C2004/3862, Transcript of Proceedings [2004] AIRCTrans 2668 (14 July 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
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 7757

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

C2004/3862

TEXTILE, CLOTHING AND
FOOTWEAR UNION OF AUSTRALIA

and

MICHAELIS BAYLEY PTY LTD

Notification pursuant to section 99 of the Act
of a dispute re relocation of company premises

MELBOURNE

2.07 AM, FRIDAY, 2 JULY 2004

Continued from 3.6.04

PN168

THE COMMISSIONER: Mr Borgeest, you have got to enter your appearance, thanks.

PN169

MR T. BORGEEST: Thank you, Commissioner. Yes. I appear on behalf of the TCFUA and the members in dispute.

PN170

THE COMMISSIONER: Yes. This is your first appearance in front of me, Mr Borgeest.

PN171

MR BORGEEST: Yes. There is a change of appearance. Ms Wilde has previously appeared.

PN172

THE COMMISSIONER: Yes. Thank you, and welcome. Yes, Mr Skene, you are here, but I might hear from you, Mr Borgeest, first.

PN173

MR BORGEEST: Thank you. Commissioner, on 3 June you made some recommendations about the way forward in this matter.

PN174

THE COMMISSIONER: Yes.

PN175

MR BORGEEST: Having heard from the parties on that occasion. As far as the process has been concerned, I think it is certainly fair to say from our side we understand that the process has been a co-operative one, that documents and information have been exchanged, the company - - -

PN176

THE COMMISSIONER: Yes.

PN177

MR BORGEEST: - - - certainly provided the opportunities we sought to meet with its employees to facilitate that process. The company wrote to the TCFUA as envisaged in point 1 of that recommendation and outlined a number of points. It did set out there in its letter the - - -

PN178

THE COMMISSIONER: I think the timetable slipped. I think the real difference is simply that the timetable has - the timetable has slipped somewhat, Mr Borgeest.

PN179

MR BORGEEST: That is correct.

PN180

THE COMMISSIONER: Yes.

PN181

MR BORGEEST: But I - that was - I don't think that that represents any kind of intransigence on the part of either side.

PN182

THE COMMISSIONER: No, no, understood. And my associate has been kept fully informed of progress. Yes. Thanks.

PN183

MR BORGEEST: Commissioner, I won't take you to each document but simply confirm that the letter was sent setting out some issues that the company thought were important to consider. The union delivered a detailed document on 11 June which set out information about particular employees.

PN184

THE COMMISSIONER: Yes. Now, for some reason that has already got A9 on it. So, yes, all right, thanks.

PN185

MR BORGEEST: And that was the subject of some comments in response from the company on 21 June.

PN186

THE COMMISSIONER: Yes.

PN187

MR BORGEEST: The union met with employees on 22 June and collected some further information and had a short meeting with Mr Palazzo.

PN188

THE COMMISSIONER: Yes.

PN189

MR BORGEEST: We told Mr Palazzo on that occasion that we had only just met with the employees just before seeing him and we wanted to collate the material, which we did, and then forwarded it to him on 29 June. To characterise the material it is - the material provided to the company by the TCFUA as well as addressing travelling time issues for particular employees, went on to talk about some of their particular personal circumstances.

PN190

THE COMMISSIONER: Yes.

PN191

MR BORGEEST: And so in the company's response, for example, there was a question raised, why does someone need to go by public transport to Preston when they were getting a lift or driving, and those points were addressed in the subsequent document as well as other points about the individual circumstances. We have invited the company in a covering letter to accept our proposition, which they haven't accepted, that the company is not entitled to unilaterally vary the contracts of employment of these employees in the terms - about where the work is located, and we asserted that that is an obligation to pay redundancy if they are not making the work available in Footscray.

PN192

We went on to say that in the event that they chose not to comply with what we say are their obligations in that regard, that they may consider in light of the particular circumstances and particular individuals that they will pay redundancy entitlements to some of them, and if they did so, then we, the union, would seek instructions from the remaining employees and determine whether to proceed to an arbitration.

