C2004/2037, Transcript of Proceedings [2004] AIRCTrans 1303 (5 April 2004)

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 6523

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2004/2037

THE AUSTRALIAN WORKERS UNION

and

BRADMILL TEXTILES PTY LTD

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

MELBOURNE

12.35 PM, WEDNESDAY, 24 MARCH 2004

PN1

MR E. GENT: I appear on behalf of the Australian Workers Union, along with the worker MR M. DENSLEY.

PN2

MR D. SULLIVAN: I appear for Australian Industry Group on behalf of Bradmill and with me is MR R. NEEDHAM from the company.

PN3

THE COMMISSIONER: Yes, Mr Gent?

PN4

MR GENT: Thank you, Commissioner. Commissioner, we have put this notification in and seeking the Commission's assistance in - a brief history of why we are here is that Mark was made redundant by Bradmill Textiles early in the year. Prior to that, the company had moved from Footscray out to Derrimut and during that time, in or around about September, there was to be an enterprise agreement negotiated, I guess, in the maintenance area.

PN5

At the time, Mark was the only employee that enterprise agreement at that particular site would have affected. So because they were moving out there, Mark sort of put things on hold, and I think it was with the agreement of the company that they would have a look at these things - sorry, my instructions are the company put it on hold first and then Mark agreed that look, once we get settled down we will then sit down and talk to you.

PN6

Mark consulted with me and we served what would have been described as a standard log of claims on the company, with a view to sitting down to talk to the company about trying to come to some arrangement as to facilitate an increase for Mark who again was the only fitter on the site. That may have been, I guess, from our understanding, either a full-blown enterprise agreement or a letter of understanding between the company and unions. Either way, I guess, our main option - the union's main option and Mark's main option was to facilitate a pay rise.

PN7

We raised the issues with the company at the redundancy meeting that we had with the company where the company had informed us that they were going to make Mark redundant. My instructions are that the manager, Mr Needham, had specific instructions from his parent company that he was not allowed to vary the outcome, the total package. I put to the company that, look, this is unfair, we have done the right thing, Mark has done the right thing in saying, look, you know, I was happy to put off the enterprise agreement. We wanted to then negotiate the enterprise agreement, then we wanted to - and then we find that he had been made redundant.

PN8

There was that issue and a couple of other issues that I will elaborate on further, but at this point in time, with the Commission's permission, I am happy to try and enter into private negotiations with the company and yourself to try and facilitate an outcome in this matter.

PN9

THE COMMISSIONER: So what is the claim? The claim is that, what, the redundancy package that has been calculated - - -

PN10

MR GENT: Yes.

PN11

THE COMMISSIONER: - - - has been calculated - - -

PN12

MR GENT: At the old - - -

PN13

THE COMMISSIONER: - - - on the old rates and you wanted to have it calculated on - what is now being negotiated in terms of a new rate?

PN14

MR GENT: Well, there has been no new rate - - -

PN15

THE COMMISSIONER: Set, but - - -

PN16

MR GENT: - - - set, but my understanding - - -

PN17

THE COMMISSIONER: If you take some industry standard, or something - - -

PN18

MR GENT: If we take some industry standards or - it is my understanding, and I will stand corrected by the company, that the site is predominantly textile workers union - - -

PN19

THE COMMISSIONER: Right.

PN20

MR GENT: - - - and they have recently - or prior to Mark's being made redundant, they have negotiated a 5 per cent increase. So, I mean - - -

PN21

THE COMMISSIONER: Right. Okay. Thanks for that.

PN22

MR GENT: If the Commission pleases.

PN23

THE COMMISSIONER: Yes, Mr Sullivan?

PN24

MR SULLIVAN: Thanks, Commissioner. The company's view is, Commissioner, that there is an existing agreement in place that still lives that has a redundancy arrangement in it. Had the company chose to renegotiate, it would have at that time. The company position is it has paid in accordance with the agreements it has got with the union and the employees and thinks it should stay that way, Commissioner.

PN25

THE COMMISSIONER: Mr Gent says that there appeared to be a common understanding - this is the Commission's words - a common understanding that because there was a move, that negotiations would be deferred; is that right?

PN26

MR NEEDHAM: Can I speak, Commissioner?

