C2004/5196, Transcript of Proceedings [2004] AIRCTrans 3472 (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 11038

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER EAMES

C2004/5196
C2004/5197

THE AUSTRALIAN WORKERS' UNION

and

COUNCIL OF CENTRAL GIPPSLAND INSTITUTE OF TAFE

Application under section 170LW of the Act
for settlement of dispute re alleged refusal
of employer to provide Voluntary Departure
Packages to employees who are to be made redundant

Notification pursuant to section 99 of the Act
of a dispute re alleged redundancy as a consequence
of a restructure of company's gas training facility
at its Energy and Telecommunications campus

MELBOURNE

10.40 AM, TUESDAY, 24 AUGUST 2004

Continued from 13.8.04 (Not Transcribed)

PN1

THE COMMISSIONER: Thank you. There is no change in appearance in relation to the matter. I apologise for the size of the court but my seniority ranking put me down to the end of the queue today so I apologise for that, it is a bit cosy. Can I ask has there been any discussions in terms of an agreement in relation to the matter or is the matter to proceed to arbitration?

PN2

MR RUDD: Commissioner, the parties had discussions on the issues in dispute. What I can say is that it is our view that the matter hasn't been resolved but there were issues raised by Mr Andrews at the last matter concerning the applicability of the AEU High Court case.

PN3

THE COMMISSIONER: Yes.

PN4

MR RUDD: Now without going into too detailed submissions at the moment it appears though that that would be in our argument an inherent deficiency for us to actually seek any award or orders given that that decision has already been advanced in the High Court.

PN5

THE COMMISSIONER: Yes.

PN6

MR RUDD: On that basis we are of the view that we would be seeking a recommendation, it is our view and it would be our submissions that there is nothing that would inhibit the Commission as currently constituted in reaching a recommendation on terms of the merits of the matter. We would say that wouldn't inhibit or impair the state's rights at all through a recommendation. Our view is that - as to progress today's proceedings - is that we have made some witness statements, or produced some witness statements.

PN7

We would intend to have the witnesses in the witness box for the purposes of formally tendering their witness statements, and my understanding is that Mr Andrews would be doing the same. There won't be any great deal of cross-examination over the issues in dispute between the parties. What I can say is that we would be pressing for a recommendation after the witness statements have been formally tendered.

PN8

THE COMMISSIONER: All right. Mr Andrews, do you agree with that process, or accept that process perhaps is more the point?

PN9

MR ANDREWS: I accept the process but there is - I just suggest that prior to the recommendation coming out, if that is what occurs, that a private conference could be useful to really find out what we are working with here.

PN10

THE COMMISSIONER: Yes. No, I agree with that. Can I say I have read as quickly as I can, because some of the documentation only arrived today, to try and get across the issues that are between you. I am grateful for the acknowledgment that has been made by the union in relation to the re AEU decision because I think, as was discussed previously, that did raise some potential impediment as to what form of award or order the Commission might be able to issue in relation to the matter. I am happy for the matter to proceed on the basis of the outline that you have both provided, I am happy for the witnesses to be sworn in relation to the statements that are to be presented in relation to the matter.

PN11

And unless there is any reason that the union would oppose it, I think Mr Andrews' suggestion, having got all of the material before the Commission, to go back into conference might well have some merit in it once we have heard all of the issues, but in due course if some recommendation is sought from today's proceedings then I should indicate right at the outset that I would be prepared to give a recommendation, but in terms of its enforceability of course it is somewhat limited. But having said all of that, perhaps if I can call on you first then, Mr Rudd, and we will continue on.

PN12

MR RUDD: Thank you, Commissioner. Now the union would seek to call Mr Colin Heath.

PN13

THE COMMISSIONER: Thank you. Look it might be best, so that this matter proceeds in the usual form, that if there are other witnesses to give evidence that they remain outside the courtroom while evidence is given and then once they have given it they can remain. In relation to you, Mr Kypriotis, you are giving evidence in these proceedings but I assume you are instructing Mr Andrews in relation to it. Would you be opposed to Mr Kypriotis staying to give instructions to Mr Andrews?

