C2002/6254, Transcript of Proceedings [2003] AIRCTrans 514 (14 February 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2002/6254

FINANCE SECTOR UNION
OF AUSTRALIA

and

GIO AUSTRALIA LIMITED

Application under section 170LW of the Act
for settlement of dispute re retrenchment
calculations

SYDNEY

9.40 AM, FRIDAY, 31 JANUARY 2003

Continued from 17.1.03

Hearing Continuing

PN75

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Hannan?

PN76

MS HANNAN: Thank you, your Honour. On the last occasion, FSU indicated that at today's proceedings we'd be seeking to program some dates for hearing. We're a little bit before that point, I believe, and if I could just address your Honour on where we're up to with the matter, if I may. Your Honour, its FSUs clear view that there is a clear obligation in the agreement for time worked in each mode of employment to be taken into account when calculating retrenchment benefits.

PN77

As previously advised to the Commission at 12.5, an employee who is transferred from full time to part time employment or vice versa will have their retrenchment payment based pro rata on the actual time worked in each mode using that employee's current salary level and I end the reference to the agreement there. It is FSUs clear view that that only not only means the time that person has spent whether in part time or full time employment and vice versa but also the actual hours that they have worked.

PN78

As a consequence of the views that have been put by Suncorp on the last occasion, FSU has conducted further investigations on the matter and has found that this exact clause actually exists in the St George Agreement and is applied to include the calculation for additional hours at point of retrenchment for part time employees who are obviously canvassing other agreement provisions that we understand at least in the NRMA Agreement as well, but that is how it is applied.

PN79

Your Honour, the fact is that there are a number of long serving employees that are subject to this dispute. Suncorp GIO was requested in October 2002 to produce the relevant employment records for those CSRs affected that had been advised to the union at that time. That information has not been supplied and we were advised that inquiries in terms of those employment records were in train with AMP and they were still progressing. The FSU contacted AMP yesterday and spoke to Mr Wilde who indicates that those records are available and that they do go back some way, although he couldn't indicate at what point that was, but they are certainly there.

PN80

Your Honour, it is the FSUs contention in order to move this matter forward, whether it ultimately has to be determined by arbitration or indeed as a first step in further discussions with the company on a without prejudice basis, but whatever records are available ought to be produced and that any reliance that the company has on the regulations providing the seven years is not the end of the story as far as we're concerned. 12.5, clearly puts an obligation on the employer to take into account the actual time worked in each mode of employment for the relevant employees concerned.

PN81

So we would say that for persons, say, for example, in the case of Ms Adams that has been there for over 20 years, that person would be discriminated against if you're just going to look at, well, here's one part of the Act that says seven years, the agreement provisions say you've got to take that into account. We say if those records are available and we believe that they are with AMP, then they ought to be sourced so that we can move this matter forward.

PN82

As I say, your Honour, that matter was raised with the company in October. We have not had those records produced and we've been in the situation where the relevant employees, at least two of them have produced their own recollections, their diary notes or other records that they have made. Ms Adams, supplied whatever pay sheets she had going back to 1991, although they are a bit potted and there are missing records there. They were supplied to the company, together with a summary of the hours for each particular year and an identification of the pay sheets that were missing.

PN83

Your Honour, this has the capacity to go on and on. It can be short cut by a very simple production of those records where they are available. The AMP hasn't indicated how far they go back, but certainly they go back some way and whatever is available, FSU would ask the Commission to recommend that as part of these proceedings, rather than now stopping and looking at some other means, that they ought to be produced. FSU has given a list of those people at the time that were known to FSU in October last year. We would by close of business today recheck with the branch to say, are these the employees as a final list as we know it at this current time who seek to progress their claim and we would reforward that list or confirm that list rather to Suncorp.

PN84

It would be on that basis, your Honour, that we would seek the Commission's assistance in obtaining that information in the form of a recommendation and on that basis FSU would seek to have a further report back next Friday upon receipt of those records to provide information to the Commission on where we're up to with the dispute. Save for any questions of clarification the Commission might require that's what we would say at this point.

PN85

THE SENIOR DEPUTY PRESIDENT: Very well, Ms Hannan. Ms Davis?

PN86

MS DAVIS: Your Honour, there have been discussions between the company and the union as Ms Hannan flagged this morning and we have just yesterday received Ms Adams's pay slips and various other documents so at this point in time we have not had an opportunity to review those. It would appear, your Honour, that the primary positions of the parties in relation to the actual interpretation of clause 12.5 and what constitutes additional hours and how that is to be paid is still an issue.

