C2003/6884, Transcript of Proceedings [2004] AIRCTrans 348 (23 January 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 8803

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO

C2003/6884

AUSTRALIAN MANUFACTURING
WORKERS UNION

and

P AND H MINEPRO SERVICES

Notification pursuant to section 99 of the Act
of an industrial dispute re proposed redundancies

SYDNEY

10.17 AM, FRIDAY, 16 JANUARY 2004

Continued from 22.12.03

THESE PROCEEDINGS WERE CONDUCTED BY VIDEOCONFERENCE IN SYDNEY

PN24

HIS HONOUR: This matter has been re-listed on the application of the AMWU following some development since the matter was last before the Commission, I think it was on 22 December, proceedings and a conference. Is there any change to appearances?

PN25

MR S. MURPHY: Your Honour, the only change would be from the AMWU.

PN26

MR P. COPELAND: Also, your Honour, I am in Brisbane appearing for P and H Minepro. I apologise for not being in person but my flight broke down on the tarmac this morning.

PN27

HIS HONOUR: Yes, Mr Copeland, we'll see how that comes for the purposes of record. I observe the Commission's practices to travel the night before but the arrangement has been made to accommodate you this morning.

PN28

MR COPELAND: Thank you, your Honour.

PN29

HIS HONOUR: Yes?

PN30

MR P. BASTIAN: Your Honour, I think that we want to essentially give you a bit of a report back of what has occurred since the 22nd in relation to the negotiations, for want of a better word, that have been held between the company and the union, so that at least you are brought up-to-date with the state of affairs of this dispute. We would also flag that we'd certainly avail ourselves today to be available to go through further conciliation under your stewardship to try and further resolve this dispute.

PN31

In giving a bit of a report back I think I should re-cap on some of the events that led to where we are now. The Commission would be well aware that following the proceedings of the 12th, that prior to 12 December there was essentially no issue of redundancies flagged, other than at a meeting between myself and Mr Quinn and a couple of other people back on the 9th. In fact so much of that was confirmed in proceedings before the Commission on 4 December where the company on transcript following a question, indicated that there would be no redundancies of people returning to work.

PN32

So the issue of redundancies which came up post the 12th was new, the position of closing the workshop was new. On the 22nd the union sought orders about the process of consultation to take place after your Honour having made it quite clear on the 12th that it was time for people to put their cards on the table. Your Honour, we then met with the company on the 6th, the delegates, the members and Mr Murphy on 6 January where the company then went through a presentation which they say outlines their reasons for the need, their commercial decision to close the workshop.

PN33

The union has subsequent to that raised a number of issues; firstly, whether or not be believed the company had actually demonstrated valid reasons for the closure, whether enough information had been given; two, in relation to if there are to be redundancies the procedure for that to occur in terms of selection criteria, etcetera and three, the terms and conditions of employment for ongoing employees. There was a subsequent meeting again on the Thursday which was 8 January where the union put forward a number of positions in relation to what it wanted to see happen as a way of resolving the dispute.

PN34

Essentially those positions centred around a fundamental position in our view, that we did not accept a position that there was a need to close the workshop and we wanted to discuss that matter further; that we were prepared to re-visit the terms and the condition of the current Enterprise Agreement and we were prepared to make changes to that agreement but it would be based on the principle that first off, we would roll over the existing agreement so that its application and scope remained unchanged, that is, that it would apply to both workshop employees and site employees, as it has done in the past.

PN35

Then we raised a number of issues that we were prepared to move from substantially in relation to the current agreement to make some changes that the company were seeking to move forward and I'm happy to detail those later. Suffice to say, that we did put a fairly detailed position to the company on what we were prepared to do and move off the mark on a number of the key issues that concerned us prior to the 12th in the event to try and move forward.

PN36

HIS HONOUR: Do you have a cop of Mr Lennard's proposed affidavit?

PN37

MR BASTIAN: I'm aware that we received that affidavit yesterday, as I understand it.

PN38

HIS HONOUR: Yes, I have glanced through that, I think that contains some of the material to which you are alluding.

