C2006/3975, Transcript of Proceedings [2007] AIRCTrans 238 (14 May 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16817-1

COMMISSIONER LEWIN

C2006/3975

s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
Transport Workers’ Union of Australia
and
Bilfinger Berger Services (Australia) Pty Ltd
(C2006/3975)

MELBOURNE

2.43PM, TUESDAY, 01 MAY 2007

Continued from 24/4/2007

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

THE COMMISSIONER: Good afternoon. Mr Briggs, you’re appearing today on behalf of the company, is that right?

PN2

MR R BRIGGS: That’s correct.

PN3

THE COMMISSIONER: All right. Your addition will be recorded - your appearance will be recorded. Now, I gather that some of the employees affected by the subject of the dispute are actually anticipated in Hobart and that’s why we have the video link but they’re clearly not there at the moment. But I think we should proceed in any event because we don’t know when they will arrive, do we.

PN4

MR M WIRRICK: Commissioner, if I may - I spoke to four out of the five over the last 24 hours and I’m of the understanding that two were unable to make it. One that I spoke to last night was north of the state on some business and was hopeful to get back, that being Doug Sheeney, the delegate, and Mr Scott Geard had an appointment with a specialist for his son, with a medical problem this afternoon and he was trying to arrange or facilitate someone else to get there but by appearances it hasn’t happened.

PN5

THE COMMISSIONER: All right. Well, we have left the link open so if anybody does arrive they’ll be able to join us. Mr Briggs, thank you for the letter that you or Mr ..... sent to the Commission in response to my summary of the proceedings on the last occasion on which the company was not represented.

PN6

MR BRIGGS: I apologise for that non-representation on the day, Commissioner.

PN7

THE COMMISSIONER: Very well. I gather that what you’re saying in the letter - and I think we might mark that for the sake of the proceedings.

EXHIBIT #R1 LETTER FROM MR BRIGGS TO THE COMMISSION DATED 26/04/2007

PN8

THE COMMISSIONER: I gather what you’re saying in the letter is that having regard to the steps which were taken which are outlined in the letter and are supported by documents appended to the letter that you have effectively communicated and consulted with the employees about the redundancy situation in April.

PN9

MR BRIGGS: Yes, that’s correct and in addition to that the contract - it was a construction contract that finished on 20 April anyway.

PN10

THE COMMISSIONER: Very well. When I reviewed the letter that I wrote to the company which I did under some time pressure because I wanted to make sure that it was despatched as quickly as practicable - I’m not quite sure whether I made clear to you what I had in mind. When I review the contents of the letter and your response there may be some room for misunderstanding there. I just want to clarify something with you. And I may need Mr Wirrick’s confirmation of this.

PN11

But my understanding of what was being put by the union was that having regard to the statement and recommendation made by Commissioner Mansfield on 12 December 2006, albeit in different circumstances, that the union sought that you adopt certain parts of the proposals that you made and which were accepted by the union in relation to this matter.

PN12

MR BRIGGS: That’s my understanding.

PN13

THE COMMISSIONER: I think that I may have overstated that a little bit having regard to the full extent of your proposals in December. What I’m thinking is that given your letter indicates that the outplacement services sought would be available on an employee by employee application basis - - -

PN14

MR BRIGGS: That’s true.

PN15

THE COMMISSIONER: - - - my recollection of what Mr Wirrick put is that effectively the only thing that the union seeks in addition is that the company pay to the five employees made redundant on 20 April an additional two weeks’ pay. Is that right, Mr Wirrick?

PN16

MR WIRRICK: Commissioner, I did a fair bit of preparation in regards to the company’s submission and given the opportunity I would like to point out the problems I have with the 13 points.

PN17

THE COMMISSIONER: All right. That will be provided but before we start I want to be really clear, having regard to the fact that I have reviewed the communication between myself and the company, I want to be really clear about what the outcome is which is sought by the TWU at the end of the day.

PN18

MR WIRRICK: Commissioner, my understanding is in speaking to the members that there be some offer of continuity of work above all as a priority and it’s still my understanding that there are ten casuals working in the power side of the business down there that positions could be offered within that and the training provided to fulfil those positions. That was a similar case to the situation - I don’t believe there’s any change in the continuance or continued use of casual employees in the power section of the company today. It’s the same as what it was in December of last year. Yet again the company didn’t honour the outcome of the statement, recommendation as put up by Commissioner Mansfield.

PN19

THE COMMISSIONER: In relation to those employees?

PN20

MR WIRRICK: Yes, and the four previous employees.

PN21

THE COMMISSIONER: So what you’re seeking is that that those made redundant be provided with work.

PN22

MR WIRRICK: Correct.

PN23

THE COMMISSIONER: And that you say the company can do this because there are casual employees currently performing work for the company which the redundant employees could perform.

PN24

MR WIRRICK: That is my understanding of it, Commissioner.

PN25

THE COMMISSIONER: All right. So that is in addition to any outplacement services, if necessary. I mean some employees may or may not choose to accept this. Do you know whether or not all of them would if the company were to offer them a position?

PN26

MR WIRRICK: It’s my understanding that they’re all still seeking work.

PN27

THE COMMISSIONER: Employment with the company?

PN28

MR WIRRICK: Employment. They have been seeking employment elsewhere to try and meet their financial commitments, et cetera, and get on with life, Commissioner, given that they are unclear on the prospects and the likelihood of returning in the Bilfinger fold but given the opportunity I would suggest that they would take it and it would give them some continuity of employment.

