C2003/3746, Transcript of Proceedings [2003] AIRCTrans 2238 (12 June 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

C2003/3746

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

and

GROOTE EYLANDT MINING COMPANY

Notification pursuant to Section 99 of the Act
of a dispute re operation of stores and termination
of agreement

BRISBANE

1.05 PM, FRIDAY, 23 MAY 2003

PN1

THE COMMISSIONER: Good afternoon, everyone. Take a seat if you are standing. I might just start from - I will take some appearances from the applicant, then I will come to the respondent.

PN2

MR A. DETTMAR: Commissioner, do you seek that I rise to address you?

PN3

THE COMMISSIONER: No, no, that is all right. We will forego that for the time being.

PN4

MR DETTMAR: Yes, fine. Commissioner, Andrew Dettmar on behalf of the AMWU. With me I have MR MOORHEAD, MS ALLEN, MR ROBERTSON on the phone from Darwin, and I think we have MR SULLIVAN and BARRY WATERS. Thank you, Commissioner.

PN5

THE COMMISSIONER: Right, thanks very much. And, sorry, who do I have from the respondent in this case?

PN6

MS R. JOHNSTONE: Good afternoon, Commissioner. Rebecca Johnstone is my name. I am the Superintendent for Human Resources and Industrial Relations, and with me I have TIM CROSSLEY, our General Manager, and IAN BERRILL, Production Manager.

PN7

THE COMMISSIONER: Good, thanks very much. Well, perhaps we should hear from the applicant in this matter first of all.

PN8

MR DETTMAR: Thank you, Commissioner. I will just refer to the dispute notification which was sent to you on Wednesday, and it is dated that day, 21 May. Commissioner, that dispute notification relates to the decision by GEMCO to contract out the operation of the stores and the consequent termination of six employees. As the dispute notification makes clear, the employees have not yet been terminated, and we understand that even though letters may well have been prepared, that they have not been issued to those six employees.

PN9

Commissioner, as the dispute notification goes on to say, contracting out is contrary to the terms of the GEMCO Certified Agreement, and there has been no consultation about it. Commissioner, perhaps I might begin with the requirements of the GEMCO agreement. This agreement, which is AG811451, is an agreement between Groote Eylandt Mining Company, otherwise known as GEMCO, the ALHMWU, the AFMEPKIU, TWU, and CEPU, and it was certified by Senior Deputy President Duncan on 25 October 2001.

PN10

Commissioner, the agreement is still extant and has not reached its nominal expiry date. Commissioner, under clause 5.5 of that agreement it states - and it is headed Employment Security - it states:

PN11

1. The company is committed to efficiently and effectively utilise the skills and competencies of all its employees; likewise it is the parties' intention that the employees will efficiently and effectively utilise all their skills and competencies -

PN12

etcetera. It then goes on to say:

PN13

The parties agree that the optimum means by which security of employment can be achieved is by operating a safe, productive, and profitable mine of world class standard.

PN14

It then refers to the fact that:

PN15

Despite these commitments, it is acknowledged that because of changing economic circumstances, market downturn/forces or introduction of new technology, there may be occasions during the life of this agreement which requires that a surplus of employees be addressed.

PN16

And then it says:

PN17

The company must use its best endeavours to avoid the necessity for forced retrenchments.

PN18

That much is clear, Commissioner, and despite the fact that there may be some general statements there with respect to commitments and changing economic circumstances, etcetera, it is very clear that the preference is for a full-time workforce, and that is covered elsewhere in the agreement. Commissioner, under 5.7 of the agreement refers to contractors, and that, I think, is the crucial element of what we are faced with today. It first of all deals with contractors as being an integral part of GEMCOs business, but then it states in the second paragraph:

PN19

2001 GEMCO EBA recognises that work undertaken at GEMCO will be by a predominantly ...(reads)... seasonal nature of our business, GEMCO may need additional labour -

PN20

and I emphasise additional labour -

PN21

to cover peak workloads; i.e. mining campaigns, shutdown work, specialist skills and/or equipment, and major project work.

PN22

And it then states that the employees accept that the company has the right to freely use contractors, etcetera. Commissioner, the agreement itself provides - and I think that it would be well-known by the Commission, or perhaps not as currently constituted given that these matters have generally been before Senior Deputy President Leary, and on occasion before Commissioner Hodder - but certainly, it would be well-known that the Commission has a broad power to resolve disputes between the parties, and the dispute settlement provision gives the Commission, under clause 4.4, the power to resolve disputes. It says - as it states at 4.4, paragraph (a), placitum 5:

PN23

If the matter is still not resolved, the grievance will be referred to the Australian Industrial Relations Commission for resolution.

