C2004/1035, Transcript of Proceedings [2004] AIRCTrans 1414 (14 April 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 1585
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2004/1035

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by
Readymix Emoleum Services Pty Limited
for an order to stop or prevent industrial
action by the Australian Workers' Union,
its officials, employees, members and agents
in respect of Readymix Emoleum Services
Pty Limited

ADELAIDE

8.24 AM, THURSDAY, 1 APRIL 2004

PN1

MR S. DASAN: Appearing with me is MR M. SMITH, the State Manager of Emoleum, and MR S. PATMORE, who is the Human Resource Manager. I also seek leave to appear, if I may, Senior Deputy President.

PN2

MR J. BRAITHWAITE: I appear on behalf of the Australian Workers' Union, along with MR MATEOS, an official of the AWU, and MR POWELL and MR SHANNON, both shop delegates.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Braithwaite, what is your position relative to Mr Dasan's request for leave to appear?

PN4

MR BRAITHWAITE: Well, sir, we would oppose the appearance of Mr Dasan under section 42. However, I note in the application that the Commission is respectfully requested to list this matter urgently for the purpose of conciliation. If, in fact, their intention is to proceed to conciliation, the AWU would agree to the appearance of Mr Dasan. However, if we are entering into a hearing in relation to the 127 we would oppose it under section 42, if the Commission pleases.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Dasan?

PN6

MR DASAN: Commissioner, these section 127 hearings are serious matters indeed that have the capacity to end up in the Federal Court of Australia. Having said that, the purpose of any hearing before the Commission, within the scope of its powers, is to attempt to find a resolution to disputes that may arise from time to time. We seek to find a resolution in relation to these matters and we think that, as a practitioner who has practised in this jurisdiction for some time, can bring the capacity on behalf of my clients to actually deal with those issues to conclusion within a fair manner. So I seek the leave of the Commission, the discretion of the Commission, in relation to being able to appear here today.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Dasan, are you seeking leave pursuant to section 42(3)(b), or through 42(3)(c)?

PN8

MR DASAN: 42(3)(c), Commissioner.

PN9

THE SENIOR DEPUTY PRESIDENT: Then what alternatives exist to your representation of the company?

PN10

MR DASAN: They are the human resource manager in relation to this matter - is new to the company and is based in Melbourne - and my instructions in relation to this matter have actually come from the State manager here who is also relatively new to the position.

PN11

THE SENIOR DEPUTY PRESIDENT: What is it you are seeking today, are you seeking an order? If so, on an ongoing, or an interim basis, or are you seeking that the matter be referred into conference?

PN12

MR DASAN: We will be seeking an order on the basis that - in the first instance we would like to go into conference to ascertain the reasons, for what we say - the industrial action has actually occurred and to see whether we can find a resolution to those matters in conference in the first instance. However, given how these things have a tendency to pan out, our application is before you here today, but we will see how that plays out in the course of this morning's submissions, Senior Deputy President.

PN13

THE SENIOR DEPUTY PRESIDENT: Mr Dasan, I'm going to grant leave pursuant to section 42(3)(c). I do so though with a qualification and that qualification has two components. The first is that in the event that this matter proceeds to a conference it may, or may not, be appropriate for you to continue to participate in that conciliation process. Secondly, in the event that Mr Braithwaite brings particular issues to my attention, such that he requests access to legal expertise on behalf of the union, then if those issues are detailed I would be prepared to give consideration to giving him the opportunity to access legal advice to that effect.

PN14

MR DASAN: If it pleases the Commission.

PN15

THE SENIOR DEPUTY PRESIDENT: Mr Dasan, this is your application?

PN16

MR DASAN: Could the Commission spare me a minute to explain that to my instructor, Commissioner, in relation to what you have just said.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

PN18

MR DASAN: Thank you, Senior Deputy President. This is an application pursuant to section 127(2) of the Workplace Relations Act. The orders are being sought in what is the company's position where there has not only been a breach of section 170MN of the said Act as well. The employees were not at work yesterday and were in the process of taking industrial action. There were no occupational health and safety issues that were reported to the company and we say that the strike action that was taken yesterday and continued on this morning - I am informed by Mr Mateos that the action has been lifted.

PN19

We have just checked to see that at about 8.15 or thereabouts the workers have gone back to work. We say that the strike action yesterday is in breach of the Act and is unprotected. We further say that there is every likelihood as to what happened yesterday and what was threatened to happen today is an issue of threatened industrial action which could occur tomorrow, Monday, Tuesday, or any other day, while the organisation still has an enterprise bargaining agreement which is still intact. The enterprise bargaining agreement I refer to is the CSR Emoleum South Australian Business Unit Enterprise Agreement 2002 which was certified by this Commission on 13 May 2002.

PN20

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of that?

PN21

MR DASAN: I have a copy of that, sir.

PN22

THE SENIOR DEPUTY PRESIDENT: I won't mark that document. As I understand, it is a copy which contains the Commission's print number.

PN23

MR DASAN: In relation to the background to the issues we are looking to find a resolution to the issues before the Commission here. Those are my instructions, but I think it might be illustrative in relation to our proceedings here today to go through the background of the company and where it is at and some of the reasons why we believe that this unprotected industrial action was taken. The business of Emoleum SA Group in South Australia is about $35 million a year. Last year the SA business in relation to the Largs Bay operations in the road building area lost about half a million dollars.

PN24

There was some issues which, we say, that the employees and every other person within the company was aware of in relation to options and were being looked at to restructure the company. First of all, to claw back the losses and secondly, to see whether they could actually try to make a quid. In about 20 March 2004, a decision was made to restructure the operations at Largs Bay and the reasons were, of course, the losses that were sustained by that section of the company last year, also the drop in production that was anticipated given that a competitor for the first time ever has actually come into the market place.

PN25

We expect that the volumes - and to give you just a conceptual idea of the volumes, the volumes that are currently being produced per annum is between 12 and 17 million litres of emulsion and the company expects that given the scope of a competition they can expect only to produce between 7 and 8 million litres. The Commission may also be aware of certain issues in relation to the EPA, the Environment Protection Authority of South Australia, having placed an order on the company in relation to the capacity of it to produce certain products at Largs and that body at the moment is - because of its odour, is an indefinite stoppage. The company is no longer producing that stuff.

PN26

On 19 March it informed the employees and the union that - and it communicated by correspondence - it has gone back between the union and the company from what I am instructed, that they would be looking to downsize that part of the operation by two positions. One of it would be a supervisory position and the other position will come from what is loosely termed "the crew". It goes without saying that in the exchange of correspondence - and the correspondence I would formally admit, if I may, if it becomes necessary for us to lead evidence in relation to these matters.

PN27

The short story long, Senior Deputy President, was that the union's position, as it was put to the company, was that they wanted a guarantee of two redeployments for the two people that would be made redundant.

PN28

THE SENIOR DEPUTY PRESIDENT: So am I to presume that following the correspondence on 19 March there was either a meeting with the union, or further correspondence back from the union to the employer?

PN29

MR DASAN: No, sir. If I may correct the record, on about 19th and to that period there were discussions between the company, as I'm instructed, between the company and the union and then there was a series of letters that actually followed those meetings. Two issues were discussed. One, I am instructed, that was brought up in relation to the redeployment which was an issue that was raised by the union and the other one was an issue of increased redundancy payments that was actually put up by an employee.

PN30

On 25th there is correspondence coming from the AWU saying they would not participate in the selection process, or would not encourage its members to be involved in the selection process in relation to the redundancy round. The company, of course, wrote back and said that no selection had in fact been made and it was only a process that had been undertaken and the AWUs position was premature. That was correspondence going from the company to the AWU delegate on 26.3.04 in relation to the process to go ahead.

PN31

However, in that correspondence was about the first time that the AWU had raised an issue in relation to the breach of the disputes procedure and the company had, in fact, asked the union to tell it where it, in fact, had breached the disputes procedure. On 29 March there was further correspondence from the AWU and there was no change to the union's position. They did not believe in forced redundancies. They believed that the dispute resolution procedure had been breached and it was effectively a reiteration of what had been told to the company previously.

PN32

That takes us effectively to our purposes here today, that a meeting between Mr Mateos and Mr Braithwaite at the AWU on 30 March 2004 with the company, in which they said that there was no change in their position. Their position is a little bit hard to understand at that point and informed the company that they would have a stop work meeting at 7 am tomorrow, which was yesterday, 31 March 2004. I think it might be prudent at this time to say that earlier in the month, about 19th or 20th, the AWU had, in fact, as part of the dispute settlement process, returned to the company and invited a meeting of the consultative committee.

PN33

That arises from clause 44 of the enterprise bargaining agreement. Effectively, at stage 2 or stage 3 of that enterprise bargaining agreement, Senior Deputy President, leads to a calling of a consultative committee meeting. The union had asked for the meeting to be called on 2 April 2004 and given the situation was heating up, that Mr Smith of the company wrote back to the AWU and invited discussions to bring forward the consultative meeting to the morning of 31st, which was yesterday, at 7 am.

