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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Suite 25, Trafalgar Centre 108 Collins St HOBART Tas 7000
Tel:(03) 6224-8284 Fax:(03) 6224-8293
TRANSCRIPT OF PROCEEDINGS
O/N 9773
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT LEARY
C2003/2134
C2003/2160
C2003/2798
C2003/5773
AUSTRALIAN WORKERS UNION - TASMANIA BRANCH
and CONSTRUCTION, FORESTRY, MINING AND ENERGY
UNION - TASMANIA BRANCH
and
CIVIL CONSTRUCTION CORPORATION
Notifications pursuant to section 99 of the Act
of disputes re alleged failure by the company to
recognise clause 9.5 of the Civil Construction
Corporation Enterprise Agreement 2002 in a manner
and an understanding similar to that of the other
parties to the agreement and disputes over the
entitlement of employees to redundancy on sale
of the Corporation
HOBART
2.40 PM, FRIDAY, 26 SEPTEMBER 2003
Continued from 11.8.03
PN583
THE DEPUTY PRESIDENT: Thank you. For ease of reference we have just listed all of the matters including two new notifications. There are no objections to dealing with them that way?
PN584
MR ZEEMAN: No, not from me, thank you.
PN585
THE DEPUTY PRESIDENT: All right, thank you. Could I take appearances in all matters, please?
PN586
MR R. FLANAGAN: I appear for the Australian Workers Union, Tasmania Branch. With me is MR I. WAKEFIELD.
PN587
MR T. BENSON: I appear on behalf of the Construction, Forestry, Mining and Energy Union, Tasmania Branch.
PN588
MR ZEEMAN: I seek leave to appear on behalf of the Corporation in all matters.
PN589
THE DEPUTY PRESIDENT: There is no objection to Mr Zeeman continuing and seeking leave?
PN590
MR FLANAGAN: No objection, no, Deputy President.
PN591
THE DEPUTY PRESIDENT: All right. Leave is granted, of course.
PN592
MR ZEEMAN: Thank you.
PN593
THE DEPUTY PRESIDENT: Mr Flanagan or Mr Benson, you both have filed new applications?
PN594
MR FLANAGAN: Yes, Deputy President. We would simply seek that those applications be heard together with the continuation of the previous matter.
PN595
THE DEPUTY PRESIDENT: I think that we are hearing them all concurrently, or they are all joined. I don't think there is any great debate about that.
PN596
MR FLANAGAN: I should also inform the Commission, I understand that you have only returned to the State today, that this morning both the AWU and the CFMEU filed applications pursuant to section 170MD(6) for variation of the Civil Construction Enterprise Agreement to remove what we say is the uncertainty and ambiguity contained within those agreements, seeking to remove them, and that is just for the benefit of the Commission.
PN597
THE DEPUTY PRESIDENT: They were filed today, were they?
PN598
MR FLANAGAN: They were, Deputy President, yes.
PN599
THE DEPUTY PRESIDENT: Okay. We are not dealing with those though?
PN600
MR FLANAGAN: No, no, that is correct. Perhaps - - -
PN601
THE DEPUTY PRESIDENT: All right. Perhaps if you bring me up to date on what has happened since the recommendation was handed down and the issues raised in the two dispute notifications?
PN602
MR FLANAGAN: Thank you, Deputy President. I suppose the starting point for the matter is that on Saturday, 30 October this year, you issued a recommendation in accordance with section 111AA. At the conclusion of that recommendation - I will provide you with a copy of it to refresh your memory. I take the Commission to paragraph 41 on the last page. You stated that:
PN603
As I have determined only that there was intent for an employee to make an election to be able to declare them redundant or accept ...(reads)... to review the negotiations in an attempt to reach an agreed position.
PN604
If I can deal with the first point which is made there that we now need to confer we have attempted to confer. We have attempted to resolve the issue of what entitlements apply in the case of employees making either election and from the union's perspective we have resolved nothing. Simply put we are at the eleventh hour with a gun at our head and we are therefore seeking the assistance of the Commission as identified in that recommendation.
PN605
THE DEPUTY PRESIDENT: But there have been some discussions?
PN606
MR FLANAGAN: There have and I propose to take you through the history of those, Deputy President.
PN607
THE DEPUTY PRESIDENT: Okay, because I am not sure where they have gone.
PN608
MR FLANAGAN: I think the first point is that following that recommendation on 2 September the Corporation wrote to the union regarding its view of the recommendation's findings and I would seek to tender a copy of that correspondence.
PN609
MR ZEEMAN: Excuse me, if I could just intervene there? If I could just clarify in my own mind the particular disputes that are before the Commission today? Now, I understood that the applications are going to be heard together?
PN610
THE DEPUTY PRESIDENT: There is the original dispute - there is the original dispute for which there was a recommendation issued.
PN611
MR ZEEMAN: Yes.
PN612
THE DEPUTY PRESIDENT: Yes.
PN613
MR ZEEMAN: Yes.
PN614
THE DEPUTY PRESIDENT: And then there is a dispute lodged by the AWU, 2798.
PN615
MR ZEEMAN: Yes.
PN616
THE DEPUTY PRESIDENT: And a dispute lodged by the CFMEU - sorry, 2798 is the dispute lodged by the CFMEU and 5773 is a dispute lodged by the AWU. Do you have those?
