C2003/1825, Transcript of Proceedings [2003] AIRCTrans 4761 (29 October 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

O/N 4989
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2003/1825

GLEN CAMERON GROUP

and

TRANSPORT WORKERS' UNION OF AUSTRALIA

Notification pursuant to section 99 of the Act
of an industrial dispute re redundancy issues

MELBOURNE

5.10 PM, MONDAY, 13 OCTOBER 2003

Continued from 17.7.03

THIS HEARING WAS CONDUCTED BY VIDEO LINK
AND RECORDED IN MELBOURNE

PN51

MR L.E. BELL: I appear on behalf of the Transport Workers' Union of Australia.

PN52

MR D. CAMERON: I appear for the Glen Cameron Group, your Honour.

PN53

THE SENIOR DEPUTY PRESIDENT: Now, we received a request for this matter to be listed today, is that right?

PN54

MR BELL: Yes.

PN55

MR CAMERON: I'm not - - -

PN56

THE SENIOR DEPUTY PRESIDENT: What is the urgency of the matter?

PN57

MR BELL: Your Honour, just for a matter of housekeeping, do you require me to stand?

PN58

THE SENIOR DEPUTY PRESIDENT: No. I can't - if you stand up, I probably won't see the top of your head.

PN59

MR BELL: Thank you. Your Honour, since this matter was brought before you in July, there's been a number of meetings with the working group and the South Australian Government. There's been some 10 meetings that have taken place, but there's been a frustrating process where our members are still not getting access to the outcome of what will happen at the end of the contract. We now have a definitive date of 28 November this year and now our members see that that is going to be the end of the contract.

PN60

Our understanding is that there is going to be some offer of employment to a couple of employees and there is going to be some offers of employment of up to 2 years for some employees and also up to 6 months for other employees. It begs the question - or we beg the question of the company, what does this mean in relation to the terms that are contained in the enterprise agreement as far as redundancy goes. We wrote to the company on 29 September and asked them three salient points and that was to give us the number of employees that would be covered by the agreement who will be affected, and how the employees will be treated in relation to redundancy, and if any employees will not be subject to the provisions of the agreement and the reasons why.

PN61

The company has subsequently responded to us identifying that there will be some 23 permanent employees who are engaged at the site of Marleston, but as previously advised, the Glen Cameron Group continues to seek ongoing employment for all staff who may be displaced by the termination of the contract with the South Australian Government. In the event that redundancies are necessary, they will be handled in accordance with the appropriate divisions of the abovementioned agreement.

PN62

Your Honour, the answers that we are getting from the company are not satisfactory to our members and we are suggesting that you might want to bring this matter on and utilise section 111(1)(s) of the Act to subpoena or at least involve the Government representatives, so that we can identify what will be the real outcome on 28 November and what the jobs that people will move into are. Whether they are jobs or whether they are part-time contracts or what they are and also we would suggest that in the event of hearing that evidence or hearing the outcomes of those meetings, then you would be able to use section 170LW to at least give us a final determination as to how employees that are left out of this contract are to be treated in the terms of the redundancy.

PN63

The mixed messages we are getting is that the company does not want to pay any redundancies to any employees if they don't have to, if they find them a job with South Australian Government, but we are saying that those jobs are not ongoing employment, they are just a temporary transition. So we are in your hands, your Honour, to try and resolve this. It is a frustrating process for our members. The date of 28 November is fast coming upon us and it is causing all sorts of angst amongst the workplace and it is not a happy environment to be at. We are seeking your guidance to get this situation finalised.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes, all right. What do you say, Mr Cameron?

PN65

MR CAMERON: Your Honour, it is true that there's 23 permanent employees engaged at the site. We understand that up to 18 of those will be offered some form of ongoing employment with the South Australian Government. We have obviously sought advice on the issue of redundancies in relation to this site and our understanding of the EBA which was negotiated approximately 12 months ago, is that those people who secure ongoing employment prior to the termination date are not entitled to a redundancy.

PN66

Having said that, the company is not yet committed to the path that redundancies will be necessary and continues to seek ongoing employment and will continue to seek ongoing employment for its staff. We have had a number of meetings with the working group that was established as a result of our last appearance here. As Mr Bell said, some 10 meetings, at which point we have put our position to the employees and to the Transport Workers' Union of Australia in relation to how redundancies would be handled should they, in fact, be necessary.

PN67

That position has been unacceptable to those parties and so we find ourselves here, your Honour.