PN34

THE SENIOR DEPUTY PRESIDENT: So that on 19th, you say, the AWU proposed, or agreed to a consultative committee meeting for 2 April?

PN35

MR DASAN: No, that is on 19th, sir. The correspondence that I have suggests that that letter was sent from the AWU on 22 March 2004 and was received by the company on 24 March 2004 in which they demanded, if I may quote:

PN36

We also demand that management call its consultative meeting for Friday, 2 April 2004.

PN37

THE SENIOR DEPUTY PRESIDENT: When did the company propose the change from 2 April to an earlier date?

PN38

MR DASAN: On the 30th, sir.

PN39

THE SENIOR DEPUTY PRESIDENT: They suggested what date?

PN40

MR DASAN: They suggested that since the issue of industrial action had been raised for 31st that they asked that the consultative meeting be held on 2 April be brought forward to 7 am on 31.3.2004. They also asked the company through that correspondence that:

PN41

At that meeting the company would expect the AWU to ventilate all issues that you claim are in dispute -

PN42

I'm quoting from the correspondence from Mr Smith here -

PN43

between you, your members, and the company and we would also expect you tell us how you believe we have breached the company's dispute settlement procedure.

PN44

Of course, it goes on to further say:

PN45

We take this opportunity to put you on notice that should you, or your members engage ...(reads)... Australian Business Enterprise Agreement 2002 and that the Workplace Relations Act 1996.

PN46

That goes on to say that for anyone that engages in industrial action, that is the employees of the company, they will not be paid for the time they were taking this industrial action. On 31st the consultative committee meeting, I'm instructed, did occur and at the same time the employees were not at work. They were in the yard but they did not go to work. The union's position did not change in relation to the anticipated, or the potential redundancies. Work did not occur.

PN47

The company asked the union for alternatives and that wasn't taken up. Mr Braithwaite, I am instructed, returned to talk to his members and other employees and returned and said that the workers were on strike. Further, that they would return - and this is Mr Braithwaite, to the company. That they would return at 7 am today, 1 April for another stop work meeting and to discuss further industrial action, if - and I guess, if there was going to be any more further industrial action.

PN48

The company had also at that time told the AWU that the selection process in relation to the redundancies that were going to occur, they had hoped to finish yesterday. It goes without saying that it was quite difficult to actually put any findings to the affected employees because none of the employees were actually at work. So that process of picking those two employees is not finished, even though the process was targeted to have finished yesterday afternoon and at some stage will have to be put back on track.

PN49

We, of course, intend to put the outcomes and the selection processes and anything else that will come out of that process which is being handled by Mr Patmore before those employees, or the affected employees, before any final decision is made in relation to the redundancies. For the purposes of the 127 hearing here today, Senior Deputy President, I seek to inform you that work as far afield as in Kimba, Ceduna and Victor Harbor, Dry Creek and, of course, the large project on Portrush Road where there has been severe traffic delays have all been affected by the non-production at Largs. Of course, there is no work occurring at Largs at this stage.

PN50

The stoppage, we say, is of a very serious nature, especially given the issue of liquidated damages that the company may face in relation to its projects on Portrush Road. I mean, there is only certain times of the day they can work on Portrush Road and the issue of liquidated damaged have not yet been calculated into the scheme of what we say are the potential losses, or the losses being suffered by the company at this stage. We say that the stoppage is unprotected.

PN51

We say that there is a current enterprise bargaining agreement which is in place and the strike action is in breach of section 170MN of the Act. We say that the union has failed to observe the dispute resolution process that allows for the parties to come to the Commission if they actually have a dispute instead of having a strike. If the consultative meeting which occurred yesterday - and did not reach a conclusion. I mean, it is a strange dispute resolution clause, and one of the stranger clauses that I have actually seen.

PN52

Nevertheless, there is access back to this jurisdiction if, in fact, there was a problem and unfortunately the unions concerned chose not to take up those options. So we say that the cost, the initial calculation of costs, tells us that the company lost - given its crews throughout South Australia that stopped work, in excess of $250,000 yesterday and, of course, we haven't actually figured in what the cost has been in relation to the crews and when the crews in the country areas have started working today or not. Of course none of those costs deal with the issue of liquidated damages that may occur in relation to the Portrush Road job at all.

PN53

So we say that we have a significant investment in front of us and we say that unfortunately it is our view and the views of my clients that the AWU has not quite dealt with clean hands in relation to this issue given that they were informed yesterday, that they had an issue that the company was quite prepared to go to the Commission and have its views ventilated so that they may avoid any kind of strike action. None of those suggestions were taken up. It is the view of the company that given the situation in relation to the operations at Largs, the EPA orders in relation to the non-capacity for it to produce seven items in the long term down there - the issue of the redundancies, that will still be bumping around for the next couple of days.

PN54

The potential for further industrial action is great and we suspect that the orders that we seek from the Commission might be the only way to go about actually resolving that matter, even if it is for the short term. I will intend to put Mr Smith on the stand if that is needed, but I would suggest, you know, that given the facts that we say are pretty incontrovertible at this stage of the game. We seek that if the Commission could hold Mr Smith back from actually giving evidence at this stage - until the views of the union can be ventilated in relation to this issue - so that we might at least be in a position to see whether we can find a resolution, if it pleases the Commission. I will leave that in the hands of the Commission as to how you seek to progress this matter.

PN55

THE SENIOR DEPUTY PRESIDENT: Mr Dasan, you advised that you have been told that employees have today returned to work?

PN56

MR DASAN: Yes, sir.

PN57

THE SENIOR DEPUTY PRESIDENT: Have you been advised of the possibility of any further industrial action?

PN58

MR DASAN: The issues that led - what we said, the issues that led and the decisions taken by the union, are still not resolved. The issues that we say led to the strike action yesterday, have still not been resolved. We say that the only reason, in practical terms, that the union has chosen to encourage its members to go back to work - not at 7 o'clock, representing the normal starting time, but at 8.15, is because we were before you here today. Of course, that is an assumption on my part, but nevertheless if those matters haven't been resolved - it has been going on for the last 2 weeks that led to the strike. We suggested that the chances of it arcing up either this afternoon after we finish here or tomorrow morning, is as high as it was yesterday.

PN59

THE SENIOR DEPUTY PRESIDENT: I see. Am I correct in understanding then, that there are two issues about which you understand the AWU and Emoleum are in dispute? The two issues relate to: first of all, the proposal to make two persons redundant, and secondly, the payments that would be due to those employees. You did mention a claim relative to redundancy payments.

PN60

MR DASAN: Yes, sir. My instructions from the company is that Bill's views have not been clearly ventilated. That is, correspondence which I've read that suggest to me that the company kept asking them as to what the breach is to be - but the third area, I think, which needs to be added to your list, is this breach of the dispute settlement process. We don't quite pretend to understand what that is at this moment. The issue has been raised in relation to redundancy payments. I'm instructed that a 13-week notice period, 3 week-per-year severance payment, and a payment of all sick-leave be added to any redundancy payment.

PN61

MR BRAITHWAITE: Commissioner, I must object to that, because there has been no claim put by the unions to relate - - -

PN62

THE SENIOR DEPUTY PRESIDENT: Mr Braithwaite, I understand your objection, and I can assure you I will give you the opportunity to clarify the situation.

PN63

MR DASAN: Sir, as I've said in my submissions, and I was careful about that earlier on, those - the view in relation to the enhance redundancy package was not put by the AWU. It was put, but it was put by an employee of the company at a meeting, so if there's any form of unclarity about that situation, let us clarify that now. I've said previously, and I say it again, it was not an issue that was raised by the AWU.

PN64

THE SENIOR DEPUTY PRESIDENT: Very well. Now, the next question I have for you goes to the consultative committee meeting that occurred yesterday.

PN65

MR DASAN: Yes, sir.

PN66

THE SENIOR DEPUTY PRESIDENT: To what extent can you tell me that there was a clear set of outcomes arising from that meeting?

PN67

MR DASAN: There were no outcomes that arose from the meeting, on my instructions. The only thing that occurred was that the AWU raised the issue of redeployment, if I may call it that. Redeployment of those two employees, whichever the two employees that were ultimately picked of the two positions that will disappear. If that wasn't forthcoming, there would be industrial action. The company's view was that, given that we've already told the world, that we've got these redundancies, are going to be for operational reasons and restructuring reasons at Largs Bay. The thought that we would be able to find two extra positions for these people elsewhere was not something that the company could countenance at that time. However, Mr Smith, I'm instructed - informed the unions that he would, in fact, attempt to check with the rest of the Emoleum group interstate to see whether jobs could be made available, or if there were any openings where any of his employees could actually apply for interstate.