PN193

THE COMMISSIONER: Have you got anything there that you want to tender at this stage, Mr Borgeest, so that I have got it on the file?

PN194

MR BORGEEST: Well, Commissioner, I will start with the document of 11 June.

PN195

THE COMMISSIONER: Well, I have got the 11 June document. That is A9. That is TCFUA to Mr Palazzo, yes?

PN196

MR BORGEEST: Yes.

PN197

THE COMMISSIONER: I have got - that is A9, so that is the last document tendered, as I understand it. Mr Skene, you are keeping close tabs on this, are you? You are putting your former associate skills to good use, I am pleased to see.

PN198

MR SKENE: A9 is the last exhibit, yes.

PN199

THE COMMISSIONER: Yes. Thanks very much.

PN200

MR BORGEEST: Commissioner, what I am handing up is a copy of a letter from Michaelis Bayley to the union dated 21 June.

PN201

THE COMMISSIONER: Mr Skene, are you happy for me to take this as the union's document? It doesn't really matter.

PN202

MR SKENE: Yes, Commissioner.

PN203

THE COMMISSIONER: It is just so that it is tabbed.

PN204

MR SKENE: No, indeed. I don't object to this, other than to perhaps indicate that I don't think the letter of 4 June has previously been provided to you.

PN205

THE COMMISSIONER: All right, okay.

PN206

MR SKENE: Mr Borgeest might wish to tender that.

PN207

THE COMMISSIONER: Yes, okay. Well, I will mark - first of all I am marking the 21 June document, Mr Borgeest, as A10.

EXHIBIT #A10 DOCUMENT DATED 21 JUNE

PN208

MR BORGEEST: I am assisted by Mr Skene. This is the Michaelis Bayley letter dated 4 June provided pursuant to the - - -

EXHIBIT #A11 MICHAELIS BAYLEY LETTER DATED 4 JUNE

PN209

THE COMMISSIONER: Yes, thanks. Let me just have a quick look at these documents, thanks, Mr Borgeest.

PN210

MR BORGEEST: There is one further document, Commissioner.

PN211

THE COMMISSIONER: All right, okay, good. Yes.

PN212

MR BORGEEST: This is a letter dated 29 June 2004 from the TCFUA to Michaelis Bayley.

EXHIBIT #A12 LETTER DATED 29/06/04 FROM TCFUA TO MICHAELIS BAYLEY

PN213

THE COMMISSIONER: Let us just give me a few moments to look at these documents. Yes, thanks.

PN214

MR BORGEEST: Commissioner, the position I was describing is outlined on the front page of A12.

PN215

THE COMMISSIONER: And your fundamental position is really the third paragraph of that document, is really what you are saying, isn't it, Mr Borgeest?

PN216

MR BORGEEST: That really - well, the fundamental legal position that we are putting is in the third paragraph, that is correct. And then in the fourth paragraph we go on to really make our suggestion about the way forward if the company was not minded to accept the entire claim. Now, we had some discussions with Mr Skene about the company's response to that, but I will let him speak for himself in that regard.

PN217

THE COMMISSIONER: Yes.

PN218

MR BORGEEST: And I think that just characterises the position fairly.

PN219

THE COMMISSIONER: Good. Thank you very much, Mr Borgeest. Yes, Mr Skene. Well, I understand all of that.

PN220

MR SKENE: Yes, your Honour. I have nothing to add to the chronology.

PN221

THE COMMISSIONER: Don't promote me, Mr Skene. It is just Commissioner, don't promote me.

PN222

MR SKENE: Commissioner, sorry. I would like to add one further document. I have just given a copy of this to my friend this morning. This is a letter that the company has sent to all of its employees dated 2 July.

PN223

THE COMMISSIONER: I will mark this R1, and that is the document of 2 July from Michaelis Bayley.

PN224

MR SKENE: Yes, your Honour. And I think that brings up to speed the current arrangements. Now, I should indicate that - - -

PN225

THE COMMISSIONER: So this letter is the letter which has gone today, or is going today, to all employees?

PN226

MR SKENE: It has, it has gone, are my - - -

PN227

THE COMMISSIONER: To all employees?