PN27

THE COMMISSIONER: Sure, yes.

PN28

MR NEEDHAM: Sorry, I am not used to the protocol.

PN29

THE COMMISSIONER: That is okay, no worries.

PN30

MR NEEDHAM: Bradmill was a - I will give a little bit of background then I can answer it, if that is okay.

PN31

THE COMMISSIONER: Yes, sure.

PN32

MR NEEDHAM: Yes. Bradmill Undare Group was a fairly large group out at Yarraville and it went broke a couple of years back. The companies got split off and sold - basically got sold into three groups; the knit group, the denim group and the outdoor division, which is this one.

PN33

THE COMMISSIONER: Right.

PN34

MR NEEDHAM: The outdoor division was by far the smallest of the lot. We have currently got 34 employees so obviously our, sort of, exposure to do HR and all of the other things is very limited. Certainly mine is.

PN35

THE COMMISSIONER: Yes.

PN36

MR NEEDHAM: I, quite frankly, wasn't aware of when the EB ran out in terms of the metal people, one out of 43 on the area and I have never handled it before. It was actually presented to me in very, very late August or early September and we moved factories in September.

PN37

THE COMMISSIONER: Right, okay.

PN38

MR NEEDHAM: In fact it was presented the week that we moved.

PN39

THE COMMISSIONER: Okay, so was - - -

PN40

MR NEEDHAM: Sorry, I haven't answered your question, twice.

PN41

THE COMMISSIONER: No, that is okay. That is okay. There appeared to be, according to Mr Gent, a common understanding that because there was - in the process of movement that the negotiations for a new EBA would be deferred.

PN42

MR NEEDHAM: From my point of view, not true - - -

PN43

THE COMMISSIONER: Right.

PN44

MR NEEDHAM: - - - in terms of - it may have been with the old Bradmill, but simply as the General Manager, I was really not aware of - I knew there was an EBA, I knew we were meeting it, I didn't know when it expired - - -

PN45

THE COMMISSIONER: Right.

PN46

MR NEEDHAM: - - - and it wasn't until I received it, in that late August, early September, that I actually looked at in terms of saying, well, there is an EB there.

PN47

THE COMMISSIONER: Right.

PN48

MR NEEDHAM: It certainly would not be my intention to, sort of, say well, we would fix it in a week and just have it done. I mean, it was something that, in all honestly, it was something that was, sort of, let us get the factory moved - - -

PN49

THE COMMISSIONER: Sure.

PN50

MR NEEDHAM: - - - job established and then do it that way.

PN51

THE COMMISSIONER: Let it - get the factory settled down. Yes, so Mr - is it Dersley or - - -

PN52

MR DENSLEY: Densley.

PN53

THE COMMISSIONER: Densley, sorry. Mr Densley was the only maintenance employee?

PN54

MR NEEDHAM: Yes.

PN55

THE COMMISSIONER: Right and has there been a wages outcome negotiated with the clothing and textiles?

PN56

MR NEEDHAM: There has.

PN57

THE COMMISSIONER: Right, and what is that?

PN58

MR NEEDHAM: 5 per cent - -

PN59

THE COMMISSIONER: Right.

PN60

MR NEEDHAM: - - - effective from the first pay period in December.

PN61

THE COMMISSIONER: Right, and what service did Mr Densley have?

PN62

MR NEEDHAM: Was it 13 years, Mark?

PN63

MR DENSLEY: Service with the company?

PN64

MR NEEDHAM: Yes.

PN65

MR DENSLEY: Twelve years.

PN66

THE COMMISSIONER: Twelve years?

PN67

MR DENSLEY: Yes.

PN68

THE COMMISSIONER: And what is the redundancy package?

PN69

MR NEEDHAM: Two and a half weeks for each year of service, plus an additional two - correct if I am wrong here - plus another two weeks if you are over 45.

PN70

THE COMMISSIONER: Okay.

PN71

MR DENSLEY: One week.

PN72

THE COMMISSIONER: One week. That is all right. So, that is 24, that is 30 weeks, so, 31 weeks. Is that right?

PN73

MR GENT: Commissioner, in regards to the redundancy, it is 32 weeks of redundancy, four weeks in lieu and one week because of the prescribed legislation because Mark is over 45.