PN68

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN69

MR DASAN: Senior Deputy President, there might be one other issue that I think needs to be raised here. The company, within its business units, has also got a building plant. In the asphalt areas there have been discussions between the union - those employees in the company is going back some years and, basically, things came to head close to Christmas last year where commitments were made to make some of these long-term casuals permanent employees. The company had made that - had told its employees, and those employees are actually now going through the process of being made permanent employees.

PN70

The company is also - there have been other issues that may come up in relation to casual employees. The company has already made a decision to downsize the number of casual employees used by a large, large number. However, in relation to whether there are jobs available in other parts of the company here in South Australia, it doesn't make it clear. The company is not prepared now to go and tell some of those long term casuals who have now been given the go-ahead, those who have applied have been given permanent positions with the company, we are not prepared to tell them that they can't have those positions because of the pending redundancies in another part of the business, because that was, I'm instructed, raised at some stage. We just want to make that clear, so that the issues before you today are clear.

PN71

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN72

MR SMITH: If it pleases the Commission.

PN73

THE SENIOR DEPUTY PRESIDENT: Mr Braithwaite?

PN74

MR BRAITHWAITE: Before I go into the history and a few of the facts of this matter, I will deal with the last couple of decisions of the company first. At the consultative committee meeting yesterday the company's position was that they were going to proceed to select and terminate employees at 3 pm yesterday afternoon. The union's position was that it was our view there were vacant positions within the company, that the company should make those positions available to those employees who were to be made redundant on the basis that the company has an obligation to mitigate the number of redundancies.

PN75

Several times through that consultative committee meeting the union put to the company that we don't accept their position, they don't accept ours. The disputes procedure has a process for the parties to move down to break the impasse. We gave the company two options. Option one was to follow the disputes procedure, and to refer the matter to the Commission for - well, to a third party, whether the Commission, or a mediator, to see whether we could break the impasse. The other option was that the company proceed in violation of the steps in the agreement, and we would then report back to our members and make decisions.

PN76

The company took the position that they would not refer this matter to the Commission, that they would proceed with their process to terminate the employees. The reality is, and it has been before this Commission before between the AWU, and I can't remember the employer, in recent months - it is 7 months ago, in relation to an application under section 99 for Commission assistance in relation to a termination. That termination went ahead. The Commission indicated there that there was no jurisdiction now, and we had to go down the path of an unfair dismissal application.

PN77

The reality is, the company was not prepared to take steps to the Commission until our people took steps. The resolution that was given to the company at approximately half past 10, was read to them and faxed through to them later, was on the basis of that the company are not prepared to follow the procedure of the enterprise agreement to resolve the current impasse in relation to redundancies and use a third party, the Australia Industrial Relations Commission. We withdraw our labour until an agreed process is put in place to resolve the impasse, with a report back meeting at 7 am tomorrow, being this morning.

PN78

The decision to make two people redundant at 3 pm today is a disgrace, without seeking to mitigate the redundancy numbers. On the basis that we saw a process in place by the application to the Commission, and an indication that there was to be conciliation, members this morning elected to return to work. The crews in relation to Victor Harbor, etcetera, made themselves available. With regards to the spray and seal and sully crews, they are available and return to work - to the work area, whether it is Victor, or whatever, or work in the yard at the direction of the employer.

PN79

There was a question mark on whether the employer would want them to go back to Victor, but they were under the direction of the employer. So, in essence, Senior Deputy President, the action was in response to the company on the basis they were prepared to use a third party. If I deal with the comments in relation to the asphalt crew first, there are, as we understand it, five positions available within the asphalt crew. Those positions were advertised in the paper some 6 weeks ago, approximately. The casual labour that the company are talking about are, in fact, not employees of the company. They are labour hire employees, external to the company.

PN80

We say that the company has an obligation to mitigate those redundancies. We also put to the company to try to alleviate the numbers by seeking to call for volunteers within the crews affected, and the rest of the workforce. The company has been emphatic that there will be two casualties, as they put it: we will not - will not, under any circumstances, attempt to mitigate these redundancies by offering them positions that are vacant. Now, I don't have a copy of the award with me, and I don't have a copy of the agreement, unfortunately.

PN81

My bet would be that either the award, or the agreement, would refer back to the TCR provisions whereby there's an obligation on the employer to attempt to mitigate those issues. If I can just firstly deal with a couple of the procedural issues first in relation to the submissions by Mr Dasan. He has indicated that the union was advised of the reductions on 19 March. I need to put the correct steps in place. There was a meeting held by employees on 20 March, the Monday, conducted by Mr Mateos.

PN82

That was a report back, as I understand it, in relation to negotiations and issues that were transpiring on site with regards to a fitness for work policy; with regards to staff doing production workers duties, etcetera. Out of that the company was advised by correspondence that the workforce would not accept staff doing their work, unless agreement was reached with the individual gang, but they sought consultation in relation to the drug and alcohol policy, or the fitness for work policy. They were the agenda items for the meeting on the 20th. Mr Mateos was on annual leave on Tuesday, and that is where I became involved. I received a call from the manager, Mr Smith, on the 21st, is that right? Or was it the 23rd? I think, it is 23 March, indicating that he wanted to have a meeting at about 11 o'clock.

PN83

THE SENIOR DEPUTY PRESIDENT: Well, Mr Mateos - - -

PN84

MR MATEOS: I'm just checking the dates in my diary.

PN85

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes?

PN86

MR BRAITHWAITE: Was it the 23rd? You were on holidays on the 23rd.

PN87

MR MATEOS: Yes, it would be the 23rd.

PN88

MR BRAITHWAITE: Sorry, yes the 23rd. So it was the 22nd, sir, the meeting took place, not the 20th, over the issues of staff doing duties. On the 23rd at around 11 o'clock, I met with Mr Smith and Mr Patmore from Emoleum, along with Mr Powell, where we were advised of the intention by the company to restructure the emulsion and blending. That they were going to reduce from five to three. That was the consultation, in relation to the restructure. We met the company again after I had a meeting with the employees on the 23rd, whereby we put to the company that there was an indication that volunteers may be available if there was some sort of ex gratia top-up, which they advised there would not be.

PN89

Without resolving that issue, we said that there were vacancies within the company, and that they should make those positions available to the wages employees. So that was when things started. From there there was various correspondence between the parties, essentially, on the basis that we saw a process to address the issues. The company's position was they were going to proceed to spill all the jobs, interview the individuals, make their selection of which three, then tap two people on the shoulder and march them out the gate.

PN90

So that is the consultative process. We had no transparency in relation to the restructure. Their position was that it was a business decision. They expect volumes to reduce. The fact that the volumes reduce does not necessarily reduce the workload on the individuals. They have still got to be available for when product is required, etcetera, and we can go through that with Mr Shannon and Mr Powell on the stand, if we have to, in relation to evidence. I just want to take some points from the application. They highlight whereby we are, in fact, poles apart in relation to - the applicant has made the decision to restructure.

PN91

We say there's been no consultation on that restructure. There's been no transparency on the restructure. There's no job descriptions being developed for those remaining. There's no skills matrix being developed for those remaining. There's no process for relief of those workers with regards to annual leave, long service leave, workers comp, training etcetera other than what was proposed to occur last Friday when one of the employees was not going to be there due to a job interview. What are we going to do? We are going to take staff personnel out of the office and go and supplement the crew so the work can get done.

PN92

We are in the middle of a process whereby the employer is saying that he wants to downsize the group because they need to operate by three people yet in the very opportune time when they're reduced to four, what do they want to do? They want to bring a fifth one from the office to do these people's work, very appropriate time I would have thought. The applicant states that it has gone through a selection process. There can't be a selection process because there's been no skills matrix developed nor has there been a duty statement of the employee - job description.

PN93

We don't know whether or not - and being someone who doesn't have an understanding of the classification structure - that does the current classification structure envisage a person having all the skills in blending because of the two different sections being emulsions and - - -

PN94

MR SHANNON: And blending.

PN95

MR BRAITHWAITE: And blending. Don't know. We haven't had the opportunity to get that sort of detail from the employer. They say they wrote to the branch secretary on 30 March. That letter we received, Franklin and myself, on 31 March when we were down at Emoleum to move forward. They say that the AWU informed the applicant the union would no longer co-operate in the selection process. But we said to them from day one, we are not entering into a process of restructure until we have an agreed process to deal with that restructure.

PN96

The only thing we had from the employer was: I'm going to tap people on the shoulder, I'm going to march them out to the gate and I will do it this afternoon. They say that they convened a consultative committee yesterday morning. The only problem is, they didn't notify the representatives of the consultative committee or at least all of them anyway. The issue we would say, sir, at this stage, is that we want to enter into a process to address the impasse we currently have at the moment. There is no industrial currently happening. There is no threatening nor pending industrial action and what we would say, sir, the company should give an undertaking to the Commission that they will not proceed to terminate any employee in relation to this restructure while the matter is being dealt with by the Commission, if the Commission pleases.

