C2003/6257, Transcript of Proceedings [2003] AIRCTrans 5053 (11 November 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 5179
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

C2003/6257
C2003/6258
C2003/6259

APPLICATION FOR ORDERS TO
CONSULT UNIONS

Application under section 170GB of the Act
by the Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union and Others
for orders re employer allegedly failed to consult
trade union about terminations at Tenix Defence
Pty Ltd (ANZAC Ship Project)

APPLICATIONS FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Applications under section 127(2) of the Act
by Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union and
Another for orders to stop or prevent industrial
action

MELBOURNE

2.25 PM, THURSDAY, 30 OCTOBER 2003

PN1

MS K. WILD: I appear on behalf of the AMWU and with me is a delegate from the site.

PN2

MR G. BORENSTEIN: I appear for the CEPU seeking to intervene in this matter as an interested party. We have members at the site.

PN3

MS T. STEVENS: I appear on behalf of the AWU and with me is MR L. O'BRIEN, also from the AWU and our site delegate, ....., who is behind.

PN4

MR A. WOOD: I seek leave to appear as counsel for Tenix Defence. I appear with MR A. ROOTSEY.

PN5

THE COMMISSIONER: There are three applications before me for leave, one to intervene and two to appear. Is there any objection from anyone.

PN6

MR WOOD: We don't object to the intervention.

PN7

THE COMMISSIONER: All three are granted. Who is going to address me first?

PN8

MS WILD: Thank you, Commissioner. This afternoon we are here to try and get some - an undertaking from Tenix in relation to the proposed redundancies that they have announced earlier this week. We are seeking some consultation and discussion around the proposed redundancies, and while we recognise that the company has a right to run its business and if redundancies are necessary then that is the way we have to go, but we also recognise that we have a right under the Act to be consulted and to try to mitigate any of the circumstances - unfortunate circumstances that surround redundancies.

PN9

On 28 October the company advised the union that approximately 60 employees were going to be made redundant on 7 November. The announcement was made prior to any discussion or consultation with the union and we say that this is contrary to the Act at 170GA. We also say that it is contrary to the certified agreement that is operating at the moment. There is a number of points that we would take you to in that certified agreement including the dispute settlement procedure which, at clause 14, which says - after going through the steps and then it takes us to the Industrial Relations Commission; it then goes on at 14.4 to say:

PN10

That no party should be prejudiced simply by the fact that work continued whilst the above process was being followed.

PN11

And we would say that our request for an undertaking from the company is in line with clause 14 of the agreement. We want time to have discussions and consultation and for the - for us to sort the dispute out before any party is prejudiced. And in this case, we are speaking of the named or the proposed redundant employees.

PN12

THE COMMISSIONER: How many employees did you say?

PN13

MS WILD: We have been advised of 60. Further, we say that clause 25, redundancy - 25.1 is titled, Obligation to Consult, and we would say that the company has not adhered to that clause. Further, the company has indicated that they are not willing to consult with the unions generally and that the redundancies are going to go ahead on 7 November. And also just to further - further in that clause 27, Introduction of Change, it says:

PN14

Where the company has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely ...(reads)... proposed changes and the unions.

PN15

And then it says:

PN16

The company shall discuss with the employees affected the introductions of changes referred to, the effects that changes are likely to have on the employees ...(reads)... consideration to matters raised by the employees.

PN17

In this stage at the moment we don't have any indication of the skills mix that the company propose to make redundant. We don't - therefore we don't know the affect on the remaining employees as well as who is going to be affected by the redundancies. Furthermore I have been instructed that this is not the first time something - this has happened with this employer in regards to proper consultation in the last lot of redundancies. There was a number of successful unfair dismissal decisions that came out of that process.

PN18

And also significantly they have a number of contractors working on the site and that might be something that could be discussed in mitigating the effects on the permanent employees. Just in relation to 170GA we would say that there is more than 15 employees. In relation to GA(1) and (2), we have not been advised of the reasons or the categories of the employees to be affected nor have we had the chances referred to in B(1) or (2) to avert the termination or minimise the terminations or take measures to, as I have already said, the effects - mitigate any of the effects.