PN24

As I say, therefore, Commissioner, it is a broad power, and then it states at 6:

PN25

While the above procedure is being followed, work shall continue normally as it existed prior to the dispute without interruption in accordance with this agreement.

PN26

And whilst that provision has been used to the detriment of the AMWU, in this particular instance we make it very clear, Commissioner, that we expect the status quo ante to prevail; that being the continued employment of the employees in question. Commissioner, the AMWU received a letter; Mr Robertson received a letter signed by Ms Johnstone, and I have a copy of that here for you. I believe it would be known by the employer - once I make reference to it - and it is certainly - both Mr Robertson and Mr Sullivan should have copies of it. It is dated 13 May, and it deals with - as it is titled - Consideration of Changes in the Workforce. It states, and perhaps I should simply read it for the record, and also so that the parties know precisely what it is that is being referred to.

PN27

Dear Mr Robertson. Re Consideration of Changes in the Workforce. In the pursuit of maintaining ...(reads)... the service truck, the drill, and blast operation, and the power house -

PN28

just to interpose there, Commissioner, you will note that the stores are not mentioned.

PN29

Again, I stress that no decision has been made and this is merely to keep you informed of ...(reads)... on any of the roster changes that have occurred at GEMCO over the past few months -

PN30

and that is something on which we are not seeking to argue anything today, Commissioner. And then it goes on to discuss that, and it states then that:

PN31

The matters are on the agenda for discussion at the upcoming joint consultative committee meeting, and I am sure you will receive feedback from your delegates.

PN32

And then it says:

PN33

Jameie, you can contact Ms Johnstone at any time.

PN34

And it is signed by Ms Rebecca Johnstone, Industrial Relations and Human Resources Superintendent. Commissioner, the warehouse at Groote, as I understand it, employs currently some seven people. Of those seven people I believe that five are AMWU members. We are very concerned that, first of all, that this should be taking place under the auspices of an agreement which in effect, if not absolutely prohibiting, certainly strictly limiting the right of the employer to contract out at will; that is apparently however what is happening. There is no justification for it that has been provided to us. Commissioner, we understand further that a company has been engaged to undertake the work of the store; again, without any knowledge of the AMWU, apart from that which we have been able to glean on site.

PN35

We say that the Commission needs to, first of all, having heard from the employer, as you are required to do, first of all should be issuing an order that the contracting out not take place, and secondly, ordering that those employees whose jobs are in jeopardy, not be dismissed pending the resolution of this dispute. As I have said, Commissioner, we believe that it is very clearly a matter which goes contrary to both the spirit and the intent, and also the wording of the GEMCO agreement. We say further that there is no reason why GEMCO needs to be doing this, they have not made any approaches to the union worthy of the name on this particular matter, and we seek those orders promptly, and we believe that those orders need to be issued as quickly as possible to ensure that no detriment occurs either to the union or its members on the site.

PN36

Having stated that, Commissioner, I am very happy to - I would be very happy to hear from the employer as to what possible justification has been given, but as it stands, Commissioner, we believe that your duty is clear, and we would ask you to exercise that duty as quickly as possible.

PN37

THE COMMISSIONER: Thank you, Mr Dettmar. Perhaps I should hear from Ms Johnstone after that.

PN38

MS JOHNSTONE: Yes, thank you, Commissioner. Commissioner, I might first start with the issue of communication which seems to be a large part of the AMWUs argument that they have been left in the dark somewhat on this. Commissioner, I faxed you through a summary outline which I didn't provide to the unions. Our fax lines have been pretty - I was lucky to get it through to you. We have problems with our phones here on site. In any case, the AMWU would have copies of this material anyway.

PN39

Commissioner, can I just first say in regards to discussions with the AMWU, on 10 October 2002, an email was sent to the AMWU delegates who were existent at the time, who was Terry Bowen who was the head delegate, and that was advising him that GEMCO were preparing to issue tenders for the warehouse operation. On 11 October I had a telephone conversation with Mr Andrew Dettmar from Brisbane AMWU office when we discussed in detail the outsourcing of the warehouse, and he said he would get back to me if there were any issues.

PN40

On the 11th, there was also a JCC meeting where this issue was tabled. In November I met with Mr Jamie Robertson on the 12th on site and we had numerous discussions over many issues. I think I spent about an hour and a half with Mr Robertson. Nothing was raised, Commissioner, at that point. On 20 November, a JCC meeting was again held. This was including all the AMWU delegates where the matter was raised again. In February on the 4th and the 12th a special JCC meeting was held; that was on the 4th, and a standard JCC meeting was held on the 12th, both again discussing this outsourcing issue. On 12 February, I provided a letter to Mr Robertson which I might just read seeing Mr Dettmar has gone into details of my latest correspondence which actually had nothing to do with this issue. The 12 February letter says:

PN41

Dear Mr Robertson. For a number of months we have been investigating the viability of outsourcing the store's warehouse area. The tendering process is still under way. However, a risk assessment has now confirmed that this process is a viable option. It has therefore been decided by the General Manager, Tim Crossley, that this outsourcing will occur some time over the next three months. Employees were formally advised of this position on 7 February 2003, and prior to this decision being made it was also discussed with the JCC. We now formally advise you of this position and invite you to contact us to discuss this matter further.

