C2003/967, Transcript of Proceedings [2003] AIRCTrans 1052 (25 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT1941
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2003/967

NYLEX INDUSTRIAL PRODUCTS PTY LTD

and

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

Notification pursuant to section 99 of the Act
of a dispute re the entitlement of an employee
to enterprise bargaining agreement benefits

MELBOURNE

2.13 PM, TUESDAY, 11 MARCH 2003

Continued from 5.3.03

PN241

THE COMMISSIONER: Thank you. No change in appearances. No. Good. Where are we at?

PN242

MR LEVIN: Just a couple of matters I am asked to put on the record first regarding the attendance of certain people here today.

PN243

THE COMMISSIONER: Yes.

PN244

MR LEVIN: Just so that it is made clear that Gary Mitchell has been told that he would be paid, he is the AMWU shop steward, but the others would not. They were instructed that if they attended that they would not be paid. But they were not instructed not to attend.

PN245

THE COMMISSIONER: Right.

PN246

MR LEVIN: I am also instructed to make a formal position for the record to query whether the AMWU has standing to be representing Maria Radisavljevic in this matter given the eligibility rules of the union and whether they have other issues that relate to their members would be a separate issue from their ability to represent the interests of someone who is not eligible to be a member. So I also place that on the record. Coming to the substance of the matter, a letter was received last Friday.

PN247

The offer contained in the letter from Mr Robertson repeats the EBA formula but has proposed that the EBA formula be applied in two parts. One, that the severance component be calculated at an equivalent metal trades award equivalent classification rate which was proposed as the C9 rate. I am instructed that that rate is $801.25 per week which is in fact some $27.23 per week higher than what Ms Radisavljevic actually earns so she is on $774.02 so that is where that difference is.

PN248

So the company - the other part of the proposition is that her actual wage rate be applied for the purposes of annual leave, long service leave, etcetera. So there are all the other components under the EBA formula would apply on her existing wage but that the C9 rate apply in respect of the weeks per year of service component under the EBA. If I have got that wrong I apologise to my friend. That is my understanding from the letter that I have seen.

PN249

The company's response continues to be that Ms Radisavljevic is not covered by any redundancy agreement whether award EBA or otherwise or policy and it certainly rejects, again, the application of EBA formula's to Ms Radisavljevic. If the Commission pleases.

PN250

THE COMMISSIONER: Thank you. Yes, Mr Robertson.

PN251

MR ROBERTSON: Thanks Commissioner. As regards to stewards and there appearance today from the NUW and from the LHMU they still believe that this matter could have ramifications for their membership and accordingly believe they have an obligation to be present. Yes, they have been spoken to about whether they would be paid or not. Regardless their commitment to their task is such that they believe they should be here. On the issue of jurisdiction, Commissioner, my recollection of how this matter got before the Commission was a notification by the company to the AMWU.

PN252

It just seems very odd to me that the Commission - I mean, I beg your pardon, the company is now questioning the jurisdiction. On the issue of the rate that I have proposed in the document, essentially as it has been described to you, that is what I intended. Was to put a fixed rate. But the information that I had was the rate of the C9 is somewhat less than Maria's rate and Maria has done her arithmetic and believes that when she compares the arrangements that I have outlined that would give her some $3,000 less than what the normal formula would.

PN253

So I am very open to discuss those matters and also a fax that was received from the company last Thursday as well which reads - it is from Paul Baker. It reads:

PN254

I wish to highlight that any agreement concerning Maria Radisavljevic must be confidential and not used as a precedent for any future claims which would be treated on a case by case basis. There must be agreement with all unions and parties to this matter before the company must sign the first agreement.

PN255

Those issues, to me Commissioner, are issues of mechanics and I think once we get some agreement around the substantive issue we can talk about the mechanics and how to apply it. If the Commission pleases.

PN256

MR LEVIN: A couple of short clarifications.

PN257

THE COMMISSIONER: Sorry, Mr Levin.

PN258

MR LEVIN: I am sorry.

PN259

THE COMMISSIONER: I understood that the last time we met and we even met where the Commission had separate discussions with the company and separate discussions with the unions and sought that the, for the second time, that the unions consider putting forward a proposal. Now correct me if I am wrong, all the unions have done is put forward what they originally put forward and that is that they want the package which has been totally rejected by the company. In terms of the formula.

PN260

MR ROBERTSON: In terms of the formula that is right. But in terms of the quantum that is not so. From what I am hearing from the company is that we are asking them for more than what Maria would have got under that formula. My understanding is that it would have been less. I mean if there is some misunderstanding let's clear it up. But I thought for the sake of consistency and, although the company does say that they don't want to create a precedent, I have got to say Commissioner do we have to go through all this each time one of these people puts up their hand and says, look, you know, I want a redundancy package. So, you know, it is a concession from the union side Commissioner. I put that to you.

