C2013/5570, Transcript of Proceedings [2013] FWCTrans 694 (3 September 2013)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1048715-1

DEPUTY PRESIDENT ASBURY

C2013/5570

s.739 - Application to deal with a dispute

Ergon Energy Corporation Limited
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Queensland Services, Industrial Union of Employees; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Association of Professional Engineers, Scientists and Managers, Australia, The; Australian Municipal, Administrative, Clerical and Services Union
(C2013/5570)
Ergon Energy Union Collective Agreement 2011

(ODN AG2012/3926)
[AE892367 Print PR521214]]




Brisbane

10.05AM, TUESDAY, 27 AUGUST 2013

Reserved for Decision

PN1

THE DEPUTY PRESIDENT: Could I just start by taking appearances?

PN2

MR B MONTGOMERY: For the applicant, Deputy President, Montgomery, initial B; NEWMAN, initial D; and GATES, initial C.

PN3

THE DEPUTY PRESIDENT: Thank you.

PN4

MR N HENDERSON: Thank you, Deputy President. Neil Henderson.

PN5

MS M FUCHS: If the Commission pleases, I appear on behalf of APESMA. M Fuchs.

PN6

THE DEPUTY PRESIDENT: Thank you.

PN7

MS TRIALL: For the CEPU, Triall, initial S, and (indistinct)

PN8

THE DEPUTY PRESIDENT: Thank you. All right. Well, the matter has been listed today. As I understand it there's been written submissions have been lodged by the CEPU, the QSU and the company. That's the case? There's not a written submission from APESMA?

PN9

MS FUCHS: No, but I agree with the submissions by the other parties, your Honour.

PN10

THE DEPUTY PRESIDENT: Okay. All right. Thank you. Is there anything - I mean, I've read the submissions, I've - I don't have any questions. Is there anything you want to respond to in the other parties' submissions? Perhaps, if I start with the company first?

PN11

MR MONTGOMERY: Deputy President, we do have an outline of final closing submissions. I do have copies - - -

PN12

THE DEPUTY PRESIDENT: All right.

PN13

MR MONTGOMERY: - - - also available for yourself and the parties.

PN14

THE DEPUTY PRESIDENT: Perhaps, if you can provide that - - -

PN15

MR MONTGOMERY: We're just going to read through them. I'll just go through that - so Deputy President, by way of submissions in response, Ergon Energy submits that whilst the salary maintenance provisions deal with the maintenance of the 10 day fortnight loading, these provisions do not operate to the exclusion of the reversion provisions which apply to both Ergon and on an employee, which was our outlined in our submissions.

PN16

It is an expressed term of the agreement that Ergon Energy or an employee can initiate a reversion from what is, essentially, a discretionary 10 day arrangement to the standard nine day fortnight.

PN17

If the salary maintenance provisions were to operate to the exclusion of any right of reversion it would be expressly stated that it was intended to operate in that manner. Any acceptance of the respondent's submissions that salary maintenance provisions operates in exclusion of clauses 8.7.3 and 8.8.7 in Ergon, it creates a number of illogical and unsustainable situations. And we have gone to the outline in those submissions. It is Ergon's position that interpreting the agreement and endeavouring to resolve this dispute the Commission should avoid such unreasonable outcomes.

PN18

Accepting the respondent's interpretation would mean that whilst Ergon Energy would be able to exercise the right of reversion three months prior to the redundancy of the position with no issue of preservation arising in respect to any maintenance of the loading, we would be unable to do so once the position was made redundant. Furthermore, a 10 day fortnight arrangement would have to be maintained irrespective of any changed operational requirements which no longer supported the genuine need for a 10 day fortnight arrangement.

PN19

The effect being that an employee would remain on a 10 day fortnight arrangement inclusive of the additional loading and a requirement to perform additional hours of work in notional overtime irrespective of any operational need to do so and, essentially, contrasting the redundancy of the position.

PN20

The respondent's interpretation creates further absurdity whereby an employee could not exercise the right to revert at their election with the prescribed notice. The respondent submits that there is nothing to prevent Ergon Energy or an employee from reaching agreement to terminate or give notice to terminate the arrangement, however, is the respondent's argument regarding the exclusion of the reversion provisions were to be accepted it gives rise to further examples of absurdity as described above.

PN21

Even if Ergon and an employee were to agree that an employee was able to revert from a 10 day fortnight arrangement and an employee's election to do so Ergon would be unable to remove the loading and this would be contravening the agreement if an alternative interpretation provided.