PN228

MR SKENE: To all employees who are relocating from Footscray to Preston, or who are required to relocate.

PN229

THE COMMISSIONER: Who are required to, who the company believes are required to relocate, I think, I should say.

PN230

MR SKENE: Yes, well, who the company requires. Now, there have been some discussions, your Honour - Commissioner, rather - and I should indicate that our preferred position this afternoon is to make use of your time in conciliation.

PN231

THE COMMISSIONER: Yes.

PN232

MR SKENE: But suffice to say from the company's perspective the position set out by the TCFUA on 29 June is not really an acceptable one. It is the TCFUA that assert that redundancies flow from these events.

PN233

THE COMMISSIONER: Yes.

PN234

MR SKENE: And in my submission we can't be expected to point to particular employees and say, right, well, this one is redundant, this one isn't. That is a position that the union may wish to put and perhaps something that we can explore further in conciliation, but in terms of process, Commissioner, our position is essentially that no redundancies arise, that there is no unilateral variation to the contract, that the direction to relocate is within - it is a lawful and reasonable direction, and hence within the discretion of the employer. We are talking about a relocation of some 13.5 kilometres as the crow flies.

PN235

Now, plainly, that impacts different employees in different ways, but in our submission it is not a sufficient relocation to give rise to any repudiation of the contract, and hence not give rise to a termination of employment. Now, these are nice legal arguments that we can agitate up hill and down dale, but for today's purposes, Commissioner, I would like to simply emphasise that the fight really is about whether or not redundancy entitlements flow to certain employees.

PN236

THE COMMISSIONER: Yes.

PN237

MR SKENE: Now, that is a fight that in my submission can be had independently of any relocation to Preston. The question here is whether or not within the terms of that enterprise agreement there is an entitlement to payment under the redundancy clause. No-one is disputing whether the relocation is taking place. On Tuesday our operations will commence in Preston.

PN238

THE COMMISSIONER: Yes.

PN239

MR SKENE: Our position is that we want as many of our existing work force there as we possibly can.

PN240

THE COMMISSIONER: Yes.

PN241

MR SKENE: And indeed, we say that that is a continuation of their current contracts of employment and we have jobs for them all. Hence on any sensible understanding of the redundancy clause we say there is no redundancy here, there is no reduction in the number of employees that we require.

PN242

THE COMMISSIONER: Yes. Mr Skene, what do you say the status of the agreement will be, the expired agreement will be - - -

PN243

MR SKENE: Yes.

PN244

THE COMMISSIONER: - - - as of Tuesday when work is no longer taking place at Footscray as the agreement specifies and is taking place at Preston and is not covered by the agreement.

PN245

MR SKENE: No, that is true, Commissioner. The agreement which is - - -

PN246

THE COMMISSIONER: Which is now four years out of date, as - about three years out of date as of - - -

PN247

MR SKENE: Yes, Commissioner. It expired on 30 June 2001.

PN248

THE COMMISSIONER: 2001, yes.

PN249

MR SKENE: But it does continue to apply - - -

PN250

THE COMMISSIONER: Yes, sure.

PN251

MR SKENE: - - - at Footscray as it hasn't been replaced.

PN252

THE COMMISSIONER: Yes. I am curious as to its status once the Footscray operation ceases to exist.

PN253

MR SKENE: Well, as you rightly point out, Commissioner, in its terms the agreement is confined to 2 Nelson Place, Footscray. The application clause makes that clear. As with any situation where work can be transferred outside the scope of an agreement, the agreement as a matter of legal right does not continue to apply to those employees. However, the company has made it clear on a number of occasions that its intention is simply to continue to apply the terms of the current agreement at Footscray at Preston.

PN254

THE COMMISSIONER: It is offering to continue to apply, though, the terms of that agreement.

PN255

MR SKENE: Yes.

PN256

THE COMMISSIONER: The issue will be what status that agreement actually has.

PN257

MR SKENE: Well, in part, Commissioner, I don't wish to get into the - - -

PN258

THE COMMISSIONER: Mr Skene, if I could simply foreshadow - - -

PN259

MR SKENE: Yes.

