C2006/3262, Transcript of Proceedings [2007] AIRCTrans 17 (4 January 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16373-1

SENIOR DEPUTY PRESIDENT WATSON

C2006/3262

FELTEX AUSTRALIA PTY LTD
AND
TEXTILE, CLOTHING AND FOOTWEAR UNION OF AUSTRALIA
s.170LW -pre reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/3262)

MELBOURNE

12.07PM, THURSDAY, 21 DECEMBER 2006

Continued from 30/11/2006

PN3708

THE SENIOR DEPUTY PRESIDENT: Yes, no change in appearance?

PN3709

MS K FAWCETT: When we were last before you I think Mr Borenstein was appearing and I now appear.

PN3710

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Okay. Who would like to lead? Mr Parry.

PN3711

MR PARRY: If your Honour pleases. Following the last decision in this LW proceeding there was an appeal lodged and there was a hearing of that listed for hearing on 5 January. There have also been extensive further negotiations and an agreement has been reached between the parties. That agreement is an agreement as to terms of employment and an acknowledgement that the offer will, when made, remove the obligations on Feltex Australia to pay severance payments under the Feltex Australia Enterprise Agreement. Other elements of that agreement involve termination of the Feltex Agreement and that is the next application listed this afternoon before your Honour.

PN3712

The terms of the agreement include a greenfields agreement coming into operation on 17 January reflecting many of the agreed terms. Your Honour, the parties have filled in a draft consent order. If I could hand up a copy of that to your Honour?

PN3713

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #F24 DRAFT CONSENT ORDER

PN3714

MR PARRY: Your Honour, there is some handwritten amendments which I think appear on all the documents in the same form which refer to the Textile Industry Award 1994 as incorporated in the Feltex Australia Enterprise Agreement 2004. Your Honour will note there's orders 1 and 2 sought. Orders 1 and 2 basically address the alternative ways that the parties argued there should be an assessment made. So on either basis either the union's approach or on Feltex Australia's approach there is agreement to those orders and order 3 really is the consequence of order 1 and 2.

PN3715

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3716

MR PARRY: Your Honour, the basis of the proposed offers as referred to in the first and second order is contained in a bundle of documents that I'll hand up to your Honour.

PN3717

THE SENIOR DEPUTY PRESIDENT: Thank you.

EXHIBIT #F25 BUNDLE OF DOCUMENTS

PN3718

MR PARRY: Now, your Honour, the first document is an offer of employment. It is a document which your Honour will see has bits crossed out and underlined. Clearly when the offer is made it will neither have the underlining or those bits crossed out.

PN3719

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3720

MR PARRY: And it is intended that this offer be made to employees of Feltex Australia today and tomorrow. Your Honour, this offer being made is contingent upon the orders being made when then allow the offers to be made and the greenfields agreement could be lodged. Your Honour, the first letter is the letter that will go to the vast majority of employees. There is another letter which is in essentially the same terms which goes to long term absentee employees. If I could hand up a copy of that to your Honour? It's the second document in I'm told.

PN3721

THE SENIOR DEPUTY PRESIDENT: The second document, yes. Thank you.

PN3722

MR PARRY: Your Honour, the only difference between them of any substance is the mechanism by which employees accept the offer. For the long term absenteeism position they can accept by ringing a phone number or personally attending at Tottenham.

PN3723

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN3724

MR PARRY: Now, quickly going through the bundle, your Honour, there is attached to the letter of offer particular terms and conditions, some of which have been changed and amended following the negotiations. Your Honour will also find a document about five or six pages in, Feltex Carpets TCFUA Enterprise Agreement 2006, and that is a document that is to be lodged and operate as a greenfields agreement but your Honour will note that the TCFUA is a party to and bound by that agreement. There are a range of matters in there which have been dealt with in negotiations.

PN3725

The next document, your Honour, is a deed of confirmation of employee representation. Does your Honour have that?