PN14

MR RUDD: No, Commissioner.

PN15

THE COMMISSIONER: All right, thank you. But perhaps if the other witnesses could cruise the corridors for just a bit, hopefully there is some adequate accommodation - comfortable accommodation outside. Thank you.

<COLIN HEATH, AFFIRMED [10.45am]

<EXAMINATION-IN-CHIEF BY MR RUDD

PN16

MR RUDD: Can you state your name and address please?---Colin Heath, (address supplied).

PN17

And have you made a statement for the purposes of today's proceedings?---I have.

PN18

Commissioner, may I provide a copy to the witness?

PN19

THE COMMISSIONER: Thank you?---Thank you.

PN20

MR RUDD: Do you say that the contents of that statement are true and correct?---I do.

PN21

Commissioner, we would seek to formally tender that statement.

PN22

THE COMMISSIONER: All right.

EXHIBIT #R3 WITNESS STATEMENT BY COLIN HEATH

PN23

MR RUDD: I have no questions, Commissioner.

PN24

THE COMMISSIONER: All right, thank you. Mr Andrews, you have no questions of the witness?

PN25

MR ANDREWS: No questions.

**** COLIN HEATH XN MR RUDD

PN26

THE COMMISSIONER: All right, thank you. And I don't either, you are excused thank you, Mr Heath.

<THE WITNESS WITHDREW [10.46am]

PN27

THE COMMISSIONER: Yes.

PN28

MR RUDD: Commissioner, the union would then seek to call Mr Bill Williams.

<WILLIAM WILLIAMS, SWORN [10.47am]

<EXAMINATION-IN-CHIEF BY MR RUDD

PN29

THE COMMISSIONER: Yes, Mr Rudd.

PN30

MR RUDD: Can you state your name and address please?---William Williams, (address supplied).

PN31

Have you prepared a statement for the purposes of today's proceedings?---I have and I tender that document to the court.

PN32

If I may, Commissioner, approach - or have the witness provided with a copy of that statement? Is that a copy of the statement that you refer to?---It is.

PN33

Now do you say that the contents of that statement are true and correct?---I do.

PN34

Commissioner, we would seek to formally tender that statement. I note that the copy that would have been sent to you before today's proceedings may have been unsigned, we do have a signed copy of that document.

PN35

THE COMMISSIONER: All right. Well perhaps it might be appropriate if I have a signed copy.

EXHIBIT #R4 WITNESS STATEMENT OF WILLIAM WILLIAMS

PN36

MR RUDD: Thank you, Commissioner, I have no questions.

PN37

THE COMMISSIONER: All right. You have no questions of the witness?

PN38

MR ANDREWS: No questions thank you.

**** WILLIAM WILLIAMS XN MR RUDD

PN39

THE COMMISSIONER: All right, thank you, then you are excused, thank you, Mr Williams.

<THE WITNESS WITHDREW [10.50am]

PN40

MR RUDD: Commissioner, the union would seek to call Mr Noel Fernando.

<NOEL FERNANDO, SWORN [10.50am]

<EXAMINATION-IN-CHIEF BY MR RUDD

PN41

MR RUDD: Can you state your name and address?---Noel Fernando, (address supplied).

PN42

Have you prepared a statement for the purposes of today's proceedings?---Yes, I have.

PN43

Commissioner, if I could provide a copy of that statement to the witness?

PN44

THE COMMISSIONER: Thank you.

PN45

MR RUDD: Do you say that the contents of that statement are true and correct?---Yes, I do.

PN46

Commissioner, we would seek to tender that statement, and again I note that the statement previously provided was unsigned, I do have a statement that has been signed by the witness.

PN47

THE COMMISSIONER: Thank you.

EXHIBIT #R5 WITNESS STATEMENT OF NOEL FERNANDO

PN48

THE COMMISSIONER: And you are relying on that statement I take it?

PN49

MR RUDD: Yes, Commissioner, we have no questions.

