C2005/6149, Transcript of Proceedings [2005] AIRCTrans 2622 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13701-1

SENIOR DEPUTY PRESIDENT DRAKE

C2005/6149

FINANCE SECTOR UNION OF AUSTRALIA
AND
WESTPAC BANKING CORPORATION
s.99 - Notification of an industrial dispute
(C2005/6149)

SYDNEY

12.49PM, FRIDAY, 09 DECEMBER 2005

PN1

MR S KELLY: I appear for the Finance Sector Union and MR G DERRICK.

PN2

MR M JOHNSTON: I appear for Westpac Banking Corporation and with me is
MR J LOUGHRAN, who is the lead consultant for employee relations. Your Honour, I must apologise for my attire today, I've only received notice of this listing about 15 minutes ago so I've come down in my Friday casuals.

PN3

THE SENIOR DEPUTY PRESIDENT: You are a bit casual today, but it's Christmas. Yes Mr Kelly.

PN4

MR KELLY: Thank you your Honour, just some brief statements to say that we are seeking your assistance today in the adherence of the Westpac Enterprise Development Agreement in regard to the redeployment and redundancy provisions of that agreement. We're seeking your assistance for our member
Mr Robert Merko who has been made - his role has been made redundant on
12 December with retrenchment effective from 12 December, Monday.
Mr Merko has a strong desire to remain employed within Westpac. Mr Merko has eight years experience within Westpac but a total of 17 years within the finance industry. At the moment Mr Merko has made application or is considering 12 jobs in a range of areas and we're seeking that Mr Merko has the maximum amount of opportunity for time to be able to be appointed in one of those roles or another role.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Kelly, because of the short notice, this matter only having come to me this morning and then I listed it urgently, I haven't had an opportunity, mainly because I've been in here all morning, to have a look at the clause in the agreement that you're saying provides the entitlement to the additional period. Would you have that with you?

PN6

MR KELLY: I do. Would you prefer to see it or do you want me to - - -

PN7

THE SENIOR DEPUTY PRESIDENT: Yes thank you.

PN8

MR KELLY: Your Honour, what you've got there is the general principle where Westpac has an obligation to avoid a retrenchment where possible or take all reasonable steps. There's other aspects of the provisions which I could go through as well.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Are you disadvantaged by my having this, have you got another copy?

PN10

MR KELLY: That's fine.

PN11

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Go on.

PN12

MR KELLY: Continue?

PN13

THE SENIOR DEPUTY PRESIDENT: Yes thank you.

PN14

MR KELLY: As I was saying, Mr Merko has a strong desire to remain employed within Westpac. He has experience and there are a range of 12 jobs at the moment that Mr Merko has the ability to apply for and has applied for. We are concerned about the impact of course on Mr Merko if he is unable to remain employed within Westpac. The impact on him would be quite severe. The personal situation of Mr Merko is that his wife at the moment is 20 weeks pregnant and would shortly begin unpaid parental leave. Within the clauses that I've handed to you there, Westpac does have an obligation to, as stated there, to take all reasonable steps to avoid retrenchment. We believe that Westpac to this point has not taken those steps.

PN15

In fact, there's only been three meetings of - there's only been three meetings between Mr Merko and the careers advisor that has been appointed and one of those meetings has only been scheduled from yesterday for next week. The issue of the process that has led to this point remains in question in regard to the transparency around the preferences that were submitted. There are questions around the lack of any substantial employee input within the process. So what we are seeking is that at the moment that the present job search period which expires on Monday be extended to the full three month job search period which is available under the provisions.

PN16

THE SENIOR DEPUTY PRESIDENT: Which provisions?

PN17

MR KELLY: I don't have the reference exactly there.

PN18

THE SENIOR DEPUTY PRESIDENT: Which is it?

PN19

MR JOHNSTON: It's clause 3.1 your Honour.

PN20

MR KELLY: So that here we have in that clause:

PN21

Redeployment opportunities will be pursued for a maximum period of three months from the date of redundancy exclusive of the notice of retrenchment unless extended by mutual agreement.

PN22

So as I say, at the moment Mr Merko has been given a one month job search period out of a possible three months. Westpac has advised that Mr Merko is able to, in addition to the one month job search period, work out the six weeks notice period which is also available. But that's exclusive of, of course, the job search period. We've got concerns that if that remains the case that Mr Merko will be disadvantaged in that he will have, of course, a reduced amount of time at this period to take up the job opportunities within Westpac. There's also tax implications of course for working out your notice period as advised.