PN97

THE SENIOR DEPUTY PRESIDENT: Mr Braithwaite, can I refer you to clause 44? Have you got - - -

PN98

MR BRAITHWAITE: No, I haven't got a copy of the award or the agreement, sir, I'm sorry.

PN99

THE SENIOR DEPUTY PRESIDENT: Let me make it clear - - -

PN100

MR BRAITHWAITE: I didn't get an opportunity to get into the office.

PN101

MR POWELL: I might be able to help my friend out there, sir.

PN102

THE SENIOR DEPUTY PRESIDENT: I will give you the chance to have a quick look through that clause because, as Mr Dasan said, it is a somewhat unusual dispute resolution clause. As I read that clause, Mr Braithwaite, the option exists for either the union or the employer to refer the matter for arbitration.

PN103

MR BRAITHWAITE: That's correct. As I indicated earlier in my submission, sir, the company had intended to proceed to terminate the individuals at 3 pm yesterday afternoon. Any application before the Commission would have happened after that period thus the application would have been technically a waste of time based on the fact that we would have had to make application then under the unfair dismissal provision of the Act. As I said earlier, the employer was given the opportunity to follow the procedure, the parties have come down to the Commission for that purpose. They chose not to take that option. It was very clearly laid out to them and they sought the other option of proceeding at 3 o'clock yesterday afternoon. As is indicated in their application to the Commission that their intention - was the applicant intended to make the decision by 3 pm on the 31st at point 17.

PN104

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, thank you, Mr Braithwaite. Mr Dasan, is there anything you want to say by the way of a response?

PN105

MR DASAN: The first thing is that I will stand corrected in relation to the correspondence that my friend referred to in his submissions. The date of the correspondence from the Australian Workers Union, I think I referred to it as 19 March, it is actually 22 March and I stand corrected there. However, in relation to the correspondence that was sent on 30 March 2004 that my friend says he only received the papers on 30 March 2004, I can confirm that that was faxed - my instructions are that it was faxed and it is marked on the document at 3.45 pm on 30 March after the various meetings with the industrial organisations had occurred, I am told. I wasn't there at that meeting of course.

PN106

THE SENIOR DEPUTY PRESIDENT: Mr Dasan, what is the status of the selection process relative to the redundancies?

PN107

MR DASAN: As I understand it, the issue about the reduction, out of the five employees that are currently in the emulsions area and the blending area, two of them - the structure will be there will be a supervisor and I am led to understand that there are two supervisors there currently and of which one of those people will get the job so to speak.

PN108

THE SENIOR DEPUTY PRESIDENT: Is that selection process relative to the supervisory function been determined as yet?

PN109

MR DASAN: Not yet, sir. Can I - - -

PN110

THE SENIOR DEPUTY PRESIDENT: Has it commenced?

PN111

MR DASAN: It has commenced. In relation to the crew members which are three, which is being reduced by one, that process has been commenced as well. The issue is all of those various individuals are skilled in those various areas of operation. The company is in the process trying to work through a matrix. To say that one or the other person actually can't do it would be wrong. All of them can carry out those duties. The issue is in relation to a set matrix and it is being developed by the company. That is what is being used. They are talking to a range of past managers at this stage in relation to a series of things on those matrix.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes.

PN113

MR DASAN: Once those discussions would have occurred, what would have happened yesterday, if things took their course, is that as I understand it, the actual matrix forms would have been completed and be put back in front of the factory employees for comment. Then, only then, would the redundancies after those comments were received by the employees - only then would a decision be made by the company. Of course, none of those steps actually - which we say is fairly reasonable in relation to the TCR provisions - have been unable to have been conducted because none of the employees were there.

PN114

The company still intends to keep that timetable at some stage because these are redundancies for operational matters. I also want to deal with the issue of mitigation that was raised by my friend. The issue of mitigation is quite simply this. Yes, Emoleum is a large company but it is a large company Australia-wide and if there are issues of mitigation, the company has already offered that they will approach their interstate counterparts about seeing whether there were positions available and making arrangements for whoever the two staff members or two employees who effectively were unsuccessful in holding onto their jobs for the reason of redundancy, for them to be given an opportunity to apply for those positions.

PN115

That is what the company has done in mitigation, so it is not that the company hasn't done anything at all in relation to the issue of mitigation. What we're saying is, that the option existed for either party to send the men into arbitration but there was nothing to arbitrate. We are still going through a process here but if the union wanted to come down here to the Commission without strike action being called that, we say, would have been the appropriate steps pursuant to the dispute resolution clause.

PN116

That would have been an appropriate step given yesterday after the consultation meeting was done because the union had the capacity to come down here if they were going - instead of calling it on as a strike. Then if the employer had then decided to go ahead, given that the matter would have been in the Commission at that time, then the issue of whether one of the other parties had come to the Commission with clean hands would be an issue this morning, which we say it has not.

PN117

There are issues in relation to - and I guess the third issue that is the sleeper, the one that is hiding behind all the other various issues that have been brought up here today. The sleeper issue is the question of who loads the trucks when nobody else is there. The company, I think for the record, needs to state this clearly. When somebody is not there and we do not have sufficient staff members for whatever emergency reason, if in most cases, somebody else would have been brought up to load the trucks. If, for whatever reason, those people that usually load the trucks have gone off either because they have gone to another job interview or because the person suddenly fell sick or was injured or whatever it is and there is no-one to load the truck, it is incumbent on the company to fulfil its contractual duties to its third parties.

PN118

In those circumstances, someone who is suitable qualified and we don't care if it is a blue collared employee or red collared employee or white collared employee, but someone who is suitably qualified to be able to fulfil those duties will do so. We don't walk away from that because we think that is the appropriate thing to do. I mean, while my friend didn't quite state this in such terms, but the feeling that we get from what he has actually put to us is that: oh no, you can't do that, you've got to wait for someone appropriately from the work gang to come up, even if it is in the next couple of days.

PN119

We are not talking about a large crew here but somebody else within that particular work unit to come back and fill the trucks and while that is happening even if this white collared employee - I don't see them as white collared employees - I'm saying it is an employee of the company - should have just waited aside and not filled those trucks and not sent the orders out of the gate that effectively is the life blood of what keeps this operations going at Largs. So we say that that is a non-issue. We say that the selection process is a non-issue because there is a selection matrix that is being used by the company that has not finished its term.

PN120

It is true, if there are issues of unfairness or victimisation which is none of the things that I've heard here today, if those issues came up and we need to come to the Commission where those matters have to be ventilated, fair enough but the issue of the redundancies is about two people in a group of five. Really, it is out of a group of two and a group of three because there are two supervisors of which there will be one position lost there and we've got a group of three which is part of the crew that where one position will be lost. Who that person will be will be determined very much by the use of the matrix and the use of a fair and equitable process.

PN121

If either of the parties before the bar table here actually believe that the process somehow or other - and I go back to the correspondence that my friend has referred to and I've referred here to today - if somewhere there was some issue of victimisation or otherwise or a whole range of other factors that may arise, then the appropriate place - if the company believes that it has got a pristine process and if the other side thought that it wasn't transparent enough for some vague reason, then they should have come to the Commission. But what did happen, Senior Deputy President, is that there was a strike. There was an unprotected strike. There was an unprotected strike for the whole of yesterday because even while the consultative meeting was going on, there was no work being conducted.

PN122

There was a stop-work meeting today, this morning, until 8.15, an hour into their work day. There is no guarantee that if all of these issues can't be cleaned up one way or the other, that there won't be a strike at 7 am tomorrow morning because of some other reason or because some other employee of the company that didn't belong to this crew filled a truck or kicked a tyre or went and cleaned up the cab of one of their transport vehicles. We could just see a whole range of issues but I do think that part of the reason for having the capacity under the Act for 127 orders is the issue of people coming to the process with clean hands.

PN123

We believe that the company has come to the table with clean hands. The company would have come to the Commission if the union could identify an issue to bring forward to the Commission. The reality is that there were no issues. There were no issues even yesterday except for a need by one of the parties for a redeployment plan before the redundancies took effect. The company, regardless how you slice this cake, would not offer redeployment because as a business unit down there, the shifting of two positions across anywhere else will still have the same financial impact upon it, which is the start of this whole reason for restructuring. It is not going to sit down there and try and save the business by basically trying to shuffle the deck chairs. That is the company's position.

PN124

THE SENIOR DEPUTY PRESIDENT: Mr Dasan, can I ask you a question about the dispute resolution provision?

PN125

MR DASAN: Yes, sir.

PN126

THE SENIOR DEPUTY PRESIDENT: I'm sure you'll jump up and tell me if I've misinterpreted or misconstrued his remarks, but my understanding is that Mr Braithwaite's position was that the last step in that process involved reference of the matters in dispute to what he suggested to be the Australian Industrial Relations Commission. Does the employer say that these matters should go to the Australian Industrial Relations Commission?

