C2007/3811, Transcript of Proceedings [2007] AIRCTrans 690 (21 December 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17921-1

COMMISSIONER BLAIR

C2007/3811

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
The Australian Workers’ Union
and
Fletcher Insulation
(C2007/3811)

MELBOURNE

11.31AM, MONDAY, 10 DECEMBER 2007

PN1

MR M BOROWICK: If the Commission pleases, I appear for the Australian Workers Union. With me is MR A LUMANOVSKI, who is the senior site representative of the AWU at Fletcher Insulation and also MR R KUBALA, who is his deputy.

PN2

MR A DALTON: If the Commission pleases, I am from the Australian Industry Group representing the company in this matter. With me today is MR S GREEN, regional HR advisor, and MR P DELIGIAROUIS, who is the plant manager.

PN3

THE COMMISSIONER: Thank you. Yes, Mr Borowick?

PN4

MR BOROWICK: Thank you, Commissioner. The employment relationship at the site is governed by the Insulation Solutions 8th Enterprise Agreement 2005-2008. Commissioner, this agreement reaches its nominal expiry date on 1 March 2008. The union and the company have been in some preliminary discussions about - of the place for an agreement. The union hasn’t, to this point, initiated a bargaining period but we expect to be doing so in the not too distant future.

PN5

The discussions that we have had to this point with the company - the company has indicated that they require flexibility beyond that provided by the existing certified agreement. In respect to employment, they see a position going forward where two-thirds of the workforce will be permanent and one-third of the workforce would be non-permanent. That’s a concept that has been kicked around in these very preliminary discussions.

PN6

It’s our intention - and I think we have indicated this to the company - to reject such a concept. We believe that the bulk of the people at the workplace, the vast bulk of people at the workplace should be permanent employees as has been the case until just very recently. But what’s happened over the last few months is that the company, in a new practice, and a dramatic departure to what’s gone on previously - the company is no longer replacing permanent employees who leave with other permanent employees. They’re replacing them with temporary employees.

PN7

This has something to do, in my view, with the new management. The company did change hands not so long ago. It was Insulation Solutions and that - the owners of Insulation Solutions sold the business to Fletcher - I’m not sure of their full name but the company is now known as Fletcher Insulation and trades as such. So with the takeover by Fletchers we’re faced with a new management team and difference in approach.

PN8

Commissioner, we’re happy to face up to the prospect of enterprise bargaining. We will have claims and the company will have claims and they’ll be dealt with in due course. But what we’re facing here is that the company have determined to introduce one of their enterprise bargaining claims now, in terms under the current agreement before it reaches its expiry date on 1 March 2008. We say, Commissioner, that’s not open to the company to do that.

PN9

We have understandings with the company that were reached in 2005 about the nature of the workforce at the plant in Dandenong and that’s embodied in the current agreement. We say, respectfully, Commissioner, it’s not open to the company to walk away from one of the principal commitments it made in the negotiations in 2005 and which is embodied in the agreement. They should wait until a new agreement is in negotiation and if they can get that claim up and it’s a feature of the next agreement, then it would be open to them at that time to introduce the changes that they have sought. It’s not open to them, we say, to introduce by stealth enterprise bargaining claims now.

PN10

Unless - and I’m sure that they would be the first to argue that it’s not open to us as a union to seek to introduce changes that we might like to see in the next agreement now. The principle of enterprise bargaining is once the agreement is settled, voted upon, certified in the Commission as it was then prior to Work Choices, that’s the deal. And that’s the deal that sticks until the agreement is either set aside or replaced by a new agreement. I’m just wondering, Commissioner, do you have the agreement in - - -

PN11

THE COMMISSIONER: No, I don’t.

PN12

MR BOROWICK: I’ll just read this clause and then I might hand it to you to have a look.

PN13

THE COMMISSIONER: That’s fine. Thank you.