PN260

THE COMMISSIONER: If a company were to lodge a section 127 application which is one of the courses of action which might lie in this matter - - -

PN261

MR SKENE: Yes, Commissioner, indeed.

PN262

THE COMMISSIONER: - - - the question would immediately arise whether this is work covered by - the work at Preston is covered by a certified agreement - - -

PN263

MR SKENE: That question - - -

PN264

THE COMMISSIONER: - - - or whether it is covered by an award. So that will be a question - I don't need to settle it now. I am merely raising - - -

PN265

MR SKENE: Absolutely.

PN266

THE COMMISSIONER: I am merely raising issues which - - -

PN267

MR SKENE: That is a relevant consideration, and - - -

PN268

THE COMMISSIONER: - - - are likely to arise.

PN269

MR SKENE: - - - as you correctly anticipate, we would say that those employees that don't start work at Preston at start of shift, which we have delayed for an hour, and the correspondence of 2 July makes that clear - - -

PN270

THE COMMISSIONER: Yes.

PN271

MR SKENE: - - - at start of shift on Tuesday are in fact engaging in industrial action.

PN272

THE COMMISSIONER: Yes.

PN273

MR SKENE: Now, that industrial action is not protected action, plainly. There was no bargaining period, or notices here, but in any event, we have chosen not to take that step. Now, part of the reasons for that, Commissioner, is because the true dispute between the parties is the meaning and interpretation of that clause of the agreement that clearly applies at Footscray; are there redundancies at Footscray, if you like. Now, that is a question of the four walls of the agreement that applies at Footscray. Now, certainly what I put now is not without prejudice to our other steps. We may well choose to take proceedings along the lines that you have indicated.

PN274

THE COMMISSIONER: The issue is, I suppose, Mr Skene, what is - how is this matter going to move forward?

PN275

MR SKENE: Absolutely.

PN276

THE COMMISSIONER: Is - and of course I am going to be looking to Mr Borgeest, but it seems to me that the union may have a number of options. It may seek arbitration pursuant to its current application, in which case I will have to set the matter down for arbitration, and hear evidence, and I will endeavour to do so as quickly as possible. In the meanwhile you have actually got the issue of what is going to happen on Tuesday.

PN277

MR SKENE: Absolutely.

PN278

THE COMMISSIONER: And you may say if people don't turn up for work industrial action is taking place, and you may seek to lodge a section 127 application.

PN279

MR SKENE: Indeed.

PN280

THE COMMISSIONER: And seek to get on the front foot in that way. On the other hand, the union may on Tuesday - well, when is the plant, when is Footscray closing?

PN281

MR SKENE: Footscray has closed.

PN282

THE COMMISSIONER: Has closed.

PN283

MR SKENE: In terms of the factory operations.

PN284

THE COMMISSIONER: All right, okay. Well, it may well be that the union might lodge - is it 46?

PN285

MR SKENE: Well, it is 24, the subject of this claim.

PN286

THE COMMISSIONER: 24. Well, it may lodge 24 applications for unfair dismissal.

PN287

MR SKENE: Yes, yes, Commissioner. I mean, I think the options are, and we by no means concede any jurisdiction upon the Commission to arbitrate; the current application is made under section 99. That raises obvious difficulties. There is an agreement process. There are other issues that arise in that stream, but in any event, our bottom line position, Commissioner, is that we are here this afternoon to try and resolve the situation in such a way as as many employees as possible start work at Preston on Tuesday.

PN288

Now, one thing I should say at that point is that whether or not these employees are entitled to redundancy payments under the agreement is not affected in my submission by whether they start work at Preston, because it becomes merely a question of interpreting the meaning of redundancy under that agreement, and whether or not this is in fact a lawful and reasonable direction.

PN289

THE COMMISSIONER: Are you saying it is possible that they can lodge a section 170CE application and still start work at Preston on Tuesday?

PN290

MR SKENE: Well, I think if they are right, if they are right, Commissioner, the proper interpretation is that as of the cessation of operations at Footscray their employment terminated.