PN74

THE COMMISSIONER: So how many initial weeks in redundancy?

PN75

MR GENT: Thirty-two.

PN76

THE COMMISSIONER: Thirty-two.

PN77

MR GENT: Commissioner, I think it is fair to say that we are not here asking to renegotiate the - - -

PN78

THE COMMISSIONER: No, no, I understand that.

PN79

MR GENT: - - - the weeks of the package.

PN80

THE COMMISSIONER: Yes.

PN81

MR GENT: I mean, whilst it is around about community standards these days, it is the other issues - - -

PN82

THE COMMISSIONER: Yes.

PN83

MR GENT: - - - that we wish to bring before the Commission.

PN84

THE COMMISSIONER: What does the sums work out?

PN85

MR SULLIVAN: For an extra, what, 5 per cent?

PN86

THE COMMISSIONER: Yes.

PN87

MR SULLIVAN: On everything, it would be another 3000 - - -

PN88

THE COMMISSIONER: Well, is it only on the redundancy package, or is it also on the payment of any outstanding annual leave? Was there any payment of accumulated sick leave?

PN89

MR GENT: There was payment of 120 hours of annual leave, 407 hours of long service leave - - -

PN90

THE COMMISSIONER: Right.

PN91

MR GENT: 91.6 hours of sick leave paid out.

PN92

THE COMMISSIONER: Right. And you seek, what, the 5 per cent movement on all of it?

PN93

MR GENT: We would seek the 5 per cent on everything, because we - I guess, and on one - and in saying it, I am going to qualify it and say one should never assume, but if the company hadn't have moved, we would have ended it in two negotiations in September and I think it is fair say that with the enterprise agreement, or as I stated previously, the letter of understanding that we were happy to jointly sign with the company that the - whatever outcome, whatever the wages outcome would have been, would have been well before the date of a redundancy.

PN94

Now, I mean, the obvious claim is that the 5 per cent would be applicable from when the current EBA expires, and you would be well aware Commissioner, that is the standard claim from the unions. I understand your position is that - - -

PN95

THE COMMISSIONER: It is effective from certification.

PN96

MR GENT: It is effective from the date of certification. Now, probably shouldn't say too much about that on the record.

PN97

THE COMMISSIONER: No, no. What does the sums work out? What was his total payout? Is it simpler to work out what the total payout was, then add 5 per cent?

PN98

MR SULLIVAN: As a claim, Commissioner, yes.

PN99

THE COMMISSIONER: Yes. What does that work out?

PN100

MR SULLIVAN: Five per cent on that, it is on the line on 44 grand.

PN101

MR NEEDHAM: Well, it is 5 per cent on the 44,000.

PN102

MR SULLIVAN: Two thousand, two and a bit thousand.

PN103

THE COMMISSIONER: Two and a bit thousand.

PN104

MR NEEDHAM: May I, sort of, respond there?

PN105

THE COMMISSIONER: Sure, yes.

PN106

MR NEEDHAM: There was another - and I don't know if I am saying the right thing here or not, but I am telling the truth.

PN107

MR SULLIVAN: Shall we go off record, Commissioner?

PN108

THE COMMISSIONER: Yes, we will go off record. Thanks.

SHORT ADJOURNMENT [12.50pm]

RESUMED [1.17pm]

PN109

THE COMMISSIONER: The Commission will recommend that an ex gratia payment of $1700 be paid to Mr Densley. That will be based on a payment of additional redundancy pay which will attract the nominal tax, if any, set by the Taxation Department. The Commission won't issue a recommendation on the issue of taking annual leave during the Christmas period.

PN110

In regards to the claim that there has been an underpayment on make-up pay, the Australian Industry Group will do an evaluation as to whether or not there has or has not been an underpayment. They will forward their evaluation to the union. The union, if they dispute that, are free to confer with the Australian Industry Group, and if the parties are unable to reach an agreement, it is recommended that they come back to the Commission so that we are able to try and resolve that particular issue, rather than run off to some other jurisdiction. Okay? Is that clear? Good. Thanks very much. Commission stands adjourned.

ADJOURNED INDEFINITELY [1.18pm]