And we would be looking at filing an unfair dismissal application as a consequence of Mr Tsang's termination as of this Friday. I would just say to you, Commissioner, I'm still not exactly sure what the company's position is on Mr Tsang in terms of them acting in good faith.

PN131

THE COMMISSIONER: Well, we might ask.

PN132

MR GEE: Thank you, Commissioner, I welcome the opportunity to respond to the matters that Mr Rudd raised this morning. I might start by saying that albeit that this is a notification by the AWU in effect we see there are two matters arising in dispute between the parties. Firstly, there is clearly a difference of opinion between the parties to the AGL ES&M Certified Agreement 2001 over the operation of clause 20 of that agreement and I will address that shortly.

PN133

Secondly, it appears there is now a dispute between the parties over the decision to terminate Mr Tsang's employment for reason of redundancy. I hear what Mr Rudd is saying in that in the event that Mr Tsang's employment is terminated as is presently the case with effect this Friday, Mr Tsang has the right to pursue a remedy under the unfair dismissal provisions of the Workplace Relations Act.

PN134

I will address the first matter now if I may. Commissioner, we say that around 26 March this year Mr Tsang was advised that his current position would be made redundant. On the same day, we say that was 26 March, the changed proposals form as described in clause 19 of the Agreement was forwarded to the AWU. That document is before the Commission as AWU1.

PN135

I am instructed that it is the customary practice between the parties that in the event the company does not hear anything from the AWU arising out of the changed proposal form the AWU does not contest the matter set out in that proposal.

PN136

THE COMMISSIONER: So, the company is acknowledging that clause 19 applied to the situation.

****

PN137

MR GEE: I don't think that is in contest between the parties. On or around 4 April Mr Tsang applied for the position of Business Sales Officer, a role located at Fivedock.

PN138

THE COMMISSIONER: Now, just say that to me again. What date was that?

PN139

MR GEE: The fourth of April. That position was a Business Sales Officer and it is a position at paypoint 4.4. Now, I might explain, Commissioner, to clarify something stated by Mr Rudd. There is a difference between paypoints and the position descriptions. The paypoints refer to the minimum salaries that will apply in a role. You may have positions that are identical or similar in paypoints but are vastly different due to the competencies required to fulfil that role.

PN140

THE COMMISSIONER: All right, are you telling me then that the Business Sales Officer role at Fivedock could not be considered as an alternative position because it didn't fall within the same band of classification and salary, and the skill-match with Mr Tsang?

PN141

MR GEE: The company's position is that the position of Business Sales Officer, the competencies required for that role were different to the competencies in Mr Tsang's role to the extent that the company did not consider it to be an appropriate position for redeployment.

PN142

MR RUDD: I'm sorry, Commissioner. Just for clarification, that position was not one that we referred to before, it's a different position

PN143

THE COMMISSIONER: It is not the Five Dock position?

PN144

MR RUDD: It's not the three positions that we alluded to before.

****

PN145

THE COMMISSIONER: It was a contract administrative officer.

PN146

MR GEE: I will come to that position. That was a position later in time, Commissioner. So that the first position he applied for on 4 April was the position of business sales officer based art Five Dock. the pay point was 4.4. The company maintains that the competencies required for that role were different to the extent that it did not consider the role to be appropriate for redeployment.

PN147

Mr Tsang was interviewed for that role, he was unsuccessful due to essentially he didn't fit the competency criteria for that role. On or around 19 April Mr Tsang was given a letter to confirm that his position was to be made redundant with an effective date of 8 May. Around the same time - - -

PN148

THE COMMISSIONER: I'm sorry, I missed that, Mr Gee, effective, sorry?

PN149

MR GEE: 8 May. Around the same time there were discussions between Mr Tsang and his team leader in relation to a purchasing co-ordinator role that was to be advertised internally.

PN150

THE COMMISSIONER: The purchasing role?

PN151

MR GEE: Yes.

PN152

THE COMMISSIONER: Was that at the same level?

PN153

MR GEE: The purchasing co-ordinator role is at pay point 4.3. Again, the company holds the view that the competencies required in that job were sufficiently different so that the company concluded it was not appropriate for redeployment. On or around 26 April Mr Tsang did apply for that role and again his application was ultimately unsuccessful, again, due to the difference in competencies required for that position.

