C2003/659, Transcript of Proceedings [2003] AIRCTrans 781 (11 March 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT1742

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2003/659

APPLICATION FOR ORDERS TO
CONSULT UNIONS

Application under section 170GB of the Act
by the Australian Municipal, Administrative,
Clerical and Services Union for orders to
consult unions

MELBOURNE

2.38 PM, WEDNESDAY, 19 FEBRUARY 2003

Continued from 20.1.03

PN175

THE COMMISSIONER: Is there any change in appearances?

PN176

MR M. BUTLER: If the Commission pleases, I appear for the Association of Professional Engineers, Scientists and Managers Australia and the Managers and Professionals Association.

PN177

THE COMMISSIONER: Thanks very much, Mr Butler. Now there has been a request for a re-listing of the matter.

PN178

MR HENDERSON: Yes, that is made by us, Commissioner. Since we were last in the Commission, we had two meetings with Logica and their representative about the redundancies and retrenchments which have taken place and at the first meeting, the union requested a number of matters relating to employees who had past employment with Melbourne Board of Works. One employee in particular had requested his job back and we asked the company to look into whether or not that was a possibility and we also asked the company to consider whether or not it would be prepared to enter into some sort of process arrangement with the units to deal with future matters.

PN179

In respect of the provisions of the Act that we are dealing under, obviously not all of those matters are relevant but in particular, we would say that the issue of the requested reinstatement is a relevant matter. What the company has told the union, and I understand that copies of what was provided to us was also provided to the Commission, notably a document dated 23 January 2003 - - -

PN180

THE COMMISSIONER: 28 January?

PN181

MR HENDERSON: That could be it. It is a document entitled "Response to Commission's Direction" and it lists - - -

PN182

THE COMMISSIONER: Yes, 23rd, yes.

PN183

MR HENDERSON: The union says that this particular employee, who is employed as a desk top support employee, is someone who in our view, would not have been retrenched had the company had the benefit of our views on the subject before it proceeded to effect the retrenchment and we say that because in our view, our request that volunteers be called for redundancy would have carried the day and that as a result of those volunteers, this particular employee would not have had to have been made - his position would not have had to be made redundant and he would not have had to be retrenched because he was occupying a position which was generic to some degree.

PN184

Also we were strengthened in our view about that because, if the Commission looks at the bottom of that page, it sets out the criteria which the company says was used to identify employees for redundancy and in our view, the explanation of the way in which the company went about applying those criteria resulted in an unfair selection of this particular employee and we say that for a couple of reasons. One is that we understand from the presentation that was given to us by the company that the employees concerned were not aware that their positions and their skills and backgrounds were being reviewed by their senior managers at the time that the company was arriving at its decision and the employees were not aware that there were discussions taking place between managers of various departments of the company with a view to ascertain whether there were any redeployment opportunities for them.

PN185

I don't want to overstate it, but from our point of view it seems that all of these discussions took place at a very sterile management environment without any input from the people whose lives were going to be affected by those discussions and without, as we have complained in the past, any involvement from their trade union representatives. In relation to the selection criteria, it is our view that the way in which these criteria were identified and then applied, is such that, had the company been able to be advised by the union, we would have advised them of the dangers that they faced in relation to the unfair dismissal proceedings - provisions of the Act, and in relation to reflecting on employees' capacities without giving them an opportunity to respond to what is being reflected upon.

PN186

But also more importantly, the need - the union would have clearly put the requirement that where there is a number of employees to be made redundant from a generic pool or similarly skilled employees, voluntary redundancies should have been called for. So notwithstanding the discussions that we had, the company rejected our request to reinstate that particular employee and that leaves us contemplating what, if anything, should now be done. It seems to us that the Commission's discretion under these provisions once enlivened by the fact that the redundancies occurred in circumstances envisaged by the Act, the fact that we have now had these discussions doesn't end the Commission's jurisdiction.

PN187

So the first point, the fact that we have gone up and had the sort of discussions which may well have been the sort envisaged by the Act as having taken place before the redundancies, notwithstanding that we have now had those discussions, we don't see that that necessarily ends the Commission's jurisdiction, but we do acknowledge that it is a discretion that the Commission has. There is no mandatory requirement on the Commission to make an order but it seems to us that if the Commission is satisfied that the company, or the employer, has denied an opportunity which would have been there, then the Commission can act to remedy that, and that seems to be the purpose of the provision.

PN188

So we are at the point where we are poised to ask the Commission to consider making orders but it would seem to me that before the Commission leapt to that decision, it would probably need evidence other than simply what I have had to say from the bar table, and - - -

PN189

THE COMMISSIONER: Evidence going to what?

PN190

MR HENDERSON: I beg your pardon?

PN191

THE COMMISSIONER: Going to what?

PN192

MR HENDERSON: Well, I suppose going to the - formal evidence going to the - what the company has done. Or alternatively, the Commission could be satisfied with what I am saying. I don't think much of what I have said has been objected to or disagreed with in terms of the factual basis of the application. But I just wonder, and this may be something we can discuss in conference, but I just wonder, and I wonder because there are not many authorities going to the Commission's power - exercising the Commission's power under this section, what the threshold is for the Commission to decide to make an order. But as I say, I have only put it at the point that we are poised to ask that question and at this stage I am still happy that we should have further discussion in conference and then set the final course after that.

PN193

THE COMMISSIONER: Thanks, Mr Henderson. Mr Butler?

