C2004/5589, Transcript of Proceedings [2004] AIRCTrans 4814 (9 December 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 9263
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2004/5589

THE AUSTRALIAN WORKERS UNION

and

ORICA AUSTRALIA PTY LTD

Notification pursuant to section 99 of the Act
of a dispute re redundancy

MELBOURNE

3.16 PM, TUESDAY, 30 NOVEMBER 2004

Continued from 27.9.04

PN65

MR M. BUROWICK: I now appear for the Australian Workers Union.

PN66

MS P. EVANS: I appear on behalf of Orica.

PN67

THE SENIOR DEPUTY PRESIDENT: Mr Burowick, what is it all about?

PN68

MR BUROWICK: Senior Deputy President, I understand this matter has been before you some time ago in September and there was a - - -

PN69

THE SENIOR DEPUTY PRESIDENT: Well, something was before me in September but I am not sure whether it is this matter. What is this matter, Mr Burowick?

PN70

MR BUROWICK: This matter is about an employee who has been given notice that he is being to be made redundant later in the year and the union are unhappy, as is the employee concerned, that several aspects - well, at least one aspect of the enterprise agreement hasn't been complied with and - - -

PN71

THE SENIOR DEPUTY PRESIDENT: What aspect is that? Should I be looking at a letter of 18 October to Ms Evans? Is that what this is all about?

PN72

MR BUROWICK: Yes. It is a - we have some concerns about the translation process. Does the Commission have the current certified agreement?

PN73

THE SENIOR DEPUTY PRESIDENT: Yes.

PN74

MR BUROWICK: I would take the Commission to clause 12.3.3, it is the Orica Adhesives and Resins Production Agreement 2003-2006.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes, and at clause 12.3.3?

PN76

MR BUROWICK: Yes.

PN77

THE SENIOR DEPUTY PRESIDENT: If I can find it. Yes.

PN78

MR BUROWICK: That clause says, Senior Deputy President:

PN79

As long as operators have used every available training opportunity provided to meet the new structure requirements, management shall, prior to 30 June 2004, translate employees from the classification structure in the previous agreement to the new classification structure set out in subclause 12.1.

PN80

Which is on, in my copy, Senior Deputy President, the previous page.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, I have got that. All right.

PN82

MR BUROWICK: And that provides for - there is a table in clause 12.2 headed Classification Structure Table.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes.

PN84

MR BUROWICK: And that provides for four classifications, the highest one being CPTT, then CPT, CPO and TCPO.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes.

PN86

MR BUROWICK: And this is different to the classification structure in the predecessor agreement. This is a new classification structure which was introduced to the site by way of this enterprise agreement and the agreement envisaged that there would be translation arrangements and they are provided for in clause 12.3.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes.

PN88

MR BUROWICK: And, in any case, as long as the operators had used every available training opportunity, all employees were to be translated by the management prior to 30 June 2004. Now, we say, Mr Cutajar, contrary to the terms of the agreement, has not been translated to the new classification structure as provided for in clause 12.2.

PN89

THE SENIOR DEPUTY PRESIDENT: So does this amount to a question of what his pay rate was at the time of his redundancy, does it, is that what it boils down to in the end?

PN90

MR BUROWICK: Yes, that is correct. Senior Deputy President, you have correspondence dated 18 October 2004 from Ms Emma Walters to Ms Trish Evans, the Human Resources Manager?

PN91

THE SENIOR DEPUTY PRESIDENT: Yes.

PN92

MR BUROWICK: In the body of that letter which is dated 18 October, it states:

PN93

We require the following confirmation of Michael Cutajar's current classification...

PN94

THE SENIOR DEPUTY PRESIDENT: Yes, I have read it, Mr Burowick,

PN95

MR BUROWICK: Yes. We haven't been able to ascertain that.

PN96

THE SENIOR DEPUTY PRESIDENT: Okay. All right. Sit down. Ms Evans, why haven't they got it?

PN97

MS EVANS: Well, sir, we replied on 3 November, which I have a copy of it here, which I have spoken to Mr Burowick prior to the meeting. He said he hadn't seen a copy but we responded to all the queries that were raised in the letter. The last time we were here was on 27 September in front of yourself and this was the same issue. We received the same amount of correspondence relating to this hearing so we are not quite sure if this is a continuation from the hearing on the 27th.