PN42

Specifically, we wish to discuss the likely effects upon employees, the need to avert or mitigate the adverse effects, and naturally for us to give prompt attention to any suggestions or considerations that you may have. Due to the incomplete tendering process, I cannot provide any more detail other than those set out above. Obviously, as the matter progresses I will advise you accordingly. I look forward to discussing this matter with you over the coming months. Regards.

PN43

Commissioner, I then met with Mr Robertson in March. That was 6 March and that was on site. That was in the presence of his senior delegate at the time, which was David Bird. My file notes of that meeting state that Mr Robertson raised the issue of the outsourcing in the warehouse but the only issues we had was whether I could find alternative employment for Mr Jack Antalin, who was an employee in that area. I have been able to find him adequate alternative employment and he is now in the Port.

PN44

Commissioner, on 30 April I sent another letter to the AMWU which was along the same vein as the one of 12 February. Would you like me to read that into the transcript, or are you happy?

PN45

THE COMMISSIONER: No, if you could read that, thanks.

PN46

MS JOHNSTONE: Certainly:

PN47

Dear Mr Robertson. I refer to my correspondence of 12 February regarding the outsourcing of the store's warehouse area. Over the past few months we have continued discussions with the relevant employees and kept them up to date with what is occurring. At present we still do not have a definite date of when the redundancies will occur, and I envisage this to be confirmed in the coming three to four weeks. This letter is to keep you informed of what is occurring and to again invite you to contact me to discuss the likely effects upon employees, measures to avert or mitigate the adverse effects, and naturally for us to give prompt attention to any suggestions or considerations that you may have. I look forward to discussing this matter with you at your convenience.

PN48

Commissioner, I then held another JCC meeting on 14 May where the matter was again discussed. Commissioner, that covers correspondence between myself or the company and the union. On the right hand side of that page that I faxed to you is a chronology of all the discussions and consultation that has been held directly with the staff involved. Can I say that, out of all the meetings that are held there, only on two occasions was the AMWU senior delegate, who works in this area - that was the only time that he was not present. So I would guess you would say he was there for pretty much all of them except, as I said, except two.

PN49

Commissioner, I will just very briefly run through these. 10 October, a working party meeting was held to announce the outsourcing. 31 October another toolbox meeting was held to update them on the review of the scope of work for the tendering documents. 12 November another toolbox meeting was held to again discuss the scope of work and to advise that tenders were going out. On 7 January the toolbox meeting again was held just updating on the status. 21 January, same thing, the employees were more fully advised of the risk analysis in outsourcing, so in other words the process the company were following in assessing these tenders and whether they were viable.

PN50

4 February, another toolbox meeting advising of the risk analysis and that a gentleman was coming to site to assist the tender process. On the 4th, another toolbox meeting, which further advised them that recommendations to outsource had been given to GEMCO by South Africa. That is the senior body that gives advice to this department, Commissioner. On 18 March another toolbox was held advising of the preferred tenderer. 24 April and 28 and 29, there are separate verbal discussions held with various employees in the department, same with 2, 7 and 9 May. Again, the AMWU delegate was well aware of all those verbal discussions. I can provide diary notes of those if necessary.

PN51

13 May is another toolbox meeting where it was advised that Spotless were the successful tenderers and that the contracts were being negotiated and insurance matters were being covered. 21 May another verbal discussion was held. Most notably, Commissioner, yesterday, 22 May, the toolbox meeting was held because the staff were awaiting a letter from the company confirming 2 June as the date for the redundancy. It has taken some time to finalise that date due to contractual problems going to and fro.

PN52

Commissioner, that meeting was held yesterday and they were all up in arms about why they were not being given their letter and it was advised to them that - I spoke to them with my advice, Commissioner. I said that that must hold off until we appeared before you today to discuss this matter because I didn't think it was appropriate to hand it out yesterday.

PN53

All of the employees in that area questioned as to why the AMWU were bringing this application because they were all happy. They all wanted - apart from one gentleman who was looking for casual work up until Christmas, they are all happy to receive a redundancy payment and leave. I have personally spoken to these employees and have asked them whether they would like me to seek adequate alternative employment on their behalf. I have been able to do that for one gentleman, which I mentioned earlier, Jack Antalin. The other gentleman, Craig Yarwood, who is an AMWU member, is looking for casual employment which we just do not have at the moment in any department.