PN14

MR BOROWICK: This clause - I can’t remember whether it was introduced as part of this agreement or the one prior but there was a lot of fuss about it at the time and it was a new clause obviously when we negotiated it. It was as the result of discussions and the company gave us a commitment that, look, they had no - and I was a part of those negotiations as was Mr Lumanovski. They said they had no intention of moving away from permanent employment so it wasn’t a big deal to them and if we need to put on evidence about this point we’re happy to. But it wasn’t their intention to move away from full-time employment. So they didn’t see it as a big deal, if you like, to give us the clause that we were seeking at the time.

PN15

I appreciate that that wasn’t signed up to by either the current owners or the current management. But that’s what appears, Commissioner, in the enterprise agreement that applies to us as it applies to the new management team and the new ownership. That’s the agreement - this is the agreement that applies at the site until 1 March 2007 next year. And the company, if they want a change, new managers come in, new ideas, new way of doing things, if that’s the way they want changes, they need to bring it up fair and square as part of the bargaining process and not try to push this policy in through the back door.

PN16

Now, clause 10 deals with the employment. And clause 10(a) specific says:

PN17

Insulation Solutions, its employees and their representatives confirm their commitment to full-time permanent employment on an ongoing basis.

PN18

So that’s what we have in the agreement, the commitment to full-time permanent employment on an ongoing basis. Now, there is a reference in clause (d) to the use of temporary labour:

PN19

The use of temporary labour existing labour as required is a vital part of the flexibility required to operate the business in the most efficient manner.

PN20

But that’s to supplement existing labour so the full complement, manning levels are - sexist in old terminology, I appreciate it - but there are employee or manning numbers set out in the agreement and there are references in this clause to:

PN21

Temporary employees being used for covering absences for employees on workers compensation, long service leave, annual leave, sick leave.

PN22

There are those facilities in the agreement but the workforce was by and large full-time permanent employment. That wasn’t controversial at the time. That’s what the company signed up to and that’s the commitment in the agreement this management team is seeking to walk away from.

PN23

Now, we had an employee, Syd, who left in April of this year, not replaced by another permanent employee. That’s always been - these are specifically employees that work on the wool line. There are two wool lines under the roof line at Dandenong and I think, if I’m not mistaken, the Commissioner has ..... in previous matters before the Commission so you’d be familiar, I believe, Commissioner with the wool line. And Syd - that position was held always previously, prior to April 2007, by a permanent employee is now employed[sic] by a temporary employee. Mr Peter Van Velson left in May 2007 - an identical situation, not replaced by another full-time employee. Joshua Moana left the business in October 2007 - not replaced by another permanent employee.

PN24

This is the company’s drive to achieve their enterprise bargaining claim of a workforce made up of two-thirds permanent employees and one-third non-permanent employees or temporary employees. This is achieving their policy by stealth and we have - Mr Lumanovski has raised the issue with the company, we have pushed and prodded on this issue, we followed the disputes procedure, Commissioner, we haven’t been able to really engage the company in any meaningful dialogue on this topic. They want the claim, because they want the claim, it’s a key claim in the upcoming enterprise bargaining negotiations which they’re seeing fit to introduce prior to the expiry date of the current agreement.

PN25

Now, at the risk of being boring, Commissioner, this is not permitted by the current agreement. We have a commitment out of the company about full-time permanent employment. Because we were nervous back then, the company might seek to walk away from permanent employment. Without - I don’t have access to a crystal ball, Commissioner, but I doubt, seriously doubt that our membership is prepared to - at Fletcher Insulation is going to sign up to this concept of two-third permanent and one-third non-permanent. Why would we, Commissioner, when as far back as anyone can remember since the plant was established people there have had permanent full-time jobs. That’s the way it’s always been. We don’t see any reason to move away from that.

PN26

Certainly there has been nothing put to us to convince us that we should. We’re happy to talk to the company about flexibilities but this is sort of Work Choices gone mad where a request to have only two-third employees as permanent ongoing employees is something we’re not going to entertain. It’s something that the employees feel very, very strongly about and we’ll deal with it in the context of enterprise bargaining but we have come to this Commission over the years and we have tried it on and we have been pushed back and we have tried to break out from our commitments in the enterprise agreement and this is a two-way street, Commissioner. We expect to be kept to our part of the bargain just as we expect the company to be kept to their part of the bargain.