PN617
MR ZEEMAN: Look, I have been given - I have got four pieces of paper before me - - -
PN618
THE DEPUTY PRESIDENT: I have got lots more than four.
PN619
MR ZEEMAN: - - - which I understood were filed in respect to today. One is dated 29 April which is the original dispute notice from the Australian Workers Union, as I understand it.
PN620
THE DEPUTY PRESIDENT: That is 2134.
PN621
MR ZEEMAN: Correct.
PN622
THE DEPUTY PRESIDENT: Yes. That was joined with 2160 and that was the basis of the recommendation.
PN623
MR ZEEMAN: Yes.
PN624
THE DEPUTY PRESIDENT: And then there have been two new notifications filed on 24 September which have been joined with those.
PN625
MR ZEEMAN: Yes, and it is my understanding, and I may have misunderstood what you said at the beginning. It is my understanding that it is those two notices that are before the Commission today.
PN626
THE DEPUTY PRESIDENT: What I said was we had listed everything and was there any objection with them all being heard. I mean, the other ones have been determined - - -
PN627
MR ZEEMAN: Yes.
PN628
THE DEPUTY PRESIDENT: - - - they don't have to be joined, but for the purpose of working our way back through the issue - - -
PN629
MR ZEEMAN: Look, I am happy - I am content with that. I seek to withdraw any concession I have made about those earlier dispute notices being re-agitated.
PN630
THE DEPUTY PRESIDENT: No, they are not, they are there for the purpose of reference only.
PN631
MR ZEEMAN: Yes.
PN632
THE DEPUTY PRESIDENT: I mean, they have been settled as far as the Commission is concerned. These are now two new notifications.
PN633
MR ZEEMAN: Yes. Thank you, Deputy President, I just wished to clarify that point, thank you.
PN634
THE DEPUTY PRESIDENT: Also, we are not dealing with the two lodged today either. I haven't seen those yet, fortunately.
PN635
MR ZEEMAN: Oh, the variation - - -
PN636
THE DEPUTY PRESIDENT: The 170MD(6) applications.
PN637
MR ZEEMAN: - - - yes, thank you.
PN638
THE DEPUTY PRESIDENT: Okay. All right, thanks, Mr Flanagan?
PN639
MR FLANAGAN: Thank you, Deputy President. So if we could seek to tender the correspondence from the Corporation.
PN640
PN641
MR FLANAGAN: The Corporation states that in - and it was addressed to the AWU and no doubt the CFMEU have received similar correspondence:
PN642
In conjunction with advisers of the Corporation I have carefully reviewed the decision ...(reads)... to maximise the employment outcomes arising from the sale of the business.
PN643
So that was the interpretation which the Corporation placed on the outcome. It seems that they failed to observe the words "that they should confer with us" about the entitlements which would apply in the case of either choice. The union had attempted to meet with the Corporation to discuss the entitlements and we were advised verbally that the Corporation didn't consider that there was anything further to discuss. I have provided the Commission with the letter requesting the relisting of the 111AA, a copy of the bulletins which the union has circulated and they should be read in conjunction with the outline I have given you, Deputy President. I have a copy of that for the Corporation in case they don't have them all.
PN644
Now, on 3 September the union had issued a bulletin advising that the Corporation was now prepared to meet. On 4 September we conducted a phone hook-up with the Corporation from their offices so that Mr Zeeman could be involved and we discussed the issues and we identified very clearly at that meeting that there were two issues that needed to be resolved. That was the issue of redundancy quantum if employees elected to take redundancy, and entitlements on the same terms and conditions if employees elected to stay and an outline of that meeting was provided to employees in our bulletin dated 5 September. Attached to that bulletin was a petition which stated:
PN645
We, the undersigned employees of Civil Construction Corporation, call on the chief executive officer of the Corporation to convene a meeting of the Corporation's board over the issues of employee options and entitlements on the sale of it. We the undersigned employees advise the Corporation that it was our expectation that in a sale event if we elected to take redundancy then we would receive the same benefits as a person who was involuntarily redundant under the EBA. We call on the board to honour the spirit and intention of that position.
PN646
Now - - -
PN647
MR ZEEMAN: Deputy President, I apologise to my friend but I must say I really don't understand what this information - what application it is applicable to.
PN648
THE DEPUTY PRESIDENT: Well, it is applicable to the new applications.
PN649
MR ZEEMAN: Well, if it is applicable to those applications then I wish to raise an issue as to jurisdiction.
PN650
THE DEPUTY PRESIDENT: Why don't we stop playing games? I mean, this is becoming very tedious. Your client undertook to accept the recommendation of the Commission after a proper hearing.
PN651
MR ZEEMAN: I don't - - -
PN652
THE DEPUTY PRESIDENT: Part of that recommendation was first of all the clause that we were dealing with was incomprehensible. The evidence indicated, and was not challenged, that there was an expectation that people could elect redundancy.
PN653
MR ZEEMAN: I understand that.
PN654
THE DEPUTY PRESIDENT: The difficulty has been nobody can tell me what sort of redundancy they could take on election.
PN655
MR ZEEMAN: I follow that, Deputy President.
PN656
THE DEPUTY PRESIDENT: The idea of the parties being directed through the recommendation to have some discussions to see whether they could recall what it was that they agreed was to see whether that could be clarified. Now, the thing that concerns me - I am not going to waste any more time beating around the bush - the thing that concerns - the person who was responsible and represented the Corporation in negotiations has not been seen or heard from. The only time present at any conference was gagged, unable to speak. I don't know, I wasn't there, you weren't there, you're acting under instruction. There are two different positions. Now, it is an exercise in sophistry, come on.