PN29

The outplacement services that Mr Briggs says were offered - and I have just had an - absolutely that was refuted, that it never happened which, as I said, I have issues with the 13 dot points where the company’s been able to draw a coloured picture with a black lead pencil.

PN30

THE COMMISSIONER: When you’re talking about the outplacement issues, are you referring to page 2 of R1 where it says:

PN31

Assistance for outplacement services for reasonable services as listed in our letter would be accommodated by our company.

PN32

THE COMMISSIONER: I thought that was really a proposal for the future as opposed to a claim of what has been done.

PN33

MR WIRRICK: Sorry, Commissioner, what part of page 2 were you looking at there? I can’t seem to pick it up.

PN34

THE COMMISSIONER: If you go down after the 13 points, it’s the second paragraph after that.

PN35

MR WIRRICK: Yes, got it. Yes.

PN36

THE COMMISSIONER: I read that to be a proposal rather than a claim that these services had been provided.

PN37

MR WIRRICK: Commissioner, I suppose I was looking at number 7 on the same page where it says that:

PN38

Employees who were made redundant on this date assistance with preparation of resumes was offered to each of the five employees.

PN39

THE COMMISSIONER: You say that that’s not correct?

PN40

MR WIRRICK: That’s correct. That’s what I say, Commissioner, that it is not correct. The reference that was offered was only a statement of service. It wasn’t a true reference in as much as I understand it.

PN41

THE COMMISSIONER: All right. Mr Briggs, I’m going to hear Mr Wirrick in response in detail in relation to R1. But before I do would you be in a position to indicate whether or not the claim that there are ten casual employees performing work for the company which work could be performed by the redundant employees?

PN42

MR BRIGGS: I’m not in position at this stage to be able to comment on that. I don’t know. If there was we’d have to go back and have a look at the skill sets of the particular individuals. It’s a different industry.

PN43

THE COMMISSIONER: Do you know where these employees are working, the ten employees that Mr Wirrick is referring to?

PN44

MR BRIGGS: I’m not aware, no, sorry. I am fairly restricted to the gas business down there.

PN45

THE COMMISSIONER: Mr Wirrick, where do these ten employees work?

PN46

MR WIRRICK: It’s my understanding, Commissioner, that they shared a facility at Cambridge in Hobart opposite the - - -

PN47

THE COMMISSIONER: And what do they do?

PN48

MR WIRRICK: Well, the power - they do electrical type work that is underground power I presume and overhead power work, electrical power.

PN49

THE COMMISSIONER: So do they do pit and pipe work basically?

PN50

MR WIRRICK: I’m not 100 per cent - - -

PN51

THE COMMISSIONER: Excavation of trenches.

PN52

MR WIRRICK: I would imagine that would be some of the work that they would be involved in, Commissioner, but I’m not 100 per cent clear on the exact work that the company’s involved in. But I know they share the one facility, vehicles all parked in a common yard in an ex-hangar.

PN53

THE COMMISSIONER: And do your members instruct you that the work that there performing is the same as the work that they were performing up until the point that they became redundant?

PN54

MR WIRRICK: No, Commissioner. They’re not saying that but they’re saying that there are positions there that are filled by casual employees and it is the belief of the delegate that there are no particular skill sets required to fulfil those positions. They’re basically labourers assisting the people with the qualifications, as I understand it. Maybe - - -

PN55

THE COMMISSIONER: All right. So you have identified, through your members at least anyway, some labouring positions, up to five.

PN56

MR WIRRICK: I believe so.

PN57

THE COMMISSIONER: Which work they could perform. That’s what you’re instructed, is that right?

PN58

MR WIRRICK: Yes.

PN59

THE COMMISSIONER: Well, Mr Wirrick, do you want to respond now to R1?

PN60

MR WIRRICK: Thank you, Commissioner, I would. Basically, Commissioner, it goes back to a letter that we received - sorry. We sent Mr Graeme Williams a letter, the Transport Workers Union sent Graeme Williams a letter dated 17 January 2006 outlining a number of concerns we had that the company hadn’t fulfilled. And I have copies to hand up.

EXHIBIT #A1 LETTER FROM TRANSPORT WORKERS UNION TO MR GRAEME WILLIAMS DATED 17/01/2006

PN61

THE COMMISSIONER: Yes, thank you.

PN62

MR WIRRICK: Commissioner, to which the union received a response signed off by Graeme Williams, the project manager at the time. I have a copy of that letter.

EXHIBIT #A2 LETTER FROM MR GRAEME WILLIAMS TO TRANSPORT WORKERS UNION

PN63

THE COMMISSIONER: Yes.

PN64

MR WIRRICK: Commissioner, I’ll just if I can go through it briefly but try and just stick to the main points. Paragraph 1 of that letter, which is highlighted that offers up that a decision was made in January, that’s refuted because Doug Sheeney was advised on 15 December by Graeme Williams that they had work to come back to. December 15 was actually the actual break-up day for the Christmas break and the boys were enjoying a barbeque at the time and were advised that they had work to come back to on 8 January.

PN65

Paragraph number 2 goes on to say that the Skilled labour hire agency employees had been employed for approximately three years. Refute that by the fact that Skilled were not working at the time that the four members were made redundant on 30 November last year. Their status was never more than as casual and as far as we’re concerned the company had a duty of care to their full-time - duty under the employment contract to their full-time employees, not to a casual workforce.

PN66

Commissioner, paragraph 3 goes on to say the employees who were made redundant - well, that says it all. They were just that. Their length of service is misconstrued in this letter. There was one member, a fellow by the name of Peter Tubb. He was actually one of the first employees that Bilfinger had. It was Abigroup at the time. He was employed from early December 2004, was one of the original employees, had a write-up in the paper saying that he had a career in the gas industry that had never been seen before in the state, and basically was put out to - and made redundant on the basis that he didn’t have the skills.