****

PN154

On 9 May the redeployment committee met. I dispute Mr Rudd's assertion that that happened on the first or second week of June. The minutes of that meeting taken by somebody present at that meeting indicate that it took place on 9 May. If the Commission would prefer I am happy to read on to the record the minutes as taken by a participant at that meeting. I don't have sufficient copies at this time to hand out and I don't wish to tender it at this time as evidence.

PN155

THE COMMISSIONER: If you are going to rely upon a document to support your submission it might be better if I sight it I think. If there's something highly confidential in it - - -

PN156

MR GEE: No, Commissioner, it's not that it's confidential. I don't have the author of the minutes here.

PN157

THE COMMISSIONER: Yes, I see what you are saying. We're conference. I've already advised the parties tha this is not a formal hearing in any sense. It is recorded but it is still in conference. I am only thinking of the time, that's all. How long would it take you to read it on to the transcript.,

PN158

MR GEE: 30 seconds, Commissioner.

PN159

THE COMMISSIONER: Has Mr Rudd got a copy?

PN160

MR GEE: I might indicate for the record that the minutes reflect that the people present at that meeting of the redeployment committee agreed that to that time all appropriate steps had been taken to secure Mr Tsang another role. It was also discussed that because Mr Tsang had previous indicated he did not want to pursue the position at French's Forest that area was not actively pursued. That was at that time, I will come back to that. It was also agreed that Mr Tsang was to be interviewed for another position of constructions at port officer based at French's Forest and if he was deemed to be the best candidate for that role he should be offered the position.

****

PN161

THE COMMISSIONER: What was that role, also agreed that he should - - -

PN162

MR GEE: He should be interviewed for the construction support officer position at French's Forest and should he be the best candidate for that role he should be offered that position.

PN163

THE COMMISSIONER: Does Appendix D say that though?

PN164

MR GEE: I will come to our view of Appendix D shortly. I will address it now if you like, Commissioner.

PN165

THE COMMISSIONER: Just say that to me again. I don't have a copy of that document. So what you are saying is that the committee agreed that Mr Tsang should be interviewed for a role at French's Forest which was within his skill level. If they think he should go for it?

PN166

MR GEE: The minutes reflect that Mr Tsang should be interviewed for that position and should he be the best candidate for that role he should be offered that role. Now, in the absence of the author of those minutes I don't want to expand on that.

PN167

THE COMMISSIONER: No, this is true and I wouldn't ask you to do that either but you are saying that is what the wording says, that if best candidate then he should be offered the job?

PN168

MR GEE: That's correct.

****

PN169

THE COMMISSIONER: And you are going to address me on whether - you see, I've read Appendix D and clause 20 and it would appear to me and I am sure you are going to address me and you may have a different view; it appears to me that there is no interview process but if the position is there and it's within the range of the classification of salary and the skill mix then while the clause does not necessarily talk about a trial the 30 day period to me represents what a trial would be because during that 30 day period the redeployee has an opportunity to acquaint themselves with the role and make a decision whether they want it and they can still take redundancy after that.

PN170

Also the company assesses - it doesn't say assess but it is actually - assess their performance in the role and talk to them if there's any problems and even right at the end of the 30 day period the company can still review and assess the person. It appears to me it's a 30 day trial and I must say on my reading, and I will hear you, but on my reading if the criteria set out in 3.4A applies then they're offered the position and that flows through from 3.5. On my reading of 3.4 says that if there's an opportunity there and it's the same band of classification of salary, whatever that may be, and the skill match is fine then the employee concerned will be offered the position in writing. Now, I take that to be offered the position to trial.

PN171

MR GEE: Our view is that those are matters to be conducted or discussed by the redeployment committee in the event that the redeployment process is enlivened. I will come back to this Commissioner but suffice to say now, it is the company's clear view that the redeployment process set out in clause 20 and appendix D is only enlivened to the extent the company identifies opportunities for redeployment to be available. In making its assessment as to whether opportunities for redeployment are available the company looks at vacancies that are current or vacancies that it knows will be apparent in the immediately foreseeable future for which the employee whose position is to be made redundant clearly fits the competency criteria required for that role.

PN172

THE COMMISSIONER: Isn't that what the redeployment committee does by looking at appendix D, isn't that what the - - -

****

PN173

MR GEE: Those are matters which the redeployment committee will look at once the redeployment process is enlivened. We say that clause 20.1 subclause (b) clearly indicates and it is certainly the company's intention and has always been the company's intention that the redeployment process is enlivened only upon the company identifying that there are opportunities for redeployment available.