PN22

The respondent claims that the purpose of salary maintenance provisions is to provide more protection ensuring an employee is not affected financially by the redundancy. Ergon agrees with this statement to the point where the salary maintenance provisions can't preserve the salary point and any reduction from this.

PN23

However, as our submissions outline, the ability to revert from a 10 day arrangement is a general term of the agreement which expressly allows the reversion to occur at clause 8.7.3 and 8.8.7 relevantly with three months notice, the result of which would clearly have a financial impact to an employee.

PN24

To apply with the respondent's principle that an employee is not affected financially by the redundancy would mean the redundant employee would have a vastly superior outcome to the potential financial impacts to a non redundant employee not just the provision of salary maintenance. So it's Ergon's position that it would go clearly beyond a salary maintenance provision.

PN25

Neither clauses 1.11 or schedule 3 uses the phrase or term "not affected financially". Hypothetically, a scenario could present itself where Ergon Energy decides to revert all employees from a 10 day fortnight arrangement thus removing the loadings and no longer offering those arrangements. Again, this would clearly result in financial effects to all of those impacted employees across the organisation.

PN26

The application of a unilateral protection and the inability to revert the redundant employees outlined by the respondent, clearly, result in a vastly superior outcome for the redundant employees.

PN27

The reversion outcome is not necessarily caused by the redundancy. The reversion ability should be viewed on all accounts and for all the situations of a decision that is based on the sole discretion of either Ergon Energy or the employee. The protection provided by the salary maintenance provisions is to apply the base rate of paid salary as defined in schedule 3 for retrenchment payments initially preserving the salary point and salaries outlined in schedule 1 through redeployment.

PN28

The maintenance of the loading will continue, including through redeployment where applicable until a decision is made per clauses 8.7.3 and 8.8.7 to revert those particular employees which would be based on the circumstances (1) at the time; and the (indistinct) requirements of any redeployed position.

PN29

Clause 1.11 refers to salary maintained without reduction. Salary is not defined in the agreement albeit schedule 3 defines the base rate of pay which does include the 10 day fortnight loadings. Ergon's submission highlighted that the intended salary provision on redeployment is to preserve the salary point where redeployment is to a lower classification.

PN30

Ergon contends the salary reference in clause 1.11 is a salary as contained in schedule 1 Ergon Energy Salaries. Schedule 1 does not include any 10 day fortnight loadings. There is an anomaly between the definition of base rate of pay in schedule 3, and base rates as defined at clause 1.6. The definition within clause 1.6 states:

PN31

Base rate means the rate of pay specified in schedule 1 of this agreement.

PN32

So that's based on nine day fortnight rates.

PN33

The references as to aggregate rates that the respondent has relied upon are contained in limited schedule 6, Controllers' Aggregate Rates. The maintenance of the aggregate rate applies to network operations offers and network controllers classified as system operators employed in our control centres as continuous shift workers.

PN34

Schedule 3 base rate definition specifically mentions annualised and aggregated rates as separate terms. Annualised rate is taken to include the 10 day fortnight loading, for employees on a 10 day alternative employment arrangement, or an individual employment arrangement.

PN35

Separately identifiable to that is the aggregate arrangements which is specifically applicable to system operators and defined in that schedule 3 base rates definition. Therefore, the reference to aggregated in clause 1.11 is the specific reference to the shift arrangements and aggregated salary loading for network controllers.

PN36

Ergon does not accept there is any proposition that the reference to aggregated in 1.11 can encompass the annualised arrangements. This is further supported by paragraph 23 of the respondent's submissions and the inclusion of the reference to aggregated rates as a result of schedule 6 inclusion in the 2008 agreement.

PN37

Aggregated working arrangements is specific - it's the - aggregated working arrangement was another additional point that was relied upon in the respondent's submissions. Ergon maintains that those specific arrangements are different to the aggregated rates for controllers but were specifically included as part of the 2011 agreement for away work. So that was for project work in excess of four or six week periods which aggregated overtime payments and were unrelated to this particular matter in dispute.

PN38

Having regards to the nature of the dispute and the clarification sought on the application of the reversion provisions, Ergon Energy agrees that the inclusion of it, subject to the other provisions of the agreement within the salary maintenance provisions, would have avoided any doubt on the application.