PN67

In paragraph 4 of the letter dated the 31st it goes on to say that there’s - workplace assessments were done. Commissioner, I had 14 and a half years in the gas industry and I have never known - and I worked for Abigroup before it became Bilfinger - and any assessments that were done - there were never, ever any assessments done on casuals or contractual staff. And today in Victoria the same applies. There were no assessments done. So that’s ambiguous to say that - how they came up with the Skilled employees were a better performing group than their own employees just leaves me bewildered. The four employees who were made redundant at that time all had certificate 2 in gas operations. That was basically a recognition of the training that they had received even though there was some shortfalls in the training criteria that was identified by us last year we don’t believe the Skilled employees had any industry training, certainly nothing by the enquiries that I have made.

PN68

The fifth paragraph in that letter goes on to say the workforce size. Again employees as identified were targeted. They were not offered redundancies. They had no choice in the matter.

PN69

Paragraph 6 goes on to say that the employees didn’t have certificate 2. Well, again, I stand by my previous comment, they did have that certification and clearly mains were commissioned, had gas in them prior to the redundancies. So those employees were working on live gas mains. The reason, Commissioner, for going through this letter was to expose the ability of the company to misconstrue. It’s ambiguous what they have written and it just goes on even to the point of suggesting that in the letters written on 23 February 2007 - and I mean some of these letters, Commissioner, I believe are in the submission or were included by Mr Briggs in the submission. But again they go on to say - the letter dated 23 February goes on to say that the - I have a copy which I’ll hand up to you as soon as get this staple out of me.

EXHIBIT #A3 LETTER DATED 23/02/2007

PN70

THE COMMISSIONER: Yes, go ahead.

PN71

MR WIRRICK: Commissioner, in that letter where it’s highlighted again it talks about early June 2007, beyond June 2007. It goes on to say:

PN72

Local management will be discussing these issues with employees over the next couple of weeks and informing them that some redundancies may result.

PN73

Commissioner, those discussions never took place and, as I have said in regards to the other correspondence, it’s misleading in as much as it doesn’t set a time of any redundancies or expected redundancies before June.

PN74

Number 3 on Mr Briggs’ submission goes on to say that the correspondence dated 26 March providing the TWU with an update regarding the future of ongoing work within the gas operations - again, Commissioner, if I can hand up another one.

EXHIBIT #A4 LETTER DATED 26/03/2007

PN75

THE COMMISSIONER: Yes, go ahead.

PN76

MR WIRRICK: Thank you, Commissioner. Again, this letter as highlighted, refers to “early June”, “beyond June”. It goes on to say that negotiations with Powerco regarding residential and commercial services have been positive but yet to finalise a contract which provides long-term work. But I suppose more importantly, Commissioner, going to the bottom of page 1 of that letter dated 26 March 2007:

PN77

Information regarding redundancies has not been specifically raised at this stage with permanent full-time employees until final discussions with Powerco have been resolved.

PN78

It goes over the page:

PN79

We are acutely aware of our requirements to provide appropriate periods of notice as per the EBA requirements. Bilfinger Berger or BBS are endeavouring also to provide further training to Gipps TAFE -

PN80

And I know for a fact through talking to the RTO, Commissioner, that he was booked in to go down there and do a week’s training as of 7 May and now I believe that arrangement was only terminated by the RTO being - Brian Williams from Gipps TAFE who could not get a response from the company to confirm whether that training was going to go ahead. But up until that date it was certainly - it was all go.

PN81

Commissioner, in Mr Briggs’ submission in number 4 he goes on to say that:

PN82

There was an introductory phone call to Mick Wirrick from Russell Briggs on 16 April regarding circumstances of the BBS gas operations closure.

PN83

Commissioner, I rang Russell Briggs after trying to contact Stewart Trent from quarter to five on Friday the 13th. Stewart Trent disappeared off the face of the earth. I have notes here, Commissioner, out of my notebooks for the 16th. If you wish I can hand them up but it clearly shows that I have made notes here that I have left a message with Dominique who is the receptionist at the St Kilda Road office facilities for Stewart Trent at 1308. I left a message on his mobile at 1309. I rang the Cambridge office of the company at 1310. Graeme Williams, after I contacted him, advised me to contact Russell Briggs on office number:

PN84

Discussion with Russell Briggs ensued re a process. Him awaiting answers to four questions that he had put.

PN85

Didn’t have any idea what questions they were. He said that he’d be having a toolbox meeting with the employees on the 17th. So, again, Commissioner, what Mr Briggs has included in this is a little bit from the truth by way of he didn’t contact me; I contacted him.

PN86

THE COMMISSIONER: I think you should hand up the notes that you have referred to.

EXHIBIT #A5 NOTES REFERRED TO BY MR WIRRICK DATED 16/04/2007

PN87

MR WIRRICK: Commissioner, moving on in the - again on that letter dated the 26th. Attached to the back of that is the minutes of the meeting that were held on 23 March and highlighted there is that:

PN88

Bilfinger Berger Services management produced documentation revealing our current status and efforts being made both with outside Powerco to secure ongoing work.

PN89

We refute that. Howard Smith, my colleague here was at that meeting on Wednesday, 21 March and the company produced absolutely nothing in the way of documentation to support what their activities were in relation to status and efforts being made.