PN19

And I will just take you to a Full Bench decision, it is PR905781, where they say that:

PN20

170GA obliges an employer in the circumstances the respondent found itself in to inform a relevant trade union of the proposed terminations and to ...(reads)... complied with its obligations to inform and consult.

PN21

And this - I will take you to - I will just skip a bit and then it says:

PN22

It is apparent that this section is intended to provide a remedy for employees where the course of conduct specified has not been complied with. This section ...(reads)... or to some mitigation of the adverse effects of the terminations.

PN23

I provide a copy.

PN24

THE COMMISSIONER: Are you going to provide me with a copy of that?

PN25

MS WILD: Yes. Sorry and that was paragraph 22.

EXHIBIT #U1 FULL BENCH DECISION, PR905781

PN26

MS WILD: That is all I have got for the moment.

PN27

THE COMMISSIONER: Thank you.

PN28

MS STEVENS: Thank you, Commissioner. I just would like to reinforce everything that Ms Wild has said, but it is of concern to us that they have announced these redundancies and are yet to let us know how they reached - 84 employees have received a notice that they are in line for redundancy. They have been unable to let us know the skill level on the people that they are prepared to let go and how in fact they reached these conclusions. They have not consulted with us. We had a meeting, I think it was Tuesday morning, which I would perhaps describe as a Mickey Mouse consultation where they took us through a process that I think they have put in place to say they have consulted.

PN29

What they have failed to tell us is why they need these redundancies in the first place and who are the people they need to let go and why. I think the fact that we asked them to hold off the interviewing process until we had proper consultation, and they didn't, constitutes that the company have engaged in industrial action. In fact some people have already gone from the site. There are also, Commissioner, a number of people that would volunteer to go and we have asked that we look at everyone who would volunteer to go first before they start with involuntary redundancies and this was also met with a flat no.

PN30

So, I guess, the concern that our union has, and I think the other unions have, is that they really have not been prepared to engage us through a full process of who needs to be made redundant and why and have a look at, who perhaps, would like to go. There are people there that are unwell and have had enough and I think it is important that they get looked at closely as a priority if there do in fact have to be redundancies. So, Commissioner, I am hoping that we can get some answers today, thank you.

PN31

THE COMMISSIONER: Mr Borenstein?

PN32

MR BORENSTEIN: I have nothing further to add, Commissioner.

PN33

THE COMMISSIONER: Thank you. Yes, Mr Wood?

PN34

MR WOOD: Commissioner, probably and I am sure not deliberately, you probably don't have a very good picture at this stage of the events that have transpired this week, so I might just very briefly take you through that and then I can respond to the submissions that have been made this morning or this afternoon. On Monday of this week the company made its decision to effect redundancies at the site. The company identified approximately - the need for approximately 60 redundancies amongst the trades employees at Tenix Defence at Williamstown. It notified all trades employees on site of the fact that redundancies would take place but it provided additional information to employees, who I might call, were within scope.

PN35

There were some 84 of those employees who were identified. Those 84 employees were identified based on preliminary assessments that were conducted by the company based on a criteria based system which the Commission as constituted would have some familiarity with from previous proceedings. And which I will take you to shortly as evolved from previous proceedings before the Commission - before Commissioner Mansfield. The unions were informed of that decision at 7.30 am on Monday of this week through the delegates and formally by way of letters which were faxed to the CEPU, the AMWU and the AWU notifying them of those impending redundancies. And for the record I will hand a copy of those letters up to the Commission.

EXHIBIT #T1 FAXED LETTERS TO CEPU, AMWU AND AWU NOTIFYING OF IMPENDING REDUNDANCIES

PN36

MR WOOD: Commissioner, following that notification the company did receive some requests from individual employees who were both within the scope of the 84 and from outside that group requesting voluntary redundancy and those have in some places been considered. It has been noted that some of the identified employees have left the site; that is correct. Some of the voluntary applicants for redundancy have been accepted, and on my instructions, with the approval of the unions, have been let go. That is contrary to what we have heard at the bar table. They are certainly my instructions.