PN39

MR BASTIAN: Thank you, your Honour, so you'll be aware of all of those. Our view has been as a result of those discussions and the company's response which is contained, as you mentioned, in that affidavit, that all we've really seen here in this entire process is nothing more than a charade of negotiations by the company in an attempt to discharge their obligations under the Act. We don't believe that the company has been genuine in the negotiating process, we haven't been believed that for some time and we certainly don't believe in this instance in relation to their duty to consult and mitigate, that there has been any genuine attempt to do that.

PN40

We say the above for a number of reasons: first and foremost with the issue that redundancies weren't on the card and then all of a sudden they are placed on the card by the company on a take it or leave it position. It was made quite clear to us on the 9th that unless you do something about resolving this EBA issue essentially on their terms because they weren't prepared to look at any other terms, the company would make a decision on the following Friday at a board meeting about whether or not to keep the company open or closed.

PN41

Secondly, before we met on 6 January, the week-end before our members on the picket noticed that the plant has been emptied out, so there were already moves to empty out the premises, regardless of any negotiations, that site is going to close. At the meeting of the 6th there are clear statements made and this is supposed to be a forum about negotiating to see whether or not jobs can be saved in the process, clear statements made that unless the union can do something about the Australian dollar, the coal price and rail infrastructure, nothing is going to change in relation to the company's decision to terminate and that really sets the scene about what we were able to negotiate on when the company has made its position quite clear on where it's at.

PN42

Finally, they outrightly rejected every proposal the union puts forward as a constructive means to going ahead. So we have some genuine concern about how fair dinkum this company is about trying to mitigate losses of employment, trying to reach agreement with its employees, a collective agreement with regard to the ongoing terms and conditions of employment.

PN43

Our position is that the threat of employment has been used no more than to coerce people to try and take an agreement on the company's terms and only on the company's terms. We have some concerns with that and our view is that the issues that remain are these. The position of the terms and conditions of employment are critical to us. The company's position is that it wants to down load all those employees that operate from the workplace and then sit down purportedly to negotiate an agreement that only applies to site workers.

PN44

Our members have maintained the position that they want to reach a collective agreement now covering both groups of workers and we say both primarily because we don't believe the company will not some time in the future seek to re-open a fab shop, a workshop somewhere if not at Mount Thornley somewhere else under some other terms and conditions of employment and we want to ensure that people that have been made redundant are offered preference of re-employment within a defined period of time and that that re-employment would be under a collective agreement.

PN45

So that would be our first issue. The second issue is that we are still convinced about the need to make redundancies and certainly the need to make the amount of redundancies that the company has essentially said which is the entire work-force bar three jobs at the ..... which I am told will be primarily working out on site anyway.

PN46

HIS HONOUR: Is that the scale of the field operations, only two or three positions?

PN47

MR BASTIAN: No all the site jobs remain the same. There are 34 redundancies as I understand essentially from the workshop with three positions being maintained for the people within that group or subject to that group to do work in field service which are two fitters and a boilermaker.

PN48

HIS HONOUR: I see and the site operations are how many people roughly?

PN49

MR BASTIAN: 22.

PN50

HIS HONOUR: I see.

PN51

MR BASTIAN: So we don't believe that as far as we are concerned that there has been a proper process or accounting for the need to terminate the numbers to be terminated.

PN52

The second thing for us is that if there is to be a termination of employment and redundancies there has to be an agreed transparent and objective process on how that is to occur. And we as yet are unable to reach an agreement on how that process is to occur. There is some agreement in some areas. But the latest position by the company is that they have put a document out indicating that they wish to meet one on one with each employee who can bring their delegate and/or a support person with them to a meeting with the company to go over whether or not their job is one in jeopardy. What can be done to save the job et cetera.

PN53

Our members' view is that we have been trying to deal with those issues collectively for some time and we remain of that view that those issue should be dealt with collectively and not one on one and there has to be a transparent process by what criteria and process the company is going to come to, to select the individuals to be made redundant or whether or not certain volunteers are accepted or rejected et cetera.

PN54

The third thing for us would be in the event that that process is overcome and redundancies do go ahead one of the issues that was in dispute with this agreement from the beginning, one of the original claims made by the union, was an improvement to the redundancy package. The redundancy package that currently operates in the agreement is well and truly below the standard in the industry. It is below the standard in the metal industry let alone those who work in the contract mine sector.

