C2004/5344, Transcript of Proceedings [2004] AIRCTrans 3211 (16 August 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 12811

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2004/5344

TRANSPORT WORKERS UNION OF AUSTRALIA

and

SERCO SODEXHO DEFENCE SERVICES PTY LTD

Notification pursuant to section 99 of the Act
of an industrial dispute re payment and non payment
of entitlements when employment is transferred from
Serco to Tenix

SYDNEY

9.11 AM, TUESDAY, 3 AUGUST 2004

THESE PROCEEDINGS WERE CONDUCTED BY VIDEOCONFERENCE IN SYDNEY

PN1

THE SENIOR DEPUTY PRESIDENT: I'll take appearances in Brisbane.

PN2

MR D. PRIOR: If it please your Honour, an industrial officer for the Transport Workers Union of Australia, Queensland branch, and with me I have MR M. WALKER, activity organiser.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Prior. I will now take appearances here in Sydney.

PN4

MS N. LAW: If the Commission pleases, Serco Sodexho Defence Services.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Law. Mr Prior?

PN6

MR PRIOR: Thank you, your Honour, and we thank the Commission for listing this matter as quickly in the circumstances. It is in relation to a contract situation at Enoggera and Canungra Army Barracks, and we understand that the contract was held until Saturday midnight with Serco Sodexho Defence Services, that contract then having been successfully won by another company called Tenix which I think perhaps all parties may be familiar with in terms of names, that's Tenix Defence.

PN7

Your Honour, the confusion and the problems that employees at Serco Sodexho have been experiencing is in this type of situation when tenders are released employees move over and continue the work that they were doing the previous week but under a new employer. There are some confusions about what will happen in relation to such things as long service leave, annual leave and sick leave.

PN8

Now in our notification we have indicated that there was some discussion in relation to entitlements being on the one hand transferred and on the other hand as such pay out. Now we understand in terms of discussions between Sodexho and Tenix in relation to these employees that the intention is to pay out annual leave to employees and the position was not clarified as to what would actually happen with long service leave. But the intention was that it would appear that that was to be transferred, and sick leave as such was unclear in terms of what the position was with the new contract as to whether in that capacity sick leave would be accrued and held to be utilised or whether sick leave in that capacity was actually lost.

PN9

Now I've had an opportunity to speak very briefly with Nicole Law in Friday afternoon and she has clarified that those are the three issues. I guess what we would like to have put to us today if there has been any advance in relation to each of those elements of the employment relationship and also if she can indicate, well, to what extent what I've indicated in terms of how each of those entitlements per se is intended either to be preserved in that sense or to be paid out.

PN10

That is the concern that employees have in relation to the workplace and of course on the basis that the letter was sent on Thursday this change was to take place over the weekend so we understand in that capacity that these employees and members would now be in the capacity of working for the new contractor as such.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, tell me just a couple of things before I ask Ms Law to respond. Did your members receive a letter setting out the proposed or/and what will occur upon their transfer of their corporate employer?

PN12

MR PRIOR: I'm not entirely sure and Mr Walker has just indicated that he is not entirely sure whether correspondence to that effect went out to people prior to the change taking place. So perhaps, Ms Law, might be able to assist us in relation to clarifying what was actually notified to employees prior to that change taking place.

PN13

THE SENIOR DEPUTY PRESIDENT: Now is there any relevant enterprise bargaining agreement covering the employees when they were engaged to Serco, to you knowledge?

PN14

MR PRIOR: I might hand over to Mr Walker, who has got more knowledge of the workplace.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Walker, any relevant EBA?

PN16

MR WALKER: For the people working at Enoggera they were covered under an enterprise bargaining agreements. For the people at Canungra, which is my area, they were covered by an AWA which has run out and we have almost completed negotiating an enterprise bargaining agreement and then they lost the contract and then everything just stopped.

PN17

THE SENIOR DEPUTY PRESIDENT: And the EBA at Enoggera was that a Federally registered one?

PN18

MR WALKER: Yes, I believe so. The company has responded to the Transport Workers 1998 Award.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, the Federal award, to your knowledge the EBA was a Federally registered EBA.

PN20

MR WALKER: That's correct, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: All right. Ms Law?

PN22

MS LAW: First of all the notification to the employees on all sites including Canungra and Enoggera was that they were made redundant. We don't believe that there was a transfer of business necessarily. The contract was actually lost by Serco Sodexho Defence Services in a tender process and it is our understanding that Spotless actually won the contract. Now I'm happy to get input from my friend here but Tenix, from my understanding, was actually someone that Spotless invited to undertake the contract with them.

