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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 13986-1
COMMISSIONER MANSFIELD
C2006/1554
COMPASS GROUP PTY LTD
AND
THE AUSTRALIAN WORKERS’ UNION
s.127(2) - Appln to stop or prevent industrial action
(C2006/1554)
MELBOURNE
3.03PM, FRIDAY, 13 JANUARY 2006
PN1
MR G WATSON: I seek leave to appear with MR R WEALLENS for the Compass.
PN2
THE COMMISSIONER: You're busy today, Mr Watson. Yes, AWU?
PN3
MS Z ANGUS: With me this afternoon is MR D HEALY, MR C WINTER and MS S HODGES. Perhaps we could hear first of all as to why it's appropriate to have lawyers intervening ..... concerns or could I just say simply actually before ..... for the Commission if I just outline there's one specific objection we have. It's a conditional objection rather than an absolute one and that is Freehills has done what is the standard conduct of Freehills which is to file an application at the final hour of one day seeking to have it listed the following day. In this case their core substantive claim is that the AWU has failed to genuinely reach an agreement and that is a matter for evidence.
PN4
THE COMMISSIONER: Yes. Well, Ms Angus, what's your point?
PN5
MS ANGUS: My point is that what we would seek to do - - -
PN6
THE COMMISSIONER: Seeing it's Friday afternoon.
PN7
MS ANGUS: Is that we wouldn't object to counsel on the basis that if we're going to proceed this afternoon in any manner that we actually have the evidentiary case put before the Commission so that we get to hear the case.
PN8
THE COMMISSIONER: Before we do anything, Ms Angus, I'm going to offer the parties an opportunity to have a talk about what we were at and what we're doing and perhaps address the substantive issue and try and get that progressed in a way where the applications mightn't even be necessary.
PN9
MS ANGUS: Well, Commissioner, we don't object to that at all but we would like to just register again on the record to Freehills that it's a common practice, it's an 11th hour application, they pull out the big guns and then really what everyone wants to do is to sit around and talk which doesn't require lawyers at all.
PN10
THE COMMISSIONER: Mr Watson is probably pleased to hear himself referred to as a big gun.
PN11
MS ANGUS: No, I meant the nature of the application, Commissioner. I wasn't referring - - -
PN12
THE COMMISSIONER: The application rather than the individual.
PN13
MS ANGUS: On that basis, as long as are we to proceed this afternoon, that we have a proper opportunity to actually hear the case before us because at this stage we have no evidentiary material and no witness statements available to us. Then on that basis - - -
PN14
THE COMMISSIONER: Well, you do propose a 48 hour stoppage early next week I think, Ms Angus, do you not?
PN15
MS ANGUS: We put in protected industrial action notice to that effect.
PN16
THE COMMISSIONER: Yes, and that's why we're here I think. But I've heard you, Ms Angus.
PN17
MS ANGUS: Yes.
PN18
THE COMMISSIONER: I don't want you to get too upset at this stage, thank you very much, and I've heard your comment about Mr Watson and I take it you're reserving any ability of the union to object to his appearance and you're indicating that you may wish to oppose his leave to appear.
PN19
MS ANGUS: We do, but we are happy to proceed and not obstruct at this stage.
PN20
THE COMMISSIONER: Okay. You might jump to your feet at some later time.
PN21
MS ANGUS: Correct, Commissioner, thank you.
PN22
THE COMMISSIONER: Thank you. Now, Mr Watson, I would appreciate an outline of the issues that are involved here. I've had a look at the files and I see from the files that the AWU has indicated that it proposes to initiate some industrial action, but what is the substantive issue that's causing all this problem?
PN23
MR WATSON: That's a good question, Mr Commissioner, and it does require me to outline some of the circumstances and part of the
background to acquaint you of those circumstances and the nature of the applications that have been made by the company are in response
to the notice of protected action which concerned very serious industrial action proposed to be taken and purported to be protected
from Tuesday next week. Now, the two applications that the company has made arise from the same set of circumstances and the circumstances
in a nutshell,
Mr Commissioner, are that the contract for catering and cleaning services on Bass Strait oil and gas platforms has been held by Compass
for a large number of years and the contract came up for re-tendering last year and in December Compass was advised that it was unsuccessful
in terms of the future contract.
PN24
THE COMMISSIONER: And that no longer continues before April I think
is - - -
PN25
MR WATSON: That's correct, Commissioner. The existing contract has a life to April and it also has provisions for termination by notice as well, but the company has been advised that another company has been awarded the contract to operate after the completion of the current contract, so that that's one relevant circumstance. The other relevant circumstance is the enterprise agreement that applies to the offshore platform camp staff. It's the Compass Australian Workers Union Offshore Camp Staff Enterprise Agreement 2003 and I assume you may have a copy of it, Mr Commissioner.
PN26
THE COMMISSIONER: I do, Mr Watson, yes.
PN27
MR WATSON: It's an agreement which has an expiry date of 31 December 2005 and it also has on page 34 of the copy that I've got - - -
PN28
THE COMMISSIONER: An extension provision.
PN29
MR WATSON: That's correct, which says:
PN30
Should negotiations for a new agreement not be finalised prior to the nominal expiry date of this agreement, Compass Group Australia agrees that at the request of the union to the extension of the nominal expiry date of the agreement for a period of up to 12 months.
PN31
Now, the agreement was for a two year period and the extension provision is up to 12 months beyond that. Now, the company - sorry, the union - it was a two year agreement and there's an ability to extend for a period of up to 12 months.
PN32
MS ANGUS: That's not right.
PN33
MR WATSON: The union did make a request for an extension in a letter dated
6 December.
PN34
THE COMMISSIONER: The agreement actually, Mr Watson, commenced in
1 January 03 and expires 31 December 05.
PN35
MR WATSON: I see, yes.
PN36
THE COMMISSIONER: No, well, it effectively is the whole of 03, the whole of 04 and the whole of 05.
PN37
MR WATSON: Yes, so it is three years.
PN38
THE COMMISSIONER: Yes.
PN39
MR WATSON: Yes. The request by the union was made in a letter dated
6 December, if I could hand up a copy of that to the Commission.
PN40
THE COMMISSIONER: Yes, and this is signed off by Mr Shorten.
PN41
MR WATSON: Mr Shorten, the Victorian and national secretary referred to clause 60 and sought to extend the nominal expiry date. The company responded to that letter in a letter - - -
PN42
THE COMMISSIONER: Do you want to mark that?
MR WATSON: Yes.
EXHIBIT #W1 LETTER FROM MR SHORTEN, 6 DECEMBER
MR WATSON: Thank you. On 14 December the company responded to that letter to Mr Shorten. It's not clear that it would need to given the wording of clause 60 but it did in that letter and I tender a copy of that letter of 14 December.
EXHIBIT #W2 LETTER FROM COMPASS TO MR SHORTEN, DATED 14 DECEMBER
PN45
MR WATSON: The next relevant communication, Commissioner, and I'm not sure whether it was attached to the letter of 3 January or whether it came separate. I think it was attached. It was the notice of initiating of bargaining period and a letter of 3 January and perhaps I could hand the letter with the attachments including the notice of initiation of a bargaining period. The notice of initiation of bargaining period is probably on the Commission's file.
PN46
THE COMMISSIONER: It is on the file.
PN47
MR WATSON: But the letter of 3 January may not be.
THE COMMISSIONER: It wasn't.
EXHIBIT #W3 NOTICE OF INITIATION OF BARGAINING PERIOD AND LETTER DATED 3 JANUARY
PN49
MR WATSON: Now, the letter says that Mr Shorten who's writing following a communications meeting of camp staff engaged in the certified agreement, it says:
PN50
Section 170MX of the award sets out all the circumstances that may occur and the applicable redundancy provisions for the employees ...(reads)... existing conditions will continue.
PN51
Sodexho being the successful tenderer, Mr Commissioner. It says:
PN52
In light of the above circumstances the Australian Workers Union has obtained legal opinion that all camp staff working under the award in 2003-2005 ...(reads)... or the union representative committee within the next seven days.
PN53
So Mr Commissioner, that letter and it attaches some extracts from the provisions of the certified agreement regarding consultation and severance payment, redundancy payments and the like.
PN54
THE COMMISSIONER: What do you make of the last paragraph on page 1 of the letter of 3 January, Mr Watson? Given that the company has agreed to extend the existing agreement by a further 12 months as requested by the AWU, is there not an agreement already in place?
PN55
MR WATSON: The company believes clearly there is and it is somewhat mystified by that provision. But the letter importantly seems to relate primarily to the redundancy issues and issues relating to entitlements under the current certified agreement.
PN56
THE COMMISSIONER: Is there any substantive disagreement with what the AWU is seeking by way of redundancy? I notice in part in that middle paragraph about legal opinion that:
PN57
All camp staff working under the award and the enterprise agreement are entitled to redundancy.
PN58
Is there any issue of substance in that proposition?