PN50

THE COMMISSIONER: All right. Mr Andrews, you have got no cross-examination?

**** NOEL FERNANDO XN MR RUDD

PN51

MR ANDREWS: No questions.

PN52

THE COMMISSIONER: All right, thank you, you are excused then, Mr Fernando.

<THE WITNESS WITHDREW [10.51am]

PN53

THE COMMISSIONER: Yes.

PN54

MR RUDD: Commissioner, we would seek to call Mr Laurie Jones.

<LAURENCE NEVILLE JONES, AFFIRMED [10.52am]

<EXAMINATION-IN-CHIEF BY MR RUDD

PN55

MR RUDD: Can you state your name and address please?---Laurence Neville Jones, (address supplied).

PN56

Have you prepared a statement for the purposes of today's proceedings?---I have.

PN57

Commissioner, I would seek to provide the witness with a copy of that statement.

PN58

THE COMMISSIONER: Yes.

PN59

MR RUDD: Do you say that the contents of that statement are true and correct?---I do.

PN60

Commissioner, we would seek to formally tender that statement, and again we would seek to provide the Commission with a signed copy of that statement.

PN61

THE COMMISSIONER: Thank you.

EXHIBIT #R6 WITNESS STATEMENT OF LAURENCE NEVILLE JONES

PN62

MR RUDD: Commissioner, we would rely on the statement, we have no questions.

PN63

THE COMMISSIONER: Good, thank you. Mr Andrews, you have got no cross-examination?

**** LAURENCE NEVILLE JONES XN MR RUDD

PN64

MR ANDREWS: No questions.

PN65

THE COMMISSIONER: Thank you, you are excused then, Mr Jones.

<THE WITNESS WITHDREW [10.54am]

PN66

MR RUDD: That concludes the evidence on behalf of the union, Commissioner.

PN67

THE COMMISSIONER: All right, thank you. Mr Andrews.

PN68

MR ANDREWS: If the Commission pleases, can I call Derek Kypriotis as a witness please?

PN69

THE COMMISSIONER: Thank you.

<DEREK JOHN KYPRIOTIS, AFFIRMED [10.54am]

<EXAMINATION-IN-CHIEF BY MR ANDREWS

PN70

MR ANDREWS: Mr Kypriotis, could you please state your full name and address?---Derek John Kypriotis, (address supplied).

PN71

Have you prepared a witness statement for today's proceedings?---I have.

PN72

Commissioner, may I provide a copy?

PN73

THE COMMISSIONER: Thank you.

PN74

MR ANDREWS: Is that a copy of the statement that you signed?---Correct.

PN75

Is it true and correct?---It is.

PN76

Commissioner, we seek that that statement be tendered.

EXHIBIT #A1 WITNESS STATEMENT OF DEREK JOHN KYPRIOTIS

PN77

MR ANDREWS: We have no further questions.

PN78

THE COMMISSIONER: Thank you. Mr Rudd.

PN79

MR RUDD: We have no questions, Commissioner.

PN80

THE COMMISSIONER: Very good, thank you, then you are excused, thanks, Mr Kypriotis.

<THE WITNESS WITHDREW [10.55am]

PN81

MR ANDREWS: Can I please call Maxine de Graaff as a witness?

PN82

THE COMMISSIONER: Thank you.

<MAXINE JOY DE GRAAFF, AFFIRMED [10.55am]

<EXAMINATION-IN-CHIEF BY MR ANDREWS

PN83

MR ANDREWS: Ms de Graaff, could you please repeat your full name and address?---Maxine Joy de Graaff, (address supplied).

PN84

Have you prepared a statement for today's proceedings?---Yes, I have.

PN85

Commissioner, can I hand up a copy of that?

PN86

THE COMMISSIONER: Thank you?---Thank you.

PN87

MR ANDREWS: Ms de Graaff, is that a copy of your statement?---Yes, it is.

PN88

Is it a true and correct statement?---Yes, it is.

PN89

We seek to tender that as a witness statement on behalf of the Institute.