PN55

It's probably below the standard the company has within its other related companies, in our view and that claim essentially from us because this dispute went on for so long, was dropped and it was dropped primarily on the evidence of the company in November, that there would be no redundancies. Well, the company has made it clear there is going to be redundancies and if there are to be redundancies, then we say that is an issue that has to be addressed in terms of the quantum of the package that people would receive when and if redundancies are to occur.

PN56

So I think they are the key issues, we have been unable to reach an agreement on those issues. As I've said, the union is of the view that we have been witnessing all along a position of take it or leave position from the company, that we've seen no flexibility on their side of the negotiations. As I outlined, we are happy to attempt again today to try and through the process of conciliation, see if agreement can be reached on some of these issues under your guidance.

PN57

HIS HONOUR: The company's response?

PN58

MR COPELAND: Your Honour, you've had the opportunity I understand, to have a look at Mr Lennard's affidavit filed yesterday?

PN59

HIS HONOUR: Yes.

PN60

MR COPELAND: The company's response is outlined in writing in exhibit 6 of that affidavit, your Honour. In relation to the specific issues raised by the union now, forgive me but I don't know if the re-employment preference issue is specifically raised in the consultation meetings that have occurred so far and please correct me if I'm wrong, Mr Neilson.

PN61

MR NEILSON: Yes, they were raised.

PN62

MR COPELAND: I see, I'm just looking to the point in the response letter that deals with that.

PN63

MR NEILSON: They were raised specifically with Mr Ed Quinn also and it's in page 5 point 5 of the meeting minutes which is exhibit 2 in your affidavit filed as well.

PN64

MR COPELAND: Could I have a moment to look at that please, your Honour?

PN65

HIS HONOUR: Yes.

PN66

MR COPELAND: I apologise, your Honour but I don't have instructions on that point, it doesn't appear to be covered in the formal written response in relation to preference for re-employment. But without instructions I point out that the company has no plans to re-open and I refer also, in my letter following Mr Lennard's affidavit to Mr Quinn's previously filed affidavit, I wonder if your Honour has seen that.

PN67

HIS HONOUR: I've seen it but I'm not fully up to speed with it again this morning, Mr Copeland. It's not in these proceedings, is it?

PN68

MR COPELAND: Thank you, your Honour. Mr Quinn made the point in that affidavit that there were no plans by the company to re-open the workshop. Other than the re-employment options currently on the table in free port and various vacancies in the Hunter Valley, there are no further vacancies to be considered.

PN69

In relation to the union's complaint that their suggestions to mitigate the number of people to go haven't been given proper consideration, the company's position is that in closing the workshop, all those jobs are to go, there is no point in keeping one or two open, the whole workshop is to close and the only people not affected are the people who work on site, on specific sites full-time.

PN70

So I can't see any room to move on the number of retrenchments that have been advised to the union are to occur. In relation to the complaint that there's no selection criteria of who are to go and there needs to be a transparent selection criteria, again, the fact is that the workshop is closing and all those employees are to be made redundant and the field employees that work full-time on specific sites are not affected by the redundancies, so the selection criteria of who to go doesn't arise.

PN71

In relation to their complaint that the company is engaged in or proposes to engage in one-on-one consultation with the employees and not solely restrict the exercise to the collective union position, employees have a choice whether they wish to attend those meetings on Monday and it's purely the company seeking to comply with their obligation to consult with both the union and employees on these issues. The improvement to the redundancy pay outs, as the union have just suggested, hasn't been tabled currently although it was raised prior to the redundancies being advised, that claim obviously then hasn't been considered by the company but without instructions I'd suggest from the company's point of view, the financial situation is such that no great improvement on the redundancy benefits offered under the EBA is likely to occur.

PN72

Other than that, your Honour, the process that we are required to comply with under the Act is in our submission, being followed. We accept the union don't like the outcome, we don't apologise for that, we've complied with our obligations and we just want to get on with it. There is nothing in the union's responses and proposals that have convinced us to keep the workshop open and give us the 25 to 30 per cent increase. Now, I appreciate the difficulty of external factors like the Australian dollar, etcetera but they are big players on the company's decision and we accept that some of those things are outside the union's control but also, outside the company's control. That is all I have at this time, your Honour.