PN657
MR ZEEMAN: Deputy President, I understand - and I take on board what you are saying, but my only point here is that it simply - without beating around the bush - it is not fair for the Corporation to have to answer new dispute notices if those submissions are in fact directed towards those.
PN658
THE DEPUTY PRESIDENT: All I asked was Mr Flanagan to bring me up to date what had happened since the recommendation was issued. I think that is what he was doing.
PN659
MR ZEEMAN: Yes, and look, Deputy President, I am not trying to be difficult, I am just trying to ascertain precisely what I need to answer, that is what it comes down to.
PN660
THE DEPUTY PRESIDENT: Well, you need to answer why your client won't honour whatever the agreement was. If they don't know what they agreed perhaps they should fess up to that. That will require the individual who was doing the negotiation at some time to be heard. This has been the problem all the way through. It is referred to a couple of times in the decision that you were unable to put anything, and I am not holding you responsible, you are acting under instruction, but you were not able to put anything forward that counted the argument put by the unions on behalf of the employees. I mean, I was left groping in the dark. I had to dispel any intention of trying to interpret the clause, that was beyond - - -
PN661
MR ZEEMAN: Look, I don't take my submission any further. It was simply a matter of clarification.
PN662
THE DEPUTY PRESIDENT: All right.
PN663
MR ZEEMAN: The Corporation - - -
PN664
THE DEPUTY PRESIDENT: Well, do we have to listen to Mr Flanagan fill me in chapter and verse as to what has happened since I saw you last - - -
PN665
MR ZEEMAN: Look, I am happy for that to occur, I just essentially wanted to know what dispute notice I am supposed to be answering.
PN666
THE DEPUTY PRESIDENT: Well, the application that has been put in, and I think it is in identical terms to the one put in by the CFMEU, the unreasonableness of the Corporation in dictating that employees need to accept employment with another employer with a two week time frame or employees will be deemed to have taken voluntary redundancy. Demand is in breach of the transmission of business provision of the Workplace Relations Act and the award, etcetera, is referred to.
PN667
Now, where that fits in with the recommendation I guess we will find out but there is an industrial dispute that you have to acknowledge and that is my reading of it and it may not be exactly what the application says - my reading of it is that you haven't complied with the terms of the recommendation which you are honour bound to do; there has been no discussion with those people who are responsible for the negotiations for the Corporation as to - - -
PN668
MR ZEEMAN: Well - - -
PN669
THE DEPUTY PRESIDENT: - - - what was agreed. Well, this is what Mr Flanagan is saying. You can counter that if you want to.
PN670
MR ZEEMAN: All right. Thank you, I won't take it any further.
PN671
THE DEPUTY PRESIDENT: Right. Thank you.
PN672
MR FLANAGAN: Thank you, Deputy President. As I was saying - - -
PN673
THE DEPUTY PRESIDENT: I have got a blank petition, did anybody sign it?
PN674
MR FLANAGAN: Yes, I was going to take you to that. I will provide you a copy of the completed petition. Now, out of a workforce of approximately 140, approximately 90 employees have signed the petition. The petition was circulated to the operational workforce as distinct from the administrative workforce so it appears that an overwhelming number of the operational workforce have signed the petition.
PN675
THE DEPUTY PRESIDENT: So these are all people who would have - or are able to make an election?
PN676
MR FLANAGAN: Voted on this enterprise agreement.
PN677
THE DEPUTY PRESIDENT: Thank you. Has the company got a copy of that?
PN678
MR FLANAGAN: Yes, I have just provided - actually it was provided on 10 September but I have provided another copy of the exhibit. Will that be marked as an exhibit, Deputy President?
PN679
PN680
MR FLANAGAN: Following the employees providing - well, if I can first say this. I further discussions with the Corporation recently the union asked a question whether or not in fact the board have been convened to consider the petition and we were advised that given that the only person that was authorised to convene such a meeting was the Chairman, then no such board meeting was convened. On 11 September the Treasurer wrote to each of the employees of the Corporation and I would seek to tender a copy of that correspondence.
PN681
PN682
MR FLANAGAN: No, what the Treasurer says is:
PN683
I'm writing to advise you that on 11 September 2003 the Government signed an agreement to sell Civil Constructions Services Corporation ...(reads).... Works Infrastructure has advised that it will be making formal offers of employment to all CCC employees -,
PN684
and we will need to talk about that a little further or I will need to address you more on that, Deputy President -
PN685
other than six employees who will need to be offered employment and who have already been notified ...(reads)... your accrued entitlements will be available to you after your position transfers to Works Infrastructure.
PN686
It then goes on to say that it discussed the matter with the unions. Then the next paragraph it states;
PN687
Works Infrastructure, subject to finalisation of a number of completion issues will assume ownership of CCC business on 10 October 2003 -
PN688
and that is a very important date because that is the date, as we understand it, that the transfer will occur -
PN689
the government and Works Infrastructure have agreed to a number of transitionary arrangements ...(reads)... the current CCC management will ensure that you are across any transitional arrangements that will affect you -
PN690
and unfortunately they have been a bit lacking in that in our view, Deputy President -
PN691
The Department of Treasury and Finance will be working with CCC Board and Management to ensure that you are kept informed during this process.