PN27

If they want to deal with it as part of the enterprise bargaining it should be then a feature of the negotiations. If the Commission pleases.

PN28

THE COMMISSIONER: Thank you. Do you have a copy of that clause, please? What does your disputes procedure say, Mr Borowick?

PN29

MR DALTON: If it assists the Commission I have a full copy of the agreement.

PN30

THE COMMISSIONER: Thank you.

PN31

MR BOROWICK: Commissioner, in the first - there are four steps set out in the agreement.

PN32

THE COMMISSIONER: What’s the clause number?

PN33

MR BOROWICK: Clause 40, headed, “Settlement of Disputes”.

PN34

THE COMMISSIONER: Thank you.

PN35

MR BOROWICK: Step 1:

PN36

In the first instance the employee shall discuss his or her concern with his immediate supervisor or, superintendent with a view to resolution of the issue.

PN37

Which I believe has happened. Step 2:

PN38

The employee and his supervisor jointly document the reason for dispute then meet with the AWU delegates to explain to him to resolve the issue.

PN39

Step 3:

PN40

Superintendent on behalf of management to meet with the AWU delegate with a view to resolution of the issue.

PN41

And certainly Mr Lumanovski has been involved in discussions with the company about this:

PN42

The AWU delegate and the human resources to meet with a view to resolution of the issue.

PN43

Which is step 4. And I wasn’t present at a meeting I believe which was last week when the company conceded that each step in the agreement had been satisfied and they were ready to proceed to the Commission as the matters in dispute hadn’t been resolved:

PN44

The parties agree on a solution and timeframe for ...(reads)... to be agreed. If the matter remains unresolved, it can be referred by either party to the Australian Industrial Relations Commission for conciliation and/or arbitration.

PN45

The clause goes on, Commissioner. So we’re seeking an order or a direction from the Commission that the company comply with the terms of the enterprise agreement. You have, Commissioner, under this clause jurisdiction to arbitrate the matter. So we seek an instrument from you which requires the company to replace three people who were permanent employees with other permanent employees and the company desist from trying to reduce the number of permanent employees until such time that that’s open to them under the terms of a future enterprise agreement or collective agreement or certified agreement, whatever we have at that point, if the Commission pleases.

PN46

THE COMMISSIONER: Thank you. Yes, Mr Dalton.

PN47

MR DALTON: Thank you, Commissioner. Just as a bit of background for the Commission, as I understand we’re in really preliminary sort of review of this matter and that if we were to get down to issues of orders and so forth I think that the matter would need to be explored in a much more sophisticated and detailed way.

PN48

Fletcher Insulation employs around about 80 employees under the workplace agreement. It has about 40 other employees who aren’t covered by the agreement. You have a copy of the agreement so you know when its operative period is and the disputes procedure is there. There have been negotiations for a new agreement which has commenced using the consultative processes at the workplace.

PN49

The company has raised the issue of more flexibility within the workforce arrangements. The company has raised this as a very important issue because as with many other domestic production manufacturing facilities which company is feeling the heat from imported product. The company’s estimate is currently between 5 to 10 per cent down on its previous sales of the same time last year and that this continues a trend that has been evident for some time. The company had to reduce its production by around about 56 hours over the October period this year so it’s looking to, in the long term, develop more flexible responses to the way that it deals with our production needs.

PN50

The practice in the past has been merely that where there have been fluctuations in demand for its product the company hasn’t really sort of adjusted its production operations. It’s really just built up stocks and hope that in time those stocks and hope that in time those stocks would be absorbed by the market place. Now, unfortunately, just continuing to make product that isn’t to be sold, leads to significant problems for the company. It leads to build up of stocks; it leads to continued expenditure not matched by income. It leads to the necessity to clear those stocks through sales of the product at reduced prices. So the company sees that there’s a very negative impact from the way it has been managing its production facilities in the past and it is looking to introduce more flexible arrangements and those have been raised at the EBA negotiations.