PN194

MR BUTLER: If the Commission pleases. Since the hearing on Monday, 20 January, APESMA and the EPA have participated in the meetings along with the ASU with Logica and in addition we have reported back to our members regarding the outcome of those discussions. Now, whilst no individual member who has been made redundant has requested either APESMA or the EPA to pursue the issue of reinstatement with the company, I would just like to place on record our concern regarding the process that has been followed by the company.

PN195

The company advised us that they used a number of selection criteria, including such matters as overlap of skills, current skill set requirements, future skills required based on market demand and so on. But it is clear from the discussions that there has been very little consultation with the employees concerned and I would submit that that is, sort of, our step with an emerging trend in the modern workplace. We have had recent experience of redundancies where companies are beginning to involve employees in the process and seek their input into future skill sets and at least turn the process into a consultative one, rather than employees virtually having their fate determined in absentia.

PN196

And that is an issue of concern to us and we would certainly be seeking some commitment from the company that if they plan future redundancies and I understand it is not on the cards at the moment but if they do in the future, that the procedure adopted certainly be overhauled. Beyond that, Commissioner, we support the ASUs action on behalf of their individual member.

PN197

THE COMMISSIONER: Thanks Mr Butler. Mr Dawson.

PN198

MR DAWSON: Yes, thank you, Commissioner. Commissioner, the document that we forwarded to the Commission, dated 23 January to which Mr Henderson referred, was done for two reasons; firstly to make sure that we carried out the Commission's directions which we believe we have done, and to evidence that so that there was no mistake as to what was said. Now that was tabled in our meeting on 23 January and we elaborated on that. I won't say any more other than to say that Mr Henderson was endeavouring to take us down the trail of selection criteria.

PN199

Well, we ought to make that quite clear that whilst that was not part of the Commission's directions, the company nevertheless thought it was appropriate, under the circumstances, to advise the unions of the criteria used in selecting employees, so that they would a better understanding of the process that was undertaken. As we have heard this morning and heard previously, neither APESMA or the ASU, obviously, agreed to that because of this notion that they have that there has always got to be consultation with employees and I think that is something that we couldn't take - would not take place in these circumstances.

PN200

Secondly, alluding to generic positions and volunteers, there is an assumption there on Mr Henderson's part, you know, the company would, even if you had those discussions before the redundancies took place, that the company would have entertained a volunteer system in any case. So I think that is a bit of a long shot.

PN201

Commissioner, in the case of this one person and I won't name the person on transcript but we can talk about that in - in that person has - was a desktop technician and with the merger with CMG we now have a surplus of such skills and we are already having difficulty in keeping all the desktop technicians occupied. But also there, in the future, we don't see that there is going to be a lot of call for this class of work and the person selected was selected on the basis of all of those so-called generic technicians, him having the least suitable current skill set and a skill set that would have probably the lowest potential for the future.

PN202

So of the all the people to pick or all the people to raise as an issue, this one is the most bona fide of bona fide redundancies. So we would be happy to discuss that in conference and the reasons for that. The other thing I would point out to the Commission, every employee that was made redundant in this redundancy matter, has now signed a deed of release and including the employee mentioned - well it has to include the employee, by deduction, mentioned by Mr Henderson. And they have signed off an indemnity not to take any proceedings against the organisation.

PN203

Now I am not going to enter a legal argument whether that contract overrides the provisions of the Act, at this point in time, but certainly there was a provision in there that they would not take proceedings against the company. Now if the ASU is pursuing that that may well be relevant to raise at a later point in time.

PN204

THE COMMISSIONER: No estoppel, you say, on the ASU is there?

PN205

MR DAWSON: Yes.

PN206

THE COMMISSIONER: You say there is?

PN207

MR DAWSON: Well, I am saying - I will steer off the legal term at the moment.

PN208

THE COMMISSIONER: Yes. All right.

PN209

MR DAWSON: The doctrine of estoppel is quite an interesting one.

PN210

THE COMMISSIONER: Yes.

PN211

MR DAWSON: I am saying that this particular person, we understand, went to the ASU for advice about the deed of release and was advised by them to sign it. Now they are raising the issue of this particular person, someone who wants to be reinstated after - - -

PN212

THE COMMISSIONER: No, but putting aside what the individual has agreed or not agreed, there is no suggestion that the ASU has made a similar commitment, is there?

PN213

MR DAWSON: No, not at all. No.

PN214

THE COMMISSIONER: No.

PN215

MR DAWSON: But they are running this matter on his behalf, presumably.

PN216

THE COMMISSIONER: Very well, we will adjourn into conference. Thank you.

SHORT ADJOURNMENT [2.55pm]

RESUMED [3.23pm]

PN217

THE COMMISSIONER: I have conferred with the parties. I am going to invite the notifying union, the ASU, to reflect on its application in this matter. It appears to me that some of the issues that it raises could more appropriately be directed to proceedings under 170CE of the Workplace Relations Act 1996. In that connection I simply note that we sought to resolve this controversy through conciliation since it first arose but, regrettably, we haven't been able to reach agreement. Anyway I will simply grant you leave, Mr Henderson, to have the matter re-listed if you wish or if you choose not to prosecute the matter under this application, if you would just send the Commission a note indicating you don't wish to further proceed.

PN218

MR HENDERSON: Yes, thank you, Commissioner.

PN219

THE COMMISSIONER: Thanks. The matter is adjourned sine die.

ADJOURNED INDEFINITELY [3.24pm]