PN692
So that is the communication that employees received from the Treasurer effectively informing them that the business was being sold and the arrangements which were proposed. Now, the Treasurer in that document referred to the arrangements which have been put into place to protect the employee entitlements and I think you need to have an understanding of what that protection is and how it works.
PN693
THE DEPUTY PRESIDENT: Is this over and above GEARS or - - -
PN694
MR FLANAGAN: Yes, it is.
PN695
THE DEPUTY PRESIDENT: It is.
PN696
MR FLANAGAN: The first thing which happens is that there is a deed which is between the government and the employee and that deed documents the dollar value of the employee's long service leave entitlement at the time of sale and that may be zero if an employee is yet to reach eligible years of service after - after three years service then there would not be a balance recorded.
PN697
THE DEPUTY PRESIDENT: So does that three years not count?
PN698
MR FLANAGAN: It would be picked up by Downer but it doesn't have a dollar figure attributed to it. The document, the dollar value of the employee's redundancy benefit at the time of sale, based on arrangements outlined in the CCC EBA, there was a fundamental difficulty with the CC EBA - - -
PN699
THE DEPUTY PRESIDENT: Only one?
PN700
MR FLANAGAN: Well, another one, and that is that the redundancy benefits are in fact linked to the operation of RBF. RBF ceases to be applicable on the sale of CCC so the redundancy benefits also cease to have application but in any event, for the purposes of - - -
PN701
THE DEPUTY PRESIDENT: That is the clause 23 redundancy?
PN702
MR FLANAGAN: That is correct.
PN703
THE DEPUTY PRESIDENT: Mm hm.
PN704
MR FLANAGAN: For the purposes of this situation the dollar value will be identified in the deed. What will then happen if employees are in a situation where the new operator was to collapse, employees will be required to pursue and institute legal action to recover the payment of any outstanding long service leave and redundancy entitlements in the following order. Firstly they will need to attempt to recover that from the owner of the business, in this particular situation Works Infrastructure. Secondly, if they are unable to do that they should seek to recover it from the parent company, Downer.
PN705
Thirdly, they are then required to pursue any outstanding entitlements from any scheme which is in place and in particular at the moment that of course is GEARS, and fourthly, the Tasmanian Government under the guarantee, so there are a number of steps you can go through as an employee and at the end of it you end up with a guarantee from Tasmanian Government and the term of the guarantee is that it will operate for the shorter of the following, either the period that the employee maintains continuous employment with CCC or a five year period from the point of sale or up to 10 years from the point of sale whilst CCC remains under Downer control. So that is essentially the core of the protection that was referred to by the Treasurer and referred to as we have moved through what has occurred.
PN706
THE DEPUTY PRESIDENT: But that arrangement was not ever intended to take away the entitlement, whatever it is, under the EBA?
PN707
MR FLANAGAN: No, that is right.
PN708
THE DEPUTY PRESIDENT: They are separate and apart?
PN709
MR FLANAGAN: That is correct.
PN710
THE DEPUTY PRESIDENT: Right.
PN711
MR FLANAGAN: Following that letter from the Treasurer on 11 September the Corporation wrote to its employees, and I would seek to tender a copy of that correspondence.
PN712
THE DEPUTY PRESIDENT: So Works Infrastructure is the new name, is it?
PN713
MR FLANAGAN: That is correct, yes.
PN714
THE DEPUTY PRESIDENT: So the letter dated - not dated - - -
PN715
MR FLANAGAN: It is not actually dated but it was sent out on 12 September.
PN716
PN717
MR FLANAGAN: Now, what that says is:
PN718
As you are aware the government is in the final stage of selling Civil Constructions Services Corporation to Works Infrastructure Pty Limited ...(reads)... your accumulated entitlements including access to redundancy arrangements -
PN719
and that is why I have highlighted the deficiency there -
PN720
under the CCC Enterprise Bargaining Agreement will be protected under the sale agreement ...(reads)... or the government are guaranteed.
PN721
And it is a matter of fact from what I have outlined, that it is actually the financial value at the time of sale which is guaranteed. It is also a matter of fact, I think, even Mr Zeeman wouldn't dispute, that the redundancy provisions become inoperative:
PN722
I would therefore encourage you to take up the position offered by Works Infrastructure ...(reads)... unchanged from a remuneration perspective.
PN723
Now, that in fact is not necessarily correct but I will inform you further on that as well:
PN724
The time frame specified in the employment offer letter are important ...(reads)... has streamlined this to a large degree.
PN725
I am sure that was a very comforting comment to the employees, Deputy President.
PN726
THE DEPUTY PRESIDENT: What does it mean?
PN727
MR FLANAGAN: What it means is there is another workforce available if you chose to go on.
PN728
THE DEPUTY PRESIDENT: Oh, I see, right.
PN729
MR FLANAGAN: As you are aware on 30 August 2003 the Australian Industrial Relations Commission handed down a decision on clause 9.5 of the Civil Construction Enterprise Agreement. The Commission found that in a sale event employees are able to make an election to either be declared redundant or accept ongoing employment with the new owner. The Commission also found that the involuntary redundancy provisions of the CCC Enterprise Agreement do not apply and accepted the evidence from the unions involved that the core issue at the time the agreement was being drafted was that employees were concerned about the protection of their entitlements.
