C2003/2457, Transcript of Proceedings [2004] AIRCTrans 3701 (17 September 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 13566

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER

C2003/2457

FINANCE SECTOR UNION OF AUSTRALIA

and

GIO AUSTRALIA LIMITED and ANOTHER

Application under section 170LW of the Act
for settlement of dispute re dispute/grievance
resolution procedure

SYDNEY

12.10 PM, WEDNESDAY, 8 SEPTEMBER 2004

Continued from 17.12.03

PN2830

THE VICE PRESIDENT: I note the appearance of Ms Hannan for the FSU and Mr Herbert for Suncorp.

PN2831

MS D. HANNAN: If the Commission pleases.

PN2832

MR A. HERBERT: Yes, Commissioner.

PN2833

THE VICE PRESIDENT: I am pleased to see you here, Mr Herbert in the sense that it seems to me to be impractical that we could do anything by way of a hearing today and I am embarrassed that we didn't arrange to do this by videoconference, so as to save your client the expenses that have obviously been involved in bringing you down here. First of all, can I apologise to the parties and apologise profusely for the quite unacceptable delay in producing a decision in this matter. I give you my personal assurance that it will be done by the end of next week.

PN2834

It is a matter of considerable complexity, as you know and the reality is that in starting to work on it the week before last it became apparent that I had to re-read the whole of the transcript and the evidence which task is more or less complete and I do expect to have something finished by the end of next week, notwithstanding various hearing commitments between now and then. Ms Hannan, I am not at all sure that, well, let me put it a different way, I have doubts about the appropriateness of seeking to agitate a whole series of new employees as part of this particular file.

PN2835

I don't wish to stand on formalities and at the end of the day it is clear that to the extent that there is an ongoing dispute about a further group of employees in relation to whether or not the terms and conditions offered by Suncorp meet the test in the integration agreement but those persons are entitled to have their day in arbitration, so to speak. I am just wondering whether the most practical course is to await the decision which, as I say, I give you my assurance you will have by the end of next week and see whether or not that has an impact upon whether or not there is a need to have a further hearing and then to programme it at that time.

PN2836

MS HANNAN: Your Honour, there are a couple of things that I would like to say in response to that and one is, those group of employees that were bar Ms Forrester and Ms Hawkes, those employees who were identified in the 2 September correspondence sent to Suncorp we say, form part of the original dispute, they actually were mentioned as part of the initial proceedings back in August. What I was going to request of your Honour with your agreement is that if we could seek a brief adjournment to further consider Suncorp's reply to our correspondence of 2 September, there is a further practical issue to determine in terms of entitlements that was identified in that letter that we may be able to progress.

PN2837

Then there is the wider issue if you like, of the ability for other employees to seek relief under the integration agreement consequent to the handing down of your decision and how that lines up with the proposed Suncorp Certified Agreement due to be voted on and to be finalised rather, in mid-October.

PN2838

THE VICE PRESIDENT: When is the vote?

PN2839

MS HANNAN: It starts in early October and I understand the last date is 14 October.

PN2840

MR HERBERT: Yes, that is as I understand it, your Honour, yes.

PN2841

THE VICE PRESIDENT: So the agreement has been concluded between Suncorp and the - it's a 170LK I take it?

PN2842

MR HERBERT: Yes, it is, your Honour.

PN2843

THE VICE PRESIDENT: So it's been concluded between the employee representatives and the company, it's now just a question of approval or non-approval by the work-force.

PN2844

THE VICE PRESIDENT: Yes, it's currently being distributed and explained amongst the work-force and that is occurring during the balance of this month and the ballot opens early October the last date of the ballot is, I am instructed, is 14 October.

PN2845

THE VICE PRESIDENT: Yes.

PN2846

Ms Hannan, have you seen a copy of this agreement?

PN2847

MS HANNAN: Yes, your Honour and we have exercised our rights under 170LK(4).

PN2848

THE VICE PRESIDENT: And do you have some concern that this agreement is going to cut across the process of correcting alleged inequities, if I could use that expression, to compendiously describe the existing arrangement under the integration agreement?