PN23

So in conclusion, I'd just like to say that Mr Merko with his 17 years of experience in the industry, does have a range of experience in financial services including superannuation, insurance, managed investments, that Mr Merko has worked in product management, project management, business analysis, underwriting with experience across both IT and business functions. What we're seeking is that Westpac do, as I say, avail Mr Merko of his full ability under the provisions to have the additional time to look at jobs available as I've said. We're seeking recommendation from you in this matter - - -

PN24

THE SENIOR DEPUTY PRESIDENT: What's the dispute resolution clause in the award? That is the one that is applicable isn't it?

PN25

MR KELLY: Which then refers back to the dispute clause in the award, so the agreement goes to clause 26. Would you like a copy of that?

PN26

THE SENIOR DEPUTY PRESIDENT: Yes.

PN27

MR KELLY: Your Honour, you will see there in the dispute handling provisions there that arbitration is a possibility through the Commission with the agreement of Westpac.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, I just wanted to refresh my memory about the - I haven't had a matter under this award or EBA for a while, I'm pleased to say.

PN29

MR KELLY: If it pleases, I might conclude then.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Johnston.

PN31

MR JOHNSTON: First your Honour, we'd just like to object to the application with respect of the section 99 dispute. Given that this isn't an interstate dispute, we'd say that there's no jurisdiction to hear that particular matter. Nevertheless we're happy to discuss the matter in relation to the award dispute resolution process. In relation to the applicant's redeployment process, the bank says that it has applied the redundancy and redeployment policy effectively and adequately and has also provided a reasonable amount of time for the applicant to seek redeployment.

PN32

As Mr Kelly has advised, there was a formal one month period of redeployment. In addition to that, there was a six week notice period during which time the applicant had the opportunity to seek alternative employment, which leaves a period of 10 weeks. In relation to 34 other employees who were in the same situation as the applicant, they were also afforded the benefit of one week's redeployment.

PN33

THE SENIOR DEPUTY PRESIDENT: One week?

PN34

MR JOHNSTON: Sorry, one month. In the event that they haven't found suitable alternate duties, most of those employees will have the notice period paid out which has had the effect that the applicant will have actually had a much greater redeployment period than other colleagues in similar circumstances.

PN35

THE SENIOR DEPUTY PRESIDENT: I'm sorry, I don't understand that.

PN36

MR JOHNSTON: Those employees will have had one month period for redeployment and then in the event that they weren't successfully redeployed, they'd be retrenched and paid six weeks pay in lieu of notice. Whereas, we've agreed with the applicant that he could work the notice period out so that during that six weeks notice period he also has an opportunity for further redeployment. Given the total period, we would say formally of 10 weeks during which he was able to be redeployed. In addition to that, I'm instructed that prior to the formal redeployment period commencing, the applicant was seeking alternative roles within the organisation.

PN37

I'm instructed therefore, that for a number of months now the applicant has been seeking alternative roles. I'm instructed that the applicant has some very specialised skills in the area, notwithstanding his long service in the banking industry. His skills are of a specialised nature and that's why the one month period of notice or redeployment has been initiated in this instance for him and his colleagues. That's because the available work is not there for the employees to undertake during the redeployment period and the likelihood of redeployment given their specialised skills is relatively narrow within the Westpac Group and therefore we were hoping to, whilst seeking redeployment, enable the employees or former employees, to move out to other areas.

PN38

THE SENIOR DEPUTY PRESIDENT: What is the specialised nature of their skills?

PN39

MR JOHNSTON: I'm instructed that the applicant is an IT professional. I don't have any further particular instructions. As I mentioned, I only just received information about this listing 15 minutes prior to the date.

PN40

THE SENIOR DEPUTY PRESIDENT: We'll go into conciliation if you have no objection. I think I'll speak to the bank first. We'll go off the record.

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PN41

THE SENIOR DEPUTY PRESIDENT: Yes.

PN42

MR KELLY: Your Honour, I wish to advise you that we've received an offer that does not prejudice our ability to pursue the matter. So that between now and
3 January, the parties will attempt to resolve the matter or matters but that we seek to have the matter adjourned for listing if necessary and the bank would outline the details of that offer.

PN43

THE SENIOR DEPUTY PRESIDENT: All right thank you. Yes Mr Johnston.

PN44

MR JOHNSTON: Your Honour, we are proposing not to provide the notice of retrenchment, which is currently set down for 12 December, well we supersede that by a change in the proposed retrenchment date to 3 January, which is the first day back to work in the New Year, with the hope that during that intervening period the applicant can continue his job search arrangements and hopefully - - -

PN45

THE SENIOR DEPUTY PRESIDENT: I'll hold the files over and the parties can advise me after the 3rd. However, you should understand that I’m on leave until the 16th so should there be any need for any urgent listing of the matter I won't be able to list it until the 16th and you might have to go back to the head of panel if you need to list it before the 16th. But given the periods involved in notice and other matters, that some might think that it would need to go elsewhere I think. But just for your own information, that would be my situation.

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