PN37

The process for redundancy was such that individual letters were sent to employees in scope in addition to which a letter was sent by Dr Barnam to all employees on the site. And if I can hand up a copy of both of those letters. Perhaps it might be separately identified because they are different letters.

PN38

THE COMMISSIONER: Thank you.

PN39

MR WOOD: Perhaps if the letter from Dr Barnam could be identified separately to the letter which went to the individual and scope employees.

EXHIBIT #T2 LETTER TO ALL EMPLOYEES FROM DR BARNAM

PN40

THE COMMISSIONER: The individual letters are all the same are they?

PN41

MR WOOD: Yes.

EXHIBIT #T3 INDIVIDUAL LETTER SENT TO EMPLOYEES IN SCOPE

PN42

MR WOOD: Commissioner, if I can take you first to exhibit T2, that was the letter from Dr Barnam, headed, "An open letter to all Anzac ship employees regarding the pending redundancies." It notes the quality of the employees on site and thanks the employees, all of them, for the quality of the work and the presentation of the vehicles that have been presented to date. It notes the difficult circumstances of the - that Tenix Defence currently faces itself with the failure to secure, as of the moment, further ongoing contracts for the site.

PN43

And Dr Barnam's letter goes in some detail about steps that are being taken to ensure and win ongoing contracts for the site. It then talks on the second paragraph on page 2 of his letter and I will quote this. He says:

PN44

All of the foregoing is not new and it will not surprise as a result of progress at work and the continuous reorganisation and restructure at the Anzac Ship Project that I have to regrettably ...(reads)... effective from 7 November 2003.

PN45

THE COMMISSIONER: I thought you said 60 trade positions?

PN46

MR WOOD: My understanding is we are talking about 60 trades positions in the - - -

PN47

THE COMMISSIONER: The letter does not say that, does it?

PN48

MR WOOD: It doesn't say that and I think that was not an attempt to be misleading, it was simply at the time, that that was probably misconstrued in the letter but it is certainly 60 trade positions, Commissioner. The letter goes on to say that the company will consider voluntary applications up to Thursday 6 November and application forms are available from the company's HR department and so on. The exhibit T3 is - you have, what I call, a pro forma in exhibit T3, Commissioner and that is also dated Monday 27 October.

PN49

And this letter goes to affected employees noting that the company informed the unions of the reduction in the workforce advising that the employee receiving this letter is one of 84 recipients who is being considered for possible redundancy and it is anticipated that approximately 60 of those employees will be made redundant. It then goes on to say - to request the employee to confirm their attendance at the interview process by attaching - by returning the form which is attached and invites them to bring a colleague with them should they choose.

PN50

And the letter further attaches a copy of the assessment form that applies to the preliminary assessment undertaken in respect of that individual employee. Commissioner, you might note that that is a variation to the system that was previously applied by the company. As a result of proceedings before Commissioner Mansfield of this Commission there were indeed a number of unfair dismissals arising from what were known as the August round of redundancies from last year. Those unfair dismissal proceedings led Commissioner Mansfield to make a number of suggestions in his decision as to how the process of redundancies could be improved based upon the existing system.

PN51

Some of those changes included, in fact, notification to employees before their meeting of their assessments and as to who had conducted those assessments so that they could go into them, not blind, if you like, and that is one of the recommendations and it has been adopted by the company. You will note, Commissioner, on page 2 of the letter from Mr Sweeney that there are nine criteria that have been considered and applied with respect to the proposed redundancies. Those criteria also vary in some respects from the criteria that previously applied.

PN52

And the application of the criteria will also be applied pursuant to the recommendations which were made by Commissioner Mansfield in the proceedings to which I referred you earlier. I am instructed, Commissioner, that after those letters went the process of interviews commenced on the Monday but there was also a meeting that commenced with the relevant unions during the afternoon of Monday the 27th involving the AMWU and the AWU. And that was followed on Tuesday 28 October by a mass meeting of employees at approximately 6 am.