PN59
MR WATSON: The company has said and it did so in writing in the following letter that:
PN60
Redundancy payments will be made in accordance with the enterprise agreement. The enterprise agreement does provide for redundancy payments in the event that the Compass group lose the contract on the platforms and employees are terminated, subject to certain conditions which are dependent on whether offers are made and accepted by employees of the incoming contractor -
PN61
The precise terms, well, in essence from the attachment to - - -
PN62
THE COMMISSIONER: Yes, subpara (1), is it? Sorry. I'm looking at clause 16, redundancy in the EBA.
PN63
MR WATSON: Yes.
PN64
THE COMMISSIONER: Which has some rather strange numbering on it but that's probably not altogether unusual. I'm just picking up your point about the subclause that allows Compass to not offer redundancy payments. I'm looking here:
PN65
Compass Group Australia will consult with incoming employer about placement of its employees in similar positions -
PN66
et cetera.
PN67
MR WATSON: Yes.
PN68
THE COMMISSIONER: Is that the clause that you're referring to, Mr Watson?
PN69
MR WATSON: There's one that's more specific. Yes, that is the one, yes. It's (ii) number 1, I think that's the one you're reading from.
PN70
THE COMMISSIONER: Yes.
PN71
MR WATSON: Yes, that's the relevant clause and other provisions that follow it also bear on the question, but that essentially raises the same issues.
PN72
THE COMMISSIONER: So Compass might say that if an employee of Compass following discussions with the incoming Sodexho is it?
PN73
MR WATSON: Yes, Sodexho.
PN74
THE COMMISSIONER: Sodexho, is offered a similar position with Sodexho, including treatment of past service, then the employee will not be entitled to a redundancy payment?
PN75
MR WATSON: Yes, that's what the company says is the nature of the obligations and the condition on which attaches to the question of whether redundancy payments are paid.
PN76
THE COMMISSIONER: Yes, and I notice that the next subparagraph says:
PN77
An employee may only decline employment with the incoming employer if he or she has at least 10 years service.
PN78
So a person who has at least 10 years service has the opportunity to decline the offer.
PN79
MR WATSON: That's correct and the other provisions go on. As I say, they are relevant. It may be that someone does decline the offer but is employed within a period of 52 weeks thereafter and this is subclause (d). In other words, if the employee doesn't accept employment immediately but is subsequently employed within the following year - - -
PN80
THE COMMISSIONER: Yes, they shall liable to repay - - -
PN81
MR WATSON: Yes. So all of those provisions are conditions on whether all employees are entitled to and it depends on circumstances which have not occurred as yet.
PN82
THE COMMISSIONER: Is it Compass' opinion that some of those clauses may now be objected to by the AWU?
PN83
MR WATSON: We don't know, Mr Commissioner. We don't know the answer to that.
PN84
THE COMMISSIONER: Okay.
MR WATSON: But we know what was in the letter of the 3rd and I tender a copy of the company's response dated 6 January.
EXHIBIT #W4 RESPONSE FROM COMPASS DATED 6 JANUARY
PN86
MR WATSON: The company said:
PN87
Regarding your letter dated 3 January the following responses are made to your queries ...(reads)... to undertake this exercise, please let me know.
PN88
And it was signed by Mr Weallens. The next communication, Mr Commissioner, was - - -
PN89
THE COMMISSIONER: Just a point of clarification, Mr Watson, are there any casual employees of Compass?
PN90
MR WATSON: Yes, there are.
PN91
THE COMMISSIONER: Is it agreed that the casuals are also entitled to redundancy payments?
PN92
MR WATSON: It's agreed that the provisions of the agreement - - -
PN93
THE COMMISSIONER: Yes, I understand it's agreed the provisions of the agreement will be applied, but does that extend to casuals?
PN94
MR WATSON: It does, subject to - - -
PN95
THE COMMISSIONER: So there's no argument about casuals being covered by the redundancy clause?
PN96
MR WATSON: No.
PN97
THE COMMISSIONER: Okay.
MR WATSON: The next communication, Mr Commissioner, was a notice of giving authorisation to engage in industrial action and a notice pursuant to section 170MO of the Act, dated 10 January 2006 and I tender a copy of that. I think at least the notice of authorisation was required to be filed but maybe not the notification under section 170MO.
EXHIBIT #W5 NOTICE OF GIVING AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION, DATED 10/01/2006
PN99
MR WATSON: The industrial action notified, Mr Commissioner, as the second of those letters indicates, is proposed to be a 48 hour stoppage on and from Tuesday, 17 January. All employees will stop work for approximately 48 hours and it then goes on to say:
PN100
That is, all employees will either cease work or not attend for work. If they offshore at this time they shall return onshore. If they are onshore they shall not attend for work. This action will commence at 7 am on 17 January and conclude 6.30, 19 January, after which time the employees shall resume ordinary duties in accordance with this notice.
PN101
THE COMMISSIONER: In brief, Mr Watson, would that cause a shut down of the Bass Strait arrangements?
PN102
MR WATSON: It would cause significant disruption at least and the extent of it is uncertain, Mr Commissioner. The normal crew change day for camp staff is Monday. They work an even time, seven on, seven off roster.
PN103
THE COMMISSIONER: Yes.
PN104
MR WATSON: Tuesday is the normal crew change day for AWU operators and so Tuesday is a busy traffic helicopter for the operators on the various platforms. Precisely what movements would be necessary to give effect to that action, the attempts by the company to ensure that services are provided to operators on the platform and the necessary movements and the implications of that action taken are uncertain, but certainly if there is any disruption to the services, cleaning and catering services provided to operational staff and other maintenance and contracting staff on platforms, that has significant implications and raises questions as to whether they would continue to work in those circumstances.
PN105
But that's the first part of the action, the second action notified is a ban on all paperwork associated with stock on and from Thursday, 19 January. That's paragraph (b).
PN106
THE COMMISSIONER: Yes.
MR WATSON: Then a further 48 hour stoppage on Tuesday, from Tuesday,
24 January. Now, the AWU delegates have provided a notice to camp staff offshore as to this industrial action. I tender a copy
of that.
PN108
MR WATSON: It's a document dated 12 January headed Attention All AWU Offshore Cater Staff, Subject Proposed, Industrial Action. It says:
PN109
Due to ESS refusing to finalise the new EBA and also their refusal to abide by the 2003 EBA clause on redundancy the AWU has notified the AIRC of the following protected industrial action.
PN110
And it mentions the 48 hour stoppage, the ban on paperwork. It's expressed in terminology in paragraph 2 than in the notice of industrial action but I simply note that at this stage. There may be a different effect from the two different descriptions and it mentions the 48 hour stoppage and gives notice of when meetings are to take place during the periods of the strike action and it is signed, Strength in unity, John David Dennis. So that's the extent of correspondence between the parties which indicates the nature of the issues, Mr Commissioner.
PN111
Obviously what is proposed to occur and this is the reason for the urgent applications that the company has made, is very significant
industrial action proposed to commence from next Tuesday. We submit that there is a clear position that the AWU has extended the
agreement by writing a letter of
6 December and the agreement has ongoing effect but it does appear from the subsequent communications that to an extend the AWU has
sought to renege or withdraw from that position.
PN112
THE COMMISSIONER: Has there been any formal communication to that effect, Mr Watson?
PN113
MR WATSON: Only what we've provided to you, Mr Commissioner, and it's evident that it's notable for the absence of things rather than the presence of them because there have been no claims. There have been no negotiations. There has been proposed to be very damaging industrial action which are expressed to be about matters other than claims relating to a new agreement. In other words, an allegation which also mystifies the company given that it has indicated that the redundancy provisions of the agreement would be provided, would be complied with. The allegation that the strike action in part is about and for the reason - - -
PN114
THE COMMISSIONER: Yes, it's the first part of the circular.
PN115
MR WATSON: Of the circular, Mr Commissioner, of the company's refusal to abide by the redundancy clause of the EBA. Now, in essence, Mr Commissioner, these are matters of great concern to the company. We do say that in these circumstances the action that is proposed is highly unlikely to be protected. There are provisions which include section 170MN of the Act, with provisions of section 170MP requirement for negotiations to precede industrial action and there are provisions such as section 170ML and a requirement for action and claims to be about matters relating to an agreement. Just excuse me for a moment, Commissioner.
PN116
So what's been described as the circumstances in the correspondence discloses that the proposed industrial action if occurs obviously would be highly disruptive, but to describe it as premature, unnecessary and irresponsible would probably be an understatement in these circumstances. The company is in a position to have made the applications that it has and it certainly seeks, unless there can be some accommodation in relation to the circumstances, urgent orders and interim orders if necessary prior to the planned next Tuesday and in relation to your comments at the outset it is not opposed to an attempt to achieve some order and rational logical process to deal with these issues and we'd certainly say that such a course of action is far more appropriate than the action has been embarked on by the AWU.
PN117
So I think in those circumstances, Mr Commissioner, I have outlined briefly what the circumstances are as far as the company sees them and how we say is a more appropriate course of action.
PN118
THE COMMISSIONER: Good, thank you, Mr Watson. Now, Ms Angus, the circular that was dated yesterday talks about Compass refusing to finalise a new EBA and the refusal to abide the 2003 EBA clause on redundancy. Now, what do you say about those two things, they don't read very accurately to me at this stage?