PN174

THE COMMISSIONER: Well, just step back. So, if the company has vacancies in a number of positions in its organisation are you saying to me that they needn't say those positions we now identify as opportunities for redeployment. Are you saying that the company can say we've got these vacant positions but we as a company have not identified them for redeployment. Is that what you're saying?

PN175

MR GEE: Yes, Commissioner. In forming that opinion I am instructed that the company will look at the competencies required for each - - -

PN176

THE COMMISSIONER: No, then that gets further down the track. The first step is are there vacant positions? If there are no vacant positions then you can't identify opportunities for redeployment. You can't, it's a nonsense, you don't have them. If you are terminating or making redundant 1, 2, 3, 10, 50, 60 employees and you don't have any vacant positions, clause 20 just doesn't apply, it's a nonsense. There's no point in somebody jumping up and saying I want redeployment, there just isn't any, we don't have vacant positions. If the company has decided that they're restructuring and it's acknowledged that clause 19 fits in, it's a changed process we now know that. It is changing, it's merging a few jobs, whatever it may be doing, then if vacancies arise in different areas because somebody leaves or they get promoted to a manager or whatever may be the case, they're vacant positions.

****

PN177

My prima facie view is that I don't agree with you that a company doesn't have an obligation to say that is an opportunity for redeployment. Then the next stage is we need A, B and C, criteria for that job, we need tertiary qualifications or we need particular competencies, we need a particular person, a particular attitude, whatever it may be, we need that to fill the job, then you look at people that have been made redundant or who have been told they'd be made redundant and if they don't have A, B and C then so be it. They don't have A, B and C. If they have A, B and C and it is identified that they do, it is my view, my prima facie view, that appendix D comes into play.

PN178

It is the committee that looks at these issues and looks at the skills and requirements and what have you. I don't know that managerial prerogative goes as far as what you're saying to me that the company can pick and choose vacant positions that they will allow to be considered under clause 20. Now I will hear your submissions on that and we can go further and I will consider and I will re-read clause 20 but I've been reading for two days and I've given it great consideration and it would appear to me, if there is nothing further put to me, that the company cannot pick and choose what it will put up for redundancy.

PN179

MR GEE: Commissioner, I might respond by saying that it has been company's custom and practice since the time this agreement was made to enact the redeployment process or regard the redeployment process as I have already outlined. I will come back to that point shortly.

PN180

THE COMMISSIONER: So what I've said it is what you say, the company's position is. Let me rephrase that. Is it the company's position that it determines what vacancies it will allow to be considered under clause 20 in appendix D by the redeployment committee? You can seek further instructions if you want to clarify that.

****

PN181

MR GEE: I don't wish to seek further instructions, I wish to respond by saying that the company's position is that it is absurd to suggest that because there is a vacancy an opportunity for redeployment is available. Take the hypothesis. If there is a vacancy in the chief financial officer's role and a position of administrator's officer's role is declared redundant that does not mean ipso factor there is an opportunity for redundancy. The company's considered view and its intentions in agreeing to clause 20 is that where the company identifies there is a vacancy available for which there is a competency fit with the employee whose position has been made redundant, then the redeployment process is enlivened. That has also been the custom and practice since the time this agreement has been made.

PN182

I am instructed that in the last financial year in the areas of the business covered by the Retail/ES&M agreement, a total of 31 employees have been terminated for reason of redundancy as a result of their position being declared redundant. This is the first such occasion, and this will be the 32nd occasion I should hasten to add, this will be the first occasion where the process between the time the company declares the position redundant and termination of employment occurs where the process adopted by the company has been changed. Now, within that period there have been some redeployment. We say that the redeployment process is working and is effective and we have used it as I have outlined to you previously, Commissioner.

PN183

I go back to the reflections minuted by the redeployment in that as of 9 May, the members of the committee agreed that all appropriate steps had been taken to secure Mr Tsang another role. Further, the members at that committee agreed that Mr Tsang should be interviewed for the position construction officer at French's Forest. It doesn't say offered the role unless he should be the best candidate for that position.

PN184

THE COMMISSIONER: Does the redeployment committee have the brief, or the authority, to determine that someone should be interviewed for a role and then if the best candidate offered the job?

