C2003/4872, Transcript of Proceedings [2003] AIRCTrans 3609 (20 August 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 4008
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2003/4872
C2003/4873

APPLICATION FOR ORDERS TO
CONSULT UNIONS

Application under section 170GB of the Act
by Construction, Forestry, Mining and
Energy Union re employer allegedly failed
to consult trade union about terminations

APPLICATION FOR EMPLOYMENT
TERMINATION ORDERS

Application under section 170FB of the Act
by Construction, Forestry, Mining and
Energy Union for orders re termination
of employment

MELBOURNE

4.30 PM, TUESDAY, 5 AUGUST 2003

Continued from 1.8.03

PN127

THE COMMISSIONER: Apologies for the late start. Any change in appearances, please?

PN128

MR M. POWELL: Yes, Mr Commissioner.

PN129

THE COMMISSIONER: Thank you, Mr Powell. I see you there with all your friends.

PN130

MR POWELL: Yes, once again.

PN131

THE COMMISSIONER: Right. Now the parties' undertakings were given by Eptec and I understand the parties were to have some discussions. I think they had arranged for yesterday, the 4th. Mr Hocking, where did those discussions lead to? Can you tell me?

PN132

MR L. HOCKING: Yes, Commissioner. I can give a version of them, but I am sure Mr Powell will have a word to say about them as well. Commissioner, I emphasise that I wasn't personally present at the discussions. I am working off instructions. Perhaps I can go one step further back. Following the hearing before you on Friday, there was a quick meeting of the parties outside the hearing room at that time and some preliminary discussions were held about what was going to be discussed on Monday and that went to a number of matters, but really it dealt with, largely the basis for the selection of particular employees for interview, and as a consequence of that meeting a - Commissioner, as a consequence of that, a facsimile of a list of employees proposed to be interviewed and a selection score was sent to the union and I am instructed a copy cc'd to yourself.

PN133

THE COMMISSIONER: Yes.

PN134

MR HOCKING: That was on Friday afternoon. So that was the preliminary matters. A meeting was held yesterday attended by Eptec representatives, Mr Powell and the job delegate, Mr Dereck, who is an employee of Eptec, a delegate of the CFMEU. I am instructed that they discussed the proposed list. They discussed the procedures and criteria for selection of persons for redundancy and those procedures and criteria result in a, sort of, a rank ordering of employees, Commissioner, and I am instructed that certain questions were asked and a discussion was held but the impression of the Eptec representatives at the end of that meeting was that Mr Dereck and Mr Powell were generally satisfied with the procedure as being sound and that at that time there was still further interviews to be carried out, largely because some employees who had been selected for interview had been unable to be interviewed because they were on leave, most notably sick leave, and as you can imagine, Commissioner, there has been a little surge in sick leave in the last few days for fairly obvious reasons, given that there were people who would normally be a work and haven't been there - - -

PN135

THE COMMISSIONER: It is the cold weather.

PN136

MR HOCKING: Undoubtedly. Undoubtedly that would be the case, Commissioner. Undoubtedly. Commissioner, that is - the meetings yesterday, further to that - if you could excuse me, Commissioner. I am receiving some extra instructions here. Yes, Commissioner, I am instructed that the understanding was that Mr Maddison, from CFMEU, was going to call the Eptec representatives following that meeting yesterday afternoon.

PN137

That didn't happen, however, there have been discussions between the Eptec representatives and Mr Maddison today and the content of those discussions was largely this: that Mr Maddison sought written confirmation of certain matters and certain undertakings in writing. He sought that the list of names of those persons proposed to be made redundant. He also sought the removal of two of the proposed employees from that list and that was agreed to by the company. A concession was made and in order to facilitate a settlement of the matter, he sought - and I am instructed he sought an undertaking from the company that anybody made redundant would have an absolute preference for re-employment at the time that the company was re-hiring.

PN138

Now, it is that last question, Commissioner, that I think is at the crux of the dispute between the parties at this point in time, although Mr Powell will obviously have some words to say to you about that, but Eptec can't agree to that proposition. Eptec is happy for persons made redundant to re-apply for jobs but can give no absolute guarantee that they will be employed because the company simply reserves the right to hire the best person for the job.

PN139

I am advised, however, Commissioner, that this has been the practice in the past and as we made submissions to you at the last hearing, the company's workforce cycles up and down according to workload and that there has never been a practice of guaranteeing re-employment to persons made redundant, but despite that, a number of employees have been re-hired, sometimes on two or three occasions, so there is certainly no prejudice suffered by any person being made redundant. It is simply a matter of the workload at any particular time. But I understand, Commissioner, that the letter which was sought by Mr Maddison and made available by Eptec is unacceptable to the CFMEU and I would hand up a copy of that letter, if I could, Commissioner.