PN73

MR BASTIAN: Your Honour, we don't accept that, our position remains and perhaps that's for another forum, another time. Our position remains that this is a decision taken by the company and has been the position they've adopted all along, that they've wanted to radically change the terms and conditions of employment. They've wanted to excise the union from the workplace and t his is all part of the process of bringing that about.

PN74

We also don't accept the position in relation to the redundancies, that there is no need for transparency because all the workshop people are going. Well, the current EBA applies to both workshop and site employees and we've put a process and as I understand it, the company has actually tabled that it's open for volunteers, well, it is open for volunteers to put their hand up for redundancies, it's open for all to put their hand up for redundancy, including site workers. If site workers put their hand up as volunteers in order to give someone else an opportunity to take a job, it has to be considered and that has to be considered in a transparent process, it has to be considered with objective criteria and it has to be considered in light of their skills packages.

PN75

None of that is there, I haven't heard the company address that issue this morning. If they think they can simply down load 34 because they make a decision, one second it's gone without considering that, we say that is wrong, that is not the way it is because the current agreement applies to everybody and that issue needs to be dealt with. Again, we say that if the company's position is that they can't move on any of these issues or they need to take further instructions in relation to a package, that's all we really need to hear.

PN76

But again, we are here genuinely today to try and reach a settlement with the company on some of those issues but if they are not prepared to do that, there is not a lot we can do about it under the current provisions of the Act.

PN77

HIS HONOUR: That appears to be the predicament as far as I can see, Mr Bastian and also, there's not much the Commission can do. You have sought, as I understand it, some consultation or conference this morning to deal with a set of specific issues, including some that are posited upon the probability that there will be displacement of those currently engaged in the workshop.

PN78

As I understand the position, the company through its solicitor in Brisbane says, well, we've considered all of those and we don't see any point in having further discussions, if I did get instructions, then they are unlikely to assist. Now, whether that's a like it or lump it situation I can't see any point in trying to get the company to talk if it doesn't want to talk and the logistics of it are even more difficulty through using solicitors who are out of the State and mainly in telecommunications contact and are not representing directly the employer rather through some process of getting instructions.

PN79

Unless there is something contrary from the company, I take it that there is no willingness to productively use time along the lines that Mr Bastian proposes at this stage.

PN80

MR BASTIAN: The only thing, I agree with your assessment of where we are at, the only thing we want to get some clarification on is the comments just made by the company solicitor, that they say there is no need, where the status is in relation to volunteers being called from site was because if I understand where the company's position given what they said about transparency, that's not on. If that is what they are saying, then they need to clarify that because we certainly have a different view about is application, we want some certainty on that issue and whether or not the company is going to take the issue about the quantum of any redundancy package back on board or whether they are saying outright here and now, that no, the answer is no.

PN81

HIS HONOUR: Yes, Mr Copeland?

PN82

MR COPELAND: I'll certainly take those issues on board and respond formally to the union in the next day or by close of business on Monday, your Honour.

PN83

HIS HONOUR: I think the - - -

PN84

MR BASTIAN: We've got the General Manager here, your Honour, perhaps he could - - -

PN85

MR LENNARD: Yes, your Honour, the company obviously made a financial decision based on a whole raft of issues which are well documented in the affidavit. We entered a process under your instructions to commence the week of the 5th which we've been through. Certainly on the Tuesday we had everyone, including our Managing Director and Financial Controller available and present at that forum, to go through the gravity of the situation those people's time is very valuable and we felt it highly important to the process.

PN86

We went through a very detailed process, we then heard back from the union on its list and the company had to put all the dollars to that which we've done and clearly, we are still in that position. The financial situation is very significant and we see nothing despite spending a lot of our time dollar-ising those items, that actually help us out of the situation that we are in. I guess just on the point of redundancies, the workshop operations, the ones that are directly affected, we have contractual obligations in the field and our field operations will be maintained at levels to adequately service those contracts.