****

PN185

MR GEE: I would agree with your earlier comments, Commissioner, that the redeployment process in appendix D does not specifically step out an interview process in the event that a position is declared to be appropriate for redeployment.

PN186

THE COMMISSIONER: And that's declared to be appropriate by the company?

PN187

MR GEE: I am sorry, Commissioner?

PN188

THE COMMISSIONER: That is declared to be appropriate by the company, that is your submission?

PN189

MR GEE: What is declared to be appropriate?

PN190

THE COMMISSIONER: The position. If the position is declared to be appropriate for redeployment purposes. We're talking about the redeployment committee whether they have the brief to - - -

PN191

MR GEE: Thank you, Commissioner. In answer, clause 2 in appendix D indicates that where the employer identifies redeployment positions for an employee or employees affected by changes described in 1 above the redeployment committee shall initiate the process described in 3 below. So the mechanics are that where the employer identifies redeployment positions then the redeployment committee does its thing.

PN192

Now following the meeting of the redeployment committee on 9 May, the recruitment process for the construction support officer roll based at Frenchs Forest actually closed. The recruitment window closed. However, Mr Sang was offered the opportunity and did submit an application for that position after that window had closed.

****

PN193

THE COMMISSIONER: When did applications close?

PN194

MR GEE: Applications closed on 3 May. Mr Sang applied on or around - - -

PN195

THE COMMISSIONER: 3 May? Didn't the redeployment committee meet on 9 May?

PN196

MR GEE: Yes, yes.

PN197

THE COMMISSIONER: And agreed that Mr Sang should be interviewed?

PN198

MR GEE: That is correct. So Mr Sang then submitted an application.

PN199

THE COMMISSIONER: When was it submitted?

PN200

MR GEE: At best I can indicate at this time Commissioner it was on or shortly after 10 May.

PN201

THE COMMISSIONER: 10 May? Then possibly the next day.

PN202

MR GEE: Yes, I am happy to be corrected if I am wrong there Commissioner but that is my understanding at this time. Mr Sang was interviewed for that role and again was unsuccessful based on the company's assessment of the competency match. His interview for that position was on 10 May, so the day after we say the redeployment committee met.

PN203

THE COMMISSIONER: The redeployment committee if it was performing its role correctly should have already assessed that Mr Sang was in the same band classification, salary and skill mix for the position. The redeployment committee had a vacant position at Frenchs Forest, a construction officer wasn't it?

****

PN204

MR GEE: Yes, that is the construction support officer role.

PN205

THE COMMISSIONER: Support Officer. They had a position to be considered for redeployment.

PN206

MR GEE: Again I cannot speak for - - -

PN207

THE COMMISSIONER: No, no I know that, we are debating really what appendix D is, well not debating, we are discussing it. If they'd been given a position Construction Support Officer at Frenchs Forest, the company sought to appendix D2 has identified that position as a redeployment position for an employee or employees affected.

PN208

MR GEE: I apologise if I have misled the commission, to put it in context, as Mr Rudd indicated, the redeployment committee was convened following the discussions between the AWU and the parties shortly before 9 May and the company convened the redeployment committee essentially to say,paraphrasing, we cannot find any appropriate alternative positions what do you guys think.

PN209

Again, I can only go back to what the minutes indicate, the minutes indicate that he should be interviewed for the role and if he is the best candidate should be offered the role, the minutes do not indicate that the redeployment committee said aha, this is an available alternative position, he's to be appointed. Again I do not wish to speak beyond what the minutes say. Nevertheless Mr Sang was interviewed for that role on the next day, his application was ultimately unsuccessful. The company says that was because there wasn't sufficient match in competency criteria for that role.

PN210

THE COMMISSIONER: All right.

PN211

MR GEE: Now following that Mr Sang was given a further letter confirming that his revised end date was going to be 28 June. Subsequent to that Mr Sang applied for the administrative officer role three days a week at Chullora, two days a week at Auburn.

****

PN212

THE COMMISSIONER: The further letter when was that given?

PN213

MR GEE: It was dated 14 May, provided to Mr Sang on 15 May. The reason for this - - -

PN214

THE COMMISSIONER: What was the revised termination date?

PN215

MR GEE: 28 June. That date was extended to allow Mr Sang a further period of time to await any opportunities to apply for further vacancies that might arise.

PN216

THE COMMISSIONER: What was it extended to?

PN217

MR GEE: 28 June.