PN119
MS ANGUS: Can I deal with the second issue first in terms of the redundancy clause. The redundancy provisions are contained in 16 where all we're seeking one of the claims we have in our agreement is simply to ensure that that agreement is properly applied and the company has adopted, we say - - -
PN120
THE COMMISSIONER: What's led the AWU and its delegates to put the proposition that the company has reneged on the clause on redundancy? Because Mr Watson has said very clearly today that the company will follow it.
PN121
MS ANGUS: It you could bear with me, Commissioner.
PN122
THE COMMISSIONER: I'm bearing with you, Ms Angus.
PN123
MS ANGUS: At a communications meeting of all our members on 19 December the company actually stood up and announced to the 100 and so people, employees there, as well as the officials and Bill Shorten, that its intention was not to provide redundancies to all employees but employees selected on the basis of and then there was some sort of, what we would say is a misapplication of the agreement. The agreements provides for essentially in terms of redundancies four things that you have identified. It provides an obligation to consult with the incoming contractor, that is Sodexho. That has not been done and in fact the company view is that that's not appropriate. The second thing it provides is that it's quite specific - - -
PN124
THE COMMISSIONER: So who consults, the company consults with Sodexho?
PN125
MS ANGUS: The obligation is on Compass to consult with Sodexho about the transfer replacement of employees. That has not been done.
PN126
THE COMMISSIONER: I thought I heard Mr Watson say that Sodexho has said to Compass that it doesn't regard itself as being an ongoing employer, although I may be - what you're saying, Ms Angus, is regardless of what Sodexho says it is in terms of ongoing employment for the existing employees, Compass should consult with Sodexho to see whether there are going to be opportunities for existing employees to maintain employment?
PN127
MS ANGUS: That, Commissioner. I think the parties agree that this is not a transmission of business. It's the termination of one contract and the commencement of a new contract on completely different terms and conditions and certainly that's the position that Sodexho adopted. Basically this is a greenfields site. They are seeking to negotiate with the AWU a radically different set of terms and conditions for employees. They will not recognise any past service of employees and that brings us to the second core entitlement contained in the redundancy provision and that is that all people are entitled to redundancies who are the following, ie. if their terms and conditions including past service do not disadvantage -
PN128
Sorry, I will actually read the clause -
PN129
Where employees are offered and accept employment in a similar position -
PN130
So a similar position -
PN131
held at the time of the redundancy in circumstances where the terms and conditions of employment, including treatment of part service -
PN132
So we have got full criteria there, Commissioner -
PN133
including for the purpose of redundancy do not disadvantage the employee, in those circumstances an employee is not entitled to a redundancy payment.
PN134
Now, the circumstances that we're confronted with at the moment is that Sodexho is saying it's an entirely new set of terms and conditions and we will not recognise any past service. So instantly we've excluded the entire workforce here and that is so there are no employees who will be offered positions based on conditions which recognise their past service.
PN135
THE COMMISSIONER: But does that follow, Ms Angus, depending on what the new arrangements are by agreement, but the proposition that Sodexho will not recognise past service? Now, employee A has had eight years service with Compass. Sodexho says we would like that employee to come and work with us, we will recognise those eight years for all purposes. I understand of course - - -
PN136
MS ANGUS: But then we enter into a different situation. Then we agree with the principle that Polites outlined and then was endorsed by the Full Bench in the 170MX award which forms the basis of these provisions is that if an employee is offered and accepts employment on terms and conditions that would not disadvantage and they pick up the past service, then that employee would not be entitled to redundancy.
PN137
THE COMMISSIONER: Yes.
PN138
MS ANGUS: That's not disputed by anyone here. What is the problem between the parties is that the company and it's ..... it's an expensive amount and from the company's position they want to pay redundancies to as few people as possible. The people that they're choosing to - - -
PN139
THE COMMISSIONER: Well, I would imagine that whatever arrangements are entered into by Sodexho if they pick up prior obligations they would be seeking Compass make some contribution or not?
PN140
MS ANGUS: Commissioner, that was the purpose of the consultation requirements.
PN141
THE COMMISSIONER: Yes. Just let me ask one question here by the way,
Ms Angus, and that is this all seems to have happened fairly quickly. We have got dates late in December, we've got dates now early
in January which have moved from a lot of claims, what appears to be a log of claims to, well, the first one was will you roll over
the EBA, the company says yes, on the face of it the EBA is rolled over to another year, extended for another year.
PN142
MS ANGUS: All this is contested, Commissioner.
PN143
THE COMMISSIONER: Well, I see a letter signed by Mr Shorten which asks that question. Now, I'm just putting a proposition, Ms Angus, I'm not - - -
PN144
MS ANGUS: Right. I have plenty to say on all of those issues that you've raised.
PN145
THE COMMISSIONER: Well, you may well have, you may well have, but there are letters late in December about extending the EBA, then a log of claims is served and then we have the application to establish a bargaining period and engage in industrial action and my question is what negotiations sit down in a meeting room, substantive discussions have been undertaken between the AWU and Compass to the point?
PN146
MS ANGUS: Ample.
PN147
THE COMMISSIONER: Ample.
PN148
MS ANGUS: We are talking dozens and dozens and Commissioner, if I could put it like this and the audacity of this man to be nodding his head because he's not the person from the company - - -
PN149
THE COMMISSIONER: Ms Angus, if you would ask your members just not to interrupt, please.
PN150
MS ANGUS: Yes, sorry. It's not Mr Weallens who has been involved in those discussions. Can I do another submission because the
submissions that have
been - - -
PN151
THE COMMISSIONER: I'm talking about a specific point, redundancy.
PN152
MS ANGUS: Yes, I understand - - -
PN153
THE COMMISSIONER: You're saying that you've had comprehensive discussions with Compass on the redundancy clause, how it will be applied, how individual members will be affected and so forth. I know - - -
PN154
MS ANGUS: Commissioner, we have been negotiating with Compass since August 2004 about a raft of matters and we have - - -
PN155
THE COMMISSIONER: 2004?
PN156
MS ANGUS: August 2004, that is 18 months ago.
PN157
THE COMMISSIONER: But you have got an EBA that goes until the end of 2005.
PN158
MS ANGUS: That's right.
PN159
THE COMMISSIONER: Which you have agreed to extend.
PN160
MS ANGUS: Commissioner, we have plenty to say and I will be very efficient if I could just summarise the essential position of the AWU.
PN161
THE COMMISSIONER: I will hand over to your efficiency, Ms Angus.
PN162
MS ANGUS: It works like this, in fact Mr Watson commenced halfway through the story. We would like to actually summarise what actually
preceded that quickly because, you know, I understand that it's Friday afternoon. At the initiative of the company Sodexho in August
2004, and all this will be a matter of evidence, they suggested that we start negotiations about first of all, a new agreement entirely
so that they go into the contract with a new agreement, among a range of things that were discussed, one of which was redundancy
in the
context - - -
PN163
THE COMMISSIONER: Well, I think we've been here before on that issue, haven't we?
PN164
MS ANGUS: We have.
PN165
THE COMMISSIONER: Yes.
PN166
MS ANGUS: And we will provide witness evidence of the number of meetings, the people who attended those meetings. We have draft documents which evidence the exchange of documents. We got paid leave for our delegates for at least one day to redraft those documents. We have minutes of those meetings.
PN167
THE COMMISSIONER: But this is all about, Ms Angus, the new EBA to apply between Compass and the AWU and as I recall Compass' view was, well look, we have an EBA, we're not sure whether we're going to maintain the contract so how far can we go down on developing a brand new EBA - - -
PN168
MS ANGUS: Now, Commissioner, you've referred to what I would refer to, what we would say is phase 2 of those discussions. Phase 1 lasts from August 2004 until some time in probably November 2005, so there's a good one year period of negotiations for a replacement agreement. Then there's a discussion in phase 2 about why don't we just extend the existing agreement and as Mr Watson has provided you with some documentation that was formally on the - according, exhibit W1. Formally a letter was forwarded from Mr Shorten suggesting that as a course of action. Can I just draw your attention because this is in important in our respect, that agreement was never finalised.
PN169
THE COMMISSIONER: That agreement?
PN170
MS ANGUS: To extend the agreement and if I could just refer you in W1 to the final sentence there which is indicative of the difference in the parties understanding of what that agreement entailed and I will read:
PN171
Could you please advise us of your position regarding this matter prior to us holding meetings with our members to formally vote.
PN172
There were three problems with an extension of the agreement. One, Commissioner, you have identified yourself and that is that arguably extending the agreement would extend the agreement beyond the statutory limitation of three years. That was one concern. As you pointed out, Commissioner, the life of the agreement is from 1 January.
PN173
THE COMMISSIONER: Yes.
PN174
MS ANGUS: 1 January 2003 to 31 December 2005. So there was an issue of whether we actually could in terms of the statutory limitations - - -
PN175
THE COMMISSIONER: Yes, well, I'm sure the union would not want to be in breach of the Workplace Relations Act, Ms Angus.