PN2849

MR HERBERT: Yes, your Honour, in our correspondence of 2 September to you at clause 3.1 and I apologise, I don't actually have a copy of that draft Certified Agreement with me but I don't think it is challenged by Suncorp that it is their intention that they will not continue to be bound by the integration agreement, if I can describe it in a shorthand way, once the Suncorp Certified Agreement is voted on and subsequently, depending upon the Commission, approved by the Commission and that was the third issue that had to further explore with Suncorp today before coming back to you in an effort to narrow the issue.

PN2850

THE VICE PRESIDENT: So Mr Herbert, the obvious issue that arises is whether or not Suncorp will acknowledge or give an undertaking to the effect that to the extent that people have been identified as having a problem with their terms and conditions being reasonably dissatisfied or whatever the expression is - - -

PN2851

MR HERBERT: Genuinely.

PN2852

THE VICE PRESIDENT: Genuinely.

PN2853

MR HERBERT: Genuinely dissatisfied to the extent that people have been identified as having the alleged dissatisfaction, that those matters can be resolved substantively, notwithstanding the passing of this particular agreement, assuming it is to be approved.

PN2854

MR HERBERT: Yes, your Honour and that matter has been addressed by Suncorp and it has been addressed in correspondence to the union and I think, to your Honour and your Honour has been provided with a copy of a letter dated 3 September 2004, I understand and the - - -

PN2855

THE VICE PRESIDENT: It doesn't appear to have made its way to the file.

PN2856

MR HERBERT: I have a copy of a letter that was addressed to your Honour, I had assumed it had got there.

PN2857

THE VICE PRESIDENT: I have actually seen that correspondence but it hasn't - - -

PN2858

MR HERBERT: I can provide your Honour with another copy of it but your Honour I can give you the short form position, that the new agreement provides effectively, that the integration agreement for relevant purposes will no longer apply to employees. The integration agreement itself expired December 2003, it's well past its expiry date and it was, as your Honour will recall, made for a particular transitional purpose for a particular transitional period and it's well past its use by date.

PN2859

THE VICE PRESIDENT: But by virtue of the provisions of the Act it continues in operation until it is - - -

PN2860

MR HERBERT: Yes and I have no issue about that.

PN2861

THE VICE PRESIDENT: - - - terminated.

PN2862

MR HERBERT: It is in force as at today's date and that has been acknowledge in the correspondence because Suncorp has taken no step to terminate the effect of that agreement, so it remains in force today. The position is however, that the proposed new agreement contains a clause that effectively terminates the operation of any other agreements that might otherwise have applied to employees and that would include the integration agreement. So that it will be terminated, as it were, lock, stock and rain barrel, upon the coming into force of the new agreement, assuming it is voted up and it is certified.

PN2863

At that point the position of Suncorp is the contention is that, as a matter of law, any entitlements under the integration agreement to go through a grievance process and the jurisdiction of this Commission to determine the end point of that grievance process in the way that your Honour is considering now, all of that goes because your Honour's entitlements in relation to the matter derive from an agreement which is then terminated, so that entitlement goes. However, as your Honour's jurisdiction would go - - -

PN2864

THE VICE PRESIDENT: I don't think the - technically I don't think the agreement is terminated by the hypothesised subsequent agreement, rather both agreement are capable of applying but one takes precedence over the other, so that for practical purposes there's I suppose, a termination but as a matter of law - - -

PN2865

THE VICE PRESIDENT: Your Honour, my recollection is that in fact the agreement is terminated upon being replaced by another under the Act.

PN2866

THE VICE PRESIDENT: Okay, fine. In any event, I suppose nothing turns on that.

PN2867

MR HERBERT: No except for this, your Honour, the position that Suncorp has expressed in correspondence to the union and to your Honour is that it acknowledges the position of persons who have, as at today's date for example, announced themselves as being persons who have a genuine grievance and who have commenced the grievance process.

PN2868

THE VICE PRESIDENT: Yes.

PN2869

MR HERBERT: Now that opportunity has now been open for 15 months or thereabouts, they have - any persons who have taken advantage of commencing that process during the 15-month period and announced their genuine grievance, will be acknowledged by Suncorp as being persons who have ongoing rights, notwithstanding the expectation - - -

PN2870

THE VICE PRESIDENT: And those rights are not prejudiced by the expected approval of the new agreement.