PN218

THE COMMISSIONER: I am sorry, that is what I said, the termination was to be 28 June, that date was not extended?

PN219

MR GEE: The original termination date was going to be 8 May. That was on hold pending the outcome of his application for the construction support officer role. When that was unsuccessful the termination date was extended to 28 June to allow Mr Sang a further period of time to identify any vacant positions to which he might wish to submit an application.

PN220

That subsequently happened in that, Mr Sang as we know applied for the administrative officer role, three days a week at Chullora, two days a week at Auburn. As Mr Rudd has indicated the interviews for that position were conducted last Thursday. On Monday of this week Mr Sang was advised that he wasn't the successful candidate in that position. Again, that decision was based upon who was identified as the best candidate to fulfil all of the criteria for that role.

****

PN221

As a result of that he has been given notice that his employment will cease this Friday for reason of redundancy. That is a somewhat longer than brief summary than I had original anticipated Commissioner of what has been the process between the original time back in March when the company identified that it would no longer require anyone to fill Mr Sang's role and the present date. As I have indicated in my submissions, we do have a view in relation to the redeployment process in the agreement that is different to the AWU.

PN222

The company maintains that has not breached any of its obligations in relation to the redeployment process in the agreement for the reason that despite its best endeavours it has not identified that there have been any positions that were opportunities to redeploy Mr Sang. Despite that Mr Sang has been given an extended period of time to identify any vacant positions for which he might wish to apply and his applications for those positions have been assessed on their merits.

PN223

The company maintains that it has been particularly careful to ensure that his application has not been prejudiced by any ongoing discussions between the company and the union about the redeployment process or in any other matter. We say that we have a very clear understanding of the redeployment process is and when it is enlivened and we contest the AWUs view that redeployment process is to be enlivened in the present case.

PN224

THE COMMISSIONER: Well the redeployment process is livened with Mr Sang you do not dispute that.

PN225

MR GEE: To an extent we do, Commissioner, in that we say that the company did not identify that there were any opportunities to redeploy Mr Sang into another role such as to enliven the redeployment process.

PN226

THE COMMISSIONER: Well point number 1, did the redeployment committee receive the proposed change form which is AWU1?

****

PN227

MR RUDD: Commissioner if I may, I have one member of the redeployment committee here today and his advice is that no they never received that proposal, change form.

PN228

THE COMMISSIONER: Well I was not asking you Mr Rudd, I was asking Mr Gee. You will have your opportunity in reply.

PN229

MR GEE: On the information I have, it would appear that a copy of the change proposal form was forwarded to a member who subsequently participated in the redeployment committee meeting on 9 May, that person was Irene Slavic.

PN230

THE COMMISSIONER: You can't tell me whether the redeployment committee - you're telling me the form went to a member - was the redeployment committee advised of the proposed change?

PN231

MR GEE: I can't speak beyond the minutes, Commissioner, other than to - I won't say that. My understanding of the changed process is that in circumstances where a changed proposal form is created it is to be circulated to the parties specified on those forms. In this case it was forwarded to the AWU and to Miss Irene Slavich.

PN232

THE COMMISSIONER: Appendix D(1) doesn't necessarily say that the redeployment committee get the form. What it says is that they're advised of the proposed change. Then your submission was well one of the members of the committee got the form when I asked you did you anybody get the form and you said well one member got it. I said would the committee get it? There must be some process of the committee being advised of the proposed change, it's the committee not an individual, unless of course there is a provision here that says services effected on the chairman but that's not it. My next question, you can't answer that then for me?

PN233

MR GEE: Not at this time. To me appendix D(1) indicates that a redeployment committee is to be advised of the proposed change, etcetera.

****

PN234

THE COMMISSIONER: Which includes information relating to the likely or possible redundancy as a result of the change and what have you, so we don't know whether the committee was notified.

PN235

My next question then which is still point 1. Did the committee become involve in direct discussions with say, with Mr Tsang, and with the leader of Mr Tsang?

PN236

MR GEE: At this stage I can't say what's happened Commissioner.

PN237

THE COMMISSIONER: Is there anything else you want to say to me, Mr Tsang? I think Mr Rudd had actually asked a question earlier about what was meant by the good faith and put a couple of things forward. I don't know whether you want to address that?