PN176
MS ANGUS: We never would, Commissioner, no indeed. The second issue was we were having arguments between the parties as to whether or not, and because the requirements for extending an agreement require that the Commission has to be satisfied that the members endorsed that extension, and the company's position was no, that didn't require a vote. Our position, well, yes, it does require a vote and in fact one of the - - -
PN177
THE COMMISSIONER: Well, perhaps the vote should have been held beforehand, ms Angus. Mr Shorten writes a letter to the company saying we want to exercise our right to extend the agreement, that's what he does and - - -
PN178
MS ANGUS: Yet subject to a vote of their formal - - -
PN179
THE COMMISSIONER: No, the clause in the EBA says that the union has the right to seek an extension.
PN180
MS ANGUS: Yes.
PN181
THE COMMISSIONER: It doesn't say the company has any right in the matter. It says the union has the right as I recall. Now, if the union is writing to the company and I'm not necessarily arguing with the point about the meeting of the members, but if the union was going to write to the company saying we wish to extend the agreement, exercising our right, what clause is it again?
PN182
MS ANGUS: Clause 60, that's the savings clause. We provided ourselves some space extend should negotiations not be finalised.
PN183
THE COMMISSIONER: Yes.
PN184
MS ANGUS: And they haven't been finalised.
PN185
THE COMMISSIONER:
PN186
Should negotiations not be finalised Compass Group Australia agrees that at the request of the union to the extension of the nominal expiry date for a period of 12 months.
PN187
So it doesn't require Compass Group to do anything. It simply requires the union to request it. Now, if Mr Shorten on the face of it had no authority to write that letter, if he says, well, once - in the second paragraph he says:
PN188
The agreement came into force on the 26th and clause 60 allows for us to seek an extension.
PN189
And in the first paragraph:
PN190
The union seeks to extend the nominal expiry date.
PN191
And at this stage he hasn't got any authority to do that because the members hadn't voted. Is this what you're saying to me?
PN192
MS ANGUS: No, the argument that I'm putting is that - - -
PN193
THE COMMISSIONER: Well, did your members vote?
PN194
MS ANGUS: No. Mr Watson has put the proposition to the Commission that the nominal expiry in the agreement of 31 December is no longer the nominal expiry date. In fact, by some sort of agreement that presumably he's going to provide evidence for, that in fact the nominal expiry date was extended by three months.
PN195
THE COMMISSIONER: Well, he has provided evidence, it's Mr Shorten's letter. He's the general secretary.
PN196
MS ANGUS: And in what we're saying is in fact that is not evidence of an agreement as to an extension of the nominal expiry for three reasons. There were three - - -
PN197
THE COMMISSIONER: Okay. No, don't go through the three reasons. But you say to me from your point of view there was no extension.
PN198
MS ANGUS: And there could not be because the third and most important reason, you can't opt out of the statutory requirements and 170NC(2) says that any extension has no effect unless it's approved by the Commission.
PN199
THE COMMISSIONER: But Ms Angus, we've gone through that he said, she said bit here. I want to get to the point of what is the union's problem.
PN200
MS ANGUS: Well, the union's problem - - -
PN201
THE COMMISSIONER: And why has it told the Compass Group that it's going to have a 96 hour stoppage in the next month along with a ban on paperwork where on the face of it Compass Group is saying we will fully respect the enterprise agreement that has been entered into?
PN202
MS ANGUS: Well, they say that to you, Commissioner, and they've said
that - - -
PN203
THE COMMISSIONER: Well, it's on the record.
PN204
MS ANGUS: Yes.
PN205
THE COMMISSIONER: And it's effectively being said to you.
PN206
MS ANGUS: We're pleased about that but I think we actually need to elicit from them what their interpretation of the agreement is because they have a distinctly unusual one and it is in essence that they don't want to pay redundancies to anyone who gets a job within Compass - - -
PN207
THE COMMISSIONER: All right, give me an example. Employee A has been employed by Compass for eight years, what is the worst case scenario that you understand Compass Group might do to employee A?
PN208
MS ANGUS: Not pay that employee redundancy.
PN209
THE COMMISSIONER: Because?
PN210
MS ANGUS: On the grounds that that employee applies for a job and the applications close on 22 January with Sodexho, before we're in a position to negotiations the terms and conditions with Sodexho, because that employee applies for a job in the unknown, they won't know what their terms and conditions are, but even assuming that they do within the 52 month period they will not have their service recognised because Sodexho has made that clear.
PN211
THE COMMISSIONER: No, let's forget the 52 week period at this stage, right. It's weeks and not months I think, isn't it?
PN212
MS ANGUS: Yes.
PN213
THE COMMISSIONER: It's a year.
PN214
MS ANGUS: Nearly a year, yes.
PN215
THE COMMISSIONER: Yes, okay. Let's forget that for the moment. We're talking about somebody who does what? If Compass sits down and talks with Sodexho about employee A getting a job, Sodexho says yes, that person is valuable to us, is it Helmut back there?
PN216
MS ANGUS: Yes.
PN217
THE COMMISSIONER: Helmut gets a job with Sodexho, they reckon he's a pretty good operator and they need people like him on the job.
PN218
MS ANGUS: Yes.
PN219
THE COMMISSIONER: What happens to his redundancy according to you? What do you believe Compass does?
PN220
MS ANGUS: Well, our understanding of what Compass' position is that they won't pay Helmut a redundancy because he's picked up a job.
PN221
THE COMMISSIONER: Because he's got a job of an equivalent level.
PN222
MS ANGUS: And all we're seeking in terms of the redundancy provisions is that - the problem is that Sodexho is telling Helmut it will be totally new terms and conditions, they've advertised already on their internet web site, it will be new terms and conditions, it won't be the same what you have been doing in the past and we will not recognise your past service. The company is saying, well, Helmut wouldn't be eligible for redundancy because he's got a job. It's a different interpretation of the agreement.
PN223
THE COMMISSIONER: Well, hang on, the clause in the EBA says:
PN224
Where an employee offers and accepts employment on platforms of Esso in Bass Strait in a similar position to that held at the time of redundancy ...(reads)... will not be entitled to redundancy payment.
PN225
So if Helmut gets a job with Sodexho on terms and conditions which disadvantage him, clause 1 does not allow Compass, as I read it, to not pay Helmut a redundancy payment.
PN226
MS ANGUS: That's correct.
PN227
THE COMMISSIONER: That's correct, isn't it?
PN228
MS ANGUS: That's correct. 100 per cent of the employees, any employees that applies and gets a job at Sodexho will not have their past service recognised.
PN229
THE COMMISSIONER: Any employee?
PN230
MS ANGUS: Correct, that's Sodexho's position - - -
PN231
THE COMMISSIONER: Well, if that's the case on the face of it clause 1 is going to have some difficulties in excusing Compass from paying redundancy payments.
PN232
MS ANGUS: And Commissioner, despite that - - -
PN233
THE COMMISSIONER: And I see a bit of a nod, of a bit a - a slight nod from Compass.
PN234
MS ANGUS: And said to all of our members that some of them would not be eligible for redundancies.
PN235
THE COMMISSIONER: Has said to your members some of them will not be eligible for redundancy.
PN236
MS ANGUS: Correct.
PN237
THE COMMISSIONER: Is that because Compass might say we still need you?
PN238
MS ANGUS: No. The only circumstances where they would not be eligible for redundancy is if their past service is recognised and they are not disadvantaged in terms and conditions in a similar position.
PN239
MR WATSON: We agree.
PN240
MS ANGUS: Well, that - - -
PN241
THE COMMISSIONER: You and I agree. Does Compass agree with that?
PN242
MS ANGUS: So let's hear - perhaps it's appropriate if we get clarification from the company.
PN243
THE COMMISSIONER: Yes, okay. We don't want to be here all night,
Mr Watson, so does Compass agree with that basically?
PN244
MR WATSON: The company agrees that the clause that we're talking about requires an offer to be accepted which does not disadvantage the employee.
PN245
THE COMMISSIONER: Yes. Well, let me put this specifically to you,
Mr Watson.
PN246
MR WATSON: If my friend want to say - - -
PN247
THE COMMISSIONER: If past service wasn't recognised would that disadvantage the employee, if past service wasn't recognised?
PN248
MR WATSON: It wouldn't, Commissioner, and that's expressly referred to.
PN249
THE COMMISSIONER: Yes, agreed.
PN250
MR WATSON: Now, what the company has done - - -
PN251
THE COMMISSIONER: Now, if a person's employment was on terms and conditions which overall disadvantaged the employee, and I'm not talking about a marginal disadvantage of a half a per cent, I'm talking about something which is of substance, does the company agree that clause 1 would also not allow Compass to withhold a redundancy payment? I'm talking about a situation where in substance the terms and conditions the employee is offered with Sodexho are not as valuable as the terms and conditions provided by Compass.
PN252
MR WATSON: Well, that would depend on the exact circumstances and the application of the phrase do not disadvantage and - - -
PN253
THE COMMISSIONER: Well, where it's agreed that they do disadvantage, where it's agree they disadvantage?
PN254
MR WATSON: If it's clear that they do disadvantage then the clause means that the redundancy payment is payable to the individual.