PN54

The request he made was a bit unusual. I would have had to actually create a position to fit in with him, which I am obviously not in the position to do. There is one lady who is a member of the TWU. She would like to stay and I have been exhausting all possible avenues to find her a job, and I guess to this point I haven't given up yet.

PN55

So, Commissioner, I guess I am a bit bemused as to why we are appearing before you when there has been this mammoth length of correspondence and communication over an eight month period. I would have been happy at any time to discuss any of these issues which I have been open to do so with any of the employees along with the supervisor and the manager of that department. Commissioner, do you have any questions on any of that aspect of our submission.

PN56

THE COMMISSIONER: No, but I will ask you at a point to make available to me by fax copies of the letters that you referred to.

PN57

MS JOHNSTONE: Sorry, Commissioner.

PN58

THE COMMISSIONER: I'm sorry. Did you hear me then?

PN59

MS JOHNSTONE: No, no.

PN60

THE COMMISSIONER: I will ask you at a point - I'll ask you, through my associate, later in the proceedings, to supply me with copies of any documentation you have, particularly regarding the letters from which you quoted.

PN61

MS JOHNSTONE: Yes. I've got them all here and they're all tabbed, and they were ready to be faxed, but as I said, our phone tower went down last night, so I've just had a bit of difficulty, but I'll undertake to get them to you as soon as we're finished.

PN62

THE COMMISSIONER: All right. Would the parties prefer to have a talk in conference for the time being?

PN63

MR DETTMAR: Yes, Commissioner. In fact, what I would like to do, given that a significant amount of information has just been passed to you, Commissioner - information that I wasn't aware of - I was hopeful that I might confer with my colleagues before we proceed, if that's acceptable.

PN64

THE COMMISSIONER: That's fine. Would you like to adjourn for a period - - -

PN65

MR DETTMAR: Yes, say, 15 minutes - - -

PN66

THE COMMISSIONER: If you don't mind, Ms Johnstone, we might adjourn for 15 minutes, if it's convenient to yourself - - -

PN67

MS JOHNSTONE: Yes, certainly, Commissioner.

PN68

THE COMMISSIONER: - - - and we'll come back then. I should also say that it would be helpful - and my associate will now deal with this matter now. Just after I adjourn, if you just stay on the line for a second, if you can make arrangements to get everyone's fax number so that we can get copies of the documentation to which you have referred.

PN69

MS JOHNSTONE: Yes, Commissioner.

PN70

THE COMMISSIONER: Good. Thank you, then. Well, we're adjourned at this point.

SHORT ADJOURNMENT [1.26pm]

RESUMED [1.54pm]

PN71

MR DETTMAR: Thank you, Commissioner, for allowing us that opportunity for myself and my colleagues to confer. Commissioner, there has been a significant number of exchanges alleged by Ms Johnstone on behalf of the company, where the impression would be gained that significant consultation has occurred about this proposed contracting out. In the brief adjournment which you allowed us, which we thank the Commission for, I have related that to my colleagues and a number of issues have been raised with me, and I seek to raise them with you in turn, because we believe that the Commission - we still insist upon our application. We don't withdraw it or otherwise amend it in any way, for the fundamental reason that we don't believe that the company has complied with the requirements, either of the agreement or of the Act.

PN72

Commissioner, the first point that needs to be noted is that a number of delegates are now either ex-employees of GEMCO, or else are no longer members of the AMWU, so Mr Terry Bowen, who has been referred to, is no longer an employee of GEMCO, and I believe has left Groote Eylandt. Mr Dave Bird, who was also referred to, is no longer a member of the AMWU, although still employed by GEMCO. Hence, we have no opportunity to seek recourse to them for the content of the discussions that they may or may not have had with the company.

PN73

But to deal with the chronology that's been provided to you, we have no knowledge of a letter to Mr Bowen on 10 October. As regards the conversation which took place between myself and Ms Johnstone on 11 October, to my recollection, Commissioner, that was a general conversation about consultation in general, and there was not, to my recollection, anything specifically said about the warehouse, but obviously we're happy to hear anything to the contrary from the company.

PN74

MS JOHNSTONE: Commissioner, would you like me to respond after each point, or let Mr Dettmar run through?

PN75

THE COMMISSIONER: No, no. We'll let Mr Dettmar run through, and then we'll revisit it and have a think about how we're going to approach this.