PN68

THE SENIOR DEPUTY PRESIDENT: Is 28 November the final day for transfer?

PN69

MR CAMERON: That is the date upon which our contract with the South Australian Government will cease. On 29 November, the operation will be controlled by the South Australian Government themselves.

PN70

THE SENIOR DEPUTY PRESIDENT: Did you say up to 18 employees will be offered ongoing employment?

PN71

MR CAMERON: That is correct, your Honour, yes.

PN72

THE SENIOR DEPUTY PRESIDENT: When does the certified agreement expire, or what is the nominal expiry date of the certified agreement?

PN73

MR CAMERON: Not until mid next year, your Honour.

PN74

THE SENIOR DEPUTY PRESIDENT: Mr Bell, have you ascertained from the South Australian Government whether the agreement is going to transmit to them, or whether they are going to accept transmission of the agreement?

PN75

MR BELL: Our understanding is, your Honour, that it wouldn't transmit and that is the crux of the matter. We are saying it is not a job, it is not a true alternative employment. We are saying that the contract expires on the 28th and these people - their employment terminates with Glen Cameron Transport on the 28th. This is - - -

PN76

THE SENIOR DEPUTY PRESIDENT: Sorry. How do you come to the understanding that the agreement won't transfer?

PN77

MR BELL: Our understanding is that the Government is going to pick up the employees - some of the employees and my understanding is it is only a very limited employees - permanent employees. They are going to offer some employees ongoing employment for periods of up to 2 years and up to 6 months for the transition period, so that they can pass on their skills and experience to other Government employees that are sitting in a redeployment pool.

PN78

THE SENIOR DEPUTY PRESIDENT: I'm sorry, I might not have explained myself well. I'm talking about the certified agreement. The normal expiry date of the certified agreement is mid next year, is that right?

PN79

MR BELL: That is correct, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: Why wouldn't it, under section 170MB, I think it is, transmit to the State Government?

PN81

MR BELL: That is probably a question for the State Government, but our understanding is that they are not giving up - they are in-sourcing, your Honour, basically. They are taking back what they gave away quite a while ago.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes.

PN83

MR BELL: It is not come clear over the 10 meetings that our members have had with the Government, that they are doing that. I think it has come quite clear that they are not going to be employees of the Glen Cameron Supply SA Enterprise Agreement, they are going to be employees of the South Australian Government Enterprise Agreement that is in place.

PN84

THE SENIOR DEPUTY PRESIDENT: But the South Australian Government is going to operate the same business that these people are employed in now, isn't it?

PN85

MR BELL: Yes, essentially, your Honour. That is correct.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I mean section 170MB seems to suggest that they would be the successor employer and that they would be bound by the agreement anyway.

PN87

MR BELL: Well, yes.

PN88

THE SENIOR DEPUTY PRESIDENT: The only reason I raise that is, if that is the case and I don't know whether it is, and perhaps some inquiries should be made to the State Government as to whether or not they are going to concede that to be the case, then the redundancy provisions in the agreement will continue to cover the existing employees, won't it?

PN89

MR BELL: Well, yes, sir. Assuming that that would be the case, but I think that the - and I haven't been a party of the meetings, your Honour. I think that the feeling that we are getting is that they are not picking them up as a transmission of business, they are cutting the contract of and they are offering a couple of jobs to people to come across, but they are also offering a number of jobs which are limited tenure, so to speak. If you want to come and work for us, we will give it to you.

PN90

Hence our dispute with the company is, if the contract ends on the 28th, our redundancy entitlements in accordance with clause 30 of this agreement should apply and we are getting mixed messages from the company while we are looking at that. We don't know whether that is true. What our members want to know at this stage some 7 weeks before they are all out of a job is, will I have a redundancy or won't I have a redundancy? Will I have a job or won't I have a job? What sort of a job is it that I get in the next - when I go and work for Business SA - sorry, Government SA, or Supply SA as I think the department will be called.

PN91

What sort of a job is that where I'm employed for up to 6 months or up to 2 years. There are two individuals, I think, that there is no argument about. It is the rest of the people that are very uncertain with what is going on.

PN92

THE SENIOR DEPUTY PRESIDENT: Does the agreement have any provision in it for reasonable alternative employment under the redundancy provision?

PN93

MR BELL: Yes, your Honour. The company - I will read the last paragraph of clause 30:

PN94

The company, where possible, will try to assist the affected employees to find alternative employment.

