C2005/5411, Transcript of Proceedings [2005] AIRCTrans 2410 (25 November 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13400-1

SENIOR DEPUTY PRESIDENT DRAKE

C2005/5411

FINANCE SECTOR UNION OF AUSTRALIA
AND
COMMONWEALTH BANK OF AUSTRALIA
s.170GB - Application for orders to consult unions
(C2005/5411)

SYDNEY

10.08AM, FRIDAY, 11 NOVEMBER 2005

PN1

MR A NEALE: I appear on behalf the Finance Sector Union. With me today is MS S CADDIE also of the Finance Sector Union and MS S WRIGHT also of the Finance Sector Union.

PN2

MS M IRWIN: Appearing on behalf of the bank and with me today is MS R WORTHINGTON and MS D PETHIG also from the bank.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes.

PN4

MR NEALE: Yes thank you, your Honour. Your Honour, this is an application by the Finance Sector Union pursuant to section 170GB of the Workplace Relations Act for making a determination of employment order under section 170GA of the Act in relation to the Commonwealth Bank of Australia which seeks to restrain the bank from terminating approximately 91 employees from the 132221 operation and operation support areas of the Brisbane Customer Service Centre. Your Honour, perhaps it is convenient if I hand up some submissions that have been drafted in a short time.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes if you wish.

PN6

MR NEALE: So I apologise for any typos et cetera. I will provide my friend with a copy also.

PN7

THE SENIOR DEPUTY PRESIDENT: This is 91 because some of the positions are unfilled at the moment. That is right, isn't it, from the materials that I had yesterday.

PN8

MR NEALE: That is correct, your Honour. That is correct.

PN9

THE SENIOR DEPUTY PRESIDENT: All right.

PN10

MR NEALE: Your Honour the impact on employees are regulated by the Commonwealth Bank of Australia's Direct Banking Enterprise Bargaining Agreement 2002 commonly known as the Direct Banking EBA and/or the Commonwealth Bank of Australia Employees Award 1999. Your Honour, if I might also hand up a copy of the relevant redundancy, redeployment and retrenchment clauses from the Direct Banking Enterprise Agreement that may be of assistance. Thank you and I will take you to those further in my submissions your Honour.

PN11

The application is made to give effect to article 13 of the termination of employment convention, schedule 10 to the Act. Article 13 of that convention provides that when an employer contemplates terminations for reasons of an economic, technological, structural or similar nature, the employer shall (a) provide the worker's representatives concerned in good time with relevant information including the reasons for the terminations contemplated.

PN12

The number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out, (b) give in accordance with national law and practise, the worker's representatives concerned as early as possible an opportunity for consultation on measures to be taken to avert or to minimise the terminations and measures to mitigate the adverse affects of any such terminations on the workers concerned such as finding alternative employment. Your Honour, the crux of this matter today is, is our submission that the bank has not consistent with article 13 of the convention, consulted with the union adequately. Consulted with the employees adequately. Provided the employees and the union sufficient time in order to be able to attempt to avert any terminations arising out of the, what the bank says is unutilised capacity in the call centre.

PN13

THE SENIOR DEPUTY PRESIDENT: Is the call centre proposed to be closed?

PN14

MR NEALE: No your Honour the call centre is not proposed to be closed.

PN15

THE SENIOR DEPUTY PRESIDENT: I don't understand how many employees are at the call centre.

PN16

MR NEALE: Approximately 300 I believe, your Honour. And furthermore your Honour, the call centre operates part of the call centre network which is national and the bank does have the capacity to divert calls from one call centre to another. And part of the problem that we have with the bank's actions in terminating the employment of the employees without proper consultation, is that in other call centres outside of Brisbane the bank, on our information, is using casual and temporary labour to fill positions temporarily as it were, so we have a circumstance where the bank say there is unutilised capacity in the Brisbane call centre and therefore terminations are justified. And yet elsewhere in the country they are using temporary and casual labour to fill positions which could be adequately carried, the work which I should say could adequately be carried out in the Brisbane call centre given that the bank does have the capacity to divert calls.

PN17

THE SENIOR DEPUTY PRESIDENT: Where else in Australia do you say this is taking place?

PN18

MR NEALE: In the Sydney, Newcastle and Tasmanian call centres, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: Right. Thank you.

PN20

MR NEALE: Your Honour, if I could just briefly run through the circumstances by way of background that have led to the application. I don't want to take too much of your time. If your Honour - - -

PN21

THE SENIOR DEPUTY PRESIDENT: Well, you intend to run through the background and then I suppose call some evidence about these matters? Are you intending to call any evidence about them?

PN22

MR NEALE: No we aren't.