PN90

THE COMMISSIONER: Thank you.

EXHIBIT #A2 WITNESS STATEMENT OF MAXINE JOY DE GRAAFF

PN91

MR ANDREWS: And we have no further examination of the witness.

PN92

THE COMMISSIONER: Thank you. No cross-examination?

PN93

MR RUDD: No, Commissioner.

**** MAXINE JOY DE GRAAFF XN MR ANDREWS

PN94

THE COMMISSIONER: Thank you. You are excused then thank you, Ms de Graaff.

<THE WITNESS WITHDREW [10.56am]

PN95

THE COMMISSIONER: Yes, Mr Andrews.

PN96

MR ANDREWS: That concludes our witness evidence. We have one other document to tender today that may not have come through with the submission and other attachments that we sent to the Commission and to the union by mail.

PN97

THE COMMISSIONER: Yes.

PN98

MR ANDREWS: It is a copy of a letter from Joe Piper, Chief Executive Officer, dated 23 August 2004 regarding the gas staff redundancies.

PN99

THE COMMISSIONER: All right.

EXHIBIT #A3 COPY LETTER FROM JOE PIPER, CHIEF EXECUTIVE OFFICER, DATED 23/08/2004 RE GAS STAFF REDUNDANCIES

PN100

MR ANDREWS: Commissioner, the documents that we have already sent through together with the witness statements and this letter today constitute the Institute's submission in this matter.

PN101

THE COMMISSIONER: Good, thank you. All right, then I will take it then it is a question of submissions that both parties now wish to put to the Commission. I will hear from you, Mr Rudd.

[10.58am]

PN102

MR RUDD: Thank you, Commissioner. With respect to the statements made on behalf of Mr Heath, or the statement by Mr Heath, what we would say is that - if I can summarise his evidence - was that there was an initial meeting with the employer over a possible, and I say a possible, restructure at that time within the gas training section of the employer. At that time the union was given a - and Mr Williams also of the union attended that meeting - they were given an indication or a possibility that there may be a restructure occurring which would in effect lead to a job spill of four positions going into one position.

PN103

Now at that time it is our contention that the employees were afforded the option of either the VD - if I can call it the VDP, which is the voluntary redundant departure package - or a TSP, which is the targeted separation package. Now we say is that they were given an option at that particular meeting and that there was also an agreement reached on that position, and also there was an agreement reached with respect to those employees not to be disadvantaged with respect to a wage increase which was to occur in September.

PN104

Accordingly it was our understanding that the employees would not be disadvantaged and their notice period would extend into that point in time. Now it was the evidence of Mr Heath that he hears nothing to the contrary until his employees inform - or his members inform him - that they are told when they receive their formal letter stating that they have been unsuccessful for the positions, that they won't - in effect won't be receiving the VDP and the notice period will not be extended into September. Now in Mr Heath's evidence he then at that time goes to the process of indicating his views on this matter with respect to our contention that we had already previously reached an agreed position with respect to those issues.

PN105

It is our submission that the issue of whether the employees are to receive the VDP or the TSP has never been a matter in contention before because it had always been agreed, as per Mr Heath's evidence, that it was indicated under the terms of the MOU and in practice that employees were always given the option of the VDP or the TSP under the terms of the agreement and the MOU. Now we say that is a critical issue because what in effect has occurred is that employees with longstanding service with the employer are effectively denied, we say, entitlements that all previous employees within - from our view - have been afforded that opportunity to receive either the VDP or the TSP.

PN106

The figures that have been quoted in some of the union's statements are around the $20,000. Now we say it is fairly substantial that those employees will be disadvantaged when we say that that has always been the operation under the terms of the agreement and the MOU. With respect to the witnesses of the union concerning Mr Jones and Mr Fernando and Mr Williams, we say that they go to the effect of reiterating what the events of the meeting on 2 June, and also the course of events as also described in the evidence of Mr Heath.