PN730
I think, with respect, that is a misrepresentation of what the Commission has said. It needs to be recognised that the EBA was drafted before the sale of the business was under active consideration and therefore unable to contemplate the details that we now have to hand dealing with an actual sale. Clearly the protection of entitlements has been delivered through the arrangements I outlined above and the concept of redundancy as being the only way to protect those entitlements is not valid.
PN731
Nonetheless CCC accepts the decision by the Commission that you may elect to be made redundant under clause 9.5 of the CCC EBA. Should you chose that option rather than transferring to Works Infrastructure on completion of your employment, CCC will pay you all of your accrued entitlements for annual leave and sick leave. Attached is a form that is - sorry, annual leave and long service leave. Attached is a form that is the mechanism for giving effect to your sale event election and then attached you indicate to the Corporation that you will take up an identical or another position within Works Infrastructure or you become redundant from CCC. It then goes on to say:
PN732
In the case of electing to take a redundancy and my employment with CCC coming to an end ...(reads)... for all my accumulated entitlements for annual leave and long service leave.
PN733
THE DEPUTY PRESIDENT: So they are legal entitlements?
PN734
MR FLANAGAN: That is right.
PN735
THE DEPUTY PRESIDENT: Yes.
PN736
MR FLANAGAN: The point of that, I think, is they make it every clear to the employees that there will be no redundancy payment for people that elect to take redundancy. They, of course, also put their own view on what the Commission said in its recommendation and a view that the union does not necessarily accept. Now, what occurred following that was that the unions met on 12 September, as I recall it, with the Corporation as presently represented in the Commission this morning, to discuss the issue further.
PN737
We continued to assert that we believed that there were moral obligations on the Corporation to honour what we believe we negotiated last year but the position of the Corporation remained unaltered. On that date we sent out bulletin number 5 from the union to report to employees the detail of those discussions. On 15 September the Corporation wrote again to employees, and I would seek to tender a copy of that correspondence.
PN738
PN739
MR FLANAGAN: It says:
PN740
Dear Sir, I wrote to you on 12 September -
PN741
this is 15 September, three days later -
PN742
advising you that the government is in the final stages of selling Civil Construction Services Corporation to Works Infrastructure Pty Limited ...(reads)... you will be deemed to have elected for voluntary redundancy under clause 9.5 of the CCC Agreement.
PN743
And if I can just pause on that point. I understand that the clause has been problematic but I can't find the deeming provision that the Corporation is referring to, neither can the employees that are having this gun held to their head at this very moment. The letter continues on:
PN744
This has allowed us to streamline some aspects of the transfer process and there is now no need for you to return the election notice ...(reads)... a copy will be provided to each transferring employee.
PN745
THE DEPUTY PRESIDENT: Where does the deed of guarantee - - -
PN746
MR FLANAGAN: Emerge from?
PN747
THE DEPUTY PRESIDENT: Yes. How has that suddenly become an issue?
PN748
MR FLANAGAN: The entitlements that I outlined to you, the protection of accrued - well, if I could take a step back.
PN749
THE DEPUTY PRESIDENT: Well, let me tell you what I think. The negotiations between the parties - it was clear that the employees were concerned that the company could go belly up and they would lose all their entitlements. That was why they wanted to be able to make an election. There was, as I recall it, and you can tell me whether I have got it wrong, there was no discussion that if there could be some deed of guarantee or somebody would guarantee their entitlements, that that negotiated agreement - arrangement, whatever it was, would then be put to one side.
PN750
MR FLANAGAN: It is correct, that was - - -
PN751
THE DEPUTY PRESIDENT: Because my reading of the letters that you are talking to there seems to be the view that if there could be a deed of guarantee the right to elect wouldn't then be necessary.
PN752
MR FLANAGAN: That is one of the fundamental propositions, I think, that the Corporation relies upon. It is not an agreed position. the unions entered into discussions with the Government to give effect to an undertaking that the Treasurer gave to the unions that employee entitlements would be protected, so the discussion - - -
PN753
THE DEPUTY PRESIDENT: But that was never put during the formal proceedings that if there was a satisfactory guarantee arrangement - - -
PN754
MR FLANAGAN: Nor was it within the minds of the unions - - -
PN755
THE DEPUTY PRESIDENT: - - - that the election wouldn't be necessary.
PN756
MR FLANAGAN: Yes, that is correct. It was never in the mind of the union that having entered into discussions to give effect to the Treasurer's commitment to the employees that that outcome would then be used in an attempt to cheat the employees out of what we believe was proposed - - -
PN757
THE DEPUTY PRERSIDENT: Well, I don't know whether "cheat" is the right word but it would change the intent of the clause.
PN758
MR FLANAGAN: I said what we believed. What we believed, cheated them out of what we agreed to in a certified agreement last year, so that was never in the mind of us. So that was on 15 September that they received that correspondence. On 16 September they received correspondence from what we believe will be the new owner of the Corporation, Works Infrastructure.
PN759
PN760
MR FLANAGAN: Now, in many ways it is very much what you would expect any professional organisation to provide to employees when they are offering employment but it does raise some concerns for employees. The first statement that they make is:
PN761
I am pleased to make you a provisional offer of employment.
PN762
Now, obviously the concern is what does the term "provisional" mean given that the correspondence until that point in time - - -
PN763
THE DEPUTY PRESIDENT: Doesn't the second sentence answer that?
PN764
MR FLANAGAN: Well, we are seeking clarification on it, but it certainly confused the employees. Then under the heading Roles and Duties it states:
PN765
You will be required to comply with Works Infrastructure employment policies and procedures as amended from time to time.
