C2004/5530, Transcript of Proceedings [2004] AIRCTrans 3470 (2 September 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 8298
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2004/5530

AUSTRALIAN TUBE MILLS PTY
LIMITED T/AS SMORGON STEEL
TUBE MILLS

and

AUTOMOTIVE, FOOD, METALS,
ENGINEERING, PRINTING AND
KINDRED INDUSTRIES UNION
and ANOTHER

Application under section 170LW of the
Act for settlement of dispute re
appropriate benefit levels for retrenched
employees

MELBOURNE

10.04 AM, TUESDAY, 24 AUGUST 2004

PN1

MR T. BOURKE: I from the Australian Industry Group. With me is MR C. AIELLO from Smorgon Steel.

PN2

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers' Union. With me is MR L. DIEHM and delegates from the site.

PN3

MR C. MELHAM: I appear from the Australian Workers' Union. Along with me are the AWU delegates at Smorgon's Tube Mills.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Bourke.

PN5

MR BOURKE: Thanks, your Honour. Your Honour, as it says in the dispute notification, this is a dispute in relation to the implementation of redundancies at the Sunshine site of the company. The issue I think can be crystallised best by referring first to the EBA which, in the redundancy clause, your Honour, has I think first of all a quite distinct inconsistency and then a rather unusual provision. Clause 18 of that document, your Honour - do you have a copy - - -

PN6

THE SENIOR DEPUTY PRESIDENT: I think I do. It's the Smorgon Steel Tube Mills (Victoria) Certified Agreement 2003?

PN7

MR BOURKE: That is correct. That is correct.

PN8

THE SENIOR DEPUTY PRESIDENT: Clause 18?

PN9

MR BOURKE: Clause 18. Clause 18 in (a), (b) and (c) goes through a process and then in (d) says that:

PN10

If redundancies are still necessary, after following the procedures set out above, the arrangements to apply are set out in the Redundancy Agreement, as appendix C.

PN11

And that is the standard sort of material you would expect to find in any number of EBAs. But then, when you go to (f) - in particular the second half of (f) where it says:

PN12

If a formal decision has been made that redundancies are to occur then, in the event of compulsory redundancies, the company will negotiate and agree with the relevant unions prior to redundancy taking place the terms of the severance pay.

PN13

Now, it appears that the parties involved have taken appendix C to refer to, "volunteers", with the situation in regard to, if I can use the word, "conscripts", being unresolved and being covered by the second half of paragraph (f). Then in clause 13 of the agreement, your Honour, talks about - or is the disputes procedure and, at the end of the disputes procedure - sorry, the second last paragraph in the disputes procedure it refers to:

PN14

The parties shall jointly or individually referring the matter to the Australian Industrial Relations Commission for resolution, including arbitration, if necessary.

PN15

So, your Honour, that is the, I suppose if you like, the jurisdictional framework for which we make the application. I would like to hand up at this stage a letter which was sent by the company to all of the unions involved. This is the one to the AWU but I understand the terms were identical - - -

EXHIBIT #B1 LETTER TO THE AWU DATED 17/06/2004 FROM THE GENERAL MANAGER OF SMORGON STEEL

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Bourke. Yes.

PN17

MR BOURKE: Sorry, your Honour. Your Honour, that puts the company's position in terms of the reasons for the redundancies and, in effect, it is the company complying with its responsibilities under the EBA to consult with the unions and the employees, and to provide them with relevant information. The situation in summary, your Honour, is that the company needs 56 people to become redundant - or 56 positions to become redundant and, clearly, a significant number of those will result in retrenchments. There have been 36 volunteers and 20 of those have left already.

PN18

THE SENIOR DEPUTY PRESIDENT: 36, did you say?

PN19

MR BOURKE: Sorry?

PN20

THE SENIOR DEPUTY PRESIDENT: 36?

PN21

MR BOURKE: 36, that is right - and 20. One employee has been transferred to the Steel Mill. There are five supervisors and admin staff who will be leaving on 3 September and at the moment, as I understand it, there are 14 positions that need to be resolved through the negotiations or the arbitration which may follow; 10 production operators, three maintenance staff and one supervisor.

PN22

THE SENIOR DEPUTY PRESIDENT: What is it - 10 production, three maintenance - - -

PN23

MR BOURKE: Three maintenance and one supervisor.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes.

PN25

MR BOURKE: Just to fill in other details that are likely to be relevant. So far the company has engaged an out-placement provider and a series of interviews have been conducted on site. There have been on-site interviews with representatives from other Smorgon businesses in respect to possible employment. A labour hire provider has been retained and it has conducted interviews on site and has offered to take onto its books any person made redundant. In fact some people have been interviewed at other Smorgon sites for jobs that have been offered and in fact four job offers have been made at other Smorgon sites and, I believe three of those have been rejected and two of them are still open.

PN26

And I believe, as of this morning, there is potentially another three positions available at the Smorgon Steel Mill. So certainly there are other options being looked at. The situation I think it is fair to say probably revolves around the differing interpretations of what represents a reasonable quantum in terms of severance pay but, Commissioner - sorry, your Honour, I will leave the parties to talk about their own particular positions in conference which I would ask should follow on from the comments put on transcript. If your Honour pleases.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Addison.

PN28

MR ADDISON: Yes, thanks, your Honour. Your Honour, can I say at the outset that the AMWU does not necessarily agree that there is a jurisdictional basis on which a section 170LW can be brought with regard to this matter. We say, in the context of clause 18, along with clause 12, which is the no extra claims commitment, is a classic deferral of an issue to be dealt with at a later stage and would argue that we - should it become necessary, we do however agree that a conference is a good idea. There have been some negotiations since that letter on 17 June which wasn't received by the AMWU.

PN29

However there have been some discussions which have taken the parties forward a bit. We are not quite there at this point in time and we are happy to enter into conference and have some further discussions in an attempt to resolve the matter. If the conference and further conciliation doesn't resolve the matter then we reserve our rights with regards to jurisdictional questions. If the Commission pleases.

PN30

MR MELHAM: Yes, if the Commission pleases, the AWU supports the position put by the AMWU and have no objections to go into conference in which we can elaborate on these matters further. If the Commission pleases.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes. I will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 LETTER TO THE AWU DATED 17/06/2004 FROM THE GENERAL MANAGER OF SMORGON STEEL PN16