C2005/6152, Transcript of Proceedings [2005] AIRCTrans 2559 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13746-1

COMMISSIONER HARRISON

C2005/6152

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION-CONSTRUCTION AND GENERAL DIVISION, NEW SOUTH WALES DIVISIONAL BRANCH
AND
JOHN HOLLAND ENGINEERING PTY LTD
s.99 - Notification of an industrial dispute
(C2005/6152)

SYDNEY

11.09AM, WEDNESDAY, 14 DECEMBER 2005

Continued from 12/12/2005

PN1

THE COMMISSIONER: No changes in appearance?

PN2

MR D FLETCHER: Yes.

PN3

THE COMMISSIONER: Mr Ayres?

PN4

MR T AYRES: Thanks, Commissioner. Thanks for listing this for report back. I don't propose to give a long report back on the outcome of discussions yesterday. There is at least one outstanding issue that we wanted to canvass with the Commission today. Fundamentally there was a meeting between the parties in West Wyalong yesterday. The issues – the company complied with its undertaking to reinstate the 30 affected workers. There was at that meeting some discussion around the preliminary issues. That is the reasons for the proposed terminations. Some discussion of the justifications.

PN5

Some limited discussion about the justification and the criteria applied to individual workers. There was then I understand some substantial discussion around agreement for a protocol and a criteria to be applied to future redundancies and wind downs in the project. In brief, although I understand that John Holland Engineering will circulate a written protocol to the parties and to workers bound there. I don't know why we do that – every time we let John Holland's draft something it goes bad, Commissioner, but - - -

PN6

MR WYATT: I think I might raise an objection to that.

PN7

MR AYRES: But as I said, Commissioner, it was a good idea to send it back to the project because there is so much goodwill down there to fixing some of these problems. In short the protocol is firstly that the company will outline the classifications that are proposed to be made redundant and justify the numbers. Secondly that the proposed classifications and numbers be circulated to other contractors on site to give them an opportunity to recruit redundant workers. That the third stage would be a discussion around the company identifying which names - of the workers that it proposes to make redundant and then an interview process and then a formal appeal process.

PN8

We think that is likely to lead to a much more harmonious resolution of future wind downs of the project in the circumstances of that job. The issue that is outstanding though Commissioner is fundamentally the parties have agreed to a notice period for the affected employees up to the 27 December – so payment up to 27 December. There is some disagreement about the hours and the roster over that period leading up to 27 December and I propose it would probably be more practical and more appropriate if we had a discussion in conference with the Commission's assistance to talk through those issues. If the Commission pleases.

PN9

THE COMMISSIONER: All right. Thank you. Ms Charlson?

PN10

MS CHARLSON: Commissioner I have nothing further to add. I support Mr Ayres submissions.

PN11

THE COMMISSIONER: Thank you. Mr Wyatt?

PN12

MR WYATT: Thank you, Commissioner. Well Mr Ayres has outlined the position on site that was arrived at yesterday and yes, a protocol will be circulated by or put together by John Holland management on site and given to the employees for a meeting tomorrow at approximately 2 pm after smoko. When we were with you before we authorised a meeting at 10.30 yesterday morning and a further meeting at 2 pm yesterday, the 2 pm meeting did not take place to allow proceedings to take place here today and there is a report back on site at 2 pm tomorrow with the outcome of our discussions here this morning and I would ask that yes, all support the suggestion that we go into conference regarding the payment of the hours. If the Commission pleases.

PN13

THE COMMISSIONER: Okay. Thank you.

PN14

MR AYRES: There was one other matter, Commissioner that my colleague from the CFMEU has just reminded me of and that is that there were some undertakings given by John Holland's in relation to ensuring that the future conduct around redundancies isn't as heavy handed as the previous circumstances and some undertakings that I won't go into in detail but fundamentally revolve around not utilising security personnel in the way that they were utilised. My view is that given that the protocol that has been agreed and the notice that will be given to workers that is far less likely to lead to problems but those undertakings given by John Holland's are important in getting us to a point where the last issue that we have to resolve is this notice period issue. If the Commission pleases.

PN15

MR WYATT: Commissioner, just on that last point I would like to make it very clear that John Holland Engineering do not control the security guards or the security system on the site. A undertaking was given by Barrick ….. who have a contract with the security firm on the site and they gave that undertaking last week that security guards not be involved escorting people from the site back into the camp but I would just like to point out that John Holland has no control over the security system in the future nor were we party to what happened last Thursday.

PN16

THE COMMISSIONER: Good. Thank you. Mr Fletcher, do you want to?

PN17

MR FLETCHER: Nothing to add.

PN18

THE COMMISSIONER: Okay. Thank you. I will adjourn into conference.

<SHORT ADJOURNMENT [11.16AM]
<RESUMED [2.14AM]

PN19

THE COMMISSIONER: Following extensive private conferences between the parties today, agreement has been reached that on this occasion as an ex gratia payment, those employees made redundant shall receive 107 hours pay plus travelling allowances as applicable to each individual employee. There remains one outstanding issue and that is what represents a week's pay in the context of payment in lieu of notice. I recommend that the parties continue discussions between themselves with the view of reaching an agreement around this issue.

PN20

If no agreement can be reached the Commission will determine the matter early in 2006. The parties are requested to provide in writing their submissions in support of their respective positions on this issue by no later than close of business 14 January 2006. I commend the parties on reaching agreement around the current redundancies. Thank you. The matter is now adjourned.

<ADJOURNED INDEFINITELY [2.16PM]