PN766
We are not aware of what they are. On the following page under the heading Superannuation Arrangements it identifies that the rate for superannuation will be 9 per cent. That represents a backward step for the employees compared to their current arrangements. Under the heading Continuity of Service and Portability of Entitlements it states very clearly that the company will recognise prior continuous service with CCC in calculating accrued and untaken annual leave and long service leave entitlements but doesn't say anything about redundancy.
PN767
THE DEPUTY PRESIDENT: But doesn't it say that it picks up the - the employment continues under the CCC Enterprise Agreement?
PN768
MR FLANAGAN: But the CCC redundancy provision becomes inoperative because the employees are no longer eligible to be members of RBF.
PN769
THE DEPUTY PRESIDENT: Of the RBF, okay.
PN770
MR FLANAGAN: Under the heading Motor Vehicle it then continues - this is on the last page.
PN771
THE DEPUTY PRESIDENT: Yes.
PN772
MR FLANAGAN: It then continues on that if you have got access to a CCC vehicle which is the case for many of these employees who are supervisors and require the vehicle to do their work, they will continue the current arrangements but thereafter they will work in accordance with the motor vehicle policy of Works Infrastructure which is fair enough but we don't know what it is.
PN773
THE DEPUTY PRESIDENT: Has anyone asked for a copy?
PN774
MR FLANAGAN: Yes, we have. Then they reinforce this proposition that we have received from CCC on several occasions that you are required to make an election, and that must be known to Downer by 30 September or they make alternative arrangements to fill the position, presumably. Again we can't find the authority for that proposition. It is clear to us that an election needs to be made but certainly from our point of view that election takes place after the sale event, not before, and it has not yet been sold.
PN775
THE DEPUTY PRESIDENT: Is it 10 October; is that the date?
PN776
MR FLANAGAN: That is the hand-over date, yes.
PN777
THE DEPUTY PRESIDENT: Right.
PN778
MR FLANAGAN: Now obviously at this point in time the union was becoming quite nervous about the position of employees. It was clear from the attitude being adopted by the Corporation they were of the view that the agreement was silent in terms of redundancy quantum. That seemed to be their view, so relying on the principle in M. West, both unions filed bargaining notices on 17 September in order to place employees in a position where they could take protected industrial action if necessary, but clearly we were becoming very concerned about how things were progressing or more to the point, not progressing on anything.
PN779
We met further again with the Corporation on 19 September and we advised the Corporation of the options that we believed lie ahead. One, that employees could pursue industrial action; two, that there could be an application to vary the agreement.
PN780
THE DEPUTY PRESIDENT: That was unlikely to achieve anything surely?
PN781
MR FLANAGAN: Well, what we were trying to say to the Corporation is look, we did a deal with you, we believe you should stick to that deal. If you stick to the deal we will stick to the deal but if you don't stick to that arrangement there are options available to us that we will be compelled to pursue. That is what we were saying to the Corporation. The Corporation indicated that it would respond to us the following Monday evening if possible which was 22 September. If that was not possible then they would respond to us the following morning.
PN782
In fact, the formal response of what their position was came through about noon that day. At that time having been unable to resolve the issues in terms of people that decide to go and people that decide to stay, the union convened a mass meeting of employees State wide to consider our position. In the mean time, as you are aware, we have written to the Commission seeking that the 111AA proceedings be relisted as we indicated.
PN783
We met with the employees yesterday and discussed the options available and it is as a consequence of that that the application for a section 170MD(6) has been filed but in addition to that the employees, feeling very much uninformed and being asked and pressurised to make a decision, wrote to Works Infrastructure in order to obtain an extension of the request to make an election so that they could be better informed. If I can tender a copy of that - a pro forma of the letter which was sent to Works Infrastructure.
PN784
PN785
MR FLANAGAN: Now, as you will see it is addressed to the CEO, Mr David Cattell of Works Infrastructure. It was sent by facsimile and it says:
PN786
Dear Sir, thank you for your correspondence dated 16 September 2003 -
PN787
that in fact is the letter that I have referred you to, Deputy President.
PN788
THE DEPUTY PRESIDENT: Yes.
PN789
MR FLANAGAN: Yes:
PN790
In that correspondence you have requested me to indicate whether I wish to accept ...(reads)... could you please advise me of your preparedness to extend the time frame for a reply.
PN791
THE DEPUTY PRESIDENT: So is that from each employee; is that the idea of that?
PN792
MR FLANAGAN: Yes, that is right. The meeting was attended by approximately 60 employees of the workforce. We haven't had any discussions with Downer about how many they received but we believe that they would have received a substantial number. I seek to tender a copy of the response that employees have received. Now, this is - - -
PN793
PN794
MR FLANAGAN: And if I can just indicate to expand on why there were only 60 of the employees at the meeting, a decision was taken by the workforce, very deliberately, that they did not want to disrupt Tasmanian motorists over the industrial relations concerns that they have so a number of employees - - -
PN795
THE DEPUTY PRESIDENT: Sorry, just take me back. You lost me there.
PN796
MR FLANAGAN: I have indicated to you that there was approximately 60 employees at the meeting.
PN797
THE DEPUTY PRESIDENT: Oh, at the meeting, yes.