PN23

We believe the main contract winner was the company by the name of Nationwide trading as Spotless and Serco Sodexho Defence Services has been liaising very closely with Spotless and the Human Resources Manager, Brenda Hockey, in regards to assisting with the exiting of our contract and the entering of the new contractor. We have gone to extensive lengths to assist in the interview process letting us now go to that setting up times giving Spotless information regarding the staff names and addresses so that letters of offer could be sent out.

PN24

There were discussions surrounding payments to go over to Spotless for employee entitlements and the quantum of such payment is still in discussions. We still haven't found out exactly who it is that has been employed by Spotless Tenix or any other of their local industry providers. We have some names who don't have all - - -

PN25

THE SENIOR DEPUTY PRESIDENT: Tell me this though. You say that the passing of ways was due to redundancy, did you send correspondence to each of the relevant employees in relation to that?

PN26

MS LAW: Yes, we did.

PN27

THE SENIOR DEPUTY PRESIDENT: Was it dated the same day in all cases?

PN28

MS LAW: There were two different dates, one was four weeks prior to 31 July and the other was five weeks prior to meet with our requirements of people under 45 and over 45 years of age.

PN29

THE SENIOR DEPUTY PRESIDENT: All right. Now apart from that complying with the notice requirements presumably of either the award or the EBA, what were they told about the entitlements that they would have, money entitlements they would have upon termination.

PN30

MS LAW: My understanding is that a lot of detail wasn't entered into in that regard but those who were offered suitable alternative employment had their annual leave paid out to them at termination, and those that were not offered suitable alternative employment were paid a redundancy payment.

PN31

THE SENIOR DEPUTY PRESIDENT: So the hiring by, we will say for the time being, Nationwide, commenced some time prior to the 31st July.

PN32

MS LAW: Not necessarily they didn't - - -

PN33

THE SENIOR DEPUTY PRESIDENT: There would be the interviewing process.

PN34

MS LAW: The interviewing process certainly. They did start employing some people prior to the 31st of July, but that was the extreme minority. The majority of employees commenced on the 1st or the 2nd of August.

PN35

THE SENIOR DEPUTY PRESIDENT: Do you know if all employees have either been employed now by Nationwide or being paid out some entitlement, which we don't know what it is yet.

PN36

MS LAW: That hasn't happened yet. We are not aware of exactly of who has and who has not been employed so those entitlements can't be paid in their entirety until we have that information and we are in discussions with them at the moment.

PN37

THE SENIOR DEPUTY PRESIDENT: But who was it again, I'm sorry, the relevant Human Resources or person or persons.

PN38

MS LAW: Human Resources manager, Brenda Hockey.

PN39

THE SENIOR DEPUTY PRESIDENT: Brenda Hockey, yes. Is, Ms Hockey, a Queenslander?

PN40

MS LAW: I don't know, I believe that she is up there at the moment.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN42

MS LAW: But the majority of correspondence has been by email and telephone.

PN43

THE SENIOR DEPUTY PRESIDENT: Well, I don't know, Mr Prior, what do we do. I think I need to better understand what particular concerns you have because otherwise we could spend some time just identifying the documentation that has been forwarded to your members, which group they fall into, and then we could go into the issue about whether they have any entitlements that have not been provided to them. I'm a long way off knowing what that might be having all the documents and we have got a pretty important part of this jigsaw not with us, that is the new employer. So where do we go today, what would you like to do now?

PN44

MR PRIOR: Just before I hand over to Mr Walker to answer your question in relation to those entitlements. In this process would it be appropriate to invite the third party perhaps to attend to assist us.

PN45

THE SENIOR DEPUTY PRESIDENT: That's certainly one option that when I have been in not dissimilar situations like this I have invited them and generally there is no difficulty in them coming along in the event there is a difficulty I have compulsory conference powers, but I don't want to jump into that yet.

PN46

MR PRIOR: Perhaps in that capacity, your Honour, I'd have Mark Walker address your question in relation to those entitlements.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Walker?

PN48

MR WALKER: Yes, your Honour. Spotless, and it is getting very confusing, but some of our members are going to Spotless, people who work in cleaners and such, but the transport side has gone to Tenix. So I have originally spoken to Brenda Hockey to begin with and she referred me to a Frank Marshall, who is from Tenix, who then referred to a Robert Lucas, who was their senior industrial person. So it might be both of those parties, but it is decided to go that way we might need to deal with Spotless and Tenix.