PN51

The issues of one-third, look, in terms of that negotiations raise all sorts of figures around how things might work out but the principle guiding the company in this matter is that it’s needing to be more flexible in the way that it engages some people and it has simple reasons for this. One is to be better able to meet the fluctuations in demand. But the other reason is that it believes that if it can use more flexible labour inputs that will provide stronger and more secure employment for those employees who are permanent employees of the company because the fluctuations - it will be able to be more viable in the market place, it will better able it to be able to supply and not build up stocks and this will increase the viability of the company in the long term.

PN52

So, in terms of that, the company has raised that issue. The company doesn’t resile from that. The company is quite happy for that to be discussed and it will be pursuing that in a most vigorous way and it will be looking to have more flexible arrangements. I think that if you look at the current agreement, it’s recognised even in that that flexibility is the important part of the working arrangements. If you have a look at clause , the objectives of the agreement, at paragraph 4 there, it says:

PN53

Insulation Solutions and its employees agree that the challenges facing the enterprise must be met by continuously innovating as the needs of customers change. Excellent service in all its forms will come from the business driven by team work and devoid of artificial barriers.

PN54

In the next paragraph:

PN55

It is agreed that work practices or arrangements that inhibit taking advantage of new opportunities are at a cost to the enterprise and unacceptable in new market environments.

PN56

THE COMMISSIONER: Mr Dalton, the argument that you’re putting is an argument that goes to the merit of the company’s foreshadowed claim and you don’t need to convince the Commission of the merits of your argument. You need to convince the other side in terms of your enterprise negotiations. The issue that’s before the Commission at the moment is that the company is in breach of its current obligations in the enterprise agreement. That’s the assertion. Now, either they are or they aren’t, and if they are, what are they going to do to rectify it?

PN57

MR DALTON: I understand that, Commissioner. I was just trying to give you a bit of background so that you understood having - Mr Borowick having raised the company’s claim, I just thought I’d respond to give you that background as to where we’re coming from.

PN58

In regards to the claim that the company is specifically in breach at this point in time given that three permanent employees have not been replaced with further permanent employees, what I would say in regards to that is several things. Firstly, that it has been the practice with the company for some period of time, I understand, and you’ll have to forgive me because the two representatives I have from the company have both been there 10 months for Mr Deligiarouris and Mr Green has been there just on 12 months. So in terms of that I can’t really go back much further than that.

PN59

But I understand that the practice for some time has been that new employees are taken on under temporary arrangements and they are given an opportunity to show their worth to the company and on their part to have a look at the company to see if it’s some place that they wanted to work and that those temporary arrangements usually go for around about a 12-month period taking into account the provision under the base award for this agreement being the Glass Industry - Glass Production - Award and I think the clause that was being utilised there is - and I think it’s referred to under clause 10 of this agreement at point (f) where it talks about:

PN60

Temporary employee means a weekly employee who is engaged continuously for a specific period of time or a specific task or tasks for a period in excess of one month and not exceeded 12 calendar months. If the period of employment exceeds 12 calendar months the employee shall no longer be regarded as a temporary employee and shall be entitled to all the benefits of this award.

PN61

Now, in terms of that, my understanding is that that practice has been used for some time at the company. I also understand that the last - I think about May this year an employee who had been there on a temporary basis for 12 months was confirmed as a permanent employee and that has occurred on a number of occasions although I don’t have the full number of every particular period.

PN62

So in terms of that, given that the company, I believe, has at this point in time around about five or six employees in that temporary casual type arrangement, none of those five or six have reached their 12 month point yet. Those people are there filling in gaps for long service leave, annual leave, sick leave and also for the gaps that are created by the permanent employees not being there at this point in time.