PN261

THE COMMISSIONER: Thank you. Yes, Mr Levin.

PN262

MR LEVIN: Sorry, just on the point of the - it says in the letter:

PN263

The C9 rate which is paid at Huntingdale.

PN264

And the C9 rate which is paid at Huntingdale is the one that I just said.

PN265

THE COMMISSIONER: That is the higher rate?

PN266

MR LEVIN: Yes. So - and I have just checked it and I am instructed that that is the C9 rate paid at Huntingdale.

PN267

THE COMMISSIONER: So that is the C9 rate higher than the C9 rate at Frankston. So why is there a distinction if it is not - why is there a distinction at Huntingdale?

PN268

MR LEVIN: It compared to the award.

PN269

THE COMMISSIONER: Okay. So you pay over the award?

PN270

MR LEVIN: Yes.

PN271

THE COMMISSIONER: Okay.

PN272

MR LEVIN: C9 is a mechanical trades person special class is $546.10 and we are $801.25. The second thing is just in relation to - obviously we are happy to go into conference but the reason that the matter was notified in the first place was not because of Ms Radisavljevic but because there was industrial action threatened.

PN273

THE COMMISSIONER: Yes.

PN274

MR LEVIN: And a final point was - I am sure that when we go into conference we can discuss rates and so forth but at the end of the day the company, I am instructed, won't be paying by any formula regardless of the rates suggested. I am instructed to say that the confidential and non precedent nature and that it is all unions is absolutely critical. It is not a side issue that, let's work out a figure and then we will tell you whether or not we will use it as a precedent for the future.

PN275

If there is not an undertaking that it will not be a precedent and that it can be kept confidential then there won't be anywhere that we can go because I am instructed that those matters are of great concern to my client. Thank you Commissioner.

PN276

THE COMMISSIONER: Thank you.

PN277

MR ROBERTSON: Commissioner, on that number $801.25. The number I was working on was $733.09.

PN278

THE COMMISSIONER: Where did that come from?

PN279

MR ROBERTSON: This document I have got says an inspector - - -

PN280

THE COMMISSIONER: Rate $733.09. Is that what you said?

PN281

MR ROBERTSON: $733.09 and inspector as I understand it, inspector is the C9 level. But it appears that there is three classifications on the C9 level each with different rates.

PN282

MR LEVIN: Actually four.

PN283

MR ROBERTSON: Four. Yes, okay a tool maker can be C9 too. So it would be four different rates to the C9 and I was just looking at the inspector level Commissioner.

PN284

THE COMMISSIONER: Mr Levin has indicated at the conference. What do you say Mr Robertson?

PN285

MR ROBERTSON: Yes, I think that is the appropriate way to go Commissioner. Thank you.

PN286

THE COMMISSIONER: Thank you. Commission will go into conference.

SHORT ADJOURNMENT [2.25pm]

RESUMED [3.36pm]

PN287

THE COMMISSIONER: The Commission has had an opportunity to have a conference with the parties and arising from that conference what the Commission would like to do is to outline what it understands are the proposed terms of settlement and it will then seek comment from the applicant in the matter, which is Nylex, and the union in this matter, which is the AMWU. Commission understands that there is on the table an offer of 31 weeks at the rate of $774. That 31 weeks is inclusive of notice period and for all purposes will be taxed as redundancy.

PN288

There will be - plus the payment of statutory entitlements. There is an offer of an outplacement service to Ms Radisavljevic. There is an offer that given that Ms Radisavljevic is currently not attending for work that there would be no need for her to attend for work. That the Commission understands that as of Thursday 3.3.2003 Mr Radisavljevic would be made redundant.

PN289

MR ROBERTSON: The 13th.

PN290

THE COMMISSIONER: Sorry, what did I say?

PN291

MR ROBERTSON: The third.

PN292

THE COMMISSIONER: No, sorry I said 13.3. I mucked it up - 13.3.2003. Ms Radisavljevic has asked, and this has been acceded to by the company, that she be provided with an opportunity to talk to her partner. Ms Radisavljevic is to advise Mr Baker of the company by 9 am tomorrow, that is 12 March 2003, by fax with a follow up phone call to Mr Baker as to whether or not she is prepared to accept or rejects the offer that is currently on the table.

PN293

If Ms Radisavljevic accepts the offer that is on the table the parties will need to sign a deed of release. The deed of release will be in the standard form. That is that is ends the employment relationship between Ms Radisavljevic and Nylex save for any matter that Ms Radisavljevic may have under Workers Compensation and any issue that she may have regarding superannuation and any outstanding statutory entitlements.