PN76

MS JOHNSTONE: Certainly. Commissioner, the communication with the JCC on 10 October, neither of the two delegates which are here were in attendance at that JCC, and as I've indicated already, Mr Terry Bowen has left the employ of the company. In the November discussion with Mr Robertson, where it was stated that nothing was raised, given that nothing had been raised with Mr Robertson about this specifically, I suppose you would be surprised if he, in fact, raised a matter to do with the warehouse. As Mr Robertson has described to me, they were general discussions only.

PN77

One of the crucial items is the 12 February letter which was sent - which the company says it sent to Mr Robertson. Mr Robertson is on the telephone as we speak, Commissioner. We have no knowledge of that letter. I would think that it would have been faxed; perhaps that has been the problem, because of the telephonic communication problem that we've seen evidenced today - and, obviously, it's crucial that we see a copy of that letter that was sent to Mr Robertson on 12 February.

PN78

As regards to the meeting on 6 March, where Ms Johnstone met with Jamie Robertson in the presence of Dave Bird where, supposedly, the issue of outsourcing was raised with him, it is true that at that time those in the warehouse stated that they wished to go, with the exception of the employee, Jack - and I can't recall Jack's surname. However, it was emphasised at that point to Mr Robertson and to Mr Bird, that the decision had not been made; that is, that the decision with respect to the outsourcing had not been made at that stage.

PN79

As far as the letter on 30 April, we say that there was nothing definite that arose from that letter. The effect on employees hadn't been dealt with. The point is, further, Commissioner, that the announcement with respect to the impending retrenchment of the employees was announced directly to the workforce at that meeting on 13 May, at that toolbox meeting. And the fact that there was a further JCC - or Joint Consultative Committee - on 14 May, well, Commissioner, you wouldn't be surprised to know that if there was no finality as far as we were aware about it, we didn't notify it as an agenda item, and I think that it would offend commonsense for it to be expected, if we didn't know about it, that we would then have raised it. So you would understand, Commissioner, that we're a bit nonplussed by that point.

PN80

The point is, however, that, as I am informed, the delegates there did ask for information with respect to redundancies, but none was forthcoming on that day. Commissioner, I have further confirmed with my colleagues that Mr Bird is one of the employees who was involved in the warehouse, and this is not an opportunity for us to criticise him and I have no intention to do so. But I understand that Mr Bird is wanting to leave and to be retrenched and to have paid to him the redundancy package. That's Mr Bird's choice. We're not saying anything about that. But what the delegates inform me very clearly is that he is the only person who does want to go.

PN81

As I've said, five of the seven employees are wanting to remain, and fundamentally the question remains what then of the redundancy conditions? Commissioner, the agreement is very clear. This company is seeking to contract out work which is currently being done by in-house employees. And I've read to you the provision of the agreement and you have a copy of the agreement yourself which states that the employer wishes to maintain an operator workforce. But it's also of note, Commissioner, that at 9.11 under Redundancy Conditions, at paragraph B(i) it says:

PN82

Where the employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by anyone and this is not due to the ordinary and customary turnover of labour -

PN83

words that I think the Commission would be very familiar with -

PN84

that decision may lead to termination and the employee shall hold discussions with the employers directly -

PN85

etcetera. And there are then other provisions with respect to the possible transfers. We don't resile from our submission, Commissioner. This has not been done in accordance with the agreement and even though there may be some questions about information sharing that have been raised by the employer the fact is that they are doing something which is contrary to the agreement. Now, there may be holes in our sequence of events that has been related to, and obviously the letter from 12 February, of which Mr Robertson has neither a copy nor any recollection of, would appear at least that the company has sought to provide us with that information.

PN86

But given that we have no record of it and no copy of it, but regardless would still have problems with it, we say that this company cannot do what they are seeking to do under the terms of the agreement. It is as simple as that. And that's why we do not resile from our submission, Commissioner, that we seek that this matter be the subject of, at the very least, a recommendation and hopefully an order that this not occur. Mind you, Commissioner, rather than seeking that they be retrenched, the information our delegates have is not that the employees are clamouring to be retrenched; they are clamouring for certainty. And that is, I think, pretty fundamental to human nature.

PN87

They are seeking to know what their future entails. I believe that the employer is hearing what they want to hear, which is that the employees want to go. Given that they have said that they want them to go it's not beyond the realms of human nature for the employer to hear what they want to hear. So, Commissioner, we believe that there is still a live issue before you and that we are seeking the orders that we referred to before.

PN88

THE COMMISSIONER: Good, thanks, Mr Dettmar. Ms Johnstone, you've got a chance now.

PN89

MS JOHNSTONE: Thank you, Commissioner. Okay, look, firstly I might say - Mr Dettmar just raised the issue of whether the outsourcing of the warehouse thereby creates the redundancies, so whether these positions are, in fact, redundant. He's quoted clause 9.11 in the EB which he purports doesn't support that position. Commissioner, there's the case Short v Herkas where it's clearly stated that when a company outsources that then creates what's known at law as the position redundancy.