PN63

So in that sense, we would say that the company has not departed from its custom and practice in regards to recruitment of new employees, that that custom and practice utilises the ability to engage people for some period under other than permanent arrangements. That’s been done in the past and is currently being done now. The company can point to a recent example of an employee being confirmed as permanent from those arrangements.

PN64

So, in terms of that, we don’t agree with the basic premise that the company has not complied in full with its requirement under the award even though - under the agreement, I should say, even though clause 10, in reading that:

PN65

Insulation Solutions, its employees and their representatives confirm their commitment to full-time permanent employment on an ongoing basis.

PN66

In terms of that, Commissioner, I’m not even sure how you would quantify or qualify that particular statement in terms of being able to determine whether or not a breach was occurring. But even without that question mark over the clause itself I would say that the company is continuing with its custom and practice that - in regards to future employment and that it is not in breach. It is not trying to introduce provisions by stealth. It is not trying to engage in the worst aspects of Work Choices. It is continuing a practice that has been going on for some time and that will go on for some time in the future given that that’s the way they do things there.

PN67

THE COMMISSIONER: Mr Dalton, clause 13.3 of the Glass Industry - Glass Production - Award and its reference in the agreement only applies in the event that there is a temporary employee engaged and it provides for a mechanism that temporary from being over utilised, if you like, for a period in excess of 12 months. That’s the only application of that clause. It does not negate the company’s obligation in terms of permanent employees. It simply is there to prevent abuse, if you like, of the use of temporary employees.

PN68

So to say that the company is applying that particular clause, and in applying that clause they’re not in breach of the other provisions of clause 10, I have to say, prima facie, is drawing a very long bow - a very long bow.

PN69

MR DALTON: Well, in terms of that, Commissioner, be that as it may, that long bow is just a continuation of the practices that have been in place for some time, I understand. So in terms of the issue of replacing permanent employees with another permanent employee from day 1 of the absence of that previous permanent employee has not been the custom and practice, as I have been directed.

PN70

The custom and practice has been to engage people on a temporary basis and so in terms of that the union and the employees are fully aware that that’s how the recruitment practices of the company operate. They have been satisfied with it in the past, as I understand. So, in terms of - we don’t understand why that now has become an issue given there really is no change to the way the company is recruiting people to replace and has been demonstrated, as I say, by the conversion of a previously temporary employee once they have hit their 12 months to a permanent position and ..... I understand that there may be, as I say, we can provide examples of others given the opportunity to do so, although we don’t have that information here now today.

PN71

THE COMMISSIONER: No, no, sure.

PN72

MR DALTON: So in terms of that, as I say, we don’t that we have breached our commitment to permanent employment. We believe that the way that that commitment has operated in the past is the way that we are operating at this point in time. We believe that our commitment is being demonstrated by our pursuit of more flexible arrangements in future agreements. The company has made it clear in discussions with employees that it does not intend reduce its workforce through compulsory means that any reduction in the workforce would be on a natural attrition basis and that would provide those employees who continue with Fletcher to have stability and higher job security than that that might be provided in other arrangements.

PN73

So in terms of the issue of clause 10(a), as I say, apart from the fact that it’s difficult to quantify and qualify what 10(a) actually says and means in practice, we say that the three permanent employees that have left in the recent past are currently being - the jobs are currently being done by temporary employees. That’s in line with the way that the practice has work in the past and in terms of that we don’t believe that that provides a breach of clause 10(a). If the Commission pleases.

PN74

THE COMMISSIONER: Thank you. Mr Borowick, what do you say?

PN75

MR BOROWICK: Commissioner, well, I’m confused by Mr Dalton’s submissions. In one breath he says that they can’t - the company can’t be in breach of the agreement because simply they’re doing things now the way it’s always been done. Then he took - he makes reference to a natural attrition basis which indicates there is a change. So simply we need to know if the company are doing things the way they always have done, and that’s clause 10(f):

PN76

Once you have achieved 12 months service you become permanent.