PN95

Now, what we are saying is, what is alternative employment? Is alternative employment another 6 months in the job or is it alternative employment with another division of Cameron's Group of Companies? I understand that there may be other jobs available and the company has probably looked at all of that, if in their divisions, they have other divisions within Adelaide. But those are the questions we are saying - is it alternative employment? So we are asking you to take on board all the facts and exercise your powers in accordance with the dispute settling procedure and at least put this thing to bed sooner or later. We have some 7 weeks to resolve the issue.

PN96

THE SENIOR DEPUTY PRESIDENT: What part of the agreement do you say is in dispute? What are the provisions or the application of which provisions in the agreement is in dispute?

PN97

MR BELL: We believe we would be in dispute if people went across to Supply SA as temporary part-timer or whatever jobs they are. It is not a true job where the amount of service transmits to the new employer and your sick leave etcetera transmit when it is not a true job. We would suggest that if, on 28 July, if Mr Boyes was working for Glen Cameron Group and on 29 July he was no longer working for Glen Cameron Group but he wasn't working for Supply SA as a permanent employee, then that would be cause for redundancy.

PN98

THE SENIOR DEPUTY PRESIDENT: Has the South Australian Government provided you with the terms of the offer that they will be making to the employees that they take on?

PN99

MR CAMERON: No, they are not, your Honour.

PN100

THE SENIOR DEPUTY PRESIDENT: Has that been asked for?

PN101

MR CAMERON: Yes, your Honour.

PN102

THE SENIOR DEPUTY PRESIDENT: Sorry, the union, Mr Cameron.

PN103

MR BELL: I believe it has been, through the working group. I mean, I think both parties of the working group are being frustrated by the lack of response from the Government. Sorry, I didn't announce any other people appearing. Also, I have the delegate with me, Mr Boyes and also one of the other participants in the working group, Mr Tim Rod, also. So they can add to this conversation if you want them, your Honour.

PN104

THE SENIOR DEPUTY PRESIDENT: Well, perhaps you could just get some instructions off them about whether or not the State Government has been asked to provide any terms or conditions under which it will employ any of the people who it takes on from the company.

PN105

MR BELL: My instructions are, your Honour, that it has been asked on many occasions, but they refuse to give any information to anyone but those that they intend to offer permanent jobs to. Our understanding is that there are only two jobs that will be permanent. There may be a couple of medium term of up to 2 years' duration and there's certainly a number of short term of up to 6 months' duration.

PN106

MR CAMERON: Your Honour, if I may?

PN107

THE SENIOR DEPUTY PRESIDENT: Yes.

PN108

MR CAMERON: What Mr Bell says is substantially correct. There will be two people who transferred across from Government to the Glen Cameron Group that will be moving back to Government at the end of this contract. There will be six positions of up to 2 years' duration, there will be a further 10 positions of up to 6 months duration. In respect of redundancies to those positions or those individuals, the Glen Cameron Group has already undertaken that in respect of those individuals offered 6 month contracts, they will receive a redundancy upon termination.

PN109

Sorry, your Honour, also I can concur that the information in respect of the conditions of employment has been asked at the working group meetings, the Government has indicated that they will make those conditions of employment or the details of those contracts, available to the successful individuals upon notification of their success.

PN110

THE SENIOR DEPUTY PRESIDENT: How long has Cameron held the contract?

PN111

MR BELL: For a little over - coming up on 4 years, your Honour.

PN112

THE SENIOR DEPUTY PRESIDENT: What is the range of service for employees?

PN113

MR BELL: From less than 12 months through to a little over 4 years.

PN114

THE SENIOR DEPUTY PRESIDENT: Well, look, I can appreciate the anxiety the employees must feel about the uncertainty of knowing where things are going, but it does still seem to me that the difficulty lies in the State Government failure - I shouldn't say failure, I don't know yet the full details of their position, but if they are not prepared to provide details of the final outcomes, what can Camerons do about it? Mr Bell?

PN115

MR BELL: Well, I think that we need Camerons to give some assurances to those other six positions of up to 2 years, what will happen to them if those positions - it is not necessary that we agree that the positions that go across for up to 2 years is not a bona fide redundancy. We would suggest then that if they are no longer working for Camerons on the day, then that is a bona fide redundancy.

PN116

THE SENIOR DEPUTY PRESIDENT: So, you say that there is a dispute between you and Camerons over the application of the provisions relating to redundancy? Is that what you are saying?

PN117

MR BELL: That's it in a nutshell, your Honour.