PN238

MR GEE: What I have outlined is the company's good faith position in relation to how it reads clause 20 and appendix D of the agreement. The company has previously met with the union to discuss the difference in views between how they regard redeployment process and we are happy to continue those discussions if the AWU still wishes to do so. We do not consent to the matter proceeding to the arbitrator because it has been settled we say clearly, and there is no difficulty understanding what the words mean, they are set out in the agreement. As the matter stands we recognise that if Mr Tsang disputes the reasons for the termination of his employment he has a right to pursue that matter elsewhere under the auspices of this Commission. Those are my submissions, Commissioner.

PN239

THE COMMISSIONER: So, your submission is that the termination is effective on Friday, Mr Gee?

****

PN240

MR GEE: Yes, Commissioner. I am going to adjourn quickly into conference with you or quickly off the record. I have another matter at 11 o'clock and we can return to the record later on which may possibly be after I've concluded my 11 o'clock hearing. After I speak to you privately in conference I will possibly adjourn this matter until possibly 1 o'clock but I will have my associate advise you of the timing. We will adjourn at the moment, thank you.

OFF THE RECORD [10.50am]

RESUMES [2.59pm]

PN241

THE COMMISSIONER: After the adjournment earlier this morning I spoke to the parties in conference and then sought that they think about the positions that they had put to me and I am unsure whether the parties have had discussions themselves independently but Mr Rudd, it's an AWU file so do you want to report back to me the outcome or any discussions you've had.

PN242

MR RUDD: Commissioner, the parties have had some discussions in the adjournment. At this stage the position hasn't changed. The company has informed us that they intend to go ahead with the termination of Mr Tsang as of this Friday. Accordingly, given the circumstances Commissioner and given the submissions earlier by the union, what the union is now seeking in this situation is a recommendation that Mr Tsang not be dismissed from his current position and that the redeployment committee follow the procedures outlined in the agreement in trying to identify alternative positions for Mr Tsang.

PN243

THE COMMISSIONER: Mr Rudd, is there a time period in relation to the procedures to be followed by the redeployment committee?

PN244

MR RUDD: The agreement is silent with respect to a specific time period. However, given the circumstances that Mr Tsang is to be terminated as of this Friday it would be the union's submission that the redeployment committee meet as soon as possible given that Mr Tsang will be dismissed as of Friday to look at alternative positions available.

****

PN245

THE COMMISSIONER: So there is no time frame in the agreement.

PN246

MR RUDD: No, Commissioner, it is silent on that issue.

PN247

THE COMMISSIONER: Anything further Mr Rudd.

PN248

MR RUDD: No, thank you.

PN249

THE COMMISSIONER: Thank you. Mr Gee whenever you are ready.

PN250

MR GEE: Thank you, Commissioner. In response to what Mr Rudd has said I am instructed that the company would see no real obstacles at the moment in convening the redeployment committee prior to Friday. I say that on a without prejudice basis with regard to our earlier submissions on the circumstances in which the obligation to convene the committee arise. Our position in relation to the timing of the termination of Mr Tsang's employment have not changed at this point in time. Our preference would be that the Commission does not make any recommendation regarding Mr Tsang's employment.

PN251

Having said that, if the Commission were of a mind to do that, to make any recommendation regarding Mr Tsang's employment it would be taken into account by the company accordingly. Now, the position in relation to the other matter is that the present circumstances do not give rise to an obligation under the agreement to convene the redeployment committee for the purpose as outlined in clause 20 in appendix D of the agreement. However, as I said, on a without prejudice basis, if the Commission were of a mind to make such a recommendation my instructions are that on a without prejudice basis we see no difficulty in convening that committee before Friday. If the Commission pleases.

PN252

THE COMMISSIONER: Anything further at all, Mr Rudd?

****

PN253

MR RUDD: No thank you, Commissioner.

PN254

THE COMMISSIONER: I have already spoken to the parties in relation to a recommendation. I am unsure whether I did put that on the record previously but if I didn't I made it plain to the parties during discussions that I was of a mind to make a recommendation depending on what has been put to me, then that is what I will consider and the recommendation will flow from that. Unfortunately, I will not be able to issue a recommendation immediately from the bench. I have another matter which must be attended to but my recommendation will issue after that. It will either be issued to the parties this afternoon or it will be issued to the parties tomorrow. If there is nothing further, ladies an gentlemen, the Commission is adjourned.

ADJOURNED INDEFINITELY [3.05pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AW1 CHANGE PROPOSAL FORM PN102