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Australian Industrial Relations Commission Transcripts |
3082 
, Transcript of Proceedings [2006] AIRCTrans 1156 (20 October 2006)
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 15887-1
SENIOR DEPUTY PRESIDENT HAMBERGER
C2006/ 3082
AGL CORPORATE SERVICES PTY LTD
AND
THE AUSTRALIAN WORKERS’ UNION - TECHNICAL, ADMINISTRATIVE, PROFESSIONAL STAFF AND GAS INDUSTRY BRANCH
s.552 - Application for variation of award (general)
(C2006/ 3082 )
SYDNEY
10.11AM, FRIDAY, 06 OCTOBER 2006
PN1
MR B GEE: I seek leave to appear for the applicant, together with MS H STAR, solicitor and MS T SWINLEY, representative of the applicant.
PN2
MS L DOUST: I seek leave to appear with MR N RUDD from the Tax Branch of the Australian Workers Union. To his right is MR J DAY, the assistant secretary of that branch.
PN3
THE SENIOR DEPUTY PRESIDENT: I assume there are no objections to leave. Leave is granted. Mr Gee?
PN4
MR GEE: Thank you, your Honour. Before I call my witness I just wish to attend to a very brief matter of housekeeping. As your Honour may be aware we received Mr Day's statement and my friend's submissions yesterday afternoon. It hasn't given us sufficient time to prepare a supplementary witness statement so I will be seeking leave to adduce additional - a small amount of additional oral testimony from my witness.
PN5
THE SENIOR DEPUTY PRESIDENT: I'm not sure I've got Mr Day's statement.
PN6
MS DOUST: No, your Honour. It might be a convenient time for me to hand that up now. I got it to Mr Gee after closing time yesterday afternoon, so there wasn't an opportunity to submit it to the Commission yesterday.
PN7
THE SENIOR DEPUTY PRESIDENT: Well, we'll deal with it. Yes, please do, yes.
PN8
MS DOUST: I'll hand up if I might the statement of James Andrew Day and also the outline of submissions for the union. My friend has a copy of those.
PN9
THE SENIOR DEPUTY PRESIDENT: Sorry, you're saying you reserve your right or you do want to - - -
PN10
MR GEE: I do intend to adduce some additional oral testimony arising out of those.
PN11
THE SENIOR DEPUTY PRESIDENT: Right, today?
PN12
MR GEE: Today, yes.
PN13
THE SENIOR DEPUTY PRESIDENT: Okay.
MR GEE: Other than that, your Honour, I call Ms Tracy Swinley.
<TRACY LEE SWINLEY, SWORN [10.14AM]
<EXAMINATION-IN-CHIEF BY MR GEE
PN15
MR GEE: Ms Swinley, could you please state your name and address for the record please?---Tracy Lee Swinley (address supplied).
PN16
Ms Swinley, have you prepared a witness statement for the purpose of these proceedings?---I have.
PN17
Do you have a copy of that?---I do.
PN18
I seek to tender that. Sorry, before I do, Ms Swinley, is that witness statement a true and correct record of your evidence in this matter? If so please say I do?---I do.
I seek to tender that.
EXHIBIT #AGL1 STATEMENT OF TRACY SWINLEY
PN20
MR GEE: Ms Swinley, can I ask you to turn to paragraph 6 of your statement. Do you see the last sentence of that paragraph, is there anything you'd like to add to that sentence?---Yes. I think it's probably better to say there that the existing AGL retail energy business will continue to trade under the AGL name going forward.
PN21
MS DOUST: Your Honour, might I just ask for the witness to repeat that? I lost a bit of it.
PN22
THE SENIOR DEPUTY PRESIDENT: Yes, so did I actually. Yes, if you could perhaps speak up a bit that would be better, thanks?---I think the better description is that the existing AGL retail energy business will continue forward and trade under the AGL name.
PN23
MR GEE: If I could ask you to turn to paragraph 12. In that paragraph you say you've spoken regularly to Mr Colin Heath and Mr James Day of the AWU Tax Branch, do you see that?---Yes, I do.