PN2871

MR HERBERT: And that's the undertaking that has been given to the union. Now, your Honour, from a strict legal point of view, their right deriving as it does, from the superseded integrated agreement will in effect, be supplanted or disappear on the making of the new agreement and therefore, with that your Honour's jurisdiction to sit and make a binding determination, conferred as it is, by the agreement of the parties, will also go. But that Suncorp has agreed, be it by way of private contract or private undertaking, as opposed to certified agreement, to maintain the rights of those persons who are currently today going through the system 15 months after that opportunity first arose.

PN2872

So that those persons will be able to access - will be their right to continue to go through the grievance process will be acknowledged and honoured and their entitlement to approach this Commission on an arbitral basis for the making of a binding recommendation, as was their entitlement under the integration agreement will also be honoured by Suncorp although it will then not be contained in the Certified Agreement. So it won't be a right at large and it won't be a right that derives from a Certified Agreement, it will be in effect, a private arbitration right deriving from what will be an undertaking given by Suncorp to those employees who've been here before identified as persons who have announced their position as - - -

PN2873

THE VICE PRESIDENT: Thank you, Mr Herbert, I understand that, yes.

PN2874

MR HERBERT: That is the decision, I make it clear, your Honour, that my instructions because of the position in relation to that right having been available for people to access for 15 months now and some nine months past the original expiry date of the intended agreement in that regard, that is an undertaking which Suncorp gives in relation to all persons who have accessed the right, as at today's date. It is not an undertaking that Suncorp gives in relation to any persons who might between now and some future date, wish to access the process in circumstances where their right to continue that process might be taken away by the termination of the integration agreement at some future time.

PN2875

But so far as all nominated identified persons now Suncorp intends to honour all of the obligations that it assumed under the integration agreement notwithstanding the termination of that agreement and so it's confined in that way. But, of course, the submission that would support that is that after 15 months those who had a genuine grievance one would have thought would have known it and made it known by now. That's the position of Suncorp in relation to that. So they're prepared to give those persons rights they would not otherwise have on the termination of that agreement but not extend that indefinitely to anybody who might as it were - - -

PN2876

THE VICE PRESIDENT: What about people who might be minded to exercise the right between now and the coming into effect of any new agreement? What about those persons who may have been harbouring the genuine belief that have not articulated it perhaps because of reasons about the concerns about their own security of tenure?

PN2877

MR HERBERT: Your Honour, whatever might have been the motivation of any such hypothetical persons if they do in fact exist, the position of Suncorp is that if the right to continue that grievance process and access to the Commission is lost before that process is completed then those persons are not persons in respect of whom Suncorp is prepared to give an undertaking so far down the track after the right was originally - - -

PN2878

THE VICE PRESIDENT: So the undertaking is in relation to people that you know about today.

PN2879

MR HERBERT: Notified by the union today.

PN2880

THE VICE PRESIDENT: But not in relation to any persons who may be motivated to notify genuine dissatisfaction between today and the time that any agreement is approved.

PN2881

MR HERBERT: Yes, those persons have the right to notify their grievance. Suncorp, of course, would question their genuineness this far down the track but if the process is not completed by the time that right is lost it's a case effectively to put in the vernacular that it's a right that one either uses or loses and they have not yet used that right or even notified their grievance yet. If that is their position and they're unable to in the time frame complete the process before they lose the right well in their case Suncorp is not prepared to maintain the door ajar indefinitely in relation to that. As, if the new agreement is made, they will not legally be required to do so.

PN2882

THE VICE PRESIDENT: They're not prepared to maintain the door ajar at all for that class of persons who've not yet made a complaint?

PN2883

MR HERBERT: They can still make their complaint but if the process isn't completed before the new agreement is made then Suncorp does not propose to continue those persons rights indefinitely in the future to continue that process. Those persons if that right is lost when the new agreement is made then it is lost for them. It will not be for those who have to this point notified their grievance. That's the position Suncorp takes and as I mentioned, your Honour, after 15 months a person who doesn't know that they have a grievance or hasn't notified that they know they have a grievance must be considered as being less than genuine at this point.