PN127

MR DASAN: No, the employer's position is that we are quite prepared to discuss that with the union in relation to that very issue. The employer's view at this point is that - tell us what you think is wrong and then we'll find a way of dealing with it.

PN128

THE SENIOR DEPUTY PRESIDENT: Yes. The point that I'm trying to establish is, where does the employer believe the matters that remain in dispute ought to go for arbitration? Is it to the Commission or to some other authority or individual?

PN129

MR DASAN: Come to the Industrial Relations Commission, sir.

PN130

THE SENIOR DEPUTY PRESIDENT: Secondly, am I to understand in your view, that provisions of clause 44.4 are such that the role of the arbitrator is simply arbitration?

PN131

MR DASAN: That would be open to debate about whether they have a right to arbitrate at that stage at the consent of both parties.

PN132

THE SENIOR DEPUTY PRESIDENT: Mr Dasan, it appears to me that there are at least three options here today. Two relate directly to orders that might be made pursuant to section 127 of the Act. The first of those is that there exists a capacity, now confirmed by recent legislative change, to make an order of an interim nature, pending a more substantive hearing of the matter. I'm very conscious that the parties have scratched the surface, I think, of the issues about which they are in dispute today. The second option is that a fully fledged section 127 order might be made.

PN133

Both of those two options require, as I understand it, that I be satisfied first of all that the jurisdictional prerequisites upon which a section 127 order might be founded have been met. I doubt that there is any dispute over the extent to which there is an existing certified agreement in place and that the employees involved in yesterday's and today's industrial action are, in fact, covered by that agreement. I understand there is no dispute over the extent to which action constitutes industrial action, occurred yesterday and again this morning. It remains for me to make an assessment over whether action is probable, likely, pending or threatened because it is clear it is not currently happening.

PN134

The third option that I wanted to put to both parties is founded on the possibilities that both parties might approach the issue from the perspective that if we spend a great deal of time arguing about the section 127 order, the simple reality is that you remain in dispute about a suite of other issues which have underpinned, obviously, the industrial action. It occurs to me that the possibility exists that both parties might give both me and each other, some undertakings in terms of how they would see the matter progressing from here and that those undertakings would be predicated on a process that would be agreed.

PN135

Now, what I propose to do is to outline a possible process and then outline the type of undertaking that I envisaged as being possible on the part of Emoleum and the type of undertaking that I saw as being possible from the AWU. It may be that you both want to consider the detail of those undertakings, or it may be that either or both parties say, no, this strategy isn't going to take us anywhere. It seems to me that this third option is directed more at a longer term resolution rather than simply debating the question of whether there ought to be an order to prohibit or prevent industrial action.

PN136

The process that I am suggesting to the parties is fundamentally drawn from clause 44. It is predicated on the position that I understand from both groups that whilst there may be a question about the role of the arbitrator - such that there could be a conciliation function to precede arbitration - fundamentally the role is one of arbitration and that the parties agree that it would be appropriate to refer matters that aren't resolved in steps 44.1, 2, 3 and 4, to the Australian Industrial Relations Commission for arbitration. On that basis, I suggest a process that involves a conciliation committee meeting being convened on 5 April, with advice to all representatives being provided today.

PN137

That meeting would have at least five items on its agenda. The first of those would be the question of which award is applicable for the purposes of clause 45 of the agreement. Lest there be any doubt from Mr Braithewaite's perspective, clause 45 is headed: Redundancy and it makes reference to the relevant award provisions, which presumably means at least one of the various awards that are referenced as parent awards, to be read in concert with this agreement. The second agenda item is proposed to be the extent of redundancy obligations and entitlements. That is, in other words, a question of what obligations are established by that relevant award.

PN138

The third agenda item is suggested to be the issue of redeployment obligations and options. A fourth is the employer's proposed selection process which would include time frames. Finally, the issue of what functions are proposed to be undertaken by management or supervisory personnel. That following that consultative committee meeting, if either Emoleum or the AWU considered that the matters were not capable of resolution through a further consultative committee meeting and as a result, requested that those matters be arbitrated, then advice would be provided to me to that effect, by 4 pm on 5 April.

PN139

If I was advised by 4 pm on 5 April, by either party, that those matters were in dispute, then I would convene a hearing on 7 April at 2.30 pm for the purpose of arbitrating whichever matters I was advised remained in dispute. Now, for that process to operate, I would propose that the AWU would give an undertaking that there would be no further unprotected industrial action of any type, pending resolution of the matters in dispute through either the consultative committee or the arbitration process. I would propose that Emoleum might give me, and the AWU, an undertaking that it agreed to complete the redundancy selection process for consultative purposes on 5 April and that it agreed not to implement redundancies, pending resolution of the matters in dispute, either through the consultative committee or through the completion of the arbitration process.

PN140

For the benefit of both parties, I would expect that if the arbitration can be completed on 7 April, I will endeavour to have a decision to the parties prior to Easter but I can give you no guarantee in that respect. Failing that, I would expect a decision to be made available to the parties on 15 April. It might be best as the applicant, Mr Dasan, that you comment on that proposition. I must say it has some attraction to me but that might be because I'm the author of it.

PN141

MR DASAN: Senior Deputy President, I think in relation to these matters, I will need to take some instructions insofar as that there was an agency relation to the operational matters that the company wanted to look at in relation to the redundancy. In relation to the other issues that are sleepers behind the main issue, if that needs to be ventilated then I would suggest that the company would be open to have those matters heard.

PN142

THE SENIOR DEPUTY PRESIDENT: Well, I'm very happy for you to take instructions before you respond.

PN143

MR DASAN: So I would suggest that, in relation to the first part of that, I will take some instructions and come back to you.

PN144

THE SENIOR DEPUTY PRESIDENT: Yes. Now, I do need to advise that I'm in some difficulty in terms of time frames myself. I have another group of parties that I can live in hope they may have reached a peaceful and amicable solution whilst waiting in the waiting room but they have now been waiting for some time. I can give you two options. Both parties could take that proposition away and consider it and return at say 11.30 am today or alternatively, I could give you a very brief time, being 2 or 3 minutes, whereupon you would have to come back and tell me what it is you want.

PN145

MR DASAN: We propose that given the gravity of the situation and the options that are before us, 11.30 might be more appropriate.

PN146

THE SENIOR DEPUTY PRESIDENT: Mr Braithwaite?

PN147

MR BRAITHWAITE: Can I just indicate that you have listed five there, sir. I'm not sure whether or not it is inclusive in relation to dealing with a voluntary process of redundancy at call across the site. It may be inclusive but - - -

PN148

THE SENIOR DEPUTY PRESIDENT: Well, the second of those five issues, Mr Braithwaite, related to the issue of what redundancy obligations were established by the relevant award.

PN149

MR BRAITHWAITE: Right. I wrote it down as obligations of entitlements that covers that then.

PN150

THE SENIOR DEPUTY PRESIDENT: So you will find that if the relevant award provides for an obligation or an entitlement in that regard, I would expect that it would be discussed.

PN151

MR BRAITHWAITE: Failing for it be in the award, I would expect it to be there, I just highlight that item that we like guaranteed for discussion.

PN152

THE SENIOR DEPUTY PRESIDENT: Yes. My five agenda items are not meant to be necessarily exclusive but they are minimum items. It would be only fair for me to say that if either party sought to rely on provisions which are not invoked by the relevant agreement in any arbitration, then they will have the obvious task of demonstrating why it is that I should do so. Does that make sense?

PN153

MR BRAITHWAITE: I'm a very persuasive person on occasions hopefully.

PN154

THE SENIOR DEPUTY PRESIDENT: I understand that, Mr Braithwaite. Now, do you want until 11.30 to consider your position?

PN155

MR BRAITHWAITE: If, in fact, that is going to be the company's position, they need that time, I think we've got a position but we will take that time to have the opportunity to come back with things completed.

PN156

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn the matter on that basis.

SHORT ADJOURNMENT [9.41am]

RESUMED [12.16pm]

PN157

THE SENIOR DEPUTY PRESIDENT: Mr Dasan?

PN158

MR DASAN: Senior Deputy President, we have had a without prejudice discussion and both parties have tried its hardest to try and find a resolution to the difficulties facing them today. We would like to thank the Commission for your patience in waiting for us for the last 45 minutes, to try and see whether we can resolve some issues.

PN159

THE SENIOR DEPUTY PRESIDENT: That is all right. I was getting hungry, Mr Dasan, but I forgive you.

PN160

MR DASAN: I do apologise for that, Senior Deputy President. We have not been able to reach a resolution. We have looked at the various options that you have put to us. I guess in relation to the three options down there, in relation to the 127 application that we have before you today we have - that is still a live application before you, and given that the issues are still not resolved, the question is, I guess, option 3, we come back to argue about the 127 action on the 7th, I think, as you have put it.