PN53

There was a return to work of those employees at approximately 7.50 that morning. That meeting was unauthorised and was, accordingly, an unpaid meeting of those employees. There followed at approximately 8 am on that morning a meeting involving representatives of the CEPU, the AWU and the AMWU regarding the proposed redundancies. The meeting discussed a range of issues associated - that took place with Mr Rootsey in his office. Sorry, that meeting took place, Tuesday at 8 o'clock with Mr Rootsey and Mr Myers representing Tenix.

PN54

Mr Rootsey at that meeting explained the history of the redundancy process and the changes that have been made to the system as a result of proceedings that date back, indeed, to Commissioner Simmonds, yourself, Commissioner and also Commissioner Mansfield. That meeting concluded at approximately 10 am at which point it was followed by a meeting with Mr Rootsey and representatives of the company with the union delegates on the site. The interview process commenced with the employees thereafter at approximately - just before midday and I am instructed that that process will be concluded this afternoon. Also yesterday afternoon obviously the company received these applications being the applications pursuant to section 127 and 170GA of the Act.

[2.50pm]

PN55

Can I respond briefly to some of the matters which have been raised. It has been asserted that the process adopted by the company amounts to a breach of either section 170GA or clause 25 of the agreement. I will deal with the agreement first. Clause 25 does impose upon the company an obligation to consult. The obligation applies in circumstances once a definite decision has been made that the company no longer wishes the job to be done and accordingly redundancies will occur.

PN56

It says those discussions shall take place as soon as is practical after the company has made the decision. The company's position on that is those discussions did in fact commence on the Monday. They continued on Tuesday. There has been no further request for meetings yesterday although Mr Rootsey has both verbally and in the company's correspondence has said that the company is available to hold further discussions.

PN57

I am instructed that there has not yet been a meeting at which the particular categories of employees affected has been discussed between the parties. That isn't because the opportunity has not presented itself and I can assure both the parties and the Commission that the company is willing to conduct such a meeting today or tomorrow or as soon as conveniently can be arranged with the parties. So my instructions are certainly very clear and to the extent that an undertaking is sought on that, an undertaking can clearly be given that those discussions can take place.

PN58

In respect of the assertion that the conduct has amounted to a breach of section 170GA, firstly can I say, the section 170GA in itself doesn't create express obligations other than confer upon the Commission powers to make orders in certain circumstances. Putting aside that argument we say that the relevant issues required to be considered pursuant to paragraph (a) and (b) of section 170GA(1) either have been met or can be met pursuant to the undertaking and commitments that the company makes regarding ongoing discussions either today or tomorrow.

PN59

In terms of how that would affect the programming moving forward, Commissioner, from the correspondence you will note the redundancies are proposed to take effect on Friday week. Indeed, Commissioner, you may be aware that from previous proceedings some time ago involving yourself, that the company had previously had a period of one week within which it sought to undertake the interview process in addition to the consultation obligations that it had an Commissioner, you might recall recommendations that you made as a result of those proceedings that the company extend that period to two weeks and that indeed is the position that the company now adopts.

PN60

So there is no immediate threat of terminations. There will certainly be no terminations which are not voluntary which occur before Friday of next week.

PN61

THE COMMISSIONER: Has any employee other than voluntary employees been told that they specifically have been selected at this stage?

PN62

MR WOOD: Not that I am instructed, no. The employees have been informed of their scores, some of them, and to the extent that some of their scores might indicate that they are within scope, but the company's proposed process is that those scores will be reviewed in the light of those meetings with employees and the company will take into account the responses that the employees provide. During the course of tomorrow, being Friday, and I understand over the weekend, the company will then collate those results and work, if you like, out an order within which it will then consider whether the voluntary applications can be accepted and whether employees fall within or outside the scope of the employees who will be actually retrenched.