PN90

I have a quote here from Burchett J. I won't get into that unless you require it, Commissioner, but I don't think there's any grounds to argue that the situation occurring does give rise to a redundancy. So if I may put that issue to the side for the minute and get on to the issue of correspondence that has gone to and fro. Mr Dettmar has stated that I'm alleging that certain things have occurred. I might just clarify somewhat the correspondence that has happened and I guess try and show to the Commission that the submission I made was not off the cuff and was not made up. It was all legitimate and there is documentation to back it up.

PN91

I guess the first point, though, Commissioner, is some of the delegates have now left. Yes, that's true. And Mr Bird is not longer the standing delegate. But at the time when these discussions were occurring he is my point of contact with the AMWU. I cannot hold employees here and the delegate changed and that happened, but there must be a paper trail between delegate to delegate. And in any case at the relevant time when discussions were being held or when I had to hold discussions that was the appropriate person for me to speak to.

PN92

So I'm not quite sure of Mr Dettmar's point that Mr Bowen is no longer here because the correspondence did go to Mr Bowen and he was the senior delegate. October the 10th - so the e-mail to Mr Bowen was there. I can provide a copy of that. That did obviously go to Mr Bowen. Action on October the 11th with Mr Dettmar. Commissioner, I have a file note of that which I made on the day when Mr Dettmar contacted me. If I may just paraphrase some of this file note.

PN93

Mr Dettmar rang. He's not happy ...(reads)... I said, "It's not a decision as no decision has been made. We are merely assessing it. We want to make a decision -

PN94

blah, blah. It goes on further.

PN95

MR DETTMAR: Well, perhaps, Commissioner, rather than blah blah, the point that said, "No decision has been made" - perhaps we might get a bit more detail of that file note.

PN96

MS JOHNSTONE: I'm just trying to save a bit of time, Andrew, but that's fine. I can read it.

PN97

THE COMMISSIONER: Don't worry. I will say something about having a look at these documents shortly, so - - -

PN98

MS JOHNSTONE: I've already said you can have copies.

PN99

THE COMMISSIONER: I know.

PN100

MS JOHNSTONE: That's not a problem with me at all.

PN101

THE COMMISSIONER: Yes, we will come to that shortly.

PN102

MS JOHNSTONE: I say that I would - no:

PN103

Andrew said that he completely disagrees and would like to see RJ argue that in the Commission ...(reads)... some very unhappy members and he would not be happy. RJ said she will revert back to him when she speaks to Tim or Steve.

PN104

Tim, being Tim Crossley, the General Manager; Steve, being Steve Ludwick, the Human Resource Manager. My next partition of this file note says:

PN105

I spoke to Steve. The position remains.

PN106

I left a message with Andrew. And then I have the next notation:

PN107

Andrew called RJ back and RJ advised about same position. Andrew said he will consider the options of the union.

PN108

Okay, so that's my file. Obviously a file note that speaks for itself. It's a contemporaneous note that I have made of a discussion and that can be held to be deemed appropriate as the Commission sees. But I'm just responding to Mr Dettmar's submission here, Commissioner. The November 12 meeting with Mr Robertson; there was a general discussion held. I'd only been on site for about a month. I guess it was an opportunity for Mr Robertson to get to know me and me to get to know Mr Robertson.

PN109

I must say that the file note I have of that meeting indicates that I did ask a number of times if there were any departments that he was concerned about; which would be a general discussion that I would have with any union representative. And this wasn't raised. That was the point of that meeting. The next thing that Mr Dettmar raised was in November - sorry, "12 February letter not received". Well, I have a transmission recording or record of that facsimile going and I'm very happy to provide that to the parties and to the Commission.

PN110

Notably, that fax did also get sent to the TWU, and I have not had the TWU tell me they didn't receive it, and perhaps it might be an idea for me to get clarification there. But in any case I have the transmission record which means it went through. The March meeting with Mr Robertson on 6 March held here on site. Mr Dettmar states that the decision hadn't been made for the outsourcing. Well, it had. The letter of 12 February concerns that. So it was a decision and Mr Robertson was aware of that. Mr Bird was aware of it.

PN111

Mr Bird again: yes, he is a member of this group and he will be receiving redundancy payments along with the other staff, but he was there in his position as a delegate and Mr Robertson was there in his position as an official. The opportunity was there. We were sitting in my office. We could have discussed it. The specific issue of the stores was spoken about, but as I've said in my earlier submission, only in the context of finding Mr Jack Antalin and that was it.