PN87

Despite the fact that the company on your Honour's suggestions did put together a bit of a definition around how the company is actually interpreting the clause and how it intends to apply the clause as well, that was provided to Ms Hannan yesterday and we had some discussions around that in particular. It was out of those discussions that it became apparent that we do have some differing opinions on interpretation and it was on that basis that Ms Hannan suggested that on becoming aware that, well, as Ms Hannan has said, on becoming aware from AMP that the records are available that we should go down the path of actually retrieving those records.

PN88

If I can just put this in context and unfortunately, your Honour, I don't have the benefit of having Mr Walsh here today, Dennis Walsh was here last time and Dennis has been primarily involved in looking into these records and speaking with the union.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes, he was quite intimately concerned with it, wasn't he?

PN90

MS DAVIS: That's right, unfortunately due to the rail tragedy this morning he has been tied up, he's okay, but he hasn't been able to get a train or get any transportation in so that explains his absence this morning and we apologise for that. However, I can say from my knowledge that when the request was made in October of last year the company did make inquiries at AMP as to what documents are available, what those documents might show and we might access them. They are not the property of Suncorp or GIO, they are clearly the property of AMP so in order to obtain them will involve a cost to Suncorp and also I expect given the extent of the documents that it will take some time to actually review the data that's within them.

PN91

I spoke briefly with Dennis this morning and he indicated that it would be at least two weeks with someone looking at them on a fairly full time basis to extract all of the relevant information, so the company is not adverse to doing that but it will take some time and it will be at a cost to the company as well in order to do that. So we would like if possible to narrow down any records that need to be extracted and reviewed to specifically those people who have claims that the union are representing.

PN92

THE SENIOR DEPUTY PRESIDENT: Well, that would be the case in any event wouldn't it, Ms Hannan?

PN93

MS HANNAN: Your Honour, I had a very brief discussion with Mr Wilde yesterday and I didn't understand from that discussion that it was going to take the length of time that's been proposed by the company.

PN94

THE SENIOR DEPUTY PRESIDENT: No, I'm not concerned about that at the moment. I'm concerned about those whose records are to be obtained, the union can only act for your list.

PN95

MS HANNAN: I can only act on what the branch has advised me are the persons who have put up their hands to date.

PN96

THE SENIOR DEPUTY PRESIDENT: That's right.

PN97

MS HANNAN: Some had left perhaps in ignorance and may come back at a later time that would be a matter to pursue at that point.

PN98

THE SENIOR DEPUTY PRESIDENT: At that time.

PN99

MS HANNAN: So at the moment we'd be lucky if we're looking at 10 people so I can't see it as a really long winded exercise, its a discrete exercise to extract their available employment records. Mr Walsh said yesterday he believed in any event the records that AMP kept for what we're seeking went back to only the early 90s. I don't know whether there are any other records that go back beyond that but, you know, even that being the case provides us with a starting point.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes. I don't believe there's a great deal of difference between the parties at this stage on what should happen next in a procedural fashion. The debate is, in fact, when the next report should be. That's really the situation, isn't it, Ms Davis?

PN101

MS DAVIS: Yes, your Honour, we're certainly happy to co-operate in terms of reviewing documents and if I can just add to clarify a point, the documents as far as I'm aware are available back to 1993 when AMP first implemented a computerised system. Pre 1993, we're not aware of those documents being readily accessible.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes, I see. Well, what I'm contemplating doing, I'll discuss with you off the record.

OFF THE RECORD [9.52am]

RESUMES [10.02am]

PN103

THE SENIOR DEPUTY PRESIDENT: I issue the following directions for the further conduct of this matter:

PN104

1. The FSU is to supply a list by the close of business today of the persons for which it seeks a determination of the application of clause 12.5 of the GIO Business Restructuring and Security of Employment Agreement 1999-2002.

PN105

2. Suncorp GIO to produce to the FSU all payroll records of those persons relating to modes of employment and hours of work, including additional hours, to which it has access, including by arrangement with AMP not later than close of business on 14 February 2003.

PN106

3. The matter is relisted for further report on 21 February 2003 at 4pm.

PN107

I adjourn this matter accordingly.

PN108

MR HANNAN: Your Honour, just before we do, the point about the jurisdiction.

PN109

THE SENIOR DEPUTY PRESIDENT: Ms Davis, I understand there's a point to be recorded about the jurisdiction of the Commission under the agreement.

PN110

MS DAVIS: That's correct, your Honour, I believe it's been on the record stated previously that we would not take issues regarding jurisdiction for any employee should they subsequently not be employed by the company.

PN111

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Davis. I adjourn the Commission indefinitely.

ADJOURNED UNTIL FRIDAY, 21 FEBRUARY 2003 [10.04am]