PN23

THE SENIOR DEPUTY PRESIDENT: All right.

PN24

MR NEALE: Given the short time frames that we are dealing with, your Honour and given that the call centre is located in Brisbane we have been unable at this stage.

PN25

THE SENIOR DEPUTY PRESIDENT: At this stage, any redundancies are not contemplated to be put in place before 30th, are they?

PN26

MR NEALE: That is correct, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: All right. If I could just hear shortly from Ms Irwin though before you proceed to go through your entire submission.

PN28

MR NEALE: Thank you, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes Ms Irwin?

PN30

MS IRWIN: Your Honour, we actually anticipated we would be moving into conciliation and the bank is keen to attempt to progress a resolution of this matter through a conciliation process so we too haven't prepared evidence for today's hearing. I would like an opportunity, you have had the application from the FSU which sets out broadly their view about what has occurred and I would like the opportunity to address some of those issues. I am not sure if you are interested in hearing from my friend first or?

PN31

THE SENIOR DEPUTY PRESIDENT: Well, no I really just want to know what everyone's intentions were so what I might do is allow Mr Neale to finish his submission. I just wanted to know where everyone was going. Then hear from you about what you say about those issues on the record so that both parties positions are on the record and then, Mr Neale, do you have any opposition to proceeding into conciliation then?

PN32

MR NEALE: No your Honour, we have no opposition to - - -

PN33

THE SENIOR DEPUTY PRESIDENT: All right. It seems to me though that the application is one that probably ought to be supported by some evidence and there would be no reason why I couldn't provide you with a date in the very near future for that in Sydney or in Brisbane.

PN34

MR NEALE: And in that regard I should add that we have attached to the application relevant documentation. Whilst it hasn't been formally tendered we do say that that supports the application and we are aware of other evidence which potentially may or may not need to be put on formally as it were for a witness.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes. All right.

PN36

MR NEALE: So perhaps if I - - -

PN37

THE SENIOR DEPUTY PRESIDENT: Well in that case I will stop interrupting you. We will hear from you to the end and then we will hear from Ms Irwin.

PN38

MR NEALE: If the Commission pleases. Your Honour, just by way of background I will briefly run through the circumstances that led to the making of the application. On 2 November the bank notified the FSU that it had identified unutilised capacity in the call centre and that that would result in 118 positions being abolished. So 118 is the total number that we are looking at in terms of positions. A copy of the advice that we received from the bank is attached at attachment 1 to the application which your Honour may have read.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes I have.

PN40

MR NEALE: Thank you, your Honour. The bank diverted all calls from the areas affected in Brisbane to other CBA Customer Service Centres, the ones I have mentioned that sit nationally, on the same day ie. 2 November 2005 so the notification comes through, calls are immediately diverted on the date of notification. Employees in the FSU were advised that of the 118 positions to be abolished, 27 were vacant and that 17 potential redeployment opportunities had been identified. All other persons not able to be redeployed by 30 November would be compulsorily retrenched on 30 November and that was the substance of the notification that we received.

PN41

As a result of that notification the union sought a meeting with the bank on 4 November to discuss the bank's review findings and seek agreement to a longer redeployment period to allow better opportunities to identify alternative employment thereby avoiding compulsory retrenchment. The request was categorically denied by the bank at the meeting of 4 November. Also during that meeting FSU asked for an explanation of the abolition of permanent positions in Brisbane when as I have mentioned at the same time the bank has engaged numerous casuals to perform 132221 work in its Tasmanian and New South Wales call centre, Sydney and Newcastle.

PN42

No explanation has been provided in relation to the bank's use of casuals at those call centres. A copy of the relevant extract of the meeting report was attached to the application at attachment 3. On 7 November FSU wrote to the bank advising of our intention to seek the assistance of the Commission if the CBA would not agree to a reasonable time frame to seek to avoid the terminations. The agreement has not been forthcoming and we received no formal response to that letter hence our appearance before your Honour today. Your Honour, that is the background to the matter.

PN43

The grounds on which the application is made are as follows. The FSU has a range of concerns with the bank's intended action in terms of the short time frames, the lack of process to identify employee preferences in relation to redeployment and/or retrenchment and the lack of consultation with the FSU. In terms of the short time frame on 2 November the bank advised the union that it was contemplating termination for reasons of an economic, technological, structural or similar nature.

PN44

On the very same day the employer advised the impacted employees that it would compulsorily terminate those impacted employees who were unable to be redeployed so in terms of real consultation with the union in order to avert or minimise terminations we don't receive any advanced notification of the terminations, indeed we are notified of them on the same day that the employees are. In essence what we are looking at is a period of 21 working days in order to try and find appropriate redeployment opportunities for the employees and we say that that is not a reasonable time frame within which to expect the employees concerned, the union and indeed the bank to be able to adequately take measures to find positions into which affected employees can be redeployed.