PN39

Similarly, should 8.7.3 could have outlined that reversion cannot occur where an employee is in receipt of salary maintained as outlined by the respondent. We agree they would have provided clarify to the matter, however, neither of these provisions contains such additional wording and, essentially, I mean, the matter of dispute is the interpretation of its - the application and its relevance.

PN40

In managing the employee transition process and consideration to the continuation of 10 day fortnight arrangements Ergon Energy must have regards to the reform of electricity sector which is aimed at addressing cost of living pressures and promoting the economic development of Queensland reforms which are aimed at both reducing costs and improving efficiency.

PN41

Ergon is sensitive to the issues employees face in these circumstances, however, Ergon, its people - and its people have a responsibility to our customers and communities to do everything in our power to ease pressure on increasing electricity prices and to address our customers' concerns about affordability.

PN42

Ergon Energy's interpretation is consistent with the objectives identified within schedule 3, Redundancy Provisions, in particular, the commitment - the objectives of which are outlined to provide sufficient flexibility to effectively address workforce issues arising from the rationalisation of operations and services from time to time within Ergon Energy and the changing nature of work and/or the rapidly changing environment within which Ergon Energy operates, and address these issues in an equitable fashion that supports Ergon Energy meeting the shareholders and the public sector's expectation for long term sustainable returns on their investments in the business as well as the objective of maintaining employees in employment within Ergon Energy wherever possible.

PN43

Ergon Energy submits that the right to revert under the clauses 8.7.3 and 8.8.7 does continue to operate and have application to both Ergon and, importantly, employees, after redeployment or following the election for redeployment where an employee is awaiting actual redeployment to suitable alternative employment as in EIT and employing transition.

PN44

Furthermore, we maintain that our interpretation is consistent with our obligation towards the Queensland government and the Queensland community to be interpreted as outlined by the respondent is inconsistent with the intent of these provisions and creates both illogical and unsustainable outcomes.

PN45

THE DEPUTY PRESIDENT: Can you just tell me - in the circumstances where the employee - an employee receives notice of redundancy, do they have the option to elect for redeployment or is that subject to agreement by Ergon?

PN46

MR MONTGOMERY: No, they have the option to - so when we give notification of redundancy, we have no forced retrenchments, so the employee has the option to elect for voluntary retrenchment or redeployment. If there is suitable alternative employment immediately identified well, then, the employee may be at the same time as the notification of the redundancy be redeployed - or the notification may go to the redeployment to suitable alternative employment but they do definitely have that option for redeployment.

PN47

THE DEPUTY PRESIDENT: And what happens if they redeploy and there's not a position for them in three months?

PN48

MR MONTGOMERY: Sorry, if they - - -

PN49

THE DEPUTY PRESIDENT: It says they're eligible for a retrenchment then. Does that mean they get retrenched or does it mean they can continue indefinitely to be redeployed?

PN50

MR MONTGOMERY: They would continue indefinitely. In the current case we have the employee transition process and, obviously, we have a number of employees who elected redeployment, but because of the changing nature of the workforce, the efficiency drivers of the organisation and the cost drivers, a lot of the roles and opportunities have diminished what may have been previously available. Those employees have been managed as a redeployed employee transition. So they still are maintained in their employment. So we have approximately 84 employees in transition, 40 of which are employed on 10 day fortnight arrangements, and they will continue to be employed by the organisation until such time as they elect voluntary retrenchment or suitable alternative employment is available. And they can be redeployed (indistinct)

PN51

THE DEPUTY PRESIDENT: Because in the schedule 3 that deals with the redundancy provisions there's a reference to a three month period still being entitled to retrenchment payments in the redeployment provision and it seems that that - there may be some link between why 8.7.3 refers to a three month period as well.

PN52

MR MONTGOMERY: Yes. So within - employees who elect redeployment and then who are redeployed - there's a three month provision which enables both Ergon or an employee to say whether that role is suitable alternative employment for the purpose of redeployment. So that doesn't cover an employee who is in transition who hasn't got a role. Ergon has made a determination that this is suitable alternative employment, the employee has the - can elect by that three months to determine whether it's suitable or not.

PN53

Similarly, Ergon Energy can utilise that process to determine whether that alternative role is suitable as well. So within that period they can then elect or apply for voluntary retrenchment. So it enables, after the redeployment has been enacted, further consideration to the suitability of that redeployment outcome.