PN63

I am corrected by - sorry, Commissioner. I am corrected by Mr Rootsey to say that the employees were not told their actual score in the initial interview process. They went through that process or that process is commencing today or commenced on Tuesday and will be continuing today and that process simply told them where they are within that range. The third and final scores will be collated over the course of Friday and over the weekend.

PN64

Can I then respond to the assertion regarding clause 27 of the agreement. It is asserted that the provisions with respect to introduction of change apply in these circumstances. The company rejects that approach. We say that the company is certainly bound in its obligations in this exercise by the terms of clause 25 of the agreement. Clause 27 does not apply, it applies to a separate set of circumstances in respect of the introduction of major changes. We say that contemplates changes in technology, introduction of new technology and the like and it is not the circumstances that apply and that clause 25 represents the code dealing with redundancy specifically in those circumstances.

PN65

Ms Wild made mention to some previous unfair dismissal proceedings before Commissioner Mansfield. I think I have referred the Commission to those. In fact the company has take those proceedings into account. Some of those proceedings, I might say were successful, others weren't, but certainly the company is taking into account the views of Commissioner Mansfield and modify its system on this occasion and is prepared to discuss that system in further meetings with the unions.

PN66

I think, Commissioner, those are the major issues which at least for the record should allow the Commission to be familiar with the events and circumstances of this week. If I can summarise the company's position, it is very clear it will meet, it will consult, it is obviously doesn't believe that that process is an unending process and it certainly believes that it can be completed either today or tomorrow without any impact on the current timetable which is in place. If the Commission pleases.

PN67

THE COMMISSIONER: Well can I pre-empt what you are going to say by saying what Mr Wood has just put before the Commission and the parties, does that meet the union's requirements and if not, why not?

PN68

MS STEVENS: We don't believe it has met the requirements of consultation. We asked for the interviews to be postponed until we were consulted more widely and to give the employees a little bit more time to let the news sink in. I mean, let us get this into perspective. 84 people were given letters and scores basically meaning you are in the gun. I don't think 24 hours before they began the interview process was enough time for these guys and their families to digest their futures.

PN69

That is one of the reasons we asked for the interview process to be haltered until we had time and they had time to discuss with us and their families their future. This request was denied and they proceeded with the interviews. Can I just also outline at the 6 am meeting on the Tuesday was authorised. We asked permission but due to try company form, it was unpaid. All we are wanting is that the process be haltered and we are still asking that the process be postponed until we have had a proper look at the needs that the company require and why these particular people have in fact been outlined and why they have been scored, if we can call it that in such a particular way.

PN70

I mean 84 guys have been called in and have basically had to plead for their jobs and convince the company as to why they should stay and funnily enough, Commissioner, we actually asked - our delegates said can we see our scores. Two of them didn't receive letters, one did and he has subsequently chosen to go. Mr Rootsey could not produce their scores. Why not? Is that because only the 84 that they have in the gun were scored.

PN71

Look, maybe that is just smoke in mirrors but 84 guys other than those that have already chosen to go, do not feel that they have been given enough of an opportunity to think about their futures and to go in and articulate it within 24 hours. I mean that is not fair dinkum. I think the whole - - -

PN72

THE COMMISSIONER: So how might that be overcome now given that that has happened?

PN73

MS STEVENS: Given that it has happened? Well that is a good question. Mr O'Brien, would you like to - - -

PN74

THE COMMISSIONER: I mean, are you suggesting that there might be some employees who might wish to be interviewed again?

PN75

MS STEVENS: There are certainly some employees outside the scope that wish to go and we would ask that they be given due consideration first before those that have been given the letter. I think that that is a fair process. I think the process from here should be that we call for voluntary redundancies and that includes those outside the scope. And once we have had a look at who would like to go, then the company sits down with us an reassess the process.

PN76

MS WILD: Thank you, Commissioner. In relation to what Mr Wood said about the company's will to have a meeting in relation to who is going to go, the skills mix and the issues around - - -

PN77

THE COMMISSIONER: And I understood Mr Wood to say that starts as of now.