PN45

Your Honour, if I can take you to the clauses that I have handed up from the relevant enterprise bargaining agreement. Clause 18.12 makes clear that compulsory retrenchment is a last resort and subsequent provisions clause 18.4 and 18.5 contemplate a range of mechanisms to avoid compulsory termination including project work, curtailing recruitment and calling for expressions of interest in voluntary retrenchment. To date, CBA has refused to use any of the options available to it under the relevant enterprise bargaining agreement and continues to do so subject to what may be said today of course in conciliation.

PN46

On 4 November the union asked the bank to extend the time frame of redeployment for an additional four weeks. Eight weeks in total in order to avert or minimise the number of compulsory retrenchments that would occur on 30 November. The bank has flatly denied this request and on that point may I say that it has become in essence a matter of practise, particularly in the retail network of the bank that when retrenchments arise or the possibility of retrenchments arise an eight week period is generally the period that is provided by the bank for redeployment opportunities and indeed that tends to be the case across the bank.

PN47

Your Honour, in terms of a lack of process to avert or minimise the termination and measures to mitigate the adverse affects of any such terminations, the union is not satisfied that the bank has put in place a selection process which would avert, minimise and/or mitigate compulsory retrenchments. On 4 November the union asked the bank to establish a process to identify employee preferences in relation to redeployment and/or retrenchment. Again the bank denied this request. Some employees have been identified for redeployment without any general knowledge by staff or the union as to the selection process being applied by the bank.

PN48

It is our information, your Honour, that there hasn't even been a call for voluntary redundancies as it were. There hasn't been a call for expressions of interest. The bank has unilaterally decided who is going to go on our information sometime very shortly prior to 2 November when the employees who had been chosen for retrenchment were informed of that. In terms of the lack of genuine consultation with the union, we do acknowledge that we have met with the bank.

PN49

We do acknowledge that we have had a discussion with the bank but in our view the discussion has not been real or meaningful because the bank has flatly denied all of our requests and none of our members concerns have been addressed through that process. During the meeting that we had with the bank on 4 November, the union advised the bank that it was aware that a considerable number of casuals again were engaged to perform the 132221 work in at least four other customer service centres. As a result and - - -

PN50

THE SENIOR DEPUTY PRESIDENT: In what numbers, Mr Neale?

PN51

MR NEALE: Sorry?

PN52

THE SENIOR DEPUTY PRESIDENT: In what numbers do you say this exists? In what sorts of numbers do you say this exists?

PN53

MR NEALE: A hundred in Tasmania, 12 in Sydney and an unspecified number in Newcastle. Quite significant. The union has sought information from the bank in the meeting of 4 November about the number of external engaged employees temporarily engaged employees, casuals, undertaking 132221 across the network. That information has not been forthcoming from the bank. It is only from our own sources that we have ….. what we believe the numbers to be. We do say that the orders we are seeking today are consistent with the relevant provisions of the certified agreement in the convention.

PN54

We also say that there is no alternative mechanism under section 170GC of the Act which would give effect to the Commission. So again I note that we are going to conciliation so I won't labour the point. And in summary we say that while the bank has provided the union with some information regarding the reasons for the terminations and has given and continues to offer opportunities for consultation with the union, the union is not satisfied that the consultations within the prescribed four week time frame will have allowed opportunities to allow an aversion, minimisation or mitigation of the terminations that the bank intends to make and that is all I have to say formally on the record, your Honour.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes thank you. Ms Irwin?

PN56

MS IRWIN: Your Honour, I would like to make a couple of preliminary points in recognition that we are going to discuss this in conciliation but there are some things I would like to place on the record. One is of course that the bank reserves its rights in terms of jurisdiction. We don't accept that the application can be properly made under 170 GC. In our view the terms of the EBA fully and wholly cover redundancy and the consultative processes that are required of the bank and of the union and that creates a law that is in place that prevents the Commission from making the orders in the nature of those sought so I will put that on the record although I don't really want to go into some detailed legal technical argument about those issues at this point.

PN57

The other thing I would like to note is that the FSU has attached a document entitled Meeting Report to its application. This purports to be the transcript of the meeting between bank representatives and the union on Friday 4th. This is a union document apparently created for the purposes of today's hearing and the bank denies that that represents accurately what was said in the course of the meeting so having noted those two items, your Honour, I will now move on to issues that may assist you in terms of background et cetera. You have been handed up a copy of the EBA provisions on redundancy, redeployment and retrenchment. What the bank has done is complied with this document throughout. So if I could take you to 18.3 of that provision.