PN77

That’s the only thing here that’s not in play. We’re just waiting for these three people, to achieve their 12 months service and then they’ll be made permanent. If that’s the only issue in play here, well, this matter can be resolved relatively quickly and simply, I would have thought, by the company giving an undertaking in clear terms that once the three employees doing the job of employees - doing the job of those people that were previously permanent, and when they achieved the 12 months service clause in accordance with clause 13.3 of the award they’ll be made permanent.

PN78

If the company can give an undertaking, well, then this matter is probably quickly and simply dealt with. But Mr Dalton makes reference to a natural attrition basis which indicates to me there’s something in play here, something different to what’s already - well, what’s gone on previously.

PN79

Now, the reason we notified the dispute to the Commission is because Mr Deligiaouris told Mr Lumanovski in no uncertain terms that these three positions, previously occupied by a permanent employee, would not be filled by another permanent employee, whether they had - whether the temporary had three months service or three years service they were not going to be replaced. Now, I don’t know whether Mr Dalton is aware of that in the instructions he’s been given in respect to this morning’s hearing.

PN80

When we sought to clarify the matters in dispute in accordance with the disputes procedure, had we been told that simply these people had to achieve 12 months service before being made permanent, well, I doubt we’d be here this morning. But we were told something very different, that the position was currently occupied by a temporary employee, and that’s what was going to continue. It didn’t matter what length of service they had, and that there was a new policy in play and it broadly consisted with what the company is seeking to achieve in the enterprise bargaining negotiations, simply they were just seeking to mandate their claim prior to any new agreement being reached.

PN81

Now, Commissioner, permanent employment has always been a sensitive issue at the plant and the Commission as apparently constituted was involved in the dispute arising from the change in shift rosters, where there was an arbitrated outcome. Subsequently the arbitrated outcome in that matter was captured in what became appendix A to this agreement and great care was taken to craft the provisions around permanent employment because that was the issue sensitive to the union. A new shift roster was put in place, not to our liking, but that was an arbitrated outcome and we respect the Commission and members accepted the arbitrated outcome. Many didn’t want to but the majority did. That was reflected in appendix A.

PN82

In clause 2(a) of appendix A:

PN83

The shift arrangements introduced by this appendix agreement shall operate for a trial period of 12 months from August 1, 2004. The shift arrangements will cease to have effect ...(reads)... the 12 month period referred to in the EBA or for the purposes of clause 2(b) of this appendix.

PN84

Then it goes on. So, Commissioner, you were integrally involved in all of that. There we took great care to craft clauses that took into account the needs of the permanent employees. The company committed at that time to certain matters around permanent employment. It just backs up the whole thrust of this agreement, that the company whilst they wanted a new shift roster and flexibility, there were prepared to commit to guarantees around the rights of the permanent workforce.

PN85

Now, this is were we did agree to flexibility in terms of temporaries. That clause which is 10(e) and 10(h) of this agreement wouldn’t apply vis-à-vis the trial. The union agreed. The membership agreed. This was voted on. We went into this with open eye. It was negotiated with the company, it was explained to the employees and they accepted it:

PN86

It is agreed that employees engaged in the new operation will be employed on temporary contracts.

PN87

We did offer the company flexibility there, in accordance with clause 10(e), 10(h) of this agreement:

PN88

The training induction period prior to the implementation of the new arrangements will not be considered for the purposes of calculation of the 12 month period in the EBA.

PN89

So we agreed that the trial period wouldn’t trigger the need to make temporary employees permanent after 12 months. But that wasn’t something that was done from behind, Commissioner. That was done in the negotiation with the employees. The employees had it explained to them and they agreed to it and that was part of the deal. Not this position where we’re told now that this is what we’re going to ..... and we’re just going to walk away from all commitments around permanent ongoing at the site because we’re a new management team. The two managers here today, between them - one manager involved in the business for a period of 10 months, the other one involved for a period of 12 months, come on to the site and say we’re not - there’s three position and we’re not going to fill them. Now, it’s open to the company this morning to deny that - what I’m putting to you Commissioner. But that’s what we have been told.