PN798
MR FLANAGAN: The reason that the number was not higher is that we deliberately made a decision for those employees to stay at work to ensure that there were coverage - - -
PN799
THE DEPUTY PRESIDENT: So it wasn't a stop-work meeting, it was - - -
PN800
MR FLANAGAN: It was a stop-work meeting, yes, but - - -
PN801
THE DEPUTY PRESIDENT: But attended by those who were able to?
PN802
MR FLANAGAN: Who were able. For example, it was not practical to take all of the crew which changed lanes on the Tasman Bridge, up to the meeting. That could have caused significant disruption to residents of the eastern shore and given that the Commission comes from the eastern shore I don't think that would have been desirable.
PN803
THE DEPUTY PRESIDENT: That was a relevant consideration obviously.
PN804
MR FLANAGAN: Yes, it is a health and safety issue for the general community. But I think the important thing is what Works Infrastructure have said in their pro forma response:
PN805
I have received your facsimile message dated 25 September asking for an extension of time ...(reads)... relating to this process before the Australian Industrial Relations Commission tomorrow.
PN806
Now, I think - - -
PN807
THE DEPUTY PRESIDENT: I don't quite know what that means.
PN808
MR FLANAGAN: Sorry.
PN809
THE DEPUTY PRESIDENT: Does that mean it is being extended or it is not?
PN810
MR FLANAGAN: What it means is it is not and this organisation is expecting these employees to inform them by 30 September, which is next Tuesday, on whether or not they will accept the offer of employment which is proposed. Now, the difficulty with that is there is a great deal of uncertainty by the employees about what occurs if they stay with the organisation, what the benefits will be - - -
PN811
THE DEPUTY PRESIDENT: There are two issues now, is there not?
PN812
MR FLANAGAN: There is, yes.
PN813
THE DEPUTY PRESIDENT: One is, if those that elect redundancy what their entitlements are, and that is one issue. The other issue is what are the conditions being offered by Works Infrastructure. Now, that is something that will have to be supplied by somebody within Mr Cattell's organisation, I take it?
PN814
MR FLANAGAN: I guess that is what we had envisaged following the earlier proceedings and the Commission's recommendation that we would actually sit down and resolve those issues but it is clear to us and perhaps reasonably so, that Works Infrastructure is not in a position to have those discussions with us until they actually own the business.
PN815
THE DEPUTY PRESIDENT: That is right.
PN816
MR FLANAGAN: It is also clear from that correspondence that they won't own the business until 10 October. So I guess what we attempted to do, given the situation, given that the principal stakeholder of the corporation is the Tasmanian public through the State Government of Tasmania, and given that the Treasurer's office is the one which, as we understand it, has carriage of the sale process ultimately, we have written to the Treasurer, and I would seek to tender a copy of that correspondence.
PN817
PN818
MR FLANAGAN: Now, what we have simply said is that we write to him on behalf of the employees of the Corporation, we advised him that:
PN819
A State-wide meeting of employees moved the following resolution unanimously ...(reads)... the Corporation until the industrial relations issues are resolved.
PN820
So accordingly that was the request that we made. We haven't had a response from the Treasurer's office to that request but clearly what the employees are trying to do is to have the process suspended so that the industrial relations issues can be resolved - so they can make an informed decision. We don't think it is unreasonable when employees are being asked to determine their future that they should make that decision in an informed way. We think it is quite unreasonable that the Corporation has not been prepared to resolve the issues when they are placing the employees in this position of being required to make an election.
PN821
The other thing that we have done is we have attempted to clarify some of the issues which were raised by employees about the future and I would seek to tender a copy of an email provided to Works Infrastructure by the union this morning. I need to add that due to technical difficulties it didn't go by email but was faxed approximately an hour later.
PN822
THE DEPUTY PRESIDENT: Okay.
PN823
MR FLANAGAN: Now, you will see that we have indicated to Works Infrastructure that there are three areas that we wanted to clarify that:
PN824
The offer of employment is expressed as provisional, what does ...(reads)... to see how your policy differs from current arrangements.
PN825
They are essentially the issues that we have asked for clarification on.
PN826
PN827
MR FLANAGAN: So I am sorry that it has been such a blow by blow description about what has occurred since we were before you last but it has been lengthy, it has been frustrating and we are, as I said at the beginning, at the eleventh hour with a gun at our head and we are seeking the Commission's assistance. If it please the Commission.
PN828
THE DEPUTY PRESIDENT: What are you suggesting I can do? I mean the irony of all of this is the wonderful system of enterprise bargaining that we work under, where people have gone away, negotiated something in good faith - there is no doubt about that. They, when it comes time to implement the provisions, disagree as to what it meant. Now, I have said what I thought - well, I have said that I didn't think the clause could be interpreted but I have made it quite clear that the evidence unchallenged was that there was some agreement that there would be some sort of redundancy available. Now, until the people who sat down and did that negotiation can sit down again and say, "Yes, this is what we agreed. No, this is not what we agreed," I don't know how we are ever going to resolve it.
PN829
I have got absolutely no powers to say that you should get something, you should get nothing, you should get this or you should get that. But I think that the Corporation is being a bit disingenuous, that they have seen a loop hole and they are trying to slide out from something. That could well cost them a lot of money. Now, I can't be any more blunt than that.
PN830
MR FLANAGAN: No. I take on board your comments about the lack of jurisdiction in these proceedings, Deputy President.
PN831
THE DEPUTY PRESIDENT: I mean I don't know how many more proceedings you think you have got available to you.