PN90

Mr Briggs’ submission goes on in item number 6 to say that:

PN91

The employee toolbox meeting held on 17 April whereby employees were advised that the Gas Tasmania business unit will be gradually downsized until closure on 30 June. Employees were advised that endeavours are being made to find work for employees elsewhere within our other business units and that redundancies may result.

PN92

In those minutes, Commissioner, which I would like to hand up a copy of, it goes on to say that:

PN93

These works will be carried out by suitably qualified personnel over the next four weeks.

PN94

As stated, that was on 17 April and it didn’t give any indication there to suggest that people would certainly be put out of work on the 18th.

EXHIBIT #A6 MINUTES OF EMPLOYEE TOOLBOX MEETING HELD ON 17/04/2007

PN95

MR WIRRICK: Commissioner, it goes on where - as I have mentioned earlier on that point number 7 in the submission is that there was no offer of preparation of resumes made. The time reference, as I said before, was virtually a statement of service.

PN96

Number 8 goes on to say that the email that was sent on the 18th advising the current situation regarding the redundancies which - basically it advises the company - sorry, it advises the union of certainly who was made redundant. It makes reference to the wrong enterprise agreement number and it also has reference to a meeting on Monday, 16 April 2007. I believe it’s a couple of typos in there. But again there’s been no process dealt with as per the EBA. If I can hand them up.

EXHIBIT #A7 EMAIL ADVISING CURRENT SITUATION RE REDUNDANCIES DATED 18/04/2007

PN97

THE COMMISSIONER: Yes, go ahead.

PN98

MR WIRRICK: Commissioner, number 8 of Mr Briggs’ submission was the email sent to the TWU on the 18th advising of the current situation regarding - as I said, there was no process offered, and no discussions took place. The members were just basically brought in and told they were gone.

PN99

THE COMMISSIONER: Could I just be clear on how this is referable to the agreement, these events. You just link these facts to the terms of the agreement that you say are in dispute? No?

PN100

MR WIRRICK: I can, Commissioner, by the fact that there are two clauses that the union used in its initial hearing in December of last year - it was clause 34 of the current agreement where it says that there will be discussions with employees directly affected and their union who are parties to the agreement. There was no ability to work through a process or have discussions in regards to the outplacement and what process and what timeframes and the impact that it may well have on the individuals. And also clause 9(f) of the agreement where it goes into the company - or:

PN101

Where major change is proposed to be introduced into the workplace that is like to have sign effects on employees BBS shall consult with the union delegate and/or the relevant state secretary of the TWU. This consultation will be regarding the effects such changes are likely to have on employees and to discuss measures to avert or mitigate the adverse effects of such changes.

PN102

Commissioner, we never had such opportunity and what I have been trying to do through the process of pointing out the faults that I see in the submission that Mr Briggs put forward - - -

PN103

THE COMMISSIONER: He’s to establish that.

PN104

MR WIRRICK: Yes.

PN105

THE COMMISSIONER: All right. Mr Briggs, did you have any - did you participate in any of this process apart from sending this email of 18 April?

PN106

MR BRIGGS: Yes, Commissioner. I was sent down to Hobart on - I arrived there on 16 April so I have been party to proceedings down there since that date. I was advised on the 13th to go down there after Mr Trent was forced to go on some sort of personal leave for two months. I’m not aware of the particular circumstances of that and I was asked to go down.

PN107

THE COMMISSIONER: Is he still on leave?

PN108

MR BRIGGS: He is, yes.

PN109

THE COMMISSIONER: So when did his leave commence? On the 13th of - - -

PN110

MR BRIGGS: That’s correct.

PN111

THE COMMISSIONER: 13 March, was it?

PN112

MR BRIGGS: 13 April.

PN113

THE COMMISSIONER: I see. His leave commenced and you went down there to pick up the reins, so to speak. Did you get a handover from him as to what had happened in relation to this matter up until 13 April?

PN114

MR BRIGGS: No, I didn’t.

PN115

THE COMMISSIONER: So you just had to make the best of it when you arrived?

PN116

MR BRIGGS: Yes. Basically my charter was to go down there and close the operations in relation to gas.

PN117

THE COMMISSIONER: I understand. So what did you do in terms of having discussions? Do you have a copy of the agreement in front of you?

PN118

MR BRIGGS: I do, yes.

PN119

THE COMMISSIONER: In essence what the union is saying is that the company hasn’t complied with clauses 9 and 34.1. Given that you couldn’t have done anything prior to 13 April, I assume - - -

PN120

MR BRIGGS: That’s correct.

PN121

THE COMMISSIONER: - - - what did you do between 13 April and when the employees were notified which I assume was on the 18th, is that right?

PN122

MR BRIGGS: Well, obviously I arrived in Cambridge on the 16th and from that date onwards I briefed the staff on the evening of the 16th as to what was going to happen as per the detail there in terms of the main lane construction contract closing out on the 20th as per the contract, that the service - - -

PN123

THE COMMISSIONER: Where abouts did that take place?

PN124

MR BRIGGS: The contract itself?

PN125

THE COMMISSIONER: No, the briefing of the staff.

PN126

MR BRIGGS: Sorry, in the conference room near - at BBS premises. That was at - - -

PN127

THE COMMISSIONER: Were the five people who were made redundant, were they present?

PN128

MR BRIGGS: No. No, they weren’t. They - we had a toolbox meeting on the 17th first thing. Prior to that on the 16th - - -

PN129

THE COMMISSIONER: So the staff in the office were the office staff?

PN130

MR BRIGGS: That’s correct.

PN131

THE COMMISSIONER: Yes, I’m sorry.

PN132

MR BRIGGS: That’s okay. On the 16th I met with Mr Doug Cheney, the union representative, introduced myself to him and we had dealings over another local matter down there. And on the 17th before the toolbox meeting I pulled him aside, I advised him as to what was going to happen just so that he was briefed probably half an hour before the meeting. And then we had the toolbox meeting on the 17th. I told everybody that the business was going to close, that the main lane contract - it was already completed at that stage other than some commissioning work that had to be carried out in a few zones.

PN133

I advised all the employees that by Wednesday I would get back to them all on an individual basis and advise them as to where we’d be going from here. I sat down with the project manager, Mr Graeme Williams. We went through the skills sets and the people who were on the respective contracts and essentially those that were on the construction contract for the main lane we told them on the 18th that they be terminating.

PN134

THE COMMISSIONER: So that’s the five people?

PN135

MR BRIGGS: That’s correct but we gave them three days’ grace up till the 20th which was the contract completion date. There were certainly no surprises for anybody. They were all very amicable and knew about it through general discussions and toolbox meetings. The company had - well, the company undertakes service work down there. They don’t have a formal contract. They certainly don’t make any money out of that contract and the decision was made to finish the 16 service connections that were in hand in terms of work orders down there and we anticipated a completion date of about 18th May. We got the guys together on an individual basis that we’re doing that particular type of work and told them that it would be approximately 18 May that they would be no longer required.

PN136

THE COMMISSIONER: And that still stands?

PN137

MR BRIGGS: That still stands and I also told them that if the work was finished prior to that date I would honour the 18th and pay them up to that date. They would also get their notice period on top of that. And we have an operations and maintenance contract there looking after the gas lines. There’s a crew of people that are on that because of their particular skill set. We kept those guys on that contract and that expires on 30 June.

PN138

I maintain that the content of the letters in here that have been written by Stewart Trent and Graeme Williams are factual and that that is what transpired; and secondly, I would ask if there has been any response letters to that, that it’s not the truth, along the way, it’s the first I’ve heard of it that they’re not the facts. And I would also like to say that in relation to - well, clause 9 I believe we’ve complied through that correspondence.

PN139

In relation to clause 34, the five guys that were terminated were under the construction contract for main lane. That clause talks about as long as it’s not the customary and ordinary turnover of labour these guys expected - I shouldn’t say “expected” but anticipated that that was the practical completion date and that it would be just paid out as a redundancy. There were no surprises, no animosity or anything. It was just thanks for telling us the date in advance so we can get on and get jobs.

PN140

Also most of the guys had already had jobs in the pipeline. They’d advised back to me at the individual meetings. Graeme Williams, the project manager was present. And they did get supplied - call it statements of service or references - I didn’t read the content but they were offered and written out by Graeme Williams and certainly resumes were offered at the time and we told them that even the 20th you’re unsuccessful with obtaining the job that you were seeking please come back and we’ll still assist you post those dates too to the best of - - -

PN141

THE COMMISSIONER: I take it that remains open, does it?

PN142

MR BRIGGS: That’s correct. In relation to the other matters, as far as I can see I have quoted the right EBA. I don’t see any typo errors there. I can see the email reference to 16th and it should have been the 17th. I think I changed that in the documentation I put here anyway. I apologise for that. That’s really about it.

PN143

THE COMMISSIONER: Mr Wirrick, so this really comes down to whether or not these five employees should take the place of another five?

PN144

MR WIRRICK: Commissioner, there is a little bit more to it. Again the plot thickens in as much as there are two employees that are down there that are actually on secondment. They’ve been down there for two years and they’ve been basically fulfilling the after-hours standby callouts that Mr Briggs referred to. They have jobs back in Melbourne at the end of June. And I have had that established over the last week or so.

PN145

Initially on the 18th I had discussion with Mr Briggs in regards to his knowledge of the arrangement on how those two members actually were down in Tasmania. When those two employees took annual leave over the Christmas period there were local members that fulfilled the roles of doing the standbys and the callouts after hours. And had we have had the opportunity to have some discussions with the company prior to the 18th that may well have been a point of discussion where we could have seen two local members having employment up until 30 June, the two employees that were on secondment being returned to the mainland to work on contractual work that the company has elsewhere in the state of Victoria and it would have given our members a little bit of income in the industry that they have been working in for the last two-odd years.

PN146

To answer your question, Commissioner, in regards to five members being placed in the power department of the company, the prospect of ongoing employment, as we see it, is more attractive than any acceptance of a redundancy that removes - - -

PN147

THE COMMISSIONER: Do you say yes to the question or something else, that it is a case of the five employees taking the place of five others?

PN148

MR WIRRICK: Sorry, Commissioner?

PN149

THE COMMISSIONER: Is the outcome which is sought by the TWU that the five redundant employees will take the place of five employees working currently for the company at Cambridge in Hobart in the power section?

PN150

MR WIRRICK: Through a labour hire agency.

PN151

THE COMMISSIONER: It’s so that the five employees who are made redundant should take the place of five employees employed through a labour hire agency at Cambridge in the power section.

PN152

MR WIRRICK: Correct.

PN153

THE COMMISSIONER: That’s the outcome?

PN154

MR WIRRICK: Yes.

PN155

THE COMMISSIONER: That you are seeking. I gather you would, whilst you have asserted it, Mr Briggs has indicated that even if that were - if the company were amenable to that, it could only be on the basis that the five redundant employees were capable of performing those jobs.

PN156

MR WIRRICK: Correct, Commissioner.

PN157

THE COMMISSIONER: That’s a question of fact, isn’t it?

PN158

MR WIRRICK: Yes. And I suppose at the end of the day, Commissioner, if there was - the company refused provide that benefit to the members and train the members in the new roles that we would say that the fallback position, for lack of a better way of putting it, would be that the company cough up the - as they did in the previous agreement that was reached in this arena or forum would be that they get the two weeks extra payment for the - paid.

PN159

THE COMMISSIONER: So it’s an additional severance payment over and above the agreement as compensation for what you say, but which is denied by Mr Briggs, was a failure to consult.

PN160

MR WIRRICK: Correct. And Commissioner, it’s interesting to find out in a forum such as this that there were extra benefits and the ability for the redundant members to be able to come back to the company and seek further advice, we certainly - - -

PN161

THE COMMISSIONER: That’s now on the record as being available.

PN162

MR WIRRICK: Yes, but I had no knowledge - - -

PN163

THE COMMISSIONER: And I have taken note of that and that forms part of these proceedings. So to the extent that that being sought, that’s met by the company’s indication that should an individual employee seek further outplace assistance it will be provided to a reasonable level. So we don’t need to worry about that, do we?

PN164

MR WIRRICK: Well, let’s - yes, I will - - -

PN165

THE COMMISSIONER: Provided the company complies with it; I have no reason to believe they won’t.

PN166

MR WIRRICK: Well, I would hope that they honour that Commissioner.

PN167

THE COMMISSIONER: Yes. Well, I think we have to assume that they will. There’s no basis to believe at the present time that they will not.

PN168

MR WIRRICK: Commissioner, if I may there were other issues that were raised last week and that was the fact that the pay slips were illegible that they received.

PN169

THE COMMISSIONER: Perhaps Mr Briggs might be able to deal with that now. Would you be able to address that matter, Mr Briggs, and ensure - - -

PN170

MR BRIGGS: I’m sorry, at this point in time I can’t. That’s the first time that’s been brought to my attention.

PN171

THE COMMISSIONER: I think it was mentioned in the letter. I think in my letter it suggested that there should be new pay advice slips.

PN172

MR BRIGGS: From memory they were still waiting their final payslips. They have since arrived. They come from the mainland.

PN173

THE COMMISSIONER: Since the letter - - -

PN174

MR BRIGGS: Yes, I accept they didn’t have their final payslips at that point in time.

PN175

THE COMMISSIONER: I see, yes. But that has been done?

PN176

MR BRIGGS: Yes, I got them couriered over in an overnight bag and they received those.

PN177

THE COMMISSIONER: All right. Well, presumably they’re legible. You have seen them, haven’t you?

PN178

MR BRIGGS: No, because they’re in a black - - -

PN179

THE COMMISSIONER: All right. Apparently there was some complaint that the documentation wasn’t legible.

PN180

MR BRIGGS: We’re certainly happy to reprint them and send them out again.

PN181

THE COMMISSIONER: If necessary.

PN182

MR BRIGGS: Absolutely.

PN183

THE COMMISSIONER: It may be the case that since the letter and since the last hearing the documentation has been produced is legible and accurate. Is that possible, Mr Wirrick, or do you know more - - -

PN184

MR WIRRICK: Commissioner, as well as it being illegible I was speaking to Doug Cheney last night and he was away from his home site - he hadn’t received it on Friday when he left, at that stage. But the person that had received the - - -

PN185

THE COMMISSIONER: Do you know when he left on Friday?

PN186

MR WIRRICK: Friday evening. It was after the mail would have been - but he - again what we spoke about last week and what the members spoke about last week was the fact that there was lack of detail in as much as to what the amounts - - -

PN187

THE COMMISSIONER: Can I make this suggestion - the best way for you to satisfy yourself that what Mr Briggs advises about in the way of the documentation of final pay advice to the employees is satisfactory is for Mr Briggs to copy it to you. So I’ll direct that be done. That way there’ll be no breach of the privacy provisions but you should understand it is a privacy consideration. The company only discloses this to you because they are required to by law under the powers vested in me under section 170LW of the act to act as the private arbitrator in this matter pursuant to the dispute resolution provisions.

PN188

MR WIRRICK: Thank you, Commissioner.

PN189

THE COMMISSIONER: You must respect that privacy.

PN190

MR WIRRICK: I will, Commissioner. Commissioner, there is also the fact of the separation certificates. The company claims in their submission that they are available on request. It was my understanding and my colleagues’ understanding that separation certificates on termination, whether it be - - -

PN191

THE COMMISSIONER: Are required.

PN192

MR WIRRICK: Are required.

PN193

THE COMMISSIONER: It’s an obligation on the company.

PN194

MR WIRRICK: That was my understanding.

PN195

THE COMMISSIONER: That is correct. You understand that Mr Briggs, don’t you?

PN196

MR BRIGGS: I didn’t understand that, to be honest.

PN197

THE COMMISSIONER: Yes. You are required for ..... purposes to produce that.

PN198

MR BRIGGS: In any event, I have completed one on Thursday evening and - - -

PN199

THE COMMISSIONER: Can you make sure that everybody gets one, please?

PN200

MR BRIGGS: Yes, sure.

PN201

THE COMMISSIONER: And obviously it’ll be ticked as a redundancy as the reason for the termination.

PN202

MR WIRRICK: Commissioner, Mr Briggs made mention of the fact that he thought he had quoted the right document. As we identified last week the actual current agreement has got a typing error on the - - -

PN203

THE COMMISSIONER: Yes, but I can hardly blame Mr Briggs for that.

PN204

MR WIRRICK: I understand that. But my concern is that they may well have paid it off the previous - - -

PN205

THE COMMISSIONER: You’ll see that when you get the information, won’t you?

PN206

MR WIRRICK: True.

PN207

THE COMMISSIONER: Mr Briggs, there’s a little bit of confusion about the titling of the current certified agreement. I think I’ll leave you to sort that out with Mr Wirrick once he’s had an opportunity to see the final pay advice. I think what’s on Mr Wirrick’s mind is that the rate of pay for the purpose of the calculations or the entitlements rather, may have been produced by reference to the wrong agreement but I’m not sure that that necessarily will be the case. This is a question of the information that the parties actually have to hand and what information they’re using. So I’m just going to leave that with the two of you for the time being. But I’m sure that from the company’s point of view any payment will be as per the current agreement.

PN208

MR BRIGGS: You have that undertaking, Commissioner.

PN209

THE COMMISSIONER: Mr Wirrick, getting back to the question of the five employees and the possibility of them filling these positions in Cambridge in the power area, I can’t possibly determine whether or not that’s either viable or possible or appropriate on what’s before me because this is dependent upon so many facts, I would imagine. I wonder whether or not in fact it’s a remedy that’s available.

PN210

But in any event - it would involve a process, would it not, of establishing whether or not this was possible in the first place to even be contemplated? I mean if you’re asking six air traffic controllers to become brain surgeons obviously you wouldn’t make a decision on that without investigating the possibility of it. And this is really not all that different, is it, in terms of what’s before me. I mean you have an assertion that they can do the job. That’s from them to you. Mr Briggs doesn’t know whether or not they do have the skill sets and whether that number of jobs is available for five people. That’s a matter of information that he would need to satisfy himself about even to contemplate the possibility of it, let alone the desirability of it.

PN211

MR WIRRICK: Commissioner, I understand exactly what you’re saying and the five members we’re talking about might well be scared of heights which could be a problem if they have to climb up ladders.

PN212

THE COMMISSIONER: I just don’t know any of these things.

PN213

MR WIRRICK: But I suppose the difficulty and the frustration from the union’s point of view is the fact that all the way through going back to December the company has chosen to fudge its way through and we had a situation down there - if I may indulge the Commission’s time.

PN214

We had a situation where one of the members that have just been made redundant was actually - it was suggested to him - and whether it was right or wrong he took this advice - that he relocates his family to Melbourne given that there’ll be an opportunity for him in Western Australia with the company. He chose to do that. This is on the advice of Graeme Williams only to receive a phone call leading up to the return of work on 8 January, “You’ve got to come back down to Tasmania. We’ve got the main lane job”.

PN215

There is an issue that I spoke at length with Stewart Trent and Graeme Williams in regards to the way that the company handled that and fair enough the member didn’t have to take Mr Williams’ advice and relocate to Melbourne as a stopover on his way to Western Australia but he saw that as an opportunity and he chose to take that. That caused a lot of grief and I just have trouble accepting the fact that the way that the company have handled this right through from December is credible - they’ve done the wrong thing by our members all the way through.

PN216

THE COMMISSIONER: Even if we assume that that is 100 per cent true, for the sake of hypothetical discussion, we’re still left with the question of what to do.

PN217

MR WIRRICK: I would suggest, Commissioner, if I may, seeing the precedent was being set in December that if the company can find its way to pay the extra two weeks pay to the five members affected that the issues would probably be dealt with.

PN218

THE COMMISSIONER: Mr Briggs?

PN219

MR BRIGGS: No, I don’t believe the company is in a position to indulge in that, Commissioner. I still maintain the circumstances were different in December as to now. Not being privy to the circumstances in December but I can certainly see that there has been plenty of communication and correspondence between the parties since that date, that the circumstances in the redundancies were not related to the practical completion date of the contract as they are now. Therefore the ordinary and customary labour turnover is industry standard.

PN220

I just think that we have complied - I made every effort since I arrived down there on the 16th to brief the employees and to talk to them at length individually and collectively and also to pay them three days ex gratia - I really see the circumstances being completely different.

PN221

THE COMMISSIONER: Mr Wirrick, I think we’re at a turning point here. We’re either going to be looking this possibility of these five people being placed in these jobs that you say they can do - the first step in that process would be for someone to satisfy themselves that they could do them. The second step of the process would be for the company to consider whether or not it was appropriate.

PN222

Once heading down that path that’s going to dictate certain things as far as the Commission’s proceedings are concerned. Or alternatively we’re heading down a path where you have a claim, probably an additional claim over and above the terms of the agreement, for an additional two weeks severance pay effectively.

PN223

That poses a number of different considerations. I don’t think that it’s appropriate to try and do that before you make an election about whether or not you want to pursue the proposition that the company failed to adequately consult, and that’s contested, and that because of that inadequate consultation these employees were denied the opportunity to explore the possibility that they could have been placed in these five positions that you have identified; that that should be done because had the consultation provisions and discussion provisions of the agreement been followed this would have been done; and that if it leads to a situation where they can realistically perform this work that they should be offered that.

PN224

There are lot of different considerations as to the rights and wrongs of all of that, not the least of which is establishing to the Commission’s satisfaction that the company didn’t comply with the terms of the agreement in relation to clauses 9 and 34.1. So, as I say, I think we’re at a turning point - which direction are we going? Are we going down that path of looking at those five positions or are you putting the proposition that the company has failed to consult and as a result it should pay the people who would have properly been entitled to that consultation an additional two weeks pay. I think it’s got to be one or the other.

PN225

MR WIRRICK: Commissioner, in light of that I would suggest that the company hasn’t demonstrated to us in any way that they made concerted efforts to find placement for the five redundant members and we would, with your assistance, like to see that proven.

PN226

THE COMMISSIONER: Isn’t it more important to get to some sort of remedy now and to work out what remedy you’re looking for rather than some open-ended process that doesn’t have any particular clarity or focus on what the outcome will be?

PN227

MR WIRRICK: Sorry, Commissioner, what I’m alluding to is the fact that the company should establish in no uncertain terms whether the five members can be placed in the power section.

PN228

THE COMMISSIONER: All right. That’s clearer. That’s a different thing altogether. That’s really just a question of looking at whether or not it would be possible for those people to do those jobs and then the next question would be if all five of them are capable of doing those jobs whether or not it’s appropriate to place them in those jobs. So that’s what you’re asking for, is for the company to do both of those things, to consider that possibility in terms of whether or not it’s viable and secondly to make a decision as to whether or not it’s willing to do that as appropriate in terms of the business.

PN229

MR WIRRICK: Yes. Commissioner, Mr Briggs’ correspondence tells us that he’s gone down that path but whether he knew that the five people - whether there were the ten, as I understand it, casuals working in the power department or not, whether he was aware of that given that he only arrived down there on the morning of the 16th, that may be something that he wasn’t aware of.

PN230

THE COMMISSIONER: He might be able to tell us now.

PN231

MR BRIGGS: From the 16th, 17th and 18th in fact I was still taking calls after the toolbox meeting in front of everybody there getting some feedback from the people that I had rung. I rang the general manger, the road section; I rang the general manager of the power section, telecommunications section, and then also the individual project managers associated with those respective divisions and sought opportunities for five to six people that wouldn’t have a job. It did take some time to come back, a day or so. They genuinely looked to see whether they could accommodate and they all came back to me and said at the current time they were unable to find positions for these people.

PN232

THE COMMISSIONER: Was the discussion precisely at any point focused on the possibility of some of the labour hire employees they have being replaced by your employees?

PN233

MR BRIGGS: No, it wasn’t.

PN234

THE COMMISSIONER: So this question is an open question really, isn’t it?

PN235

MR BRIGGS: Yes.

PN236

THE COMMISSIONER: All right. So effectively it’s a question of whether or not the Commission is prepared to recommend to the company that it should investigate this possibility as a first step, as to whether the people could actually match the positions and then the question is: what is the situation with the labour hire employees and what’s the effect on the business if this was - if the substitution occurred.

PN237

Do you know anything about that, Mr Briggs? I mean let’s assume you have five labour hire employees who are doing jobs that could be done by the five people made redundant and you took a policy decision that it was - you would do this, you would substitute the five redundant employees and the labour hire people would go back to their labour hire agencies presumably and be in a position of going out to other appointments. Are there any implications for the company of that which are positive or negative?

PN238

MR BRIGGS: Not that I’m aware of at the moment. But there would certainly be a lot of considerations and I would prefer to discuss with the relevant general managers. Ultimately I think it should be their discretion as to consider all the matters and in the light of all those matters make an objective decision.

PN239

THE COMMISSIONER: I tend to agree with you. You probably need to consult with other people in the organisation about this so I couldn’t possibly imagine you would be able to make firm decisions about this right now.

PN240

MR BRIGGS: I’m certainly happy to go back to these people and to discuss the specifics of it.

PN241

THE COMMISSIONER: All right. If that’s the case I suggest that that be done. It may be a solution to the dispute. It may be that the five employees made redundant are capable of performing work which is currently being performed by labour hire agency employees employed by the company on a temporary basis. If that is the case then it’s a matter for the company giving active consideration to whether it is appropriate. I should think that that wouldn’t take any longer than the rest of this week. Is that right, Mr Briggs?

PN242

MR BRIGGS: That should be sufficient.

PN243

THE COMMISSIONER: So let’s say by Tuesday of next week that the company advises the union and the Commission by the outcome of the consideration. Mr Wirrick, I think if that’s the objective of the union and the five employees concerned that that is a reasonable response on Mr Briggs’ part to the situation. We’ll know whether or not it’s an option on Monday or Tuesday of next week.

PN244

MR WIRRICK: I’d suggest that that would be acceptable, Commissioner.

PN245

THE COMMISSIONER: Very well. I ask to be advised in writing, please, Mr Briggs, of the consideration. Thank you. I won’t list this matter for another date as yet. I’ll await the outcome of this consideration and if it does lead to a settlement then I need only be advised. If it does not then the union is at liberty to apply to have the matter listed further.

PN246

Thank you. The matter is adjourned to a time and date to be fixed, if necessary.

<ADJOURNED ACCORDINGLY [3.48PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 LETTER FROM MR BRIGGS TO THE COMMISSION DATED 26/04/2007 PN7
EXHIBIT #A1 LETTER FROM TRANSPORT WORKERS UNION TO MR GRAEME WILLIAMS DATED 17/01/2006 PN60
EXHIBIT #A2 LETTER FROM MR GRAEME WILLIAMS TO TRANSPORT WORKERS UNION PN62
EXHIBIT #A3 LETTER DATED 23/02/2007 PN69
EXHIBIT #A4 LETTER DATED 26/03/2007 PN74
EXHIBIT #A5 NOTES REFERRED TO BY MR WIRRICK DATED 16/04/2007 PN86
EXHIBIT #A6 MINUTES OF EMPLOYEE TOOLBOX MEETING HELD ON 17/04/2007 PN94
EXHIBIT #A7 EMAIL ADVISING CURRENT SITUATION RE REDUNDANCIES DATED 18/04/2007 PN96