PN255
THE COMMISSIONER: Yes. And then it becomes an argument as to whether they do.
PN256
MR WATSON: Yes. Can I just short circuit this in this way, I'm instructed that Mr Weallens has had a discussion with Mr Shorten saying that he intended to get legal advice in relation to this clause which he is still in the process of doing.
PN257
THE COMMISSIONER: Yes.
PN258
MR WATSON: The company has made clear that it will comply with the provision of the agreement and it is entitled to look at two things, one, what is the final position in relation to whether people receive an offer or not, whether they accept it or not and what the terms of those offers are. Now, these are all hypotheticals and we could have a lot of hypotheticals and work out a whole myriad of positions, but the company is still in the process of getting legal advice in relation to the general position that - - -
PN259
THE COMMISSIONER: When was the discussion between Mr Weallens and Mr Shorten, recently?
PN260
MR WEALLENS: It was on the date of communications, after I had addressed the personnel.
PN261
THE COMMISSIONER: In December?
PN262
MR WEALLENS: In December and it was a car park discussion which I asked if I could join the union discussions and he said, "I'd prefer you not to be there". He said, "What is your view". I said, "Listen, we'll abide by the EBA". He said, "What's your view on redundancy". I said, "It just depends how ..... company", and that was the only thing that was mentioned.
PN263
THE COMMISSIONER: Sure, sure, okay.
PN264
MR WEALLENS: He mentioned that they had legal advice stating that entitlements would be paid automatically and I said we .....
PN265
THE COMMISSIONER: Well look, I've heard Mr Watson's view, thanks,
Mr Watson. Mr Watson has acknowledged that if there is no recognition of prior service the company cannot use the clause to not pay
redundancy and Mr Watson has also said where the terms and conditions disadvantage an employee on the face of it the company cannot
refuse to pay a redundancy. Now, the argument about disadvantage, we know that, we know that. I might be disadvantaged if I go
across from Compass to Sodexho by the tune of $10 a year once you add up all the various terms and conditions and you've said there's
going to be an entirely new set of terms and conditions. But look, but having said - - -
PN266
MS ANGUS: With respect, Commissioner, we don't think that's - - -
PN267
THE COMMISSIONER: Ms Angus, just be quiet please for a moment. Having said that, if you are right when you say that Sodexho has said it will no recognise any prior service of any individual who comes from Compass to Sodexho, if you are right on that the terms and conditions issue is a non issue. It's a non issue because everybody is covered.
PN268
MS ANGUS: Well, it should be a non issue. The problem is that the company, Compass have known that since 19 December and as has just been pointed out what, 23 December, three weeks ago they said they were seeking legal advice. They haven't come back to resolve that - - -
PN269
THE COMMISSIONER: There is a thing called Christmas and New Year. Hard working lawyers like Mr Watson have got have a break.
PN270
MS ANGUS: Well, they can get a 127 application up in 20 minutes to get us into the Commission to ..... over the head.
PN271
THE COMMISSIONER: Well, he has probably come in off his leave. He's driven his car down from Torquay and gone off the golf course and he's here today to defend this matter.
PN272
MS ANGUS: Commissioner, our concern as Mr Watson, I think he used the word hypothetical situation two times over the course of his last remarks to the Commission, this is no longer a hypothetical situation.
PN273
THE COMMISSIONER: Well, what I'm hearing so far, Ms Angus, and this is not meant as a criticism of the AWU because I know you would be under pressure from members to get this thing sorted, but it seems to me there's been some very premature proposition put to the company. I will take out the word very. Premature proposition put to the company as to what you're going to do by way of industrial action. In a very short space of time you've put a log of claims of them. In a very short space of time you've said you're going to get engaged in industrial action. I'm hearing from the company that it realises it has obligations under the EBA. Whether it wants to or not and obviously it wants to minimise the costs within its legal rights of what the EBA requires it to do, but it's not going to breach the law or give people less than what their legal entitlements are in doing that. You know and I know it can't do and we've just heard this afternoon - - -
PN274
MS ANGUS: Companies do that every day, Commissioner.
PN275
THE COMMISSIONER: Pardon?
PN276
MS ANGUS: Companies do that every day.
PN277
THE COMMISSIONER: Well, they do but I suspect that Compass as a reasonably substantial company won't be wanting to do that. Look, I'm taking them at their word, they are going and they have said here and they've said I think in correspondence to the union, that the company will apply the terms of the enterprise agreement to the members of the AWU that are affected by the loss of the contract. That's what they are going to do.
PN278
MS ANGUS: They have said that. They have also said to us that because the estimation that has been thrown around, this is in the vicinity of $8 million.
PN279
THE COMMISSIONER: How much?
PN280
MS ANGUS: $8 million.
PN281
THE COMMISSIONER: Eight, yes.
PN282
MS ANGUS: Esso has obligations to pay some $3 million of that we understand and the company's initial position was that we - I'm not sure whether this is their maintaining position, appears they're not in the Commission at least today, but their initial position was that they didn't even believe that the termination of a contract did fall within the scope of the redundancy provisions in the agreement. In terms of the company's - - -
PN283
THE COMMISSIONER: It's not got nothing to do with it. There's no relationship between the termination of a contract and - if Compass wants to maintain the employment of everybody, which I don't think it does if it hasn't got a contract any more, there's no redundancy. If it says the individuals covered by this particular contract are now redundant to our needs, there's no longer a job for them, the redundancy clause applies. That's the reality. Now, going back to a couple specifics, you're concerned about the issue of terms and conditions of employment. You have made the point that Sodexho's terms and conditions are going to be different. On the face of it if what you say is right, that Sodexho is saying to the individuals in Compass if you come and join us we are not going to recognise any of your prior service, the terms and conditions issue in subclause (1) has no relevance because every one of your members is not going to have his or her prior service recognised therefore Compass has to pay redundancy.
PN284
MS ANGUS: Well, Commissioner, can we get that expressly committed to the record from the company because we haven't at this stage had it? The following scenario, if an employee - - -
PN285
THE COMMISSIONER: Hang on, wait, wait, please. Mr Watson accepted as much a few minutes ago.
PN286
MS ANGUS: Well, I - - -
PN287
MS ANGUS: Commissioner, can I just put this is what we need to hear. We need to hear that an employee who is offered and accepts a position with Sodexho that does not have their length of service recognised would be eligible for redundancy.
PN288
MR WATSON: The company fully intends to apply the agreement and if the circumstances are that an employee is not offered a job or is offered a job which does not recognise service for redundancy purposes then it would appear that there is an entitlement to redundancy payment.
PN289
THE COMMISSIONER: Yes, thanks, Mr Watson. Now, Ms Angus, you have to understand here the clause talks about recognising service for redundancy purposes. It doesn't say recognising prior service for all purposes, does it? But it is recognising service for redundancy purposes so if Sodexho said to an employee, and we're only talking here about people with less than 10 years service, aren't we, because on the face of it the - - -
PN290
MS ANGUS: No, we're talking about all employees.
PN291
THE COMMISSIONER: It is all employees but the over 10 can decline, can't they?
PN292
MS ANGUS: Correct.
PN293
THE COMMISSIONER: But if he is over 10 and he accepts it's still an issue. So if Sodexho was to say to a 10 year employee, yes, I would like to take you on board and I'll recognise your 10 years for redundancy purposes, okay, but I won't recognise it for sick leave purposes or for seniority purposes. They may be another issue, okay.
PN294
MS HODGES: But that goes to the other issue of disadvantage.
PN295
THE COMMISSIONER: Yes, it is a little bit clumsy in the clause in that respect and what I've said about the connection between recognising service for redundancy purposes may not be entirely appropriate. Okay. Mr Watson.
PN296
MR WATSON: Mr Commissioner, it might assist if I can clarify this, that there may have been some confusion. The company has been asked the proposition previously will it give an assurance that all employees will be paid redundancy pay, full stop.
PN297
THE COMMISSIONER: Yes.
PN298
MR WATSON: And the company has said, well, no, it depends on the circumstances and we don't know what the circumstances are but we'll comply with the agreement and we know and we've heard today the AWU is in negotiations with Sodexho. We don't know what the final package of terms and conditions Sodexho will agree to. We don't know the terms of offers that will be ultimately made, whether they will be changed or turned down at some point in the future. We just don't know those circumstances. So there cannot be a blanket guarantee on the nature that the union has sought in the past and it may be that the response to that sort of bland proposition has been misconstrued.
PN299
But certainly we have made it clear today that the company fully intends to apply the clause and the condition on payment of the redundancy pay is - - -
PN300
THE COMMISSIONER: Is as set out in the clause.
PN301
MR WATSON: As set out in the clause and the company intends to apply it that way.
PN302
THE COMMISSIONER: Yes. So Ms Angus - - -
PN303
MR HEALY: Commissioner, on the communications meeting that we had that was called by the company and Esso on 23 December and myself was there and 100 of our members roughly and AWU delegation, the question was asked by one of our members to Mr Weallens if I was successful in getting a job with Sodexho who has just won the contract and you didn't pay the redundancy would my redundancy go over to Sodexho, right, and Mr Weallens clearly stated no, that that would not be the case, you would be foregoing your redundancy if you got a job with Sodexho. Now, Sodexho, I've been party to - - -
PN304
THE COMMISSIONER: And that's obviously caused some hairs to start running.