PN98

THE SENIOR DEPUTY PRESIDENT: Well, I wasn't sure either. That is why my opening comments were directed the way they were but you have now provided all of that information to Mr Burowick?

PN99

MS EVANS: Yes.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes, well, you can stand up again, Mr Burowick.

PN101

MR BUROWICK: Senior Deputy President, well I couldn't locate the letter in the office with some regret but I did ask Ms Evans if I could have a look at a copy and she provided me with it out in the corridor. Unless I misread the letter, I have certainly done that before but I don't believe I have on this occasion, this doesn't - - -

PN102

THE SENIOR DEPUTY PRESIDENT: It still doesn't satisfy you?

PN103

MR BUROWICK: No, it doesn't clarify the position.

PN104

THE SENIOR DEPUTY PRESIDENT: Could I have a look at the letter please? Now this letter is a letter dated 3 November which appears to the original but it was faxed twice was it, on 8 November and 10 November, was it, Ms Evans?

PN105

MS EVANS: Yes, sir, it was.

PN106

THE SENIOR DEPUTY PRESIDENT: Yes. Is your fax number 8327 0899?

PN107

MR BUROWICK: Yes, it is.

PN108

THE SENIOR DEPUTY PRESIDENT: It won't be the first time that something has gone astray. Anyway, let us have a look. It is in reply to your letter of 18 October. The first sentence says:

PN109

Mr Michael Cutajar's position as day worker at the Adhesives and Resins Deer Park site was made redundant on 2 July as a result of a restructure of the business. Mr Cutajar was formally advised on that date that his final date will be 17 December. Details of Mr Cutajar's redundancy are as per clause 33 of the agreement. The hourly rate of Mr Cutajar's severance pay will be calculated on - will be 24.7079 per hour.

PN110

And that is the substance of the letter. Once you have the hourly rate, Mr Burowick, does that not provide you with the details of the company's proposed redundancy package in accordance with clause 33?

PN111

MR BUROWICK: Well, I would have to have a look at the hourly rate, Senior Deputy President, but the Workplace Relations regulations of which you would be familiar - - -

PN112

THE SENIOR DEPUTY PRESIDENT: Don't bet on it.

PN113

MR BUROWICK: Well, perhaps I could assist the Commission.

PN114

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN115

MR BUROWICK: The Workplace Relations regulations, 132B, provides for the contents of pay slips:

PN116

Regulation 1, for the purposes of subregulation 132A(2) the following particulars are specified. (b) the classification of an employee in accordance with the certified agreement.

PN117

Now I have pay slip - - -

PN118

THE SENIOR DEPUTY PRESIDENT: Well you haven't been provided with that and your concern, I take it, is that he hadn't been translated?

PN119

MR BUROWICK: Yes, and the company, despite repeated requests, whilst they give hourly rates of pay and they are happy to give the termination date and other information, won't confirm his classification and his pay slip - - -

PN120

THE SENIOR DEPUTY PRESIDENT: Okay, well I am going to ask the question. Ms Evans, what is the classification of Mr Cutajar that will apply when his redundancy package is calculated?

PN121

MS EVANS: He actually has not been classified across to the new restructure as the role was redundant so he will be classified with his salary including the 4 per cent that was paid in June.

PN122

THE SENIOR DEPUTY PRESIDENT: Well aren't you - weren't you obliged to reclassify?

PN123

MS EVANS: No, we went through a reclassification, it was part of the negotiations and there was a number of roles that were made redundant at the time of the reclassification namely Mr Cutajar's so unfortunately there was no role to reclassify him into and therefore he is actually paid his rate that he is being paid plus the 4 per cent increase.

PN124

THE SENIOR DEPUTY PRESIDENT: So the requirement to reclassify arose after he - his position had been made redundant, did it? Has he remained in his old role, has he?

PN125

MS EVANS: He has remained in his old role, yes.

PN126

THE SENIOR DEPUTY PRESIDENT: Yes. Well, there you go, Mr Burowick.