PN49

THE SENIOR DEPUTY PRESIDENT: Well, I don't know yet whether they are related corporations or as I understand Ms Law's submission, and again she is not an employee of the entity so I don't hold it to her. So it may well be the entity of Nationwide trading as Spotless, it may not be, it might be that Spotless is a corporate entity in its own right and engages employees. Additionally, I know of the name Tenix, what I do not know is if Tenix in itself is a corporation or is related, is a trading name or a business and there is some parent corporation, I just don't know. I don't know who is who in this so far.

PN50

MR WALKER: That's why we are here, who is not going to get paid.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, we can sort all of that out and of one thing you may be absolutely certain of is I would want to be absolutely confident that each of your members knows what entitlement they had with their old employer, with their new employer, what continuity is being observed, what payments are to be made and whether all of those have been done in accordance with the award, the enterprise agreement, and whatever applicable Queensland State law might somehow regulate this question.

PN52

I just don't know, I know in some states there are pieces of State legislation that actually deal with issues concerning transfer of entitlements and assuming that the Federal instrument is silent on that that just adds another layer to it. I suppose at the end of the day - I don't know, Ms Law, one week, two weeks, a lot of this would have been possibly settled, I just don't know.

PN53

MS LAW: We hope one to two weeks. We believe that another element that is adding difficulty is that Spotless or Nationwide who actually won the contract hasn't actually finalised who all their local industry providers are going to be. Now I hope by this stage in the game they have made that decision and people can start offering employment so the contract can't actually be operating as it is intended but I think that adds another element of difficulty certainly for us. Last weekend and prior to that we didn't know what companies were going to be responsible for what elements of the contract and therefore there was no employer to pick up these employees.

PN54

THE SENIOR DEPUTY PRESIDENT: But by the same token if there is a legal obligation to meet redundancy and other payments that is something too that you will need to attend to.

PN55

MS LAW: Absolutely, and we are very concerned about that.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes, well, I imagine your employees would be too. So, where do we go, a couple of things seem clearish. We need to have a better understanding of who the relevant new corporate entities are, who will be employing employees or subsets of them, and at this stage of course I'm principally or only concerned with those covered by the TWU, although, Mr Walker, you did mention the cleaners, for example, might be going off on one tangent but the notification concerns only the TWU.

PN57

So we need to know who the corporate entities are and I think then ensuring, Ms Law, that you and Mr Prior know that to the extent to which documentation has come into existence advising employees about what is going on, the union has a full copy of that. I'd appreciate a copy of anything that's not confidential or if there is confidential parts of it they can be marked.

PN58

MS LAW: I have received an email from Spotless from Brenda Hockey identifying the employees that have been offered employment and accepted employment today.

PN59

THE SENIOR DEPUTY PRESIDENT: You don't know whether these are all TWU covered employees or not?

PN60

MS LAW: It is very difficult to identify someone, for example, a leading hand. Now the row actually does go across the base area, which is whatever is applicable. The first name and last name and the position being offered to the employee, their previous employer, so we know whether they are ours or they have come from whoever else that we are not concerned about and their employment status, full time, part time or casual.

PN61

THE SENIOR DEPUTY PRESIDENT: These are actual offers as well as acceptances?

PN62

MS LAW: That's right, offer and acceptance. But for someone like a leading hand we don't know who they are.

PN63

THE SENIOR DEPUTY PRESIDENT: Have you difficulties with discussing that document with Mr Prior?

PN64

MS LAW: I haven't discussed that with Mr Prior, at this stage this document is confidential. I don't believe that this document relates to any of Mr Prior's members that would be covered by this dispute. From what I can see everyone that may be linked to transport, which is less than half a dozen or so, comes from an unknown employer so they haven't been employed by SSDS in July or prior. So it still leaves us with our hands tied if we are not quite sure which members of the TWU have been offered employment and we certainly do welcome that information regardless of where it comes from.

PN65

THE SENIOR DEPUTY PRESIDENT: I see. Well, as I understand, and what Mr Prior and Ms Law says what the first difficulty they have is they don't know which are either your members or eligible to be your members who might be impacted on by this dispute.

PN66

MR WALKER: Perhaps I could respond to that.

PN67

THE SENIOR DEPUTY PRESIDENT: You could think about that if you want to.

PN68

MR PRIOR: Perhaps in that regard, your Honour, it is our understanding again a lot of confusion in relation to obviously the fact that the transport division - and we have got a cleaning division. We would have thought that our members primarily would be in Tenix in relation to the driving.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes, I see. Yes, Mr Walker?