PN54

THE DEPUTY PRESIDENT: Okay. Thank you.

PN55

MR MONTGOMERY: It's based the position. So we have a number of employees' entries transition who haven't been redeployed. They may request a voluntary retrenchment and that can be considered, but that provision wouldn't necessarily apply until such time as redeployment has occurred.

PN56

THE DEPUTY PRESIDENT: So could there be a mid position that in the event that a person is on this arrangement and they - they are redeployed but they maintain it for the three month period and then if the redeployed position doesn't work out and they aren't retrenched that then it ceases.

PN57

MR MONTGOMERY: I think the situation we find ourselves is suitable alternative employment may not be immediately available and we may have redeployed for a number of months, or in some cases, over a number of years, who haven't been able to secure suitable - - -

PN58

THE DEPUTY PRESIDENT: So you say they shouldn't be required to - it shouldn't go on indefinitely for a person who is, I guess, sitting there in the redeployment pool but not being redeployed.

PN59

MR MONTGOMERY: Yes. Effectively, we we're saying - and they would maintain the 10 day until such time as Ergon elected to revert them. Alternatively, there would be nothing preventing the employee reverting themselves from that arrangement.

PN60

Obviously, if redeployment was secured it would be based on the role, but if they had been reverted any subsequent retrenchment payment would be calculated at their current rate of pay.

PN61

THE DEPUTY PRESIDENT: Okay. Thank you. Mr Henderson?

PN62

MR HENDERSON: Your Honour, just a couple of points. We agree with the submissions of Ergon that the provisions - the reverting provisions of the 10 day fortnight arrangements are general provisions of the agreement. That's the trust of our submissions. We then go on and say that the provisions of clause 10 of schedule 3 are specific provisions and in the normal course provisions relating to specific matters should override provisions relating to general matters.

PN63

The force of that submission is added to - when one looks at the second paragraph of clause 10 of schedule 3, which provides that:

PN64

Where an employee is redeployed they will retain their base rate of pay prior to redeployment as a minimum. This will not include shift loadings unless applicable to the redeployed position.

PN65

The provision relating to shift loadings is a repetition of the exclusion of shift loadings from the definition of base rate of pay in the earlier part of the schedule and it seems to us fairly clear that that provision is there to make it clear that if a person is not working shift then they're not entitled to shift loadings, but a requirement for a person to do a particular type of work is not mentioned in relation to the continuation of all other aspects of the base rate of pay.

PN66

So, for example, it doesn't say, if the employee is not doing the work which warranted the annualised rate in the first place then they won't get the annualised rate. It simply makes that provision only in relation to shift work. And, in our submission, it's clear it follows that the reason for that is that it's intended that the employee would retain access to all of the other aspects of their annualised rate other than shift loadings whether they work - demanded payment of those allowances or not. And, in our submission, that's the reason for the specific provision and that's why it overrides the general - because as we say the whole trust of the agreement is to provide the special arrangements for employees who have been made redundant.

PN67

THE DEPUTY PRESIDENT: Why is it that clause 8.7.3 has the last paragraph - the provision in the last paragraph about the three month notice period, and clause 8.8.7 doesn't?

PN68

MR HENDERSON: Because in 8.7.3 it seems to have been put in to take into account a situation for an employee who intends to leave the company. Why it hasn't been put in to 8.8.7 is a mystery to me. It could have been an oversight. It could be because they're different types of employees that are covered by the arrangements, the individual employment arrangements from the arrangements that the 10 day fortnight encompass. It's a mystery. But, in any event, in terms of the argument for the employees who remain, whether they're 8.8.7 or 8.7.3. type employees schedule 3, clause 10, covers them.

PN69

So it's a mystery that we're going to find out the answer to because the dispute only concerns people who are staying. And in the context of the - - -

PN70

THE DEPUTY PRESIDENT: So you say the last paragraph of 8.7.3 concerns people who were going to go?

PN71

MR HENDERSON: Who are leaving - exiting the organisation.

PN72

THE DEPUTY PRESIDENT: Except the person who gets notice of redundancy somewhat unusually in, you know, in general cases, people who get notice of redundancy know they are going, but in this case they don't have to go, they can opt to be redeployed and they can stay being redeployed for an indefinite period.

PN73

MR HENDERSON: That's right. That's right. So the way that that last paragraph works someone gets notice that their position is redundant, it provides an additional window for them to not have their arrangements changed until they leave the organisation or, alternatively, they put their hand up and say they want to be redeployed, in which case schedule 3, clause 10, is operating.