PN78

MS WILD: I understood that to be the case as well, Commissioner, and that will certainly be useful. Having said that, we still do have a preference and perhaps it would be useful to go into conference and just see if we can flesh out a few of the finer details in relation to that meeting and in relation to the issue of volunteers and see if we can't have a discussion around volunteers and having them all - volunteers dealt with before we then go on an look at the forced redundancies that will need too occur if there is not enough volunteers.

PN79

I mean, and that also - obviously if we had the volunteers and an understanding of who they were, that would make it more fruitful meeting in relation the skills mix and how the company and the unions can help to mitigate the effect on the employees.

PN80

THE COMMISSIONER: Well, Mr Wood says in his submissions to the Commission that he is in a position to start giving that sort of information. Yes.

PN81

MR BORENSTEIN: Commissioner, it is fine for the company to come along here and say we will need to consult as they keep going for interviews and head towards the November 7 date, but to have proper consultation with the unions, it is certainly our preference and what we seek is that they halt the whole process at the moment, even though they have started it, that it be halted while these negotiations with the unions take place so that there can be actually some meaningful consultation as to whether volunteers be accepted before the selected people that they have gunned.

PN82

THE COMMISSIONER: Isn't that an opportunity still open to the parties in that in respect to my question, no person has so far been advised.

PN83

MR BORENSTEIN: No, but they have certainly selected the group.

PN84

THE COMMISSIONER: Yes.

PN85

MR BORENSTEIN: Which about 90 percent of that group is going to be going.

PN86

THE COMMISSIONER: Yes.

PN87

MR BORENSTEIN: So are pretty much there in selecting the people to go and they are already going through the process without the union's involvement and how the process of - - -

PN88

THE COMMISSIONER: Well you now have an opportunity and your rights under 170GB(1) are now available to you and that might change the scope, mightn't it?

PN89

MR BORENSTEIN: Well - - -

PN90

THE COMMISSIONER: It might change the numbers out of 84.

PN91

MR BORENSTEIN: I suppose it is our preference that the process that they are going through aren't taking place while we are negotiating here because it - - -

PN92

THE COMMISSIONER: I think I would be more convinced of your argument if we were talking about redundancies that were personally advised and were going to take effect next week, but they are not.

PN93

MR BORENSTEIN: Well they are going to take place next week.

PN94

THE COMMISSIONER: Friday, is it?

PN95

MR BORENSTEIN: Friday, 7 November.

PN96

THE COMMISSIONER: Yes.

PN97

MR BORENSTEIN: That is very close and there is a lot of people who are going through this interview, just being called in, they don't have their assessments, they provide the assessments when they go in - they have already got their assessment. They are expected to, you know, in the next week or today, a few days after receiving it to explain why they should be kept on and they are not told actually how these assessments are added up. It is not clear on the form how they have really been assessed on it. So all they get is a criteria. There is no clear way on how they actually add up the totals.

PN98

THE COMMISSIONER: So why isn't - - -

PN99

MR BORENSTEIN: And these are all matters that if the process is haltered rather than gone through and then - - -

PN100

THE COMMISSIONER: Well I understand what you are saying, but why isn't there an opportunity on their behalf for the unions to challenge their assessment? Right now, today or tomorrow or Monday?

PN101

MR BORENSTEIN: Well because it has already started. It has already gone and the unions haven't been involved in the actual setting of the criteria or actually understanding how the criteria is added up.

PN102

THE COMMISSIONER: Well - - -

PN103

MR BORENSTEIN: I mean it is hard - they have been given the criteria and a tick or a cross but they are not - the actual calculations there are numbers - is not clear, that is what my instructions are.

PN104

THE COMMISSIONER: The one thing that has to be recognised is the history of the projects and it is not as if this is something that suddenly comes out of left field. I mean there has been a progression of reductions and ultimately the total project will finish, won't it?