PN70

MR WALKER: Excuse me, your Honour. I've got on letter from one of the persons from Canungra who has been accepted into Tenix, I've got their acceptance letter here. So perhaps I believe the majority of our members are going to Tenix, that's what I believe, I can't stand here and say 100 percent correct, but we have got other members from Enoggera who I believe will be covered by Spotless, as well as Tenix.

PN71

THE SENIOR DEPUTY PRESIDENT: You assert, there is no question that you assert that you did in your notification that they were prior to the 31st July Serco's employees.

PN72

MR WALKER: Yes, that's correct.

PN73

THE SENIOR DEPUTY PRESIDENT: All right, then I suppose the other problem Ms Law might have is as to who they are to be accounting for, where they have gone and what entitlements they have, and I just don't know if there is a sensitivity about identifying who your members are to Ms Law.

PN74

MR WALKER: She seems to be telling us that they have gone to Spotless.

PN75

THE SENIOR DEPUTY PRESIDENT: There is no problems with it, it is just where do we go from there to sort out the issues that whether your members are clear in what they are being offered to them, whether their entitlements, if their redundancy pay is accurate and paid properly, whether they are picking up new employment and new employment being offered to them on a basis that accords with all of their award and their rights, and at the moment I'm assuming there is no argument there is a transmission here so I don't have to worry about those complex questions.

PN76

MS LAW: Your Honour, we haven't actually accepted that there is a transmission, we haven't made any decision either way.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes, no, I know, you haven't made it yet.

PN78

MS LAW: Your Honour, may I also add that it is my understanding that this list that I have - all 32 pages - does cover Spotless and Tenix and any other LIP that they might have. So to our understanding it is a comprehensive document and that anyone who has been offered employment we should know about. That just because they've been offered employment with Tenix doesn't mean their name shouldn't appear on this list. Obviously it must be the case that people offered employment with Tenix are not appearing on our list but we hope that Spotless will pass on that information in due course with a degree of urgency.

PN79

THE SENIOR DEPUTY PRESIDENT: You see, Mr Prior, the problem I'm going to have, and I am really at this stage now I can't really track through each of the individual members entitlements without me knowing who they are. I understand the sensitivity about those things but we will be able to talk about, you know, examples A, B and C but without really knowing the actual names of the persons I am not going to be able to require either Ms Law or any other party I summons to a hearing to provide me full details of what is happening with that person so we can look at it.

PN80

MR PRIOR: Perhaps, your Honour, on that point we might perhaps meet this end and discuss that.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, for sure. What say then you do two things. You do that but then you also have some discussions with Ms Law and see what sort of time each of you might need to exchange whatever documents you can, see what other developments are occurring in relation to offers, better maybe understand that it really is only Tenix I am probably looking at as the other entity that could have an interest in this matter and when I say that Tenix I want to know who it is, who the corporate employer is that is offering jobs to your members and at least maybe in one or other cases your members are taking up those jobs. Then I come back in again and we can decide where we go from here. So I will now adjourn for a short time.

SHORT ADJOURNMENT [9.34am]

RESUMED [9.51am]

PN82

THE SENIOR DEPUTY PRESIDENT: Mr Prior?

PN83

MR PRIOR: Thank you, your Honour. We've had an opportunity to have discussion at this end and discussion with Ms Law. We've come up with two points. In relation to the document that she holds with obviously the additional names on that in terms of whose been made an offer that wouldn't be a member of the TWU, she's got privacy concerns, she's undertaken to speak to Spotless as a matter of urgency with a view to meeting with us to run through who our members are in relation to having come across so that we can satisfy ourselves that nobody has missed out or hasn't been offered a position and unclear as to what their current position is. We are a little bit confused in relation to this issue of whether it is a redundancy or a transmission. We've also indicated that some members will be employed by Tenix and we have people also working with Spotless and again if it is appropriate we would certainly suggest a further conference of this nature as a matter of practicality with an invitation to Tenix and to Spotless.

PN84

In the last five minutes we spent most of our time just identifying what the correct name of each of the entities would be and the contact address, phone and fax number for them. So if that's appropriate we are quite prepared to provide that information to you now.

PN85

THE SENIOR DEPUTY PRESIDENT: Send it to me in a fax, would you, Mr Prior.

PN86

MR PRIOR: Certainly.

PN87

THE SENIOR DEPUTY PRESIDENT: And coy to Ms Law because one thing is certain the parties don't appreciate invitations from the Commission if they've got nothing to do with the dispute at all. So at least I like to be confident when I suggest to parties they should come along that I've got the right name, right people. So what would you like me to do about this matter then, give you another date or adjourn it to a date to be fixed with liberty to apply?