PN74

THE DEPUTY PRESIDENT: So does the right to maintain these provisions - do you say in circumstances where people are given notice of redundancy and they opt to be redeployed, do you say that the entitlement to maintain the 10 day fortnight loading comes from item 10 in schedule 3, rather than - - -

PN75

MR HENDERSON: Rather than - - -

PN76

THE DEPUTY PRESIDENT: - - - the last paragraph in 8.8.3?

PN77

MR HENDERSON: That's right. That's our submission.

PN78

THE DEPUTY PRESIDENT: Okay. I understand.

PN79

MR HENDERSON: And then that employee, having elected to be redeployed, retains that allowance until such times they apply for a position and achieve it. And then when that occurs, it seems to us, that clause 1.11 - the last paragraph of 1.11 comes into operation if following redeployment an employee is successful in obtaining another position through a recruitment of this election process the salary and terms and conditions of the new position will apply.

PN80

So we submit that the agreement sets up a special arrangement to protect an employee's entitlement for the duration of the time that they're redeployed. And contrary to the submissions of Ergon, we say that that's the intention - is to make a redundant employee - or to protect a redundant employee's situation in circumstances where, arguably, it's said they have a fairer outcome than an employee who hasn't been made redundant but, of course, they've been made redundant - - -

PN81

THE DEPUTY PRESIDENT: But doesn't clause - doesn't item 10 of schedule 3 give them an entitlement to retain their base rate of pay?

PN82

MR HENDERSON: That's right.

PN83

THE DEPUTY PRESIDENT: And why do you say that that gives them an entitlement to retain an allowance that's based on the 10 day fortnight?

PN84

MR HENDERSON: Because schedule 4 defines base rate of pay - I'm sorry, clause 4 of schedule 3, defines base rate of pay as including in the last dot point all of those arrangements. But then, as I say, it also has the additional proviso which suggests the parties were pretty keen to ensure that no-one got shift loadings unless they were working shift. Employees (indistinct) aggregated rates - the base rate of pay excludes overtime and shift loadings for - with their penalty rates.

PN85

THE DEPUTY PRESIDENT: Well, what is the allowance for the 10 day fortnight?

PN86

MR HENDERSON: It's for working the additional three quarters hours and other things that are set out in the clause. So basically the agreement provides that in those circumstances - in the circumstances of the redundancy and redeployment, if you exit the company you get your redundancy pay based on your annualised arrangement. And if you opt to remain with the company you have your annualised arrangement preserved until such time as you are able to secure a permanent appointment to a job you've applied for outside the redeployment process.

PN87

THE DEPUTY PRESIDENT: So, effectively, a person could keep getting a loading for attaching to conditions that don't apply.

PN88

MR HENDERSON: It seems to be the way the agreement operates. The only conditions which the agreement seems to be concerned to ensure that people don't get paid until the work requires it as a shift loading.

PN89

THE DEPUTY PRESIDENT: So the company could revert them to the nine day arrangement, but it would still have to pay the 10 day loading?

PN90

MR HENDERSON: That's correct, yes.

PN91

THE DEPUTY PRESIDENT: Okay. I understand your submission. Is there anything?

PN92

MS TRIALL: Your Honour, in terms of the CEPU's position the questions that you were asking Mr Montgomery earlier about clause 10 of schedule 3, the final paragraph. Through no fault of Ergon employees that have been - had their positions made redundant, they have been elected to be redeployed through no fault of their own if there are no available alternative employment to them. We submit that obviously if Ergon is allowed to remove this provision and entitlement that they have at the time that their position was made redundant, that they are being disadvantaged for exercising that workplace right and saying that they choose to be redeployed rather than expecting a redundancy because had they chosen to take the redundancy at the time the position was made redundant, they would have been paid out their retrenchment benefits at a rate that included that 10 day fortnight arrangement and that loading which is protected as a minimum in schedule 3 in the definition of the base rate.

PN93

Should they have that removed, even though (indistinct) Ergon are trying to achieve, should they be redeployed into a position and the three months notice has been given and they lost that entitlement, they determine - or Ergon determines that that position is satisfactory for them and at that time they choose to be retrenched then the retrenchment benefit is going to be less than had they actually taken the redundancy (indistinct) which is extremely unfair and not the intention of the schedule which, as Mr Henderson, is supposed to be a specific provision in relation to protecting the conditions and the minimum that they had at the time.