PN305
MR HEALY: Of course, yes, and the other problem that we have now is that applications for a job with Sodexho close on the 20th of this month and people don't know - - -
PN306
THE COMMISSIONER: Close on the 20th of this month.
PN307
MR HEALY: The 20th of this month, yes.
PN308
THE COMMISSIONER: You've got another week. But you see, this is part of the problem in having - can I generally refer to it as
a mass meeting because probably the blokes are standing out in the yard somewhere and Mr Weallens is up there trying to explain,
he gets a question, he hasn't got the EBA in front of him necessarily, he hasn't got the advice from his legal advisers, he thinks,
well, what do I understand is going to be the situation. Now, if Mr Weallens said if a person goes from Compass to Sodexho he will
not receive the value of his redundancy entitlement with Compass when it goes over to Sodexho, I think
Mr Weallens probably was a little bit - well, I'm not saying he was - I think he was probably wrong. I think that's my answer, probably
wrong.
PN309
MR HEALY: I think another point I would like to make is that the company - - -
PN310
THE COMMISSIONER: No, let's just stay on this one for a moment.
PN311
MR HEALY: All right, yes.
PN312
THE COMMISSIONER: Because it's obviously a big point.
PN313
MR HEALY: Yes.
PN314
THE COMMISSIONER: You see, I've heard from Ms Angus already, Sodexho has said we're not going to recognise anybody's prior service.
PN315
MR HEALY: Correct.
PN316
THE COMMISSIONER: Now, if that is the case my own belief and obviously this is my view, it's not an absolute gold plated guarantee, but I think Mr Watson has acknowledged the issue as well, if there is no recognition of prior service by Sodexho, Compass is required to pay a redundancy payment. Okay.
PN317
MR HEALY: Yes.
PN318
THE COMMISSIONER: Now, if Ms Angus is correct that Sodexho will not recognise prior service, that should cover the issue of your members entitlements and they won't have a problem going to Sodexho because they'll get their redundancy payments and they will have some form of employment with Sodexho.
PN319
MR HEALY: Correct.
PN320
THE COMMISSIONER: Now, there's the other issue about terms and conditions and their equivalence. No-one can answer that question yet because you haven't even resolved what the terms and conditions are.
PN321
MR HEALY: That's correct, sir, yes.
PN322
THE COMMISSIONER: Now, anyhow you were going to make another point.
PN323
MR HEALY: The other point that maybe Mr Watson made was the fact that they were seeking a legal opinion regarding redundancy. The contract, Compass were on an extension of the contract, okay, which ran for 12 months and terminates on 30 April this year, so they some time ago in 2004 they knew that the possibility that they may lose the contract.
PN324
THE COMMISSIONER: Yes, because I remember we've been here before.
PN325
MR HEALY: We have.
PN326
THE COMMISSIONER: With similar personnel in the back.
PN327
MR HEALY: And through the discussions we've had, the many discussions we've had in negotiations around a 2006 enterprise bargaining agreement redundancy has not been identified by them as an issue.
PN328
THE COMMISSIONER: Hasn't been identified as an issue.
PN329
MR HEALY: No, no. There's not been any ambiguity at all in redundancy up until Compass were notified that they actually weren't successful securing the contract.
PN330
THE COMMISSIONER: Well, we all know that sometimes these things don't come to the front of the mind until the hour is upon us and, you know, people have just gone along assuming that certain things were going to happen if the contract was lost. The contract has now been lost and people are focusing pretty intently on these things. Now, you know, we're all at a bit of a disadvantage here in the sense that I haven't sat down and read this clause properly in a serious way to this point. I notice for example subpara 3 says:
PN331
An employee who accepts an offer of employment elsewhere in the employment of Compass Group Australia which does not disadvantage the ...(reads)... as provided in this clause.
PN332
That's subpara 3. So employee A who is offered another job with Compass in a way that doesn't disadvantage him or her won't get a redundancy payment.
PN333
MR HEALY: Correct.
PN334
THE COMMISSIONER: Okay. So there are other things here that have got to be taken account of.
PN335
MR HEALY: Yes.
PN336
THE COMMISSIONER: But let's come back to the basic point, Compass is making it very clear it is not going to seek to avoid its obligations, avoid its obligations under the EBA.
PN337
MR HEALY: Unfortunately that was not what was reflected at the meeting with all of our members on 23 December.
PN338
THE COMMISSIONER: Yes, well, I think Mr Weallens probably gave what he considered to be a frank and honest answer on the day and I'm not suggesting - do you recall the answer, Mr Weallens?
PN339
MR WEALLENS: Yes, I do, Commissioner. The response from one of the workforce, the response I gave them was as Mr Healy stated.
PN340
THE COMMISSIONER: Yes.
PN341
MR WEALLENS: I also said that you have to understand that the obligations, the company will meet the obligations of the enterprise agreement is what we stated, it's a legal binding document.
PN342
THE COMMISSIONER: Now, the way it's been described to us today is you said if a person accepts the job with the other company.
PN343
MR WEALLENS: Yes, that's correct, sir.
PN344
THE COMMISSIONER: He will not get his past service recognised for redundancy purposes with Sodexho.
PN345
MR WEALLENS: The question wasn't raised like that, Commissioner. The question was raised that if I get a position with Sodexho will I not get the redundancy and I said, yes, you know, it's not a double dip and that's what the Polites decision said.
PN346
THE COMMISSIONER: Yes.
PN347
MR WEALLENS: That was my interpretation of it and that's why we've gone to sought legal advice on that.
PN348
THE COMMISSIONER: Yes. But are you accepting though that if a person had 10 years service with Compass and went over with Sodexho, not having received a redundancy payment with Compass that 10 years on the face of it should be recognised by Sodexho for redundancy purposes?
PN349
MR WEALLENS: Yes.
PN350
MS HODGES: And vice-versa though.
PN351
THE COMMISSIONER: Pardon?
PN352
MS HODGES: Sorry, Commissioner, and vice-versa so that if it wasn't recognised by Sodexho that it would be recognised by Compass.
PN353
THE COMMISSIONER: Well, that's quite clear. We have dealt with that exhaustively already, several times. Now, the gentleman in the back is - - -
PN354
MR CLARENCE: Yes, Mr Commissioner.
PN355
THE COMMISSIONER: If you would just walk up to the front a bit because we need to have your words on transcript.
PN356
MR CLARENCE: Yes, I have a problem here. We're getting the workers and the delegates are getting made to be looked like the bad blokes in this. The fact of the matter is that the meeting that's being talked about was a meeting that was called by Esso, I understand, not by the union.
PN357
THE COMMISSIONER: Which meeting are we referring to here?
PN358
MR CLARENCE: The one on 23 December.
PN359
THE COMMISSIONER: December, yes.
PN360
MR CLARENCE: Right. It wasn't called by the union and I believe that ESS didn't call it because they notified me about it and that it would appear that it was called by Esso on behalf of all of the parties.
PN361
THE COMMISSIONER: To try and clear the air.
PN362
MR CLARENCE: No. Well, at that meeting Sodexho were represented by their senior management. ESS was represented by their senior management and the union was represented by Bill Shorten and the union organisers.
PN363
THE COMMISSIONER: Well, you don't get much more senior than Mr Shorten.
PN364
MR CLARENCE: Correct. Now, at that meeting the workers firstly asked
Mr Weallens if they got a job with the incoming employer would they get their redundancies and he said no, they wouldn't.
PN365
THE COMMISSIONER: Sorry, give us that again. You took him - - -
PN366
MR CLARENCE: If they got employment.
PN367
THE COMMISSIONER: With Sodexho.
PN368
MR CLARENCE: With Sodexho, would they get paid the redundancy.
PN369
THE COMMISSIONER: Okay. Now, let me just stop you there for a moment because it's just been clarified that that was I think on the assumption that the redundancy credit would move over to Sodexho.
PN370
MR CLARENCE: No.
PN371
THE COMMISSIONER: No, hang on, just wait on. I'm talking about how it's been clarified here today, not how you heard it on the day on the 23rd. Now, what is being said as I understand it is and it's been accepted I think by Mr Weallens that if the individual does not have his past service accepted for redundancy purposes by Sodexho then a redundancy payment would be made by Compass.
PN372
MR CLARENCE: Well, I'm not sure whether that's what the gentlemen are saying now at all.
PN373
THE COMMISSIONER: Well, they have.
PN374
MR CLARENCE: They are saying that they want further legal advice.