PN294

The terms shall remain confidential and that is that Ms Radisavljevic and the company are not entitled to tell anybody other than their legal representative, the accountants, the Australian Taxation Office or somebody who they may be required to by law. In agreeing to the terms of settlement, if that is what Ms Radisavljevic does, the unions undertake that it shall not be used as a precedent nor shall it be used in any other matter that my come before the Commission or in any negotiations with Nylex. Now Mr Levin is that your understanding?

PN295

MR LEVIN: Yes, with a couple of supplements.

PN296

THE COMMISSIONER: Yes.

PN297

MR LEVIN: First that all the parties, well, no not the parties, but all of the persons here today maintain the confidentiality and give their undertaking today that they will maintain this as confidential which I am instructed means that no-one on the factory floor will - no-one on the factory floor or anywhere else will have any idea what was settled because it is going to be kept confidential to the people in this room.

PN298

THE COMMISSIONER: Right.

PN299

MR LEVIN: Mr Baker is concerned that within a few hours everyone will know and we want to make sure that it is understood that everyone here is actually saying that they all agree to keep it confidential. Secondly, that all of the union organisers here today must agree to the no precedent for further claims, to the confidentiality that you have referred to please. Thirdly, to clarify what it is that is being released is that the 31 weeks - I think the law requires that five weeks be the minimum period of notice, the remainder being redundancy severance payment, so it has to be characterised on the tax form as being for five weeks that the payments be taxed as a bona fide redundancy payment.

PN300

The outplacement services will be TMP which is the former Morgan & Banks and that the release that if - I will start again. That is Mr Baker receives a fax on the following fax number, his number is 97850623, accepting that what is being accepted is that that payment plus accrued long service leave and annual leave - so 31 weeks plus accrued annual leave, accrued long service leave, is in full and final settlement of any claims that Ms Radisavljevic has or had or may but for executing that release could or might have had for or in relation to any aspect of her employment or termination of employment with Nylex Industrial Products Pty Ltd.

PN301

And that the release that will be executed would include those terms, include the confidentiality and would be a bar to - and that document could be produced as a bar to any claim. The only exception is matters as say for under the Accident Compensation Act 1985 or any other matters that cannot be excluded by law.

PN302

THE COMMISSIONER: Right.

PN303

MR LEVIN: Thank you sir.

PN304

THE COMMISSIONER: Thank you. Mr Robertson.

PN305

MR ROBERTSON: Yes, Commissioner, I understand the proposals that you have outlined and supplemented by the company. I don't know how you want to handle this but just going through the thing, in speaking to my member, Maria, she is prepared to respond by 9 o'clock tomorrow morning. She understands the nature of the offer including the requirements of the Deed of Release which it might be appropriate for her to get a copy of the exact wording of what is required there and I understand she does have a fax number on which that can be transmitted to her.

PN306

Yes, I give my undertaking to regard this matter as confidential and not to use it as a precedent and I think that covers the main issues of concern.

PN307

THE COMMISSIONER: Sorry, the question from - well, the undertakings sought from the company by Mr Levin are that the unions that are here today agree that it is not to be used as a precedent and also that they be bound by the same confidentiality provisions. That is, that they won't basically go back to the workplace and say these are the terms of settlement.

PN308

MR ROBERTSON: I understand that Commissioner but I am not in a position to give a commitment on behalf of them. I am giving my commitment but - - -

PN309

THE COMMISSIONER: I understand that. Which I could turn around because they sitting right behind you and just ask them.

PN310

MR ROBERTSON: I see all nodding heads Commissioner so I assume that is so.

PN311

THE COMMISSIONER: Okay, so the Commission will take that, that they all understand and acknowledge that they won't go back to the workplace and say these are the terms of the settlement. If they are queried by their members all they have to say is, we understand that the matter may be settled but it will be clarified by tomorrow, and if it is settled then that is all they have got to say, is that the matter is settled. Okay.

PN312

MR ROBERTSON: Yes.

PN313

THE COMMISSIONER: Mr Levin.

PN314

MR LEVIN: Yes. If we can get that fax number I am happy to try to get something by 5 o'clock to that fax number in terms of the release.

PN315

THE COMMISSIONER: All right. Mr Robertson if the Commission provided one that it uses which is a single page that would give Ms Radisavljevic some idea of what the terms of settlement would look like. Is that - - -

PN316

MR LEVIN: I am happy to have a look at what it is - there is a few different ones that float around. I just want to make sure - - -

PN317

THE COMMISSIONER: The Commission wants a good one.

PN318

MR LEVIN: Of course it is sir.

PN319

THE COMMISSIONER: Yes. Right. My associate will provide a copy. If the parties just want to wait so you can have a look at it and see if that is okay. Commission thanks the parties and we will stand adjourned.

ADJOURNED INDEFINITELY [3.47pm]