PN107

Commissioner, it is our submission that the AEU case, which has previously been referred to by Mr Andrews, does present a substantial obstacle in the union pressing for any orders or awards in resolution of the issues in dispute between the parties. On that basis, Commissioner, we do not press any order or award in settlement of the dispute. What we are seeking in the circumstances is a recommendation. Now it is our view that the decision in AEU does not in any way suggest that the Commission is restrained from issuing a recommendation.

PN108

What we say is that the AEU decision goes to - if I can describe it this way - an impairment of the state's rights. We say that a recommendation will not impair the state's rights. Now with respect to what form of recommendation we are seeking to settle the dispute, what we would be seeking is that the employees affected be afforded the opportunity to either select a VDP or a TSP and that their notice period be extended into September. Now it is also the evidence of Mr Heath that the union has at this time tried to arrange a meeting with the relevant ministerial person who would be able to assist the parties in that process.

PN109

We would also seek as part of that recommendation that that process also occur in terms of trying to resolve the dispute. I have nothing further, Commissioner.

PN110

THE COMMISSIONER: Thank you. Mr Andrews.

PN111

MR ANDREWS: Mr Commissioner, the Institute confirms that it believes that this case is covered by re AEU and notes the union's response to that issue. In respect of the VDPs request, we believe that the issue of VDPs, because of the tax office approval and because of the circumstances applying to this case, are just not appropriate to this particular case as an option. So far as the issue of extending the notice date, or at least taking in the next 3 percent which is due later in September, on that issue we are prepared to discuss that issue in private conference, and if that assists in a recommendation we would appreciate that.

PN112

If there was consideration also of any other processes to be bought outside of the Commission and outside of the immediate parties, that is really out of our control but we would just want that resolved expeditiously so the Institute would know exactly where it stood. Otherwise in response to the other points made by my friend we would rely on our written submission, thank you.

PN113

THE COMMISSIONER: All right. Well having taken those submissions, and as I have indicated earlier, I will adjourn the proceedings at this stage into a conference to have some discussions with the parties based on what has been put. If it is appropriate to take any further submissions I will do so, but if not I should indicate that at this stage I am prepared to issue a recommendation based on the material before the Commission and I will undertake to have that recommendation out and in writing before the end of this week. But on that basis I will adjourn the proceedings into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

COLIN HEATH, AFFIRMED PN16
EXAMINATION-IN-CHIEF BY MR RUDD PN16
EXHIBIT #R3 WITNESS STATEMENT BY COLIN HEATH PN23
WITNESS WITHDREW PN27
WILLIAM WILLIAMS, SWORN PN29
EXAMINATION-IN-CHIEF BY MR RUDD PN29
EXHIBIT #R4 WITNESS STATEMENT OF WILLIAM WILLIAMS PN36
WITNESS WITHDREW PN40
NOEL FERNANDO, SWORN PN41
EXAMINATION-IN-CHIEF BY MR RUDD PN41
EXHIBIT #R5 WITNESS STATEMENT OF NOEL FERNANDO PN48
WITNESS WITHDREW PN53
LAURENCE NEVILLE JONES, AFFIRMED PN55
EXAMINATION-IN-CHIEF BY MR RUDD PN55
EXHIBIT #R6 WITNESS STATEMENT OF LAURENCE NEVILLE JONES PN62
WITNESS WITHDREW PN66
DEREK JOHN KYPRIOTIS, AFFIRMED PN70
EXAMINATION-IN-CHIEF BY MR ANDREWS PN70
EXHIBIT #A1 WITNESS STATEMENT OF DEREK JOHN KYPRIOTIS PN77
WITNESS WITHDREW PN81
MAXINE JOY DE GRAAFF, AFFIRMED PN83
EXAMINATION-IN-CHIEF BY MR ANDREWS PN83
EXHIBIT #A2 WITNESS STATEMENT OF MAXINE JOY DE GRAAFF PN91
WITNESS WITHDREW PN95
EXHIBIT #A3 COPY LETTER FROM JOE PIPER, CHIEF EXECUTIVE OFFICER, DATED 23/08/2004 RE GAS STAFF REDUNDANCIES PN100