PN94

Now, in terms of your comments about - it being a little difficult because they're being paid loadings for work that they may not necessarily be doing, the wording of the agreement is pretty clear in terms of the base rate if they wanted to include it. It's fair - we believe that it's unfair that because Ergon didn't take appropriate steps initially prior to making the position redundant, and electing to maybe give the appropriate notice to employees that were on a 10 day arrangement to revert them to a nine day fortnight arrangement where there would be a reduction in costs associated with resourcing which may have led to prevention of all of the positions being made redundant and could have been some evidence in some of those roles, but they've chosen not to do that and these people were made redundant, and at the time they were made redundant they were on a 10 day arrangements, and that entitlement shouldn't be taken away from them through Ergon's lack of foresight in how it was going to be applied.

PN95

THE DEPUTY PRESIDENT: But if - I could accept that there would be - I could accept the argument that if what happened at the end of the redeployment and the position didn't work out, is that the person goes. They're retrenched at that point
- - -

PN96

MS TRIALL: Yes.

PN97

THE DEPUTY PRESIDENT: - - - and they've lost the benefit of something that should have attached to their retrenchment payments. That's one proposition that - I think it's entirely different proposition here because what you say is that even though the position doesn't work out and they don't get retrenched and they have the right to just continue to be redeployed and indefinitely to continue to receive a payment. So it stops - if this was about protecting what someone got paid at the point that their employment ceased and how their redundancy benefits were maintained, that would be one thing - but that's not the only aspect of the argument.

PN98

The other aspect is that if they don't part ways with the company, if they stay in employment, they still have to keep getting this payment forever and a day.

PN99

MS TRIALL: So we submit that alternatively the interpretation that if an employee is in the pool they maintain their base rate - the schedule is pretty clear, that once they redeploy to a position they maintain a base rate as a minimum. At the point that they then redeploy there is that three months notice period for reversion under 8.7.3. There's also at 8.8.7 - I'm not sure, sorry, specifically - - -

PN100

THE DEPUTY PRESIDENT: But what - how can the company - if your argument is right, the company can't ever - if can revert them back to the nine day fortnight but it has to keep on paying them the allowance on the basis of the 10 day fortnight even where they don't. So it's not just about calculating payments on separation from the company, it's also about a claim that they just have an ongoing entitlement - - -

PN101

MS TRIALL: We submit that the 8.7.3 would be able to applied upon the person in employment redeploying to a position because at that point they are employable in that redeployed role. They are able to maintain the minimum, which is (indistinct) if there's an operational requirement that that redeployed position doesn't require them, they don't have the capacity to give them three months notice which would coincide with the three months notice period that the employee and the employer have an opportunity to say (indistinct)

PN102

If they knew on day 1 that the redeployed position didn't have an operational requirement and that it was genuine, and it was an operational requirement, then they would have to give that notice period and that would fall into a three months notice - the three months probationary period, effectively, that the employee has to determine whether or not they remain in that position or take the redundancy.

PN103

THE DEPUTY PRESIDENT: So you would say the three months' notice period can't come into effect until they're actually redeployed into a position?

PN104

MS TRIALL: Yes, that's what we're saying.

PN105

THE DEPUTY PRESIDENT: I understand. All right.

PN106

MR HENDERSON: Your Honour, I have to say that we disagree with that interpretation that whilst the employees are redeployed, there is no access to 8.7.3 in our view. We maintain - - -

PN107

THE DEPUTY PRESIDENT: So even if they get redeployed into another position - - -

PN108

MR HENDERSON: That's right. While they're redeployed, they maintain access to their base rate in accordance with schedule 3. But as soon as they apply for a position and are successful in obtaining it, then they are subject to whatever the entitlements are of that position. And if that position had an annualised rate attached to it well, that would be one thing. If the employer wasn't happy with that - - -

PN109

THE DEPUTY PRESIDENT: Well, when do they ever stop being redeployed?

PN110

MR HENDERSON: Well, it's not unusual to have arrangements where redeployed employees maintain their entitlements from the job from which they were displaced until such time as they choose to move into a different job. It's called various things in various places: red circling, invencing.

PN111

THE DEPUTY PRESIDENT: Normally, that - red circling or red ringing means that they're frozen.

PN112

MR HENDERSON: Frozen at the rate they were on.