PN58

THE SENIOR DEPUTY PRESIDENT: Ms Irwin if I could just ask you, if there was a dispute about whether the, I don't recall what the situation is in this agreement.

PN59

MS IRWIN: Yes.

PN60

THE SENIOR DEPUTY PRESIDENT: If there is a dispute about the application of the clauses in the enterprise agreement is there a grievance procedure for, within the agreement itself to deal with that?

PN61

MS IRWIN: Yes there is, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: In what clause is that?

PN63

MS IRWIN: Your Honour I believe it is clause 39 of the Direct Banking Agreement.

PN64

MR NEALE: Your Honour, if I might assist. We do actually have copies of the VRP which I can provide.

PN65

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN66

MR NEALE: Thank you.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes Ms Irwin. Yes?

PN68

MS IRWIN: Yes your Honour, going back to clause 18.3 of the EBA.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes.

PN70

MS IRWIN: You will see at 18.32 there is a provision that is very similar to that contained in the convention that has been referred to by my colleague. When the bank has reviewed a work area, practise or function it will inform the FSU of the outcome and provide the FSU with the following information. We have complied with that provision and you will see from the application the nature of the information that was given to the FSU. That was given to the FSU on 2 November, Wednesday 2 November.

PN71

The week prior to that we had met with the FSU, on 26 October and we had told them that we were aware that these redundancies would be occurring, that a section of the Brisbane call centre would be being closed. At that point we weren't able to give them the detailed information of numbers and positions et cetera. We said to the FSU on 26 October, we are letting you know about this now. We will give you further details next week and of course the two week period for you to comment on the outcome of that review won't commence until we have provided you with all this additional documentation.

PN72

We would submit, your Honour, that we have more than complied with the provision of the EBA. The EBA then goes on to say at 18.3.4 that the FSU will have a period of two weeks from the time the information is provided to seek discussions with the bank on the proposals and to comment on the findings and that we will make representatives available. So on 2 November we provided the FSU with the detailed information affecting our people up in Brisbane. I got a phone call that day requesting that we meet with them urgently on Friday. We immediately put in place a meeting Friday morning and met with them.

PN73

I would say, your Honour, we didn't see that meeting as the beginning and end of consultation. We understood that that was, that the FSU has a two week period to talk to us and that that was the first briefing and at that meeting where we were unable to answer some of their queries which were extensive, we made a note and undertook to get back to them. That was last Friday. On Monday we received a correspondence threatening to commence these proceedings before you today and we were advised that if we didn't respond by Wednesday, that there was an intention to file those proceedings on Wednesday this week.

PN74

We contacted the FSU Wednesday morning at about 9.30 and discovered that the proceedings had already been filed. We contacted them with a view to attempting to resolve the issues between us. I suppose the gist of what I am saying, your Honour, is that this application is premature. That the parties haven't completed the consultation obligations contained in the EBA and that the bank would be seeking an opportunity to continue discussions as provided for in its EBA with the FSU and attempt to deal with matters in that fashion. A few other things, your Honour. Comment was made that we typically provide an eight week redeployment period to our employees. That is not true your Honour. A four week period for redeployment is the custom and practise for an extended period. So how we proceed with our - - -

PN75

THE SENIOR DEPUTY PRESIDENT: What do you mean for an extended period?

PN76

MS IRWIN: Well as long as I can remember, your Honour.

PN77

THE SENIOR DEPUTY PRESIDENT: Sorry. I thought you were talking about - that's all right.

PN78

MS IRWIN: So what would happen is we announce the change to our people. We immediately go into redeployment mode. We would put in place extensive provisions in respect of redeployment, that is providing them with training, trying to identify positions. In this case we had managers from other parts of our business unit so these people work in call centres so we have got people from the branch network coming to talk to them about what kind of vacancies are available. We have got people from an area of our business called retail operations coming to talk to them about the kind of work there and we had put that in place and had it on the go pretty much from the day we announced the redundancies.

PN79

People are not retrenched on 30 November definitively. Where we believe we can redeploy them we continue their employment. What the union has sought from the bank is a blanket guarantee that we will retain everybody. What we do is look at individuals and then take into account those individual circumstances, their prospects for redeployment, the degree of interest they have and then proceed from there. And on that note about the four weeks I would say that the last round of redeployment and redundancy we had in Direct Banking was in August this year in Sydney which affected 128 positions and I have here the letter we wrote to the FSU advising them of that four week redeployment period and no objection was raised. This is a standard procedure that has existed between the parties for a considerable period. In fact I believe I wrote to them just in September advising them of the similar situation. Sorry, your Honour, you had a question?