PN127

MR BUROWICK: Senior Deputy President, clause 12.3 doesn't give the interpretation that the company puts upon it. Everyone was to be translated. In fact everybody has been except Mr Cutajar including those employees who were earmarked for redundancy. I am not sure about what it is about Mr Cutajar that makes him unique but everybody has been - other than Mr Cutajar has been translated in accordance with the provisions of the certified agreement, clause 12.3.3.

PN128

THE SENIOR DEPUTY PRESIDENT: Now, what do you he should have been translated to?

PN129

MR BUROWICK: Well, the company won't translate him to any classification.

PN130

THE SENIOR DEPUTY PRESIDENT: No, what do you say he should have been classified as?

PN131

MR BUROWICK: To CPO, which - well clearly he is not a trainee chemical process operator, he has worked there for - - -

PN132

MR CUTAJAR: For 33 years.

PN133

MR BUROWICK: For 33 years so he is hard a TCPO, he is not a trainee. Well chemical process operator being the lowest grade.

PN134

THE SENIOR DEPUTY PRESIDENT: And what is the rate of pay for a CPO?

PN135

MR BUROWICK: Senior Deputy President, I would have to take that question - - -

PN136

MR CUTAJAR: I have it here.

PN137

MR BUROWICK: Well from 1 July 2004, an hourly rate of $23.5637.

PN138

THE SENIOR DEPUTY PRESIDENT: 23.5?

PN139

MR BUROWICK: 23.5637, I am sorry. I am looking at the wrong column. For a CPO, hourly rate $26.4805.

PN140

THE SENIOR DEPUTY PRESIDENT: Okay.

PN141

MR BUROWICK: On an annual salary of $52,470.

PN142

THE SENIOR DEPUTY PRESIDENT: Well that is the old - yes, okay, so the rate at which you say he should be - his redundancy calculations should be calculated is nearly $2 an hour greater than that at which the company proposes to make him redundant, is that right, Ms Evans, was it, sorry?

PN143

MS EVANS: Just with regard to the classification that we are going back to, the CPO classification clearly states resin plant experience which Mr Cutajar does not have. And it has got approximately two years is required, needs to run three resin plants so that is that is the reason he hasn't - well that is one other reason he hasn't been classified. The other people that roles were redundant were also not classified because their roles were redundant prior to the new structure being put in place.

PN144

THE SENIOR DEPUTY PRESIDENT: And his role - well can his role have continued after the new structure, how could his old role have continued?

PN145

MS EVANS: He was - agreed to stay on until the end of July and then we have recognised his service and said he could finish at the end of the year.

PN146

THE SENIOR DEPUTY PRESIDENT: Yes, I think this is starting to sound familiar. Yes. Well there is no debate about the fact that he is going to be made redundant and that the provisions of the agreement will apply to that. The issue is at what amount of money. Is that right?

PN147

MR BUROWICK: I think that is the - look I haven't been through clause 33 and I am not sure that Orica has achieved compliance with everything in there but, yes, we are generally accepting that Mr Cutajar will be made redundant but in terms of as long as clause 12 is complied with and I - - -

PN148

THE SENIOR DEPUTY PRESIDENT: Yes, well, clause 12 hasn't been - well he hasn't been translated.

PN149

MR BUROWICK: No.

PN150

THE SENIOR DEPUTY PRESIDENT: Whether clause 12 does or doesn't require that in the circumstances is perhaps moot because it hasn't happened.

PN151

MR BUROWICK: Well, if we get to an arbitral situation we will be leading evidence to say that - - -

PN152

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I am really treating this more as a conference, aren't I? Perhaps we should go off the record and adjourn into a proper conference. Is that - is it acceptable to the parties, desired by the parties? Mr Burowick?

PN153

MR BUROWICK: We are happy to continue in a hearing format, we are happy to go into conference.

PN154

THE SENIOR DEPUTY PRESIDENT: Yes, I am just wondering what this translation is going to look like that is all, it is going to be a bit all over the place, I don't know that it will be of assistance. Are you happy to go into conference, Mr Burowick.

PN155

MR BUROWICK: Yes.

PN156

THE SENIOR DEPUTY PRESIDENT: Ms Evans?

PN157

MS EVANS: Yes.

PN158

THE SENIOR DEPUTY PRESIDENT: Yes. Well, we will do that.

NO FURTHER PROCEEDINGS RECORDED