PN2884

THE VICE PRESIDENT: That's something that no doubt Ms Hannan would argue about.

PN2885

MR HERBERT: Yes, your Honour. I'm putting the position of Suncorp in relation to - their position in relation to persons who have - given the publicity associated with this - - -

PN2886

THE VICE PRESIDENT: I do apologise for the terrible delay in producing this decision.

PN2887

MR HERBERT: Your Honour, having been involved in arguing the matter I'm not the least bit surprised that - - -

PN2888

THE VICE PRESIDENT: No, there isn't really a satisfactory explanation. It's a question of, you know, leaving the difficult task just to one side and not getting to it as other matters come along. As the panel head I have allocation rights or responsibilities in relation to any matters filed in the Commission that fall within the panel industries and at the moment I'd be disposed to allocate the application for certification of the agreement to myself.

PN2889

Ms Hannan, I'm happy to hear what you have to say in response but rather than have a long debate today about hypotheticals, what I'd rather do is to put maximum effort into finalising the decision, relisting this matter by telephone within a day or two of the decision being handed down after you've had an opportunity at least to consider it for further directions and hopefully the union would be in a position to indicate fairly promptly after that about whether or not there is a significant number of additional persons who would be seeking to access the existing rights under the integration agreement and the timing of the certification of any agreement that's approved is something that I control in the sense of my capacity to control the listing of it.

PN2890

The underlying merits it seems to me are capable of being dealt with by me in that fashion. I'm not saying what I will or will not do because it will depend upon what submissions are made but I don't think you need to be concerned that inevitably because of my delay in producing this decision the rights of your members are going to be prejudiced because of the position that Mr Herbert has just outlined. I think it would inequitable if my delay was an occasion for the prejudice of people who have in fact actual accrued rights, hypothesising accrued rights because obviously Mr Herbert has foreshadowed a possible argument that there aren't any accrued rights in relation to individuals who haven't notified because one couldn't be satisfied - an arbitrator couldn't be satisfied that the individuals have the genuine satisfaction that the agreement requires at this point. But that's a matter for argument on another day. Having said that, is there anything that you particularly wish to - sorry, first of all, Mr Herbert, have you finished saying what you want to say?

PN2891

MR HERBERT: Your Honour, there was only one further matter. Whilst your Honour was expressing some apologies to the parties the relisting of this matter has re-enlivened the fact that there were some supplementary submissions from the union which my instructing solicitors received after the Christmas vacation break this year and on an examination of the history of the matter it transpires that they have not been responded to to your Honour. There were some short extra matters raised in those written submissions. I don't know if when rereading the matter your Honour has come across those supplementary submissions.

PN2892

I was going to seek your Honour's indulgence now that the matter has been brought back into everybody's focus to provide some very short supplementary or some short submissions in reply only to the new material, not to the reply submissions. The submissions to which I refer are referred to as applicant's supplementary primary submissions and applicant's submissions in reply. I don't seek to reply to the reply but there are one or two very short legal issues raised in what are said to be supplementary primary submissions based on a matter that your Honour raised at the conclusion of the oral submissions on the last occasion. Might I seek then your Honour's leave by the end of this week to provide your Honour some short supplementary submissions on those issues?

PN2893

THE VICE PRESIDENT: I think Ms Hannan should have an opportunity to see - you don't have the submissions to hand up today?

PN2894

MR HERBERT: No, not today, no, your Honour, but I will have by Friday. I can circulate them by Friday.

PN2895

THE VICE PRESIDENT: Ms Hannan, I take it you object to the reception of submissions.

PN2896

MS HANNAN: I didn't know we were going there, your Honour, and if I did it might well have been that Mr Penny was down here today for something like that, but I would just respond from the bar table that I would think that would be manifestly unfair. On the one hand we are awaiting on your Honour's decision so that other people can inform themselves - - -

PN2897

THE VICE PRESIDENT: Yes, I think the better course is to - Ms Hannan, I think the fair approach and it's an approach that would be applied if the boot was on the other foot as well, is to permit such further submissions as the parties are minded to make. At the end of the day the object of the exercise is to get to the right result. I doubt at the moment whether submissions on those points are going to have any significant influence on the ultimate outcome. I have a fairly well developed provisional view about the proper outcome and I doubt very much whether those matters that were being argued about at the periphery at the end of the day matter that much.