PN161

THE SENIOR DEPUTY PRESIDENT: No, lest there be any confusion, option 3 was the proposal that in effect the dispute resolution provisions of clause 44 of the agreement be utilised on the basis that both parties would give the Commission and each other certain undertakings about what might happen whilst those dispute resolution provisions were being accessed.

PN162

MR DASAN: Sir, we, on our part have not misunderstood that. What we are basically looking at is a little bit more clarification in relation to the five items that you previously put up, given that the company already has - I do apologise for that. Given that the five items down there, two of those, or at least three of those matters in the first three are matters already dealt with by the enterprise bargaining agreement and the award.

PN163

That is a process that has been undertaken by the company in relation to a redundancy round and the company is keen, given that the process in itself has created sufficient angst at this stage, for it to be able to complete that process at some stage. Given the fact that it did not fulfil its award obligations, its redundancy obligations, and its enterprise bargaining obligations, there would be a cause of action that could be brought by the union on behalf of its members in relation to those two positions that need to be made redundant. So the issue I guess for us, is - - -

PN164

THE SENIOR DEPUTY PRESIDENT: Can I put that in my words and you can tell me whether I have understood you correctly? What you are saying there is that the employer would propose to proceed to make two persons redundant, but that you agree that if the appropriate processes were not followed in that decision-making process, then the employer was at risk of being found at some later stage to have unfairly or inappropriately terminated someone's employment?

PN165

MR DASAN: Correct, sir.

PN166

THE SENIOR DEPUTY PRESIDENT: Before we leave that issue, my recollection was that you had indicated that whilst the employer was currently still developing its decision-making matrix, it was anticipated that would be finalised shortly, and would then be put to employees for comment.

PN167

MR DASAN: I think the issue has started now, so there has only been a process where people have been spoken to about impending redundancies. People have been told about what are the issues that the company will be looking at. The company is in the process of speaking to - they have spoken to the employees individually. The issue is that they have also taken some feedback from the various managers. What is left of that end of the process is those matrix forms and the comments made by the various managers and other things will be put to the two affected employees as soon as that process is finished, about collating all of those views. So what is left of that redundancy process is those views of the actual forms - the forms and the comments coming back from the various other people being put to them either by close of business today or tomorrow.

PN168

THE SENIOR DEPUTY PRESIDENT: I had misunderstood that. I had understood you to be saying that the matrix when developed would be put to employees for comment on the various components of it, before it was applied.

PN169

MR DASAN: That has been done, sir. This is almost a tail end of the process. It is not the front end of the process.

PN170

MR BRAITHWAITE: Excuse me, sir. The matrix has never been tabled with the employees. In fact, on the 25th - - -

PN171

THE SENIOR DEPUTY PRESIDENT: But Mr Braithwaite, I understand that is exactly what Mr Dasan is saying.

PN172

MR BRAITHWAITE: Sorry, I thought he said it had been put to the employees.

PN173

MR DASAN: No.

PN174

MR BRAITHWAITE: And they were at the tail end. My apologies.

PN175

MR DASAN: No. The types of issues that the company was considering as part of its matrix were explained to employees. What the company now seeks to do is to get those responses back and put them before the employees for comment before it makes a decision.

PN176

THE SENIOR DEPUTY PRESIDENT: My understanding is that Emoleum have advised employees that it considers that two positions are to be made redundant, that it has then engaged in a - it has also advised employees in broad terms of the criteria that will be taken into account, that it has fine tuned those criteria by talking to current and previous managers and is compiling or concluding the development of a matrix that explains the rationale that would then be applied to all of the employees who might be made redundant so as to arrive at a selection of two of those employees and that when selection is made, that matrix would then be provided to those two employees for comment prior to a final decision being made about the future of those two employees.

PN177

MR DASAN: Yes.

PN178

THE SENIOR DEPUTY PRESIDENT: I see. So there is - if I may further explain the - - -

PN179

MR BRAITHWAITE: Excuse me, sir, I think we need to clarify this, because that is not what has occurred. On the 25th the workforce asked seven questions of which there has been no answers: When will position descriptions come out? What are the selection criteria? Are these positions open to internal or external applicants? Can anyone apply for the positions? What is the method for applying for these positions? When will the new structure be in place? What products out of the new structure will be made in bitumen and emulsion blend? There has not been any answers. There has been absolutely no discussion in respect to development of the selection criteria, so I am a bit confused on the answers that have been given by Mr Dasan.

PN180

THE SENIOR DEPUTY PRESIDENT: I don't understand there has been discussion necessarily, Mr Braithwaite, but I understood from what Mr Dasan was telling me that the employer has in broad terms outlined the principles that will be applied in terms of determination of redundancies.

PN181

MR DASAN: Yes, and that was done on the afternoon of 23 March 2004, and what the employer from that has done is actually developed a fixed form, if you may call it, which will be applied equally among all the employees. They will get the feedback of the managers.

PN182

THE SENIOR DEPUTY PRESIDENT: But that has not been provided to employees?

PN183

MR DASAN: No. So once all of the feedback that has not been finished from the employer site comes back in relation to that criteria, and the other issues that may be raised by the managers, then those comments will, on that same form, be provided back to the employees for their comment. It is only after their comment is made. That stage of it has not occurred yet. Once that return comment is made by the employees only then that the employer will make a decision.

PN184

THE SENIOR DEPUTY PRESIDENT: When we say "employees" you are referring to the two selected employees. Is that correct?

PN185

MR DASAN: The two employees. Only then the employer will make a decision as to whether to go ahead with these redundancies or not.

PN186

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Braithwaite, I am happy for you to ask questions of clarification, but I do need to alert you to the fact that I do intend to come back to you, give you the opportunity to disagree with anything Mr Dasan is telling me and that all I am seeking to do at this stage is to understand what it is the employer is putting to me.

PN187

MR BRAITHWAITE: I can understand that, sir, but it is important we both agree on the fundamentals. The fundamentals I can't accept. All that happened on the 23rd was the employer indicated he is going to make two people redundant and merge the two groups. There has been nothing about explanation.

PN188

THE SENIOR DEPUTY PRESIDENT: I understand that position and I will note that the parties are in disagreement about what happened on that day about that particular issue. Yes, Mr Dasan?

PN189

MR DASAN: If I may, Senior Deputy President, this is not a difficult issue. We are talking about five employees here which the company is downsizing by two positions. Out of those five positions there are two distinct groups. One is a supervisory group and the other one is the crew. Ultimately the company has already explained that the functions and the jobs will remain almost identical, because they are going to be dealing with smaller volumes and effectively there will be one supervisor and two people left on the crew. So the issue is going to be this.

PN190

We need to find in a selection criteria in relation to the person one person that will remain redundant from the supervisory position - that is one of the two, and the other one is one of the three. What the employer has done, which any other employer would do out there, is to say: this is what we are going to do, we are going to double up a form, we are going to put what we think are the comments that have come from the various managers in relation to your skill level as well as a list of other issues in relation to what we are going to be looking at. In broad terms those were already put to the employees.

PN191

In specific terms we will need to provide this to the employee, like most of the employers do, for their comment. They might completely disagree with the contents of the form and they might disagree with the criteria that the company has chosen to use for all of those things, but at the end of the day we haven't got to that stage yet. What we have is a form that needs to be filled out. Once we have got the feedback from the managers that feedback will be fed back to the employees. At that appropriate stage - - -

PN192

THE SENIOR DEPUTY PRESIDENT: When you say, "The employees", you mean the affected employees?

PN193

MR DASAN: The affected employees. Once that actually happens, if anybody wants to make a comment about the criteria then, they have time to do so. That is the appropriate time for that to actually occur.

PN194

THE SENIOR DEPUTY PRESIDENT: Mr Dasan, can I take you right back? What I put to you before we adjourned was that it seemed to me that in broad terms you either proceed with the section 127 application or alternatively, on the basis of an agreed process, certain undertakings might be exchanged. If I am understanding what you are now telling me correctly, it is that the employer is not able to give me any undertakings or is the objection that you have got to specific aspects of the process that was proposed?

PN195

MR DASAN: I think we have an objection to specific parts of the process because I think it is our view that there are two or three different matters that are being mixed up with the primary reason why there was an industrial dispute over the last couple of days. The primary reason for the industrial dispute has been a redundancy issue. While there are still other issues in relation to whether white collar people can do blue collar employees' work, or work covered by a specific award, that is still sitting down there in the background.

PN196

What we are actually saying is that the company should be allowed to go ahead with its process in relation to the redundancies without the threat of industrial action and in relation to matters that may arise - that is stage 2 - the other matters that have been ventilated by the AWU here today, we are quite happy to go through a process of arbitration in relation to those other two issues that have come up, including the one in relation to who does work pursuant to the award when there is no staff available.