PN105

MR BORENSTEIN: Well, it is unclear - - -

PN106

MR O'BRIEN: I think, Commissioner, that everybody here agrees that there is no ..... of what is happening - the remainder of the projects and I think that is why we would like to now sit down and really decide what the future processes are going to be to make sure that processing in future is transparent. Because at the moment we are looking at 84 guys for possibly 60 redundancies. Next time we have a smaller group left on ..... for a bigger redundancy.

PN107

If we don't settle these issues now, we are going to be back here in six months time with more people being made redundant with a smaller group to choose from. So I think it is clear that we need to set out the process and we need to do it in the situation where we haven't got guys going into interviews - I think under the application to consult 25(1)(i) that employees are actually supposed to be contacted through the ships yards accredited employee representatives, not directly, but through us and that is how the obligation to consult works.

PN108

That they are to come to us, they are going to say we are in a position where we believe we need to make 60 redundant. Now so far we have not seen any evidence that the number 60 comes up. We haven't seen anything to support the figure. We have heard - obviously we understand that due to the nature and the future of the project that there will be redundancies. We just can't see that - we know 60 is not to be pulled out of a hat.

PN109

In relation to the scoring, we don't actually know why the guys, when they were handed their assessment, when handed their score, that would give us a far better position where we could sit down and say, okay, and I think in the meeting on Tuesday, Alan pulled numbers ..... 41, 42 and that he pulled a draw line at say 42 and everyone below that was tagged. Now if that was the case, we would like to know what the individual scores were so that we could set up some sort of relative objective indicators.

PN110

On that point alone we only have the performance reviews from ..... We don't know that - well firstly we are not confident that the rest of the ship yard assessments have been conducted. Furthermore we are not privileged to that information. How are we supposed to criticise the performance reviews if we don't - we have nothing to measure them again in relation to the rest of the yard. I think in stopping the interview process from going on, I see that time is of the essence on both counts.

PN111

It would actually now give us the chance to consult without having a fear we still have workers going into interviews and having the pressure looming over them come next Friday, they may or may not be out of a job.

PN112

THE COMMISSIONER: Thank you. Mr Wood.

PN113

MR WOOD: Commissioner, the company will have an open mind in those discussions but they are discussions and there have been a bit of toing and froing and I won't respond to all of the bits and pieces and some of the assertions might be right and some of them might be wrong. Mr Rootsey is in my left ear and these are really issues which are best discussed between the parties in conference and, you know, to the extent, Commissioner, that you can make yourself available for that process, we would appreciate your involvement in it, and that can happen immediately following the conclusion of today.

PN114

If I can just make one point from the company's perspective about it because it is a relevant issue that goes to the application made by both of the applicants. The orders sought in their application is that there be a status quo until agreement on the process is reached. Now with respect, that is not the company's understanding of this process, nor is it indeed the company's understanding of the scope of powers available under section 170GA.

PN115

The company will consult and it will do so with an open mind but in the end the requirement is not an agreement either under the terms of the Act, or under the terms of the enterprise agreement. So unless there be any misunderstanding about that, I don't know if there is in respect of what has been put today, but certainly in terms of the application. I think, Commissioner, the parties might be assisted by talking after these proceedings and your involvement would be welcome.

PN116

THE COMMISSIONER: Is that your view Ms Wild?

PN117

MS WILD: Yes, Commissioner.

PN118

THE COMMISSIONER: Ms Stevens?

PN119

MS STEVENS: Yes, Commissioner.

PN120

THE COMMISSIONER: All right, I think we will take that course for the moment and we will go off the record and proceed into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #U1 FULL BENCH DECISION, PR905781 PN26
EXHIBIT #T1 FAXED LETTERS TO CEPU, AMWU AND AWU NOTIFYING OF IMPENDING REDUNDANCIES PN36
EXHIBIT #T2 LETTER TO ALL EMPLOYEES FROM DR BARNAM PN40
EXHIBIT #T3 INDIVIDUAL LETTER SENT TO EMPLOYEES IN SCOPE PN42