PN112

Common sense would say that if there was an issue in this whole outsourcing procedure or the redundancy process that would have been the opportune time to have raised that with me. Mr Dettmar states that the letter of 30 April means nothing; I think your words were. Well, he just reiterates the letter I sent of the 12th and I didn't think it meant nothing because it was once again inviting discussion and consultation. Commissioner, the EB requires that we consult - that we speak with the employees when we're considering a decision. We have done that.

PN113

I won't repeat the train of meetings and correspondence that supports that position. It also requires that we consult and discuss with the union. I can invite - I can - the old saying, I cannot lead a horse - you can lead a horse to water, you can't make it drink. I can contact Mr Robertson, I can contact the delegates. I can do a number of things. I am bound as much in my ability to discuss as by their ability to accept or come forth and talk to me. So I just put that on the record there, Commissioner, because all attempts were made.

PN114

Now, if we move to the actual argument that this redundancy cannot be made - or this outsourcing cannot be made pursuant to the provisions of the EB. That's not our position. Mr Dettmar did mention, just in that last submission, that he believes it's contrary to the legislation as well. Perhaps he can detail that for me so I may address that as well, but I'll just initially address this issue about EB compliance.

PN115

Clause 5.5 does deal with employment security. Clause 5.5: in the initial paragraph, it talks about reasonable - one would construe in that third paragraph that it gives examples of how redundancies occur, where it states:

PN116

It is acknowledged that because of changing economic circumstances, market downturn/forces, or introduction of new technology -

PN117

and so the paragraph goes, and I won't read that; the parties have it in front of them. That obviously states that there are going to be times when redundancies occur, and they are the reasons that - some of the reasons or examples of when that may occur. Paragraph 2 of 5.5 clearly goes through the requirements of a redundancy occurring, so it is obviously stating in no uncertain terms that redundancies do occur. So that is the issue with the redundancies occurring. We are saying that the positions are being made redundant, and I quoted that case earlier which is due to the outsourcing. The outsourcing is occurring because of productivity reasons, because of factors of running the business in a much more efficient and effective manner.

PN118

Clause 5.7: it deals with contractors that have been brought up earlier by Mr Dettmar. Yes, it is right, that 5.7 does state that:

PN119

Contractors are to be used, and in the second paragraph it states the EBA recognises the work undertaken at GEMCO will be by a predominantly owner-operated workforce.

PN120

We don't disagree with that. We don't disagree that GEMCO presently is run by a predominantly owner-operated workforce. That sentence in itself or this clause, and in fact this entire clause 5.7 of the EB does not stop a company, or our company in this case, from outsourcing areas of the business if those reasons are appropriate, and if the proper process has been followed in regard to the redundancies, which we have followed to the absolute T.

PN121

Commissioner, I don't know whether you - I mean, I will leave - you direct me if you may on any other specifics you would like me to go into, or if you would like me to address any of the legislative issues that come into play that Mr Dettmar made reference to, if he would like to specify.

PN122

THE COMMISSIONER: Thanks, Ms Johnstone. Mr Dettmar, do you want to take up the opportunity to expand on what you meant by the reference to the Act?

PN123

MR DETTMAR: I was referring to 170GA, which requires appropriate consultation under the Act. But, Commissioner, the concern that I have is that Short v Herkas is being referred to here as some authority for retrenchment. If I remember the facts of Short v Herkas correctly, Short v Herkas did not have an EBA which provided that contractors would only be used in effect as a supplement to a permanent workforce, nor was there a provision which related to employment security in the strict terms that this agreement does.

PN124

So, Commissioner, I am somewhat nonplussed that that should be quoted as authority, given that Short v Herkas fundamentally was about the termination change of redundancy provisions. And of course I grant you that the gloss that Ms Johnstone has given to it with respect to redundancy and retrenchment, with respect to the award requirements, is arguably correct. The difficulty that I have is that there is an agreement here which states very clearly under the circumstances - it states clearly the circumstances under which redundancy and retrenchment may occur, and it seeks to limit them; otherwise why would those words be there? Yet, it would appear that from the words that Ms Johnstone is using that it won't stop the company outsourcing if reasons are appropriate. And we say that there is a clear limitation by virtue of these words being agreed between the parties and certified by the Commission.

PN125

MS JOHNSTONE: Commissioner, may I respond briefly?

PN126

THE COMMISSIONER: Sure.

PN127

MS JOHNSTONE: The reason Short v Herkas was brought up was because that is authority, Andrew, for this position of redundancy. I didn't know whether you were questioning the actual definition of the people being made redundant. Section 170GA of the Act is not applicable; we don't have 15 or more employees being made redundant. And in any case, actually I may point out to the Commission that the dispute notification that was filed by the AMWU states that six employees are being made redundant; there are in fact only four. So I just might clarify that.