PN2898

I must say one of the most difficult, one of the most perplexing aspects of this at the end of the day is that if one has come to the view that there are items of disadvantage which the union has identified on behalf of its members which mean that on balance the test, the relevant test is satisfied for the purposes of enlivening a recommendation and given that there are off-setting benefits that Suncorp has pointed to, which of the disadvantages ought be rectified by way of recommendation. In any event I don't invite submissions on that, but you understand the problem, Mr Herbert?

PN2899

MR HERBERT: Yes, your Honour.

PN2900

THE VICE PRESIDENT: I mean why should it be me making the choice as to which - that that particular class of disadvantage will be rectified by recommendation but this won't in any event. So, what I propose to do is allow such further submissions as either side would wish to make. I think that that's the appropriate course. So, Ms Hannan, you should feel free - if you think that there is a matter of strict reply to anything that Mr Herbert says you should feel free to put in a short written note to the effect of what your reply is.

PN2901

MS HANNAN: It's your Honour's decision in terms of the conduct of this matter but in terms of - I note what you've said earlier in terms of the assessment that your Honour is to make and we'd rely on the submissions and evidence that we've already tendered in the matter. Is it absolute that Suncorp's submissions or further submissions must be in by the end of the week because I see a collision between this whole process and the certification process?

PN2902

THE VICE PRESIDENT: Yes. Mr Herbert, if you're going to put anything further in it must be in by the end of the week with copies to the union.

PN2903

MR HERBERT: Yes, I undertook to do that, your Honour, and I will.

PN2904

THE VICE PRESIDENT: Fine. Anything further, Ms Hannan?

PN2905

MS HANNAN: I take on your Honour's comments of relisting this matter and following the issue of your decision and certainly the issue of the decision will be of interest to other GIO employees so they can assist their own circumstances. There was just one other matter that - - -

PN2906

THE VICE PRESIDENT: Do you have means of communicating with your members in an effective timely fashion?

PN2907

MS HANNAN: Yes, we do.

PN2908

THE VICE PRESIDENT: I take it you're not welcomed into the workplace.

PN2909

MS HANNAN: That is a little difficult and whilst on my feet, your Honour, may I enter an appearance on behalf of MS C. NOYE, Assistant National Secretary of the FSU.

PN2910

THE VICE PRESIDENT: Thank you.

PN2911

MS HANNAN: Yes, we do, but we won't have anything different to tell them until we have your decision.

PN2912

THE VICE PRESIDENT: No, I understand that.

PN2913

MS HANNAN: But as soon as we receive that decision - - -

PN2914

THE VICE PRESIDENT: I understand the urgency now and again I apologise for the unacceptable delay. You will have something promptly and I will list it in consultation with the parties without guaranteeing that it will be listed at a time that's necessarily convenient to both the parties because I have quite a number of commitments in the diary at the moment shortly after the decision is handed down but with sufficient time for you to digest the contents of it and we can work out appropriate programming from that point. Anything further you wish to say, Mr Herbert?

PN2915

MR HERBERT: No, your Honour.

PN2916

THE VICE PRESIDENT: Sorry, Ms Hannan, have I cut you off?

PN2917

MS HANNAN: Your Honour, there was just one other matter and that is that applied to those employees of GIO Australia Limited Mr Ben Cecilia, Mr Jackarine Ludwig, Ms Linda Hawkes and Ms Karen Forrester who to date have not received their salary, bonus and share allocations for over 12 months and I did have preliminary discussions with Suncorp before we went on the record today to see if there was some way that we could progress that issue, inasmuch as I now have advice from at least three of those employees that are affected that they would be prepared to sign over to Suncorp terms on the basis that their rights under the integration agreement are not disturbed and have recently been given that reassurance by Suncorp's responding correspondence, so I'd like to try and move that issue along.

PN2918

THE VICE PRESIDENT: Mr Herbert, those named individuals are within the ambit of the undertaking.

PN2919

MR HERBERT: Your Honour, they're GIO employees. They haven't transitioned to Suncorp. So they're not entitled to the bonuses and benefits that are being described because they're payable under the Suncorp Agreement and they're not employed by Suncorp.