PN118

THE SENIOR DEPUTY PRESIDENT: There are probably any number of ways we can proceed with this, but perhaps one way of dealing with it would be for a listing in Adelaide first for conciliation and if that can't successfully resolve the matter, then arbitration.

PN119

MR BELL: Yes, I think that is the only way we are going to resolve the matter, your Honour, and I think time is of the essence, if we could try and get this resolved before the end of this month because people will have some uncertainty for the final months that they are employed.

PN120

THE SENIOR DEPUTY PRESIDENT: Well, if you wanted to proceed on that basis under section 170LW, perhaps it would be appropriate first of all that we have a section 170LW application.

PN121

MR BELL: We are quite willing to do that, your Honour.

PN122

THE SENIOR DEPUTY PRESIDENT: Yes. I need to have a look at my diary. It seems that you are also wanting this matter dealt with relatively expeditiously and I'm not sure that I can deal with it expeditiously or otherwise. I think I will need to speak with the panel head and see whether or not another member of the panel might be allocated the file so that it can be dealt with expeditiously.

PN123

MR BELL: Very well. We are in the Commission's hands, your Honour.

PN124

THE SENIOR DEPUTY PRESIDENT: But I think perhaps what I ought to do is direct that you file the application first of all in respect of section 170LW by reference to the rules and that in - there's not much point in getting you to file witness statements or any other material because that is only going to require further time and you want it dealt with more expeditiously than that. Isn't that right?

PN125

MR BELL: Well, we will be guided by your knowledge, your Honour, whether you think that it would help in any decision. I mean, if it is not able to be heard before the end of this month and we are still able to continue to resolve it before the end of November.

PN126

THE SENIOR DEPUTY PRESIDENT: Well, it probably has to be dealt with and determined before 28 November.

PN127

MR BELL: Yes, that is a definite, your Honour.

PN128

THE SENIOR DEPUTY PRESIDENT: All right. Well, look, I will have to get back to you about dates and times. Are there any times or dates - Mr Cameron, you would have somebody appearing for you, is that right?

PN129

MR CAMERON: That is correct, your Honour.

PN130

THE SENIOR DEPUTY PRESIDENT: Yes. So you can't tell me at this stage what availability people might have for a hearing?

PN131

MR CAMERON: I'm afraid not, your Honour, no.

PN132

THE SENIOR DEPUTY PRESIDENT: Do you have any limitations on your availability, Mr Bell?

PN133

MR BELL: Only after 1 November, but that does not stop us from appearing on behalf of our members. We have other officials that can handle this case.

PN134

THE SENIOR DEPUTY PRESIDENT: Yes, all right. My associate will be in touch with you perhaps to organise some dates with your representative, Mr Cameron, if that can be ascertained at some stage after the hearing today and if I'm not to continue with the matter, will let you know who is going to deal with the matter. No doubt they will be in touch with you to work out some arrangement for a hearing. All right? Anything else we can do at the moment?

PN135

MR CAMERON: Your Honour, just one minor issue, if I may and that is that some time ago the employees imposed training bans on the site as a result of an inability to resolve this issue. I would suggest and I would seek your counsel that now that the Transport Workers' Union on behalf of the employees have elected to follow the dispute settling procedures, that I would rely upon the dispute settling clause of the EBA, which indicates that work will continue as directed by the company.

PN136

THE SENIOR DEPUTY PRESIDENT: Why do you need bans on, Mr Bell, if this matter is going to proceed to an arbitration?

PN137

MR BELL: You will have to forgive me, your Honour, I wasn't aware that there were any bans in place. We haven't - I stand a bit embarrassed, your Honour.

PN138

THE SENIOR DEPUTY PRESIDENT: Well, I will leave you to make some inquiries about that, but I don't think - well, I know I wouldn't be prepared, I can't speak for any other member of the Commission who might take over the file, but I wouldn't be prepared to proceed with an arbitration on the matter if there were bans in place.

PN139

MR BELL: Could I just have a couple of minutes, your Honour?

PN140

THE SENIOR DEPUTY PRESIDENT: Yes, sure.

PN141

MR BELL: Your Honour, I will have a meeting with the delegates and the relevant parties and make sure that we are not in breach of any of the legislation and that if there is any bans in place, my severe recommendations will be in accordance with what you have just said, that there will be no bans in place.

PN142

THE SENIOR DEPUTY PRESIDENT: Okay. I appreciate that. Anything else? The matter is adjourned.

ADJOURNED INDEFINITELY [5.30pm]