PN87

HIS HONOUR: But why does that affect who does the services and the question raised, as I understand it, was - - -

PN88

MR LENNARD: In terms of who does the services, the site works are specific to the ongoing maintenance and support of equipment in the field. Customers have specific requirements in terms of safety and work procedures that those people who are almost exclusively engaged in the field operations are well aware of. They have been accepted. They have been appointed to numerous statutory positions on those sites and have demonstrated an ongoing ability and commitment to meet those criteria. The company has looked at all of that and those people in those positions are doing that job to the satisfaction of the company and of the client to de-stabilise or risk safety and cost impacts by bringing other people in we didn't see as significant.

PN89

MR BASTIAN: Your Honour, there's nothing in what Mr Lennard has just said that prevents the argument that we've put forward and that is that the current agreement applies to both side to side workers. The company has called for volunteers and the scope and application of volunteers should be extended to site work. What has to be looked at is whether or not there is the skills mix to cover that work and whether or not people have the appropriate skills and training to do that work. Our view is there are many people that qualify for that position. Indeed a lot of the people have worked on site as well, intermittently, previously.

PN90

So we don't think anything that Mr Lennard has put forward actually justifies their position of not allowing volunteers to be called in a proper process. At the end of the day whether or not volunteers are accepted or not will be a position for the company. What we say, however, is that the call must be made. People must be given an opportunity. The process must be transparent and people must have an opportunity to rebut why or not their application hasn't been accepted but as I said at the end of the day, provided that is undertaken, the company makes that decision but hopefully it does so on objective process.

PN91

All we've seen here is a situation where we know and the company is well aware. There are some people currently working on site that have broken the dispute and broke ranks and are working on site. That's what they want to look after and what they don't want to do is import people. They want to discriminate against our members, who have been involved in the dispute and taken collective action and we take umbrage to that position and again say that Mr Lennard has done nothing to justify his position and that the company should allow the call for volunteers, should consider that in a proper way to see whether or not there can be an appropriate mix of volunteers and false redundancies if we get to that position.

PN92

HIS HONOUR: Yes.

PN93

MR LENNARD: I guess at this stage your Honour, the company's position remains that we are comfortable with the process that we've put in place and we see nothing available at the moment to change that position, so I guess we take on board Mr Bastian's comments and I think that there's a lot of issues in this matter that we agree to disagree on and we would maintain our position on the scope and individuals affected.

PN94

HIS HONOUR: And in relation to the question of quantum?

PN95

MR LENNARD: In relation to the question of quantum of people?

PN96

HIS HONOUR: The quantum of redundancy package.

PN97

MR LENNARD: I mean the current expired EBA which everyone is still operating under has provisions for redundancies and again, we're making this decision on financial grounds, to do any more than what's been previously negotiated and in an agreement would further magnify the issue we have. It has been stated in meeting with the union relating to these redundancies, that whilst ever there is ongoing uncertainty, our current clients under their contracts are getting increasingly concerned about our inability to effectively service them and we'll be doing everything in our power to mitigate the risk of losing further employees through this process. So to do anything more than we already agreed in the EBA that has expired, would impact our business further.

PN98

MR BASTIAN: Again, we understand the constraints in relation to the Workplace Relations Act and the company's position of whether they can go any further, I think all we can say at this time, your Honour, is we appreciate the opportunity to be able to come back and give you a report back and we'll take whatever steps we deem necessary to maintain our members' rights.

PN99

HIS HONOUR: Yes, in relation to the affidavit of Stephen Lennard, is there any objection to that being simply marked?

PN100

MR NEILSON: No, your Honour.

PN101

HIS HONOUR: The affidavit of Mr Quinn is in a different proceeding, isn't it? It's in C6896 but very well, I'll mark it as exhibit PHM1. I'm not sure whether the other affidavit was ever marked but it's on record simply to indicate that both of those are on record and the transcript so records.

EXHIBIT #PHM1 AFFIDAVIT OF STEPHEN LENNARD

PN102

HIS HONOUR: Very well, unless there is something further, I don't know that the Commission can provide much assistance given the nature of the reports, so I'll stand the matter over generally.

ADJOURNED INDEFINITELY [10.53am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #PHM1 AFFIDAVIT OF STEPHEN LENNARD PN102