PN80

THE SENIOR DEPUTY PRESIDENT: What do you say about, I think the proposition is that there is some argument that the positions themselves may not be redundant positions if the operations of the bank nationally in call centres was addressed taking into account the number of casuals used. Therefore that issue as to whether there is in fact a real redundancy given the number of positions. Is that a matter on which you have been able to make some enquiries or is it a matter you want to address in conciliation?

PN81

MS IRWIN: What I intended to do with that issue, that is, at a local area local managers determine that they have some need for say temporary employment and they will make that determination so across Australia different managers will determine that they need some temporary assistance in their call centre. What I was proposing to do, your Honour, was to make available the General Manager of Direct Banking for discussions with the FSU about that rather than me attempt to describe - - -

PN82

THE SENIOR DEPUTY PRESIDENT: Is that person here?

PN83

MS IRWIN: He is not here today but as part of our solution of some of these issues - - -

PN84

THE SENIOR DEPUTY PRESIDENT: We can discuss that in conciliation.

PN85

MS IRWIN: Yes.

PN86

THE SENIOR DEPUTY PRESIDENT: Some information about those numbers might be useful too. I am sure that he would have that available? He or she.

PN87

MS IRWIN: I think it would also be a question of the nature of the work, your Honour.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes.

PN89

MS IRWIN: And also rationalisation of work areas. It may not be sensible in business terms to keep a site open in one area so there is going to be a range of business issues that affect those kind of discussions. It may not be as simple as saying 12 people in Tasmania equals 12 people in Queensland.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes. Go on.

PN91

MS IRWIN: I will just conclude by saying, your Honour, repeating that in our view this application is premature. We expect that we will at least continue down the EBA consultation path and what we would be proposing to do is put in place a series of meetings to allow us to meet our obligations under our EBA and if necessary have a report back to your Honour perhaps in a week's time.

PN92

THE SENIOR DEPUTY PRESIDENT: All right. Thank you.

PN93

MS IRWIN: Thank you.

PN94

THE SENIOR DEPUTY PRESIDENT: Mr Neale, is there anything that you wanted to shortly put on the record? This is not of course the hearing on these issues so.

PN95

MR NEALE: No I hear what your Honour has to say but your Honour, there are two points that I would like to make. Firstly your Honour if I can just take you back and I apologise for doing so but to clause 18.3.4 which is regarding consultation with the union and that clause reads:

PN96

The FSU will have a period of two weeks from the time the information referring to sub clause 18.3.2 is provided, to seek discussions with the bank on the proposals and to comment on the review findings. The bank will make its representatives available for discussions prior to implementing any findings.

PN97

Your Honour, - - -

PN98

THE SENIOR DEPUTY PRESIDENT: I understand the distinction, Mr Neale.

PN99

MR NEALE: Yes. Thank you.

PN100

THE SENIOR DEPUTY PRESIDENT: You are saying that the two weeks doesn't run until you have had that opportunity.

PN101

MR NEALE: On my friend's own acknowledgement the two week period must run from 2 November when we were initially advised formally as it were that retrenchments were going to take place. The implementation of the findings had already occurred.

PN102

THE SENIOR DEPUTY PRESIDENT: All right.

PN103

MR NEALE: The two week period has not taken place and also your Honour, just if I can add one more point which may assist the conciliation process and that is that we are not seeking a blanket guarantee in relation to these employees over the period that we are discussing. What we are seeking is a guarantee from the bank that there will be no compulsory retrenchments and that in the first instance voluntary interests or expressions of interest are allowed to be given by employees who may indeed wish to be retrenched.

PN104

THE SENIOR DEPUTY PRESIDENT: Right. Thank you.

PN105

MR NEALE: Thank you, your Honour.

PN106

THE SENIOR DEPUTY PRESIDENT: Ms Irwin, Mr Neale, should I proceed into conciliation in this matter instead of obtaining the services of another member of the panel is there likely to be some objection to my hearing the matter if a hearing is necessary?

PN107

MR NEALE: There will be no objection from this side, your Honour.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes.

PN109

MS IRWIN: I am not, I would have to seek further instructions - - -

PN110

THE SENIOR DEPUTY PRESIDENT: Would you do that? I do have other members of the panel available but if you could seek those instructions.

PN111

MS IRWIN: Yes your Honour. How much time?

PN112

THE SENIOR DEPUTY PRESIDENT: As much time as you like. You have to make a phone call. We will go off the record thank you.

<NO FURTHER PROCEEDINGS RECORDED