PN197

So we are quite prepared to use your process that you have suggested as option three to go and deal with all of those other issues, but the problem has been we have been trying to run a redundancy round here and a determination of the redundancy round keeps being pushed back because of industrial dispute. Unless we can see some way clear as far as that goes we are going to be here in two more weeks from now still arguing about whether we can go ahead and make two people redundant, given that this particular part of the operations of the business has been running at a loss.

PN198

THE SENIOR DEPUTY PRESIDENT: Is the employer's objection to the use - and please tell me if I have misconstrued your statement - of clause 44 to determine the various differences relative to redundancy based on the time that might be associated with the process that I outlined earlier or is it based on some other factor?

PN199

MR DASAN: One of the issues is in fact time that we have discussed. The other issue is the concern that the dispute settlement process is being used to what we say railroad a fair redundancy round. There are specific clauses within the award of the enterprise bargaining agreement that deals with redundancy. The issue of process is important, but if we are going to use the consultative mechanisms of the company to railroad a redundancy round that needs to occur - we say sooner rather than later - then we have got a problem.

PN200

THE SENIOR DEPUTY PRESIDENT: If the problem from the employer's perspective with use of the dispute resolution procedure to determine what appears to be clear as a dispute about redundancy is in part due to the potential for time delays, then would the employer have the same degree of difficulty if we collapsed the time frames so that the issue of disputation over redundancy in the terms of which award applies, what redundancy obligations exist, what re-deployment obligations exist, the selection process including time frames, was all to be the subject of an arbitration at 8.15 tomorrow morning?

PN201

MR DASAN: I will just take instructions.

PN202

THE SENIOR DEPUTY PRESIDENT: You might do the same, Mr Braithwaite, because you could probably predict a similar question might come your way.

PN203

MR DASAN: We think that that would be a good course to follow, sir.

PN204

THE SENIOR DEPUTY PRESIDENT: I see. On that basis, would the employer be able to give the sort of undertaking that I referenced earlier?

PN205

MR DASAN: In relation to not moving on terminating the certain employees before that, yes, certainly, sir. That makes absolute sense.

PN206

MR SMITH: That is before 8.15 tomorrow?

PN207

THE SENIOR DEPUTY PRESIDENT: No, the undertaking that I would be suggesting in that regard would be until that arbitration process is completed. In that regard it occurs to me that the parties may put something to me that means that I need to go away and think about what it is they put to me, but I will assure you that I would do so with the utmost haste.

PN208

MR DASAN: We believe that that will be an appropriate course of action, sir.

PN209

THE SENIOR DEPUTY PRESIDENT: Mr Braithwaite?

PN210

MR BRAITHWAITE: We weren't prepared to pick up your option 3. We would have great difficulties in meeting at 8.15 tomorrow. We believe the applicant has been prejudiced on that basis as not having the opportunity to brief applicants and for them to do their appropriate research. So we would seek to stick with the time frame that the Commission proposed of the 5th of the 7th.

PN211

MR DASAN: Senior Deputy President, the issues that are being ventilated is in relation to redundancy obligations, redeployment obligations, selection process and time frames. This is not rocket science issues. At the end of the day it is either the company has not done something right, by which it means we have to got away and we have the positive obligation to fix those things so that we can move forward, otherwise - - -

PN212

THE SENIOR DEPUTY PRESIDENT: Yes, I have heard you in that regard, Mr Dasan.

PN213

MR DASAN: So all I am saying is that we are prepared to put our hands out and try to find a resolution to this matter without it causing an industrial dispute. On that basis it would make absolute sense for us to be able to put and hold our section 127 application in abeyance until this matter can be resolved, but is it going to change the company's mind that there are going to be two redundancies? I think not, sir. I would rather that we all understood what the rules of engagement were by tomorrow than some time next week. All that does is holds up the process and we achieve nothing.

PN214

THE SENIOR DEPUTY PRESIDENT: When do you expect to be in a position whereby you finalise the matrix that would then be relied upon to select the two employees to be made redundant?

PN215

MR DASAN: We would have that matrix ready to go, we would say, by tomorrow. The issue was that we have already started canvassing the views of the various managers. That is not completed yet, but we expect it to be completed by tomorrow. We know what we believe is a fair matrix. It is the same matrix that has been used many a time in this Commission in relation to looking at hard skills, soft skills and issues of perception about capacity to do work.

PN216

THE SENIOR DEPUTY PRESIDENT: If you had that matrix developed and applied, in terms of making a selection, by let us say 10 o'clock tomorrow, could you then provide it - having made the selection based on that matrix - to the employees who you consider need to be made redundant so as to allow us to once again look at rescheduling any hearing, so that the hearing would occur, or the arbitration would occur, on Monday morning, again, at 8.15?

PN217

MR DASAN: To discuss?

PN218

THE SENIOR DEPUTY PRESIDENT: The arbitration would be on issues which may be in dispute between the parties, including the question of which award is applicable with reference to clause 45 of the agreement. Depending on the answer to that question, the extent of redundancy obligations on the employer. Thirdly, the extent of redeployment obligations and options which are relevant. Fourthly, the selection process including both the criteria utilised and the way in which that criteria is applied, and fifthly, the issues associated with functions that may be undertaken by management personnel.

PN219

MR PATMORE: Sir, we think that it might be appropriate to discuss the first four options as part of a redeployment - part of the redundancy process, but we think the last issue that you have raised is a wider issue that will probably to be dealt with separately, sir.

PN220

THE SENIOR DEPUTY PRESIDENT: So how would you propose dealing with it?

PN221

MR PATMORE: I would propose that that matter which - as I have said, been sitting in the background for some time - we are quite prepared for that in the next 2 weeks. But the company will propose that it will call a consultative meeting together, of both employers and employees representatives to discuss to see whether they can come up with a plan to deal with the functions between the blue collar workers and the white collar workers, if you want to put that way, or management staff and see whether they can resolve it that way. And to further give a commitment that if that matter cannot be resolved at the consultative level that that matter after that 2-week period be forwarded to the Commission for arbitration, sir. That is a separate matter.

PN222

THE SENIOR DEPUTY PRESIDENT: I see. Well then, if we were to just deal - and I don't yet know Mr Braithwaite's view in that regard -if we just dealt with those first four issues would the extended time frame of Monday morning be one that the employer could live with?

PN223

MR PATMORE: 8.15 on Monday, sir?

PN224

THE SENIOR DEPUTY PRESIDENT: 8.15 am Monday morning.

PN225

MR PATMORE: No. That time would be suitable for us.

PN226

THE SENIOR DEPUTY PRESIDENT: Mr Braithwaite, we have got a changed proposal. To avoid doubt I will recite my understanding of it. That is that the employer will finalise the selection criteria that it proposes to use for the purposes of any redundancies, and advise the affected employees to the employees of their selection and indeed the criteria that is being applied. That would occur tomorrow morning. Notwithstanding that, the redundancies would not take effect until such time as there was an opportunity for any disputed issues to be the subject of an arbitration which would commence at 8.15 on Monday.

PN227

That arbitration would need to deal with the issue of which award has application, the extent of any redundancy obligation established by that award and the extent of any redeployment obligations and options, the selection process, including criteria and their application. Depending on the outcome of that arbitration which would only need to address those issues that I have identified, if they are in dispute, the selection of the two affected employees would either be endorsed in terms of those particular issues or alternatively would not be endorsed.

PN228

At that point Emoleum would be in a position of deciding what it is that it proposed to do. The issue of functions that might be undertaken by management would be referred back to a consultative committee to be arranged within the next 2 weeks. That in the event that consultative committee was not able to resolve the matter, the disputed issue would be referred to the Commission for arbitration. Don't ask me to repeat any of that, Mr Braithwaite, because I don't remember precisely what it is I said, but I think you have got the general gist of it.

PN229

MR BRAITHWAITE: I think I am going to have to seek a wild card and phone a friend. We took advice in relation to - - -

PN230

THE SENIOR DEPUTY PRESIDENT: There is no million dollars at risk here, Mr Braithwaite.

PN231

MR BRAITHWAITE: But two people's future I suppose, sir. The fact that the proposal is now to utilise a selection criteria that the company has proposed, we haven't seen, to identify those people. Those people then have the added stress of knowing they are the victims in relation to any outcome or any arbitration concerns me. The issue taking out of there the fact that the staff issue, we would need to seek some advice in relation to that. I am not concerned - - -

PN232

THE SENIOR DEPUTY PRESIDENT: I am happy to allow you a brief opportunity to seek that advice. In fairness, I do need to advise you that I am running out of time to be able to handle the matter today, if the parties cannot progress this option. I mean quite clearly see any real alternative to going back to seeing whether or not either party want to say anything further, relative to the section 127 application before I determine a position on that.

PN233

MR BRAITHWAITE: Well, with relation to the 127 application - - -

PN234

THE SENIOR DEPUTY PRESIDENT: I am not asking you to comment on that at this stage, I am simply saying I can give you a short time to seek some advice but I don't see it being a prolonged time.