PN291

THE COMMISSIONER: Yes. Is that something that could be on the table this afternoon, that the company will agree to make no objection to - is that something you can seek instructions on?

PN292

MR SKENE: Well, it is, Commissioner, but the point I make is this. If we accept the union is right about that, and we don't - - -

PN293

THE COMMISSIONER: And I know you don't accept it, and we are a long way from that point.

PN294

MR SKENE: But if we were to - I suppose I am just mapping it out. If we were to accept that the union is right about that, that there is no lawful and reasonable direction here, what follows? Now, the first thing that has happened here is that the company has made an offer of employment to all these people at Preston.

PN295

THE COMMISSIONER: Yes.

PN296

MR SKENE: Now, if those people - - -

PN297

THE COMMISSIONER: It has made the offer of ongoing employment.

PN298

MR SKENE: Ongoing employment.

PN299

THE COMMISSIONER: Yes.

PN300

MR SKENE: Absolutely. Now, we say that the employment relationship is not disrupted. But if the union is right, and it is, those employees that don't accept that offer fall into a risk, in my submission, and that risk is that they have refused an offer of acceptable alternative employment.

PN301

THE COMMISSIONER: Yes, all right. And that would go to the - - -

PN302

MR SKENE: Now, the letter - - -

PN303

THE COMMISSIONER: And that would go to, apart from anything else, to the issue of quantum in any arbitration.

PN304

MR SKENE: Well, and beyond, Commissioner, it goes indeed to the heart of the issue of whether they are entitled to severance entitlement benefits at all.

PN305

THE COMMISSIONER: Yes, all right, okay.

PN306

MR SKENE: Because there is an exemption in the clause.

PN307

THE COMMISSIONER: Yes.

PN308

MR SKENE: Now, that is what is made clear in the letter of 2 July.

PN309

THE COMMISSIONER: Yes. Thanks, Mr Skene. I understand that, and I am really just wanting to - apart from anything else, I am wanting to try and work out my work program with regard to this - - -

PN310

MR SKENE: Of course, of course.

PN311

THE COMMISSIONER: Because I know I will have a job next Tuesday, and in regard to that job I am just wanting to know what - how this matter is going to need to be programmed.

PN312

MR SKENE: Yes.

PN313

THE COMMISSIONER: I think I am fine from you, Mr Skene, at this stage, unless there is anything that you really need - anything further that you think you need to get off your chest.

PN314

MR SKENE: Well, in terms of programming, Commissioner, I simply say this, that we would anticipate that operations commence at Preston, and we encourage all the employees to go over there. If there needs to be an arbitration we say that shouldn't disrupt that process.

PN315

THE COMMISSIONER: Thanks. Mr Borgeest, you have heard all of that. I might just hear from you briefly on the record and then we might go into conference, if that suits you.

PN316

MR BORGEEST: Yes. Well, I don't - - -

PN317

THE COMMISSIONER: If you haven't got anything further you want to put on the record, Mr Borgeest - - -

PN318

MR BORGEEST: Yes. I have outlined how we have come here today, and there is nothing new to me in what Mr Skene has said. He has expanded a bit more on his view about the legal implications from here on in, and I don't wish to comment on them right now.

PN319

THE COMMISSIONER: I think in some ways, perhaps the most noteworthy point which he could be seeking some instructions on is the issue of whether the company would be prepared to agree not to seek - if people sought to lodge applications under sections 170CE(1)(a) but wanted to keep their options open by starting up at the company at Preston on Tuesday, would the company not seek to make any objection to jurisdiction in the 170CE application, so Mr Skene might - or you might just think through those issues, Mr Skene. We will go into conference now, Mr Borgeest, and I would like to meet with you and your members first, thanks very much. I now adjourn.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A10 DOCUMENT DATED 21 JUNE PN208
EXHIBIT #A11 MICHAELIS BAYLEY LETTER DATED 4 JUNE PN209
EXHIBIT #A12 LETTER DATED 29/06/04 FROM TCFUA TO MICHAELIS BAYLEY PN213