PN375
THE COMMISSIONER: No, well, you see, yes, they are getting legal advice and if I was in their shoes and if the AWU was in their shoes you'd be getting legal advice as well. I don't know whether it's Mr Watson who has been asked for the advice or not but he's possibly a pretty busy man and attending these sorts of hearings he could have been writing the advice this afternoon had it not been for this hearing. But they have asked for legal advice and it's quite proper for them to do so but I'm simply making the point and I think it's been acknowledged that there's been a misunderstanding in relation to the response of Mr Weallens at the meeting of the 23rd and like he's standing there - - -
PN376
MR CLARENCE: Sorry, Mr Commissioner, but that's not correct. I spoke to
Mr Weallens as early or as late as this morning and he indicated the same position then. His position had not changed. I explained
to him at the same meeting he was act, Sodexho later got asked by 100 workers will you pick us up under the same terms and conditions
and the answer from Sodexho to all of those workers was no, you will be as a new employee, you will bring nothing, if you get a job
with us you won't have anything, you will be a new employee. All right, and that's where the workers got concerned. We as delegates
spoke to the company on numerous occasions since then and put it to them that the EBA says that these people should be paid a redundancy.
PN377
The company's position was that under no terms will we be paying out redundancies to everybody, that anybody that gets a job will not be paid any redundancies. Now, the workers are extremely upset about that.
PN378
THE COMMISSIONER: Yes, sure, I understand that. You're talking here about people who are entitled to something like 78 weeks, was it, maximum?
PN379
MR CLARENCE: That's right.
PN380
THE COMMISSIONER: And probably for a person who gets the maximum you're talking about something around $100,000, if not more.
PN381
MR CLARENCE: That's correct.
PN382
THE COMMISSIONER: Okay, so it's a large amount of money and I can understand how people are concerned. But let me assure you, if a person, and I don't think I'm pushing the envelope too far here at all, I think I'm being reasonably conservative, if a person who is currently employed by Compass is employed by Sodexho and his prior service is not recognised then Compass will be required to make a redundancy payment and I don't see either Mr Watson or Mr Weallens jumping up and down now and saying no, you're not right, Commissioner.
PN383
What they have said is and they're just keeping their power a little bit dry and I think Mr Watson has recognised what I've said about prior service, because it's pretty clear in subclause (1) about that issue, they will abide by the terms of the agreement. Okay, they will do that, and if you look at the agreement again, including treatment of past service, including for the purposes of redundancy do not disadvantage the employee.
PN384
MR CLARENCE: The main reason I'm standing up here, Mr Commissioner, is that I'm sick and tired, I've been representing these people for some 30 odd years and I'm sick and tired of being made to look the bad person when we come to the Commission. The fact of the matter is we had many discussions with the company. It was stated to the workforce by both employer, the incoming and outcoming, that this is what would happen. We went back to Mr Weallens and his staff and we tried to talk about it again and we were told the same thing. We don't take industrial action frivolously and we believe we have every just right to have the company and put it in writing.
PN385
I ask Mr Weallens personally will you put in writing your interpretation of that clause? Yes, I will. Hasn't done it, hasn't done it and he's had a long time to do it and he still hasn't done it.
PN386
THE COMMISSIONER: Yes, okay. Now, I think it's certainly more than a fair point to make that these are things which are of very considerable importance to the individual employees and where there is any room for misunderstanding the way to remove that misunderstanding is to put out a note in black and white to tell people where they stand, not necessarily to a verbal statement to the delegates or to the meeting of the employees as a group, but to put out a circular, send it to the union as well as putting it out to the employees so the employees know quite clearly where they stand and then when you come here to the Commission, if there was a proposition for industrial action, as there is right now, we have an area where there is a clear dispute and who is right.
PN387
See, at the moment the employer is saying, well, we're going to abide by the agreement, whereas the employees are saying everything you've told us to date suggest you're not going to abide by the agreement.
PN388
MR CLARENCE: That's correct and let them put it in writing then.
PN389
THE COMMISSIONER: Well, you see, I will do something here for a start. As I would do normally with these sorts of exercises, I will put out a statement from myself as to what's happened here today and I'll put down some observations about certain things. I don't want to push it too far because Mr Watson may well produce a legal opinion which gives me some problems, but I don't think he will, but doing a statement by the way I will do it in the normal way. I will give you a draft and I'll give the other side a draft and if you have any worries with it, that I've gone too far or I've misstated something, I'll take those things on board.
PN390
You recognise of course that I can't say from here this is your legal right. I may have an opinion on that but at the end of the day if there's a big argument it might have to be determined somewhere else. Okay. I don't know there will be an argument on this at the end of the day because the words are reasonably clear.
PN391
MR CLARENCE: The problem the workers are faced with is the time frame and if it's going to get down to interpretations by lawyers and court cases then we're going to have a bunch of people that probably some will have jobs, some won't have jobs and they won't know where their going. They can't make other decisions about the rest of their lives because they don't know whether they're entitled to a redundancy or not because of an interpretation on it.
PN392
THE COMMISSIONER: Okay. Well, I will tell you what I'll do, I will be putting out a statement which will be hitting the AWU and
Compass and
Mr Watson first thing Monday morning, okay, and that statement will seek to clarify where the employees will stand if they are successful
in getting a job with Sodexho. Okay.
PN393
MR CLARENCE: And the other part - - -
PN394
THE COMMISSIONER: And that will then enable individuals who are currently - if I was an individual who had 15 years service and I'd been told by the company you get a job with Sodexho and your redundancy payment is down the tube, I would have great reservations about getting a job with Sodexho. But if that can be clarified between now and Friday of next week and I think it can - how far away are you from your legal opinion, Mr Watson?
PN395
MR WATSON: Well, the company met with me yesterday.
PN396
THE COMMISSIONER: You have only just got the brief have you?
PN397
MR WATSON: But it's not far away.
PN398
MS ANGUS: Did you hear that? That's appalling.
PN399
THE COMMISSIONER: But it's not a difficult one, is it, necessarily?
PN400
MR WATSON: It's not that bad, Mr Commissioner, and - - -
PN401
THE COMMISSIONER: Can we expect it early or not?
PN402
MR WATSON: There was some specific issue or question that was put by the union to the company that's not in the letter of 3 January by the way, it was only about this issue, so the company has responded to its position in that letter.
PN403
THE COMMISSIONER: Yes. I think you've got a better idea this afternoon,
Mr Watson, what the issues in the mind of the union.
PN404
MS ANGUS: If he didn't previously.
PN405
MR WATSON: Yes, and I wouldn't like today's proceedings to conclude without making reference to clause 57 of the agreement.
PN406
THE COMMISSIONER: 57. We better have a look at 57 then. Dispute resolution procedure, yes. This is the work will continue as normal.
PN407
MR WATSON: That's right and what's - - -
PN408
THE COMMISSIONER: Mr Watson, let me make it clear, the union is not going to leave here this afternoon with these threats of industrial action still on the table. I hope you understand that. It's not going to happen. This is going to be sorted out through these discussions and we're not going to have this sort of industrial action taking place around issues that can be resolved quite simply by sitting down, involving the Commission and we'll fix it. There is no need to stop work for 48 hours. There is no need to put a ban on paperwork. There is no need to stop for another 48 hours. The real issue for your members is by as quickly as possible they need to have clarified what their entitlement to redundancy is and if we can do that - - -
PN409
MS ANGUS: It was only yesterday when we filed those notices that
Mr Weallens actually, he has just conceded, went off to get legal advice about the provisions of the clause and up until that point
- - -
PN410
THE COMMISSIONER: Ms Angus, I don't want finger pointing. The other side can finger point and say due to the ESS refusing to finalise the new EBA and abide the 2003 EBA, they could point that finger at you and say, well, we haven't done that, we've actually said to you we'll fully respect the EBA, et cetera. Look, I don't want anything - - -
PN411
MS ANGUS: Commissioner, it's appropriate that we adjourn - - -
PN412
THE COMMISSIONER: Ms Angus, I don't want any finger pointing but I'm saying to you quite clearly that that industrial action is not going ahead, period. Okay. We will fix the problem without a blue. You don't have to have your members losing 48 hours pay. You don't have to have the disruption to the company and to the Bass Strait facilities and so forth, it's not necessary.
PN413
MS ANGUS: Well, Commissioner - - -
PN414
THE COMMISSIONER: If we had a situation here where the company in and went through a legal obfuscation, I hope that's the right word, through a whole legal mumbo jumbo and said we're not going to pay redundancies, it's a different kettle of fish. The company has come here and said we will abide by the enterprise agreement and looking at the enterprise agreement people who don't have their past service recognised will get redundancy. People who go over to Sodexho on terms and conditions which are to their disadvantage will get redundancy. Okay, that's what will happen as I see it.
PN415
MS ANGUS: Well, Commissioner, as much as we appreciate the role of the Commission and we're moving into an era where there will be a muted role of the Commission so my comments must be taken in that context. It's not a statement from the Commission that we ultimately can rely on. It's the legal advice and the clear express written commitment of the company that we are able to rely on.
PN416
THE COMMISSIONER: Indeed.
PN417
MS ANGUS: We gave them seven days notice in our correspondence of the 3rd and we were met with silence. We filed industrial action notices and on that very day the company goes on to seek its legal advice, despite the fact that they told you initially in their very own submissions today that they sought that as a result of the meeting on 23 December.
PN418
THE COMMISSIONER: No. Well, they - - -
PN419
MS ANGUS: If we're in a position - my point is, Commissioner, is that if we have a written commitment from the company having consulted with Sodexho to find out as required what that - having found out that in fact there is no transfer of past service and entitlements, in light of that position what their position is in terms of redundancies and that is provided to us on Monday, it will be a different story.