PN128

MR DETTMAR: Well, given that we didn't have any notification from you about - specifically about the numbers that were to be made redundant, I had to rely upon the information provided to me by delegates.

PN129

THE COMMISSIONER: Right. Thanks very much, Ms Johnstone. Look, what I propose to do is that I am not going to make an order today of the type, dimensions, character as requested by the AMWU. I instead want at this stage to have an opportunity to peruse the documentation that has been referred to as having satisfied various communication requirements, and I don't want to be in the position to reaching any decisions or approaching any decision-making until such time as I have been able to look at that in hard copy.

PN130

To that end, I am wondering whether you can provide the Commission and copy it to the AMWU a package of the relevant correspondence that we have cited, and the file notes as well regarding various conversations.

PN131

MS JOHNSTONE: Yes, certainly, Commissioner. It might actually be easier to photocopy what I have and send them that way, as opposed to faxing; it just might make it a bit clearer.

PN132

THE COMMISSIONER: Yes, that doesn't trouble me at all. Is that acceptable to you, Mr Dettmar?

PN133

MR DETTMAR: Yes, Commissioner, so long as there is not going to be events happening that make this proceeding a nullity.

PN134

THE COMMISSIONER: Well, Ms Johnstone, can you tell me what is happening at the moment?

PN135

MS JOHNSTONE: I missed that, Commissioner.

PN136

THE COMMISSIONER: Can you just tell me what is happening at the moment?

PN137

MS JOHNSTONE: At present we were to hand out letters confirming the final costs for a number of these employees. Some of the redundancy payments are above $100,000, and a lot of them are obviously interested in getting that squared-up they have got financial advice to receive. So that is where we were at. There was going to be the redundancy date effective as of 2 June. There is the 13-week payment in lieu of notice. As I mentioned before, the meeting that was held over there, they are - they are quite - I am trying to think of an appropriate word - "ante" was the word I was going to use. Mr Dettmar says they need clarification; I agree 100 per cent that they do, and they want certainty.

PN138

I met with all of the members over there on 19 May to ask if they wanted to go or if they wanted me to find adequate alternative employment, and as I mentioned earlier, there was only one that did want me to do that. So as far as I was concerned, I didn't see there was an issue with these people, so I guess we are in a bit of a quandary. I will take your direction there, Commissioner, on what you would like us to do.

PN139

THE COMMISSIONER: Well, I would like the opportunity to be able to look at the documentation.

PN140

MS JOHNSTONE: Certainly.

PN141

THE COMMISSIONER: And I am wondering whether I can do that reasonably - well, it depends on when you can get it down to us.

PN142

MS JOHNSTONE: Yes, I can arrange for a courier to get that to you, as things are a bit slow from here, so it might be Monday afternoon/Tuesday. I can try and get it on a flight tomorrow morning.

PN143

THE COMMISSIONER: All right. What I intend to do is that, having heard the submissions from yourself and Mr Dettmar, I will await receipt of that documentation which will be copied to Mr Dettmar. I will examine that documentation as soon as it arrives, and I will endeavour to make a statement in respect of this, provide a statement or recommendation in respect of this matter, hopefully by the middle of next week if your documentation arrives around Tuesday. So Wednesday or Thursday of next week I will provide a recommendation or a statement on the basis of what has been put before me to date.

PN144

Now, Ms Johnstone, does that cause you any concern? If I can work within that timeframe and if you can work within that timeframe, does that cause you any concerns?

PN145

MS JOHNSTONE: It probably may do with the impending contractor coming in, but I will just work around that, Commissioner. I am sure Mr Crossley will be able to speak with that company and we can address that. Yes, Commissioner, would you like an outline of submissions included in with this paperwork?

PN146

THE COMMISSIONER: Well, I don't think it is necessary on the basis of what you have said today.

PN147

MS JOHNSTONE: Certainly.

PN148

THE COMMISSIONER: I would rather expedite the core document, and as I said, thank you for putting things in abeyance until such time as I issue my statement or recommendation.

PN149

MS JOHNSTONE: No, that is fine, Commissioner.

PN150

THE COMMISSIONER: As I said, I will try and do that by the middle of next week, Wednesday or Thursday. And that is assuming that I am in receipt of some documentation from yourself by around Tuesday.

PN151

MS JOHNSTONE: Certainly.

PN152

THE COMMISSIONER: On that basis, then, we are adjourned for today. Thank you very much.

PN153

MR DETTMAR: Thanks very much, Commissioner, and thanks for putting it on short notice; I meant to say that.

ADJOURNED INDEFINITELY [2.22pm]