PN88

MR PRIOR: Well, the concern we have, as you've heard, is that this contract ceased on Saturday night at midnight, the people have commenced since then. We've got people that still at this point in time don't know whether they're getting paid entitlements or what entitlements they will receive and whether or not they've been re-engaged in the last couple of days so we would certainly like to have another conference date set.

PN89

THE SENIOR DEPUTY PRESIDENT: All right. Ms Law, do you wish to be heard on that?

PN90

MS LAW: I agree with my friend that we should set another conference date.

PN91

THE SENIOR DEPUTY PRESIDENT: Next week, I could do Tuesday or Wednesday.

PN92

MS LAW: Wednesday is preferable for me.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Prior?

PN94

MR PRIOR: Wednesday up here is a public holiday, it's the Show Day.

PN95

THE SENIOR DEPUTY PRESIDENT: Is it? Well, I am in Melbourne Thursday and Friday and no time at all Monday, so what are we going to do about all of that?

PN96

MR PRIOR: What was the position for Tuesday?

PN97

THE SENIOR DEPUTY PRESIDENT: I'm all right but I think Ms Law - - -

PN98

MR LAW: I have other commitments down the South Coast with a dispute going on down there so Tuesday I am unavailable.

PN99

THE SENIOR DEPUTY PRESIDENT: I've learnt my lesson with three-way hook ups it is not desirable, quite apart from the fact I'd be taking some time out of existing court hearing date. That's a worry.

PN100

MR PRIOR: How would it be for Monday, 16th?

PN101

THE SENIOR DEPUTY PRESIDENT: No problems for me.

PN102

MS LAW: I am in Cairns that day and Townsville the next day and the next day after that.

PN103

THE SENIOR DEPUTY PRESIDENT: So you are not free till the 19th, the Thursday?

PN104

MS LAW: That's correct.

PN105

MR PRIOR: Just in terms of those dates I presume Monday of next week would be no good?

PN106

THE SENIOR DEPUTY PRESIDENT: Well, I've got commitments all day.

PN107

MR LAW: I have commitments all day on the Monday as well.

PN108

THE SENIOR DEPUTY PRESIDENT: Mine starts before court hours, through court and I've got something after as well, so it just wouldn't be - I know it is not ideal, is it, but I can't really suggest any other option. It really seems to me that not a lot is gained by me assigning it to another member, we would just have a re-run again of where at least we've got to this morning.

PN109

MR PRIOR: Indeed. I think the concern there would be, yes, we've got to this point we probably need to go through all this material again to reach this point perhaps again.

PN110

THE SENIOR DEPUTY PRESIDENT: Yes, I think that's right.

PN111

MR PRIOR: It may be that Thursday 19th - - -

PN112

THE SENIOR DEPUTY PRESIDENT: Might just have to do. I trust though Mr Prior the position is this, even though a period of anxiety that persons go through when they don't know if they're still employed and whether they're going to be employed is to short and brief and painless as possible but I am assuming whatever their entitlements are they are not going to be lost between now and the 19th. I trust that is the situation. Obviously if something occurs and you have reason to think that there is an unreasonable pressure being put on your members to make an election without knowing the whole story we will list this at a time we can all get together but short of that I think maybe the time might be well spent to find out exactly who has got the offer, what the details are and what concerns there are about the conditions upon which the new employment is being proffered.

PN113

MR PRIOR: And perhaps in that regard, your Honour, once the matter is re-listed for another date and we would assume that the other two parties are then invited to attend, perhaps in that capacity that also might activate people to be perhaps more forthcoming if they have information and expedite it.

PN114

THE SENIOR DEPUTY PRESIDENT: Hopefully all of that will be achieved, Mr Prior. So, Ms Law, I don't know whether you may be speaking to any of your colleagues but they can assume that upon my receiving details of their corporation and their contact we will probably be alerting them to the fact that a listing will be going out for this day and they will be invited to attend. So what time on the 19th? I assume it will be a video conference link again so I will make the assumption the link is available for whatever time we are about to - - -

PN115

MS LAW: I am open to time.

PN116

MR PRIOR: I think we're very available that day, it is just a matter of what is appropriate.

PN117

THE SENIOR DEPUTY PRESIDENT: Well, shall we say 10.00am? I will hold a couple of hours, well we will book them in for a couple of hours, but I will have my associate check immediately upon our adjourning that that link is available because if it isn't we will have to secure a time later in the afternoon. It will be some time that day. I will send out a notice of listing in due course as well as to the other organisations who are employers or who may be offering employers to members of the TWU to attend. The Commission now adjourns.

ADJOURNED UNTIL THURSDAY, 19 AUGUST 2004 [9.59am]