C2003/5043, Transcript of Proceedings [2003] AIRCTrans 3797 (28 August 2003)

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


O/N 4181

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2003/5043

AUSTRALIAN MUNICIPAL,
ADMINISTRATIVE, CLERICAL
AND SERVICES UNION,
VICTORIAN PRIVATE SECTOR
BRANCH

and

LUX

Notification pursuant to section 99 of the Act
of a dispute re the application of an agreed
workplace redundancy agreement at the Lux
Oakleigh site

MELBOURNE

2.03 PM, THURSDAY, 14 AUGUST 2003

PN1

MR R. BEALES: I appear on behalf of the Australian Services Union with MR S. MUJOVIC, also with the Australian Services Union.

PN2

MR P. HULL: I seek leave to appear for the employer, or maybe I should hesitate with using that word too, but I seek leave to appear for Lux Proprietary Limited. With me is MR O. TOALE from the company.

PN3

THE SENIOR DEPUTY PRESIDENT: Is there any objection to leave, Mr Beales?

PN4

MR BEALES: Your Honour, the ASU reserves its opinion on leave at this stage, subject to the outcome.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Leave is granted. If you wish to later challenge that, make the application, Mr Beales. Leave is granted, Mr Hull.

PN6

MR HULL: Thank you, sir.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Beales, is there anything you wish to put on the record?

PN8

MR BEALES: Your Honour, it might just be useful to provide the Commission with a brief background into this matter but certainly, your Honour, it is our intention to proceed into conference; and I understand that there is consent between the parties to do that.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN10

MR BEALES: Your Honour, the matter concerns two members of the Australian Services Union, namely Barbara Brown and Carol Constantine. We submit that they were employed in the administration department at Lux Vacuum Cleaners and were made redundant on or around the 2nd of the 5th of this year. Your Honour, the length of service between the two employees was some 21 and 28 years respectively.

PN11

Your Honour, I might just point out that there is no dispute of fact in relation to the positions are redundant. That is not in dispute. Your Honour, what our concern is is the application of the redundancy payments and, indeed, what we say is an existing agreement between the employer and us, which I will get to further down the track.

PN12

Your Honour, the two employees in question were paid out the standard TCR provisions pursuant to the Clerical and Administrative Employees Award. Your Honour, what we say - and I don't think it is a dispute fact at this stage - is that there is an agreement between Electrolux and Lux Direct Proprietary Limited dealing with redundancy and relocation. That agreement, your Honour, was signed on 5/10/1998. It was signed by Gaye Yule who was the previous Branch Secretary and President of the Australian Services Union, and a Mr Brian White. I am unsure, your Honour, whether Mr White is still employed at the company.

PN13

But, your Honour, certainly what we say is that that agreement still exists. I understand that there is some transmission businesses which we may deal with in conciliation but, your Honour, the upshot of it is that these two employees have only received standard TCR entitlements. What we say is that they should have received the entitlements as part of the agreements, and I will take your Honour to what those entitlements are. It basically leans to one - your standard leave provisions; for employees over five years of service, they get four weeks in lieu of notice plus an additional week's pay. And on top of that, your Honour, there is a payment of 2.5 weeks per year of service with a cap of 40 weeks.

PN14

Your Honour, if I could just note the differences between what the employees and what actually, we say, should be received by the employees is some 36 weeks. Your Honour, just on that basis we would be seeking, subject to what the employer says, to move straight into conference to discuss our differences.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Hull, do you want to put anything on the record?

PN16

MR HULL: Well, yes, there are a couple of matters, sir, that I wish to put on the record but I can foreshadow we don't have an issue with going into conference. But I do reserve our rights in terms of raising jurisdictional objections perhaps later on, sir.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes.

PN18

MR HULL: The points that we need to make clear at the outset is that to the best of our knowledge, the agreement that has been referred to, one, is not an agreement that has been certified by the Commission and, secondly, and perhaps more importantly in some ways, this is an agreement that was reached with Electrolux Proprietary Limited, not Lux Proprietary Limited. The company that I am here representing is Lux Proprietary Limited. We are different organisations.

PN19

Now, there is clearly the potential for transmission arguments that may be raised but our position, certainly at this stage, is to simply say that we do not regard ourselves as being bound by this agreement either - well, we simply don't regard ourselves as being bound by this agreement, whether it is a certified agreement or not.

PN20

Now, I have undertaken a quick search and haven't been able to find any record of this agreement being certified but I don't know that - that search is not subject to some error. The other aspect of it is that to the extent that it is - that this agreement is enforceable, well, then we say to our friend that maybe the union should be looking to Electrolux to enforce it rather than to Lux as the employees concerned were employees of Electrolux and they are now employees of Lux. But the situation with the Amcor dispute or the Amcor matter doesn't - well, it is not relevant potentially to a resolution of these issues.

PN21

So having said all of that, sir, we certainly differ with Mr Beales' comment that there is no dispute over the facts of the application of this agreement; very much there is a dispute. We simply do not concede that we have any obligations under this agreement, and we say that what we have paid to the two employees who were made redundant is not only - well, we say it is in addition to what our legal obligations were because we are not bound by an award of the Commission, but what they were paid was in accordance with the national TCR standard. If it please the Commission.

PN22

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED