C2007/2278, Transcript of Proceedings [2007] AIRCTrans 48 (12 February 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16445-1

DEPUTY PRESIDENT IVES

C2007/2278

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
LEIGH MARDON AUSTRALASIA PTY LTD
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2007/2278)

MELBOURNE

10.08AM, TUESDAY, 30 JANUARY 2007

PN1

MR B TERZIC: I appear on behalf of the union, the AMWU.

PN2

MS C CLEARY: I appear on behalf of the Australia Industry Group, with me MS C MCLOUGHLIN, the HR Director of the company.

PN3

THE DEPUTY PRESIDENT: Thank you. How did you want to go forward with this, Mr Terzic? You wanted to put something on the record presumably or - - -

PN4

MR TERZIC: I'd rather not, your Honour. I've conferred with Ms Cleary and we've agreed that the best way forward might be to resolve the grievance by conciliation with your Honour's assistance.

PN5

THE DEPUTY PRESIDENT: Yes. I'm happy to do that. Ms Cleary, are you happy with that course?

PN6

MS CLEARY: No, I'm sorry, Mr Terzic. I misunderstood that. I would like to put some things on record today, the fact that we did try to resolve this issue before coming here and obviously we would like to put on record the fact that we had come here at inconvenience to both myself and Ms McLoughlin, with having other children to be cared for, and also the fact is that we did try and resolve this late yesterday afternoon.

PN7

THE DEPUTY PRESIDENT: Right. So you just wanted to put that on the record, did you, Ms Cleary, or you - - -

PN8

MS CLEARY: No, if I can refer to the case - - -

PN9

THE DEPUTY PRESIDENT: All right. Well, perhaps before you do that, as it's Mr Terzic's application, you may want to put the basis of the dispute on the record first, do you, Mr Terzic? It's up to you.

PN10

MR TERZIC: Your Honour, I've had limited involvement in this matter up until today's proceeding, but I anticipate that the material facts won't be in dispute. I anticipate the relevant case law that - - -

PN11

THE DEPUTY PRESIDENT: Just before you get to that. My understanding from the application is that this dispute concerns the correct interpretation of the redundancy arrangements in the certified agreement, is that correct?

PN12

MR TERZIC: Yes. It centres on one employee, Ms Shona Blake, who is due to finish her employment with the respondent company I think on the 30th of this month.

PN13

MS CLEARY: Tomorrow.

PN14

MR TERZIC: The period of her employment which started on 9 February 2004 up until on or about 28 January 2006 she worked as a full time vault controller, a despatch type of employee, on afternoon shift, so working on average of 38 hours per week. On and from on and around 28 January 2006 hours were changed, so she worked on a part time basis working for a total of 25 hours per week. Her start time was 6.40 pm and her finish time was 11.40 pm Monday to Friday. Ms Blake has been given notice of the impending termination of her employment and she has been given an advance assessment of her termination benefits and what the employer has done is calculate the redundancy pay on the basis of all of her employment being at 25 hours per week. So in effect, they are paying her out at the requisite number of weeks but at a part time rate, which has been her mode of employment since the aforesaid date.

PN15

This issue with very much the same material facts came before one of your colleagues, Senior Deputy President O'Callaghan, and a decision was issued in that matter on 13 August 2004, the print reference is PR950837. I can - with Ms Cleary's assistance, I will pass up a copy. I won't read any extracts from the decision, but I say in many respects the material facts were the same and in that matter his Honour held that the appropriate rate for the payment of redundancy benefits, and the clause, I think, was worded materially the same, was at a part time rate for employees who had originally been engaged on a full time basis, but were later converted to part time employment - - -

PN16

THE DEPUTY PRESIDENT: I'm sorry, he held what?

PN17

MR TERZIC: That the appropriate rate for the computation of redundancy benefits is at the part time rate for employees who were part time at the point of termination, but had previously been engaged by the company on a full time basis.

PN18

THE DEPUTY PRESIDENT: Yes.

PN19

MR TERZIC: The alternative proposition would have been that for the period of service that was full time, they would accumulate redundancy pay on a full time basis. But it appears as though the company has acted in accordance with precedence set by Senior Deputy President O'Callaghan.

PN20

THE DEPUTY PRESIDENT: Right. I just wondered there for a moment why you were handing me up that decision.

PN21

MR TERZIC: Yes. So with that decision - - -

PN22

THE DEPUTY PRESIDENT: So you're saying that he's wrong?

PN23

MR TERZIC: Well, there's two options there. One is we say his Honour is wrong, the decision is, in legal terms, per incuriam, wrongly decided, and it should be disregarded or somehow overruled and that can be done one way or the other, but it's not our intention to try and do that today. Or the other approach is to distinguish the decision on the facts. I said that the material facts were almost exactly the same and that would be the principle basis upon which we will try to persuade the company that there is an argument that we can distinguish the decision and - - -

PN24

THE DEPUTY PRESIDENT: All right. Well, before we get too far into that, perhaps at this stage, you've given me a good background as to what it's about, perhaps if I hear from Ms Cleary now, again briefly, and I assume you don't have any objection to going into conference, Ms Cleary?

PN25

MS CLEARY: No, we don't, your Honour.

PN26

THE DEPUTY PRESIDENT: All right. So if I then hear from Ms Cleary just briefly, seeing she was burning to put something on the record, I'll give her that opportunity, and then we might adjourn into conference and if we need to go further, well, we can do that at an appropriate time.

PN27

MS CLEARY: Thank you, your Honour. Yes, your Honour, we do seek to rely on the decision of one of your colleagues, Senior Deputy President O'Callaghan, which you now have a copy before you. What's of interest in that decision, his Honour also refers to questions of issues of merit and takes into account whether we should take into account questions of inequity and fairness and justness and take into account whether a person who has been on a full time basis initially then is converted to part time basis, should that full time rate of pay be included in any calculations of redundancy payments, and it did highlight the fact that in some occasions people who weren't previously employed on a full time basis do request to go and be employed on a part time basis, and this is exactly the circumstances that we are faced with here, is that Ms Blake did ask to convert her employment from full time to part time to accommodate family responsibilities and the company accommodated that request.

PN28

In relation to the situation, we say that the primary document the issue is focused on is actually the Leigh Mardon Australasia Pty Ltd Hyatt Site Agreement and the entitlement for redundancy payment is clearly outlined in that document at clause 6.5.4 where it actually refers to the fact that an employee is entitled to 3.5 weeks pay for each completed year of service and for part years, pro rata payments calculated on monthly rates. As you are aware, your Honour, agreements should be applied according to their plain words. We say there is no ambiguity in this document and therefore the said employee's entitlements should be based on her current monthly rates applying in accordance with the redundancy test case and there is nothing that the union is able to establish that we should depart from the decisions of this Commission or depart from the plain meaning of the agreement works. If the Commission pleases.

PN29

THE DEPUTY PRESIDENT: Thanks, Ms Cleary. Do you want to quickly respond to that, Mr Terzic? There's no reason that you should. We can go off into conference and you can respond later if you wish.

PN30

MR TERZIC: Yes, that will be more appropriate.

PN31

THE DEPUTY PRESIDENT: All right. I'll go into conference, thank you.

<OFF THE RECORD

PN32

THE DEPUTY PRESIDENT: We've had some discussions in conference about this matter and whilst there has been no resolution of it at this stage, I have expressed a preliminary view about the issue in dispute. It remains for the union to consider that preliminary view and advise, and I should put a time frame on that, perhaps within the period of the next two weeks, as to whether they wish to pursue the matter. If they do wish to pursue the matter under those circumstances, then they should advise my chambers and I will issue appropriate directions for a hearing and determination of the matter in accordance with the disputes procedure which, if I recollect correctly, does provide a right of arbitration to the Commission.

PN33

Having said that, the preliminary view that I'd expressed is that the union's application is in my view unlikely to succeed and the reason that I say that is because it seems to me to turn upon a consideration of what a week's pay means for the purposes of the redundancy provisions of the agreement. To come to a conclusion that a week's pay means anything other than the payment made to a person on a weekly basis immediately prior to the termination of the employment would lead, in my view, to all sorts of difficulties.

PN34

I further have put to the parties that it seems to me to come to a view that service of an employee in a capacity other than that capacity that pertains at the time of termination, in other words, in a prior full time capacity and a later part time capacity, that for that to be taken into account in calculating a redundancy payment seems to me to require the reading in to the agreement of words that are currently not there. I mean, it would be available for the union to negotiate an agreement which provided for circumstances where people were moved from full time employment to part time employment, such that their full time employment could be taken into account in respect of redundancy payments. That is not the case here.

PN35

The provisions of the agreement are fairly clear, I would say very clear on their face and on that basis I find it hard to see at the present time that a different view than the preliminary view that I've taken could prevail. However, if the union are of a mind that they have sufficient material and authority to persuade me otherwise, then I am able to be persuaded perhaps and on that basis I reiterate that the union should advise my chambers within a two week period as to what they wish to do in respect of this matter.

PN36

If it was to go forward it would require the issuing of directions requiring the filing of written submissions and witness statements and a hearing at an appropriate time. That, of course, puts both parties to some work and that work, in my view, is best avoided if it can be, and in this case, as I've said now a couple of times, I don't see, at least from the preliminary point of view, a great deal of opportunity.

PN37

Now, I say that too - I've been handed a letter, which I won't mark at this point in time, it may, if we go forward, need to be tendered into evidence, but I've been handed a letter that is dated 23 June which contains a sentence relating to the company's intention to retain other employment conditions as they were at the time that the employee in question in this matter changed from full time to part time employment. In other words, what the letter does is advises the employee concerned that they will be changed to part time employment, advise as to what the nature of that part time employment will be in terms of hours of work and days of work, et cetera, and goes on to say that all other employment conditions remain as they are at present.

PN38

The union may wish to rely at some point in time upon that letter. However, it seems to me on a plain reading of it it does nothing to assist the union's case because it simply means that one would refer back to the agreement in respect of the redundancy provisions and the redundancy provisions talk about a week's pay and, as I have already said, a week's pay, in my view, has to be interpreted as a week's pay at the time of termination because to do otherwise would create difficulties for all employees in the organisation who are in the position of being made redundant.

PN39

That's probably enough at this point in time. So it's really, the ball is in your court, Mr Terzic. If you could advise both Ms Cleary and myself within that two week period what it is you intend to do in respect of this application, I'd appreciate it. Is there anything further? The matter is adjourned, thank you.

<ADJOURNED INDEFINITELY [10.46AM]