PN235

MR BRAITHWAITE: We will attempt it, sir, but I know the advocates in the Workers Comp Tribunal at the moment so we might be able to secure them.

PN236

THE SENIOR DEPUTY PRESIDENT: Would 10 be an appropriate sort of time for you?

PN237

MR BRAITHWAITE: If the Commission pleases.

SHORT ADJOURNMENT [12.47pm]

RESUMED [1.12pm]

PN238

THE SENIOR DEPUTY PRESIDENT: Mr Braithwaite, did you phone a friend or had an audience vote?

PN239

MR BRAITHWAITE: Yes, had the audience vote. My instructions are, sir, that we stand by the proposition the Commission put up in regard to option 3 previously, on the basis that that is only acceptable to the company. My instructions are to proceed with the section 127 application by the employer and indicate there are no grounds for an order to be made as there is no industrial action happening, threatened, impending or probable as required by the Act. But the AWU will be serving its own 127 application that the issue of the 170LW application will follow in due course, and that the employer has obligations to show that they have taken all reasonable steps in relation to dealing with the redundancy proposition.

PN240

Again at this stage we have no real details of how the company is going to operate at the moment, in respect to other than 3, so that is our position at the moment.

PN241

THE SENIOR DEPUTY PRESIDENT: Are you able to give me advice on behalf of the AWU that I could take as effectively an undertaking that the AWU will not organise, promote or encourage any form of industrial action?

PN242

MR BRAITHWAITE: Excuse me, sir. Sir, I am able to advise that it is not our intention to seek to organise or promote industrial action on this matter, if that is what the Commission is asking.

PN243

THE SENIOR DEPUTY PRESIDENT: Yes. The confusion that I have there relates to the words:

PN244

It is not our intention to seek to organise or promote industrial action.

PN245

MR BRAITHWAITE: I thought they were your words, sir.

PN246

THE SENIOR DEPUTY PRESIDENT: Yes. But I don't recall the word "intention." What I am seeking here is advice from you that the AWU will not seek to organise or promote industrial action.

PN247

MR BRAITHWAITE: I am able to give that adamantly.

PN248

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Dasan, is there anything further you want to say to me in the light of Mr Braithwaite's comments?

PN249

MR DASAN: That was an undertaking simply to hear that - - -

PN250

THE SENIOR DEPUTY PRESIDENT: Yes. My understanding is that Mr Braithwaite has advised me that the AWU will not seek to organise or to promote industrial action.

PN251

MR DASAN: Senior Deputy President, in relation to the 127 application that we have before you, I have heard what my friend Mr Braithwaite has had to say, but the only thing that runs through my mind is: what is so different now at 1.13 in the afternoon of the 1st that wasn't there as an option on the 30th or the 31st, that the AWU and its members could have taken and failed to do, even after being exalted by the company to suggest that we would use the dispute resolution to try and resolve those matters by negotiation, they took industrial action.

PN252

This issue which we have spent for most of the morning discussing before you today, are issues that are not going to be resolved over the next 48 hours and are still issues that will bring about - and has the potential to bring about industrial action. In fact, I am instructed that the crew from the Victor Harbor Group has effectively made plans to attend another stop-work meeting at 7 am tomorrow morning and there is no guarantee - first of all, that is not an authorised stop-work meeting, so technically since we are unauthorising it, it would be industrial action and we say that there have been plans in place for further industrial action which is actually threatened.

PN253

Nothing has changed in the last 72 hours. We see no reason to believe - given what we have heard today that industrial action will not occur over the next few days or in the coming weeks. It is imperative that the company here, who has already got an enterprise bargaining agreement in place which is within its term, have some capacity to be able to service its client base, especially given that they had - they are stabbing in the face of liquidated damages and in one major South Australian contract. I would suggest that the path we are leading down is simply a path for more industrial anarchy down at this site, and nothing that I have heard here today gives me a feeling that that won't occur over the next few days - especially given that the commitments that we have given in relation to trying to deal with the matters of redundancies that have been raised, and the other matters here that we have suggested a process has not been taken up my friends at the bar in relation to the AWU or the members, or its members on the graph.

PN254

And that undertaking in relation to the AWU alone is insufficient in my eyes because they have got their members there and on top of that there have also been other non-members that have been involved in the industrial action down there. So we cannot guarantee supply so we would say that the undertakings - given what we have heard here today don't give us any form of comfort.

PN255

THE SENIOR DEPUTY PRESIDENT: Mr Dasan, if your concern relates to persons who may not be members of the AWU then the order that was put to me as a draft order doesn't address that concern.

PN256

MR DASAN: It doesn't, Senior Deputy President. I have further been informed that apart from dealing with that particular 127 application before you, there have been - and I have subsequently been told other groups of employees covered by other State awards that have also gone out on strike yesterday. So there are a whole series of different issues that we could have dealt with today but given that those issues are still live as far as we are concerned, in the first instance the work that has led us today and where the dispute actually surrounds, has to do with the work covered by the CSR Emoleum South Australian Business Unit Enterprise Agreement 2002, and just want to deal with that particular issue first.

PN257

If, in fact, there is a ruling industrial disputation in relation to employees covered by the other awards, then I think that would be subject to further section 127 applications if the need arises. If it please the Commission.

PN258

THE SENIOR DEPUTY PRESIDENT: I am going to ask the parties to remain in the precinct of the courtroom which you should be fairly used to doing after today. I had hoped to come back to you within the next 10 minutes. I will adjourn the matter on that basis.

SHORT ADJOURNMENT [1.20pm]

RESUMED [1.45pm]

PN259

THE SENIOR DEPUTY PRESIDENT: This matter relates to an application by Readymix Emoleum Services Proprietary Limited for an order pursuant to section 127 of the Workplace Relations Act. The application was made on 31 March and it has been the subject of hearings for the better part of today. In the course of these proceedings, I have put a number of options to the parties. These options fall into two broad categories. Firstly, I've indicated that the section 127 order could be pursued or that an interim order, pursuant to the new section 127(3)(a) could be pursued. No request has been made relative to this new provision of section 127.

PN260

Secondly, I have proposed a number of options directed at trying to resolve the issues in dispute between the parties. Neither party has been able to agree on an approach of this nature. Instead, the parties have both adopted positions best characterised, in my view, by some posturing and a reluctance to accept that disputed issues of this nature seldom just go away without a concerted effort to resolve them. In my opinion, the likely impact of the lack of agreement today, to deal with the issues that are fundamentally in dispute, will simply be to reduce the time available to the parties to resolve those issues eventually.

PN261

However, acting on the advice of the parties, I have then simply considered whether the jurisdiction exists so as to enliven section 127 and then, if necessary, whether as a matter of discretion this jurisdiction should be utilised. In order to action section 127, I must be satisfied that industrial is happening, threatened or probable and that this action relates to, in this particular matter, work covered by the CSR Emoleum South Australian Business Unit Enterprise Agreement 2002. It is absolutely clear to me that industrial action has been happening over the last 2 days in relation to employees covered by this agreement, but that industrial action is not currently occurring.

PN262

Mr Braithwaite for the AWU, has undertaken that the AWU will not seek to organise or to promote industrial action. I have no reason to doubt this undertaking and on the basis of it, I have concluded that as of now, industrial action is not threatened, impending or probable. There is no information before me that establishes that industrial action is threatened, probable or impending at the initiative of others. Accordingly, I'm not prepared to make the order sought. It is appropriate, however, that I make three observations absolutely clear to the parties.

PN263

Firstly, had I found that the section 127 jurisdiction was, in fact, enlivened, I would have issued an order. As it is patently clear to me that the certified agreement does not legitimise industrial action of the type or character which occurred yesterday and today, the certified agreement, read in concert with the Act, provides a dispute resolution mechanism which, together with the Act, allows for the resolution of issues of this nature. The use of industrial action does nothing more than expose the employer and the employees to financial risk.

PN264

Secondly, I've relied absolutely on Mr Braithwaite's undertaking. If industrial action involving employees under this certified agreement does occur, and if this action occurs in the immediate, foreseeable future and I am presented with a new section 127 application, the parties are on notice that it will be listed as a matter of absolute urgency and will be heard as such, as soon as possible after the application is filed. Finally, if either of the parties seek to utilise the dispute resolution provisions of the certified agreement and a matter on this basis is referred to the Commission in accordance with section 170LW of the Act and again is referred to me, I can advise that I have time available tomorrow or Monday morning.

PN265

It appears to me that time is of the essence in this matter and that whilst very little has been accomplished today, it is incumbent upon both parties to endeavour to resolve the matters in dispute at the earliest opportunity. The application is dismissed on that basis. I do not intend, at this stage, to publish written reasons for my decision. However, if an application is made by either party for such reasons within 7 days, in accordance with the rules of the Commission, I will do so. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [1.50pm]