PN90

If we have that wrong then it is a simple undertaking that those positions - when the employee reaches the 12 month trigger, will be offered permanent employment in accordance with the terms of the award. But we have always been able to reach agreement with the company around the sanctity of permanent employment on that site, a 12 month trial period, once done, that’s giving the company adequate opportunity to road test employees and we have had many instances where employees have reached 11 and a half months service and been tapped on the shoulder, no one longer required.

PN91

We never complained about that even though it’s never been to our liking. We believe sometimes the company has unfairly manipulated that clause by keeping someone there right - five to 12, five to midnight and then dispensing with that. We believe sometimes the company hasn’t complied with the spirit of that clause but by and large we have had to cop it because that’s what’s written in the document.

PN92

Now, it’s the company’s turn to cop it, Commissioner. The agreement says quite clearly there’s a commitment to full-time employment on this site and it’s reflected in the way the whole document has been crafted, including appendix A which dealt with the introduction of the trial period. This new management team has no right to walk away from the agreement, no more so that we do, Commissioner. And if the agreement looks different, any new agreement or replacement agreement looks different, well, that’s a matter for the future. But this agreement is clear and I personally remember negotiating that clause 10(a) with Mr Knowles at the time. He was the appropriate manager. The company signed the document. It was certified in the Commission. The company had no problems with it at that time, signing up to permanent employment because that’s the way it had always been and they weren’t seeking to walk away from it. If the Commission pleases.

PN93

THE COMMISSIONER: Yes, thank you. Mr Dalton, what do you say about the commitment sought if the company says that clause 13.3 of the Glass Industry - Glass Production - Award is to apply? Then it would be a simple matter for the company to give an undertaking that in the event that the 12 months period is reached that the employees become permanent employees.

PN94

MR DALTON: I’d need to seek instructions on that specific point, Commissioner. So I’d be happy to do that. I’d be happy to clarify for Mr Borowick to relieve him of his confusion. When I was referring to natural attrition I was talking about the company giving commitments in the future regarding its commitment to its permanent workforce that any potential reductions in the future would be achieved by natural attrition. So I wasn’t talking about past or anything like that. I was talking about the future and what discussions the company had had with them. So in terms of that I hope that clarifies that position for Mr Borowick.

PN95

THE COMMISSIONER: Could you just get some instructions on that?

PN96

MR DALTON: I will, Commissioner.

PN97

THE COMMISSIONER: I’ll wait, thanks.

PN98

MR DALTON: Thank you for the opportunity to get instructions, Commissioner.

PN99

THE COMMISSIONER: Thanks, Mr Dalton.

PN100

MR DALTON: Look, in terms of that, Commissioner, the instructions that I have been given are these: the company recommits itself to 10(a) and in terms of that does not try in any way to walk away from that. It recognises negotiations for a new agreement are just that, negotiations, and that any new agreement will be the subject of compromise and consideration of each party’s positions.

PN101

In regards to the issue of transferring temporary employees to permanent, the company recommits itself to the provisions of the award in that if any employee who is currently a temporary employee reaches the 12 month period, they will be confirmed as permanent employees subject to two things: one is that there is the ongoing work required by the company for those employees.

PN102

It has been pointed out to me that since July this year the company has had about 590 down hours and that is hours in which they have used people in sort of alternative activities other than production simply because they didn’t want to let them go and so carried them through that period. But whether they continue to do that to the same level in the future will be subject to a decision of the company at the time.

PN103

The other issue is that the employee, the temporary employee does have the performance skills to be an ongoing employment prospect with the company, the company has utilised the opportunity under the provisions of the award to take a good look at employees over that period. Some employees have demonstrated the required attributes to be ongoing employed. Others have not. The company will continue to use that period to look at employees and to make those evaluations. But subject to an employee having the demonstrated attributes to be an ongoing employee, the company, as I say, will commit to confirming their permanent employment at the 12 month mark and continue with its previous practice.