PN3726

THE SENIOR DEPUTY PRESIDENT: I think I do. Yes, I do. Thank you.

PN3727

MR PARRY: And some aspects of that have lines beside it which indicates changes but there are a range of other matters that have been addressed arising out of your earlier decisions, clearly to the satisfaction of the parties.

PN3728

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3729

MR PARRY: Your Honour, there is also a deed of guarantee which your Honour will recall was requested and negotiated with involvement of the union and the receiver.

PN3730

THE SENIOR DEPUTY PRESIDENT: And that's in the same form as previously?

PN3731

MR PARRY: Yes. I don't think there's been any changes to that, your Honour.

PN3732

THE SENIOR DEPUTY PRESIDENT: Yes. That in fact had been executed at some early time as I recall. Yes.

PN3733

MR PARRY: The bundle that you have before you is the - the one you have before you is the one that was executed on 27 October, your Honour.

PN3734

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3735

MR PARRY: Now, as I've indicated to your Honour, there have been a number of amendments made following negotiations. Those negotiations and the development of the documents have led to the parties being in agreement as to the orders that should be made to settle the dispute that was notified to the Commission on 30 October and so we would seek that your Honour makes the orders set out in the order draft consent order handed up a short time ago.

PN3736

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3737

MR PARRY: If your Honour pleases.

PN3738

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Parry. Ms Fawcett.

PN3739

MS FAWCETT: Thank you, your Honour. The TCFUA consents to orders being made in the form that's being handed up to your Honour. As has been outlined by the applicant, pursuant to an agreement between the parties and also the purchasers there's been in substance agreement on a form of offer consisting of a letter which will be provided in amended form for those workers on extended leave, a union greenfields agreement, a deed dealing with representation issues which your Honour has previously seen dealing with protection of entitlements, so those are the documents that have just been tendered by my friend.

PN3740

The agreed form of the offer based on those documents addresses the matters raised in your Honour's two decisions in this matter to the union's satisfaction and we understand and it's agreed between the parties that provided that the Commission makes the orders sought offers of employment will be made to all employees presently covered by the Feltex Australia Enterprise Agreement in that form and that employment for employees who accept that offer will commence on 17 January 2006. In addition, your Honour, conditional on those two conditions being met, the parties have agreed to terminate the current enterprise agreement as from midnight on 16 January and that application will be dealt with, we understand, by your Honour shortly. So the union supports the orders being made in the form tendered.

PN3741

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Fawcett. Mr Parry, just for clarification, I'm right, am I, in thinking that the draft consent order handed up is in exactly the same terms as that attached to the request by Clayton Utz to bring the matter back on save for the additional words at the end of point 1?

PN3742

MR PARRY: That's right, your Honour.

PN3743

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you for that. Yes, very well. I am able indicate now that I am satisfied that the employment proposed to be offered by Feltex Carpets on the terms and contained in the agreement now proposed and associated deeds contained within exhibit F25 constitutes acceptable alternative employment such as would relieve Feltex Carpets from making redundancy payments under the terms of the Feltex Agreement. I will issue later today or early tomorrow reasons for my decision which will contain an order in the terms of the draft consent order contained within exhibit F24. I will adjourn that matter and move onto the next matter.

PN3744

MS FAWCETT: Your Honour, just briefly before the matter is adjourned, can we take it then that that order has been made?

PN3745

THE SENIOR DEPUTY PRESIDENT: Yes. Well, it will be issued - - -

PN3746

MS FAWCETT: Yes, thank you, your Honour.

PN3747

THE SENIOR DEPUTY PRESIDENT: It will be made in those terms and will be issued, I would hope, later this afternoon, certainly no later than tomorrow morning and it will be precisely the terms of the draft consent order. Very well.

<ADJOURNED INDEFINITELY [12.19PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #F24 DRAFT CONSENT ORDER PN3713
EXHIBIT #F25 BUNDLE OF DOCUMENTS PN3717