PN832
MR FLANAGAN: I have got one more, at least one more, Deputy President - we hope. I guess the issue that is the focus of the dispute notification is simply that in clause 9.5, difficult as it is, it says:
PN833
In a sale event.
PN834
It then continues on to say things. We see that as being when the business is sold. The business is not yet sold and employees are being pressurised - - -
PN835
THE DEPUTY PRESIDENT: Yes, but I guess it is unrealistic to think that is going to be sold and then you start talking about it. The reality is that these things have got to be sorted out before it is sold. I mean you can't just say, "We will wait until it is sold and then we will start making claims on both parties to the sale." I mean that is just - - -
PN836
MR FLANAGAN: I understand what the Commission - - -
PN837
THE DEPUTY PRESIDENT: - - - illogical and impractical.
PN838
MR FLANAGAN: I understand what the Commission is saying. In the context of the recent section 99 dispute notifications it simply - if we can go back to the 111AA the Commission made it clear you were available for assistance and we are seeking the assistance of the Commission, perhaps by way of conference, to see if we can move the matter forward. If we can't well we pursue other options but perhaps - - -
PN839
THE DEPUTY PRESIDENT: Yes. I mean the concern there is that time is running out.
PN840
MR FLANAGAN: That is our concern too.
PN841
THE DEPUTY PRESIDENT: The Corporation have things they have to do, as do the new owners, and so do you and it just can't go on forever. I am prepared to deal with as much as we can of it today to see whether we can get to some resolution because next week is 30 September.
PN842
MR FLANAGAN: That is right. If it pleases the Commission.
PN843
THE DEPUTY PRESIDENT: All right. I will hear from Mr Benson provided he doesn't repeat everything that Mr Flanagan has just already said.
PN844
MR BENSON: The only thing you will hear from me then, Commissioner, is that I don't consider it was cheated, I consider it was ratted on. The rest of Mr Flanagan's submission I completely support.
PN845
THE DEPUTY PRESIDENT: All right, thank you. Mr Zeeman?
PN846
MR ZEEMAN: I thank Mr Benson for his comments. All - I mean that is the difficulty that I am in. I don't know really what I am supposed to be answering today.
PN847
THE DEPUTY PRESIDENT: Well - - -
PN848
MR ZEEMAN: - - - and I didn't mean - and I apologise to the Commission if I upset the Commission in any way. That was simply all I was trying to do.
PN849
THE DEPUTY PRESIDENT: It takes more than you to upset me. I am frustrated because I can't see an end to this and there is a lot at stake and until we get back to what I proposed and that was the original people who did the negotiations facing each other around the table and trying to sort out what it was they agreed or what they intended to agree, I don't know where we go.
PN850
MR ZEEMAN: For what it is worth, Deputy President, I am more than content to participate in a conciliation.
PN851
THE DEPUTY PRESIDENT: This afternoon?
PN852
MR ZEEMAN: Yes.
PN853
THE DEPUTY PRESIDENT: I mean there is a time concern - we have got to do something by this weekend.
PN854
MR ZEEMAN: Yes, I am content to do that today and put or clarify any arguments of mine if that assists.
PN855
THE DEPUTY PRESIDENT: All right - and see whether we can find some resolution to this.
PN856
MR ZEEMAN: Yes.
PN857
MR FLANAGAN: I wonder, Deputy President, if it is possible for the Corporation to get their person that was involved in the negotiations here for the purpose of the discussions.
PN858
THE DEPUTY PRESIDENT: Well, I think at some stage that is going to be absolutely necessary. I mean I don't - I am trying to be subtle about how we do all this and I don't want anybody to sort of feel that they are being bludgeoned into things but I think that may be what we need at the end of the day.
PN859
MR ZEEMAN: It may be, Deputy President, that we can explore those issues - - -
PN860
THE DEPUTY PRESIDENT: No, we will.
PN861
MR ZEEMAN: - - - in the course of a conference. Yes.
PN862
THE DEPUTY PRESIDENT: Not that we may - we will.
PN863
MR ZEEMAN: Yes, thank you, Deputy President.
PN864
THE DEPUTY PRESIDENT: Okay. Well, unless anyone has anything else they want to put on the record, I would suggest we go into conference and you might be settling in for quite a long evening.
ADJOURNED ACCORDINGLY [3.40pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #AWU1 CORRESPONDENCE FROM THE CORPORATION PN641
EXHIBIT #AWU2 PETITION PN680
EXHIBIT #AWU3 CORRESPONDENCE FROM THE TREASURER DATED 11/09/2003 PN682
EXHIBIT #AWU4 LETTER FROM THE TREASURER SENT OUT ON 12/09/2003 PN717
EXHIBIT #AWU5 CORRESPONDENCE FROM CORPORATION DATED 15/09/2003 PN739
EXHIBIT #AWU6 CORRESPONDENCE FROM WORKS INFRASTRUCTURE DATED 16/09/2003 PN760
EXHIBIT #AWU7 PRO FORMA OF A LETTER SENT TO WORKS INFRASTRUCTURE PN785
EXHIBIT #AWU8 COPY OF RESPONSE TO EMPLOYEES PN794
EXHIBIT #AWU9 CORRESPONDENCE TO THE TREASURER PN818
EXHIBIT #AWU10 LETTER FROM EMPLOYEES TO WORKS INFRASTRUCTURE PN827
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