PN104

THE COMMISSIONER: So the three employees that Mr Borowick specifically referred to, if they meet the standard requirements that one expects employees to meet, if they complete their 12 months period they will be deemed to be permanent employees.

PN105

MR DALTON: Yes, I’m being given the nod that that’s - we’re happy with that Commissioner.

PN106

THE COMMISSIONER: Okay, thank you. Mr Borowick.

PN107

MR BOROWICK: Commissioner, I’m not sure why Mr Dalton seeks to qualify clause 10(a) of the agreement. The company will comply with it if new additional requirements are met which are not spelt in the agreement clause 10(f) I would have thought is fairly clear on its terms.

PN108

THE COMMISSIONER: I accept what you say and I accept what Mr Dalton says. Obviously, any ongoing employment for any employee subject to that particular employee being able to perform the duties that are required, I’m sure you’re not arguing that they be given special treatment over and above any other employee the point that you made is that if the company gave a commitment that those specific three employees, if they had met and qualified with the 12 month period, that they would be deemed to be permanent employees, if that was an undertaking then that would resolve the issue today.

PN109

I understand that what happens during the enterprise negotiations is another matter. I mean, you get to your respective corners and off you go. The company have given that undertaking in regards to those three employees that have been specifically mentioned by you today.

PN110

MR BOROWICK: Commissioner, I think I just have one question left in my mind. When we going through the steps in the disputes procedure, this issue anybody the fact that the positions wouldn’t be filled because an employee hadn’t reached 12 months was never raised. What was put to Mr Lumanovski - and when he complained to Mr Deligiarouris about the new policy, and which hasn’t been refuted here this morning, even though the company have had opportunity to do that, is what was put to Mr Lumanovski by Mr Deligiarouris was that these three positions would not be filled by permanent employees and it didn’t have anything to do with the fact that they hadn’t reached the 12 months service and triggered - so if the company is resiling from what Mr Lumanovski was told in the earlier steps of the disputes procedure, we’re happy. But if they’re just mincing words, playing with words, we’re not happy and we still want to complain about the issues in dispute. That hasn’t been refuted by Mr Dalton. If he’s in a position to be able to do that, that what was told to Mr Lumanovski as part of the disputes procedure is no longer the case, we’re happy, if the Commission pleases.

PN111

THE COMMISSIONER: Mr Dalton?

PN112

MR DALTON: Look, in terms of that, Commissioner, I didn’t think it needed to be refuted. I haven’t sought instructions on that particular matter. No one has been in the witness box here today. We have had discussions. There have been frank discussions but they have just been discussions. No one has actually put their hand on the Bible or made any - given any witness evidence in that matter. Not that it’s been necessary. In terms of that I have not asked the question of Mr Deligiarouris. I don’t see that it actually serves any purpose to actually go over and say this or that.

PN113

We have given a commitment here today. That commitment is on transcript. That commitment stands on its own two feet. Nothing else - it’s been made in front of the Commission. I’m sure if the commitment is not lived up to, the Commissioner will have some very strong words for the company and it will place us in a very, very difficult position in place of any potentially arbitrated outcome in this matter.

PN114

The commitment has been given. That should be enough. I don’t see what purpose it serves to try and rub the company’s nose in it. At this point in time, as far as we’re concerned, we gave the commitment that was asked for. Nothing else needs to be done to settle this matter.

PN115

THE COMMISSIONER: All right. Thanks. The union sought an undertaking. The undertaking has been provided. In regards to any ongoing concern, the Commission will keep the file open. If at some point the union or indeed the company believes that the parties are moving away from the intent of clause 10, you are free to have the matter re-listed. The Commission, despite changes to the legislation, still does have some powers, and it will not be afraid to exercise those powers if it deems it necessary.

PN116

Okay? I’ll stand adjourned and we’ll see what happens.

<ADJOURNED ACCORDINGLY [12.22PM]