PN420
THE COMMISSIONER: Well, it will be a different story regardless, Ms Angus, because I've said where I'm coming from in regard to the action, okay. Now, we can do this the easy way or the hard way.
PN421
MR WATSON: Mr Commissioner, can I say in terms of the company - - -
PN422
THE COMMISSIONER: What I would like to have happen here, Mr Watson, is that the company and yourself just hop out of the room for a minute, I need to have a talk with the AWU for a couple of seconds.
PN423
MS ANGUS: Perhaps it's appropriate if we go off the record if there's no objection. We go in conference.
PN424
THE COMMISSIONER: We're off the record.
PN425
MR HEALY: We're on the record.
PN426
MS ANGUS: We needed it to be the record.
PN427
THE COMMISSIONER: All of this discussion we've been having for the last half hour has been off the record I thought.
PN428
MS ANGUS: No, we needed it on the record.
PN429
MR HEALY: We wanted it on the transcript anyway.
PN430
MR WATSON: It might assist if I just clarify this ..... legal advice, consider that legal advice and provide its position on the interpretation of the redundancy clause to the union in writing by the close of business on Tuesday.
PN431
THE COMMISSIONER: Yes. Now, there's a couple of issues here, one of the problems is the timetable with Sodexho's close of applications. Is there any ability of somebody to talk to Sodexho to push out to the 27th rather than the 20th?
PN432
MR HEALY: The problem with that, Commissioner, is that Sodexho have a policy of not really talking to, you know, employees that aren't there. So far as Sodexho are concerned we are actually working for the opposition still at the moment.
PN433
THE COMMISSIONER: Yes. Look, I'm happy to talk to Sodexho myself, there's no difficult. I'll find out who it is I've got to talk to and I'll talk to them.
PN434
MR HEALY: Would you be prepared to do that, Commissioner?
PN435
THE COMMISSIONER: Of course, no problem.
PN436
MS ANGUS: That would assist.
PN437
MR HEALY: Because that may assist. If you could some - - -
PN438
THE COMMISSIONER: If somebody could give me a name.
PN439
MR WEALLENS: Yes, I can.
PN440
THE COMMISSIONER: We’ll get that later.
PN441
MS ANGUS: I've certainly got a name.
PN442
THE COMMISSIONER: Okay, that's one thing. Mr Watson has said he can have his opinion by Tuesday. Mr Watson, can we push the - - -
PN443
MR WATSON: The company needs to consider the advice and respond in writing.
PN444
THE COMMISSIONER: I see, yes.
PN445
MR WATSON: And I don't want to impose ridiculous times in terms of that - - -
PN446
THE COMMISSIONER: Time frames, yes.
PN447
MR WATSON: I need to ..... I haven't seen it. I don't think it's been drafted.
PN448
THE COMMISSIONER: Yes, all right. Are you suggesting that your advice will be given by Tuesday or the company will be in a position to come back on Tuesday?
PN449
MR WATSON: The company's written response to the union after considering its advice will be by close of business Tuesday.
PN450
THE COMMISSIONER: All right. Would it help if we had another hearing
9 am Wednesday morning?
PN451
MS ANGUS: Well, Commissioner, obviously I would need to confirm with people. We would not be in a position to withdraw our industrial action until the employer - - -
PN452
THE COMMISSIONER: When is it supposed to start?
PN453
MS ANGUS: Next Tuesday.
PN454
MR WEALLENS: Are we off the record or not?
PN455
THE COMMISSIONER: We're off the record.
<OFF THE RECORD
PN456
THE COMMISSIONER: There has been a range of discussions between the parties and the AWU has now provided me with advice that it will not go ahead with its industrial action on Tuesday subject to the meeting which is going to take - or the hearing which is going to take place in the Commission at 4 pm on Tuesday, at which we will consider the issue of redundancy and the entitlements of AWU members in the expiration of Compass' contract and the commencement of the Sodexho contract.
PN457
The AWU has indicated that at this stage it has not withdrawn from its other actions and they are still therefore further action by the AWU in the event that the discussions on Tuesday are not successful. However, I would suggest having taken account of all of the issues which have been clarified this afternoon it would be highly unlikely that the discussions on Tuesday will not produce a result which is satisfactory to both parties, that's my opinion. So I would be confident that the AWU would also not go ahead with its other action and in any case if the discussions on Tuesday are not successful I will still be considering the application which has been made by Compass and set out by Mr Watson this afternoon for orders to be issued against the AWU which would require that the action not proceed. That matter is still in abeyance.
PN458
Now, in the discussions which took place most recently in our proceedings this afternoon the AWU also raised a matter of increases
in remuneration which would have normally applied had the Compass Group maintained its contract from
1 January this year and the union indicated it wished to have further discussions with Compass on some increase in remuneration for
its members in this period between now and April. The general indications from the company as I understand it are that it would
not be willing to countenance any increase in the agreed salary levels of AWU members employed by Compass but there is scope for
discussing a one off payment which would take account of the value of a wage increase expressed as a lump sum for the proportion
of the year between 1 January and the cessation of the contract.
PN459
I would propose to the parties that we set a date in the next two weeks, probably in the week after next, and I don't want to give you any more problems than you already have, Mr Weallens, in regard to your leave but in the week after next that we would sit down in the Commission and address that issue and see if we could come to some sort of a resolution. I understand the AWU would then following the hearings and the conference here on Tuesday, would then be reporting back to its members shortly thereafter about the outcome.
PN460
Now, as I said earlier, I had intended making a statement. I think probably given that we're going to have a meeting on Tuesday the necessity for me to make a statement on the Monday is probably no longer there. It would be better to wait until Mr Watson gives his legal opinion and then the outcome of that come into the Commission and be considered at 4 pm on Tuesday rather than me making a statement and then possibly there being some variation or contradiction between what might eventuate on Tuesday. So unless the parties have a particular wish for me to put something down in writing, which I'm happy to do and I would do it in the normal way of giving the union a draft and giving the employer a draft and allowing you to give us any views you might have on what might be amended, remembering I will take account of them, I will not undertake to incorporate them, but what is your preference in that regard?
PN461
MR WEALLENS: Tuesday is fine.
PN462
THE COMMISSIONER: Just leave it for Tuesday. Good, fine. Now, there is anything that anyone would like to raise?
PN463
MS ANGUS: Perhaps it's just worth formally for the record indicating in terms of their position of industrial action.
PN464
THE COMMISSIONER: This is helpful, Ms Angus, is it?
PN465
MS ANGUS: Yes, I believe it is helpful. The position in relation to the industrial action notices is that the AWU formally suspends the industrial action it's outlined in dot point (a) without prejudice to the remainder of those notices.
PN466
THE COMMISSIONER: And the Commission is still of the view that if Tuesday is not successful, I will hear from both Mr Watson and the AWU in regard to the applications of Compass for orders to be issued in relation to that action and issue a decision shortly thereafter, if in the unlikely event in my opinion the discussions on Tuesday are not successful.
PN467
MS ANGUS: We hope also, Commissioner.
PN468
MR WINTER: Sorry, Commissioner.
PN469
THE COMMISSIONER: Mr Winter.
PN470
MR WINTER: One other matter, we would also ask you to on Monday, and I know we're talking a bit of umbrage I suppose, if that's the right word, to make contact with Sodexho and seek an extension - - -
PN471
THE COMMISSIONER: Yes, I certainly will. I certainly will.
PN472
MR WINTER: Thank you.
PN473
MS ANGUS: With respect, can I also point out that I will also do on behalf of the AWU on Monday is to also contact Sodexho and see if we can get a written statement from Sodexho forwarded to the Commission, to the company and clearly to ourselves outlining its position in terms of employment of new employees because they've certainly made countless verbal remarks that they don't seek to - well, they will not be recognising past service and that's clearly relevant, so if we can get a statement in writing we'll forward that to you on Monday - - -
PN474
THE COMMISSIONER: Well, I will also raise that matter with them just by way of inquiry and suggest that it would be useful for you to be given something, Ms Angus.
PN475
MS ANGUS: That would be appreciated.
PN476
THE COMMISSIONER: But you should follow that up yourself as well.
PN477
MS ANGUS: Yes. Thank you for your assistance.
PN478
THE COMMISSIONER: Good. The matter is adjourned.
<ADJOURNED ACCORDINGLY [5.08PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #W1 LETTER FROM MR SHORTEN, 6 DECEMBER PN43
EXHIBIT #W2 LETTER FROM COMPASS TO MR SHORTEN, DATED 14 DECEMBER PN44
EXHIBIT #W3 NOTICE OF INITIATION OF BARGAINING PERIOD AND LETTER DATED 3 JANUARY PN48
EXHIBIT #W4 RESPONSE FROM COMPASS DATED 6 JANUARY PN85
EXHIBIT #W5 NOTICE OF GIVING AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION, DATED 10/01/2006 PN98
EXHIBIT #W6 NOTICE TO CAMP STAFF OFFSHORE, DATED 12 JANUARY PN107
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