PN113

THE DEPUTY PRESIDENT: Well, no there's no suggestion here that they're frozen. If your argument is right, they're not red ringed at all, they're not grandfathered or anything, they are going to keep on getting all increases and whatever, plus they're going to - forever and a day, as far as they are concerned, keep getting a payment based on a condition that they're not subject to.

PN114

MR HENDERSON: That's right. And then - I don't agree that it has to be frozen. I mean, I've seen arrangements in the airline industry where they have junior point managers working as base grade customer service officers on their full entitlements for years. So this is what the parties have agreed to, that's what - in our submission, ought to be given effect to.

PN115

THE DEPUTY PRESIDENT: But at some point, if they're deployed into a position, isn't it - doesn't the last clause - the last paragraph of clause 10 provide that they've got three months to decide if they wanted to be in that position or not? If at the end of the three months they're still in that position, don't they stop being the redeployee?

PN116

MR HENDERSON: Well, we don't think so because clause 1.11 seems to set up a situation where a person continues to be a redeployee until they are successful in obtaining another position through a recruitment and selection process. Because it's always the possibility that while someone might not take the opportunity of the three months position to - or time in point to be made redundant, they might take the opportunity to stay in that redeployment position but nonetheless not believe that it's a satisfactory position in their longer term feel what's good for their future.

PN117

So, essentially, they remain a redeployee - - -

PN118

THE DEPUTY PRESIDENT: So you say they're a redeployee until they obtain a position through a recruitment and selection process.

PN119

MR HENDERSON: That's our submission and that's, in our view, supported by the (indistinct)

PN120

THE DEPUTY PRESIDENT: All right. I understand.

PN121

MR MONTGOMERY: Just to add some further clarity to that particular point, Deputy President, is what Ergon's submission relates to is that salary maintenance - where redeployment is effected, and it may be to a lower classification, we do maintain the person on their salary point.

PN122

THE DEPUTY PRESIDENT: Salary, yes.

PN123

MR MONTGOMERY: We are saying though subject to the operational requirements that reversion should still apply but the salary point, whether it's at a lower grade, would be maintained until they were to secure another position, so there is a preservation of that salary in those circumstances.

PN124

THE DEPUTY PRESIDENT: Yes. I understand. But you would say that that doesn't mean - that amounts such as the 10 day loading is required to be maintained.

PN125

MR MONTGOMERY: Yes, provided Ergon goes through and gives the notice that's required against those requirements, we say that should still apply and has relevance.

PN126

THE DEPUTY PRESIDENT: All right. Well, I'm going to have to - I'm going to reserve on this. I understand that it's urgent. I will consider the further submissions and I will issue a recommendation as soon as possible.

PN127

MS FUCHS: Your Honour, your Honour, can I speak?

PN128

THE DEPUTY PRESIDENT: I'm sorry. Yes.

PN129

MS FUCHS: It is APESMA's submission that Ergon is artificially creating a situation to revert people by deliberately removing them from the operational need for the 10 day fortnight, like, the coincidence that the training course for EIT's is for 12 weeks, and the UCA clause for reversion is 12 weeks. So there's people within the IT group that have actually taken up secondments and meaningful work that does support the 12 days loading, and yet they are being forced to go into a 12 week course which, of course, does not then have an operational need for 10 days.

PN130

So it is APESMA's submission that Ergon is artificially creating a situation so it can revert these people.

PN131

THE DEPUTY PRESIDENT: Well, that's another - that's not an issue of interpretation of the agreement; that's an issue of how it's being applied surely. I mean, if you have a dispute whereby you say the company is avoiding giving people their entitlements under an agreement, then that's not to do with the interpretation of the agreement. That's breach of the agreement.

PN132

MS FUCHS: Okay. So we should make a submission for breach.

PN133

THE DEPUTY PRESIDENT: Well, I don't know. I can't - I just don't - I'm not understanding how that's relevant to the issue we're here to determine, which is the operation of all of these clauses and whether - which interpretation is correct. It might be a separate issue.

PN134

MS FUCHS: I understand. I understand what you're saying.

PN135

THE DEPUTY PRESIDENT: All right. Is that all you wanted to say?

PN136

MS FUCHS: Yes, thank you.

PN137

THE DEPUTY PRESIDENT: Okay. On that basis I will adjourn.

<ADJOURNED INDEFINITELY [10.44AM]