PN2920

THE VICE PRESIDENT: But the delay in transition is a product of their concerns about the terms.

PN2921

MR HERBERT: I don't understand so. They've been offered permanent positions and as I'm instructed made a counter offer which was not accepted by Suncorp and the matter is still at that point with the parties. The employees concerned continuing to be employed by GIO are not entitled to the terms of the Suncorp Agreement.

PN2922

THE VICE PRESIDENT: I think it's important for me to make it clear given my responsibility for the delay in producing a decision but I will ensure that my delay does not prejudice people by virtue of that delay and for that reason only. So, if there has to be an argument about these three people and they're not covered by the undertaking so that their matters have to be determined before the expected agreement is approved and certified I will ensure that the hearing time is made available to do that.

PN2923

MR HERBERT: Your Honour, I'm instructed that the persons named are in fact in the list of persons who have been notified by the FSU as being persons who wish to have agreements progressed and therefore they are in fact covered by the undertaking that I indicated earlier, each of them. They are entitled by clause 8.2 of the Business Integration Agreement to progress a grievance in relation to the matter and they are persons who are in fact, as I understand it, progressing a grievance in relation to the matter and they have been acknowledged as such and they're included in the terms of the undertaking. They're entitlements in that regard are not prejudiced.

PN2924

What they haven't done is that they haven't transitioned across to Suncorp. If they had done so they could still have progressed the grievance as all of the others have done whilst being employed by Suncorp. They simply stayed with GIO. As I understand the matter that's raised by Mr Hannan is a different matter, and that is having remained employed by GIO, can they also access the benefits under the Suncorp agreement, and the answer is, as a matter of law, no.

PN2925

THE VICE PRESIDENT: Yes, I understand that. Anything further, Ms Hannan?

PN2926

MS HANNAN: Your Honour, am I understanding by that that there should be no impediment now for an offer of employment from Suncorp to flow to those four people on the basis that there have been other people who made conditional acceptances and still progress with their grievance and still got those entitlements? We're just asking - the process has broken down somewhat. We're asking for it to be reactivated.

PN2927

THE VICE PRESIDENT: This is, as it were, a side argument that's arisen as a consequence of the way matters have flowed and not something which is specifically raised by the section 170LW application. I respectfully suggest that that's a matter that ought to be discussed further between the parties rather than before me at the moment, but you can raise that on the next occasion if it hasn't been resolved.

PN2928

You may well be confronted with the situation that yes, Suncorp is happy to make the offer available again and your members could then conditionally accept it, but the legal position would be that entitlements accruing under the Suncorp employment will be pursuant to the Suncorp agreement, the contract of employment that is formed ex hypothesi some time in the future, some time in future from today. Whether or not you start that again to the extent that your members would be seeking to recover past benefits under a hypothetical Suncorp agreement is a matter of law that's not going to occur.

PN2929

MS HANNAN: Your Honour, I understand these entitlements are parked, they've already been notified of them. If it is an issue of when they come into effect because Suncorp wants to roll it up to a later decision is a matter for them. We would like to clarify the position, given that these employees were under threat of having GIO Australia wound up earlier on in the year, to move them across, the issue of backdating the benefits we understand is there, the date of their application we can discuss.

PN2930

THE VICE PRESIDENT: Mr Herbert, no doubt those who instruct you will be happy to talk about those matters with Ms Hannan.

PN2931

MR HERBERT: Yes, your Honour. I'm instructed the offers on the table have been on the table, have never been withdrawn. It's always been refused, and we've heard today for the first time in this room - - -

PN2932

THE VICE PRESIDENT: Ms Hannan, you now just have it from the horse's mouth, if I can put it that way, that the offer is still there capable of being accepted on the basis that you've adverted to.

PN2933

MS HANNAN: We'll take your Honour's suggestion and now discuss it further with Suncorp.

PN2934

THE VICE PRESIDENT: Thank you. I'll adjourn this matter sine die at the moment but it will be re-listed in the not too distant future. Thank you. The Commission is adjourned.

ADJOURNED INDEFINITELY [12.15pm]