PN140

THE COMMISSIONER: Thank you. Right.

PN141

MR HOCKING: Could I make one particular observation about that letter, Commissioner. In the second line where it says:

PN142

We have reviewed the personnel listed for redundancy today.

PN143

That is an inappropriate use of words. That actually means "listed for interview today".

PN144

THE COMMISSIONER: Yes, okay.

PN145

MR HOCKING: Further down - that list is the list of actual proposed redundancies. That has been, as I said earlier, Commissioner, modified at the request of Mr Maddison. So there were the removal of a couple of names from that at his particular request, Commissioner. So the proposed number of redundancies stands at 11, but I am advised, Commissioner, that I must put a submission to you that further delays - the company has too many persons for the workload it currently has. Further delays really jeopardise employment numbers out from here and may result in the need to make more employees redundant in subsequent weeks, and that is hoped to be avoided at all costs.

PN146

And as I have submitted the other day, Commissioner, I should say Friday of last week, the company has, in effect, carried more employees than it needed for the last couple of weeks. It is reluctant to make redundancies but it really is forced to move forward and it is the view of the company that the mood amongst employees on the job is that the matter really needs to move on and we should conclude it and allow those who have been selected for redundancy to be paid and go and get back to work as normal. If the Commission pleases.

PN147

THE COMMISSIONER: Thank you. Yes, Mr Powell.

PN148

MR POWELL: Commissioner, Mr Hocking is quite right in his lead ups to the discussions that took place yesterday morning with myself and the Eptec employers. We did have discussions on the list that you have in front of you in regards to their leave to service, attendance, punctuality, and so on and what not. Mr Commissioner, we were at some odd ends with that on the basis that there was identified just briefly, there was about 13 of those starters that had actually started between June and July and I would - one would think that they would certainly have better attendance record and more than likely, punctuality, given that they have only been employed for four to eight weeks up against some that may have been there three or four years, so there was some discussions in relation to that.

PN149

However, we went through those issues and myself and the job steward agreed that there would be some flexibility in relation to skills and what not, so therefore, through those discussions we spoke about that there would be a need to have that amount of people made redundant for their workload schedule. Also, out of that schedule, and we did speak about that there would be the next three weeks, or thereabouts, a re-ramp of work that would come to hand and if I am not mistaken, without taking my absolute note on that, that they were going to go down to about 70 and them ramp up within the next three weeks, back up to 100.

PN150

I have no problems with that, Commissioner, because we thought, well, after going through a list and accepting that those people on there, bar maybe one or two, which I would still like to discuss in remaining in their position, we had some commitment that - well, it was certainly my understanding and talking with Jessy Maddison also, that, I mean, we weren't talking about blokes actually being sacked. We were talking about blokes being made redundant for there not being enough work there.

PN151

Had there been more work there, we wouldn't be sitting here talking about it, but so therefore we thought that it would only be right that they had first right of refusal because there was actually nothing wrong with their work, or what they were doing. They had been basically picked on what they had scheduled their own, sort of, demerit points for making someone redundant, which we didn't totally agree with about the overtime availability when people may not even be asked to, nor the discussions about particular foreman and not like an employee for any reason whatsoever, so we thought that the scoring was actually a little bit out of whack, however, we did agree that those people be made redundant but we didn't agree on the last status was the first right of refusal for those people, because they hadn't actually done anything wrong to be terminated.

PN152

They were actually being made redundant through their own process. So out of the meeting we had left on the understanding we would talk again. Mr Maddison had made correspondence with Eptec this morning, got some commitments after I had briefed him, that there would be a notice sent out that we would have first right of refusal. Mr Hanaphy also stated that there would be another - further interviews and another six to eight to go, which wasn't discussed yesterday whatsoever, that was only brought up this morning, and that he would- he would send a letter where that it would be - first right of refusal would be what we agreed upon and we were actually - weren't going to bother coming here this afternoon because we thought on our meeting that we had yesterday and the correspondence this morning that those words satisfying about first right of refusal would be adequate and we would no longer have to come back because they would give an agreeance that they would certainly talk to us about this other six or eight being redundant next week, and we would also go through that consultation process with them.

PN153

However, some time later, a Mr Vic Leonie had pointed out that Mr Hanaphy, the construction manager, who is in control down there, that he exceeded his command and that they were not going to give any commitments to first right of refusal. So Commissioner, that is really where we are at the moment, and I would probably think that there would be a request that we went to conference to try and work something out on that.

PN154

THE COMMISSIONER: Right.

PN155

MR POWELL: Because that is about how far apart we are.

PN156

THE COMMISSIONER: Do you have any objections to that, Mr Hocking?

PN157

MR HOCKING: No, Commissioner.

PN158

THE COMMISSIONER: Okay. The Commission will go into conference.

NO FURTHER PROCEEDINGS RECORDED