PN24
And you say that they had those various issues and concerns in those discussions?---That's correct.
**** TRACY LEE SWINLEY XN MR GEE
PN25
Can you recall what kind of issues have been raised with you by Mr Heath and Mr Day?---There have been many. I'm just recollecting that. There have been some issues around the operation of redundancy provisions and the offer of employment from IBM, issues around location, where that might be, how that might work, generally what the offer might look like, issues around share plans, what that might look like and how that might be compensated, energy discounts, how that would be dealt with, quite a range of issues over time.
PN26
You say one of those issues was about location of work. Can you tell me what that concern was or what the issue was there?---The concern that was raised was issues from the colleagues in Scope, that they were concerned that IBM might seek to move them unilaterally at any point in time once they commenced employment with IBM.
PN27
Who do you mean by colleagues?---The colleagues that are included in - will be included as - well, the colleagues who have received offers from IBM.
PN28
And has that location issue been addressed by AGL or IBM in any way?---Yes, it has. I had some discussions with IBM about that issue and I suggested to them that they might consider utilising or including the word consultation in the location clause in the offer of employment to be made.
PN29
And you've given evidence to that effect. Could I ask you to turn to page 13 of your statement, that's annexure B, which I understand to be an email from Bill Short of IBM to yourself on 26 September, is that right?---That's correct.
PN30
And there are some words at the bottom of that page. Is it those words that addresses that location issue?---Yes.
PN31
Have there ever been any concerns raised about colleagues having to work for multiple external clients rather than a single employer?---Yes, that has been raised.
PN32
How has that been addressed?---I think I had some discussions - well, actually I did have some discussions with IBM about that and they advised me that day one of employment with IBM people would work exclusively on the AGL work as they are doing today, but over time that that might change, in that into the future as IBM managed the work there may be some changes to that.
**** TRACY LEE SWINLEY XN MR GEE
PN33
Have they disclosed what kind of changes there might be?---I actually suggested that if they managed the contract efficiently that might free up time for people to engage in some other work, IBM related work.
PN34
Now, has a concern been raised with you about hours of work and patterns of work?---Yes, there has.
PN35
And how has that been addressed?---One employee who will have received an offer raised the issue of some of the wording in the offer itself, particularly around the hours of work per week. I contacted IBM and talked to them about that and they reinforced the statement that they had made earlier in presentations, that hours of work would be 37.5 hours per week.
PN36
Can I just stop you there. Could I ask you to turn to page 37 of your statement. Page 37 is part of annexure F, which is, as I understand it, is a PowerPoint presentation delivered by IBM to your colleagues?---That's correct.
PN37
Is that what you've just given evidence about?---That is.
PN38
Contained in that?---That's correct.
PN39
Permission to approach, your Honour?
PN40
THE SENIOR DEPUTY PRESIDENT: Yes.
PN41
MR GEE: Ms Swinley, I've just handed you, or caused to be handed to you a document. Can you tell me what this document is please?---Yes. This has arisen as a result of that inquiry I just mentioned earlier, and it is the IBM response to the issue that was raised regarding the working hours.
PN42
So I suggest - is it email correspondence, is that right?---It is, that's correct.
PN43
Email correspondence has unfortunately gone in reverse order, but starting around the middle of the top page of that document it appears
to be a form of words which is proposed to go to Mr Anthony Powell. Now, who is Mr Powell?
---Mr Powell is one of the colleagues in Scope who will have received an offer from IBM.
PN44
And is that the person that you mentioned raised the issue about hours of work?
---That's correct.
**** TRACY LEE SWINLEY XN MR GEE
PN45
And following on from that is a form of words. Do you know whether that form of words was actually provided to Mr Powell?---I understand that it wasn't provided in an email, but there was a meeting between himself and Mr Gareth Bennett where the content of the email was relayed to him.
PN46
And who is Mr Bennett?
PN47
MS DOUST: I object. Sorry, I've allowed a great deal of some material, your Honour, but that really is hearsay and shouldn't be accepted by your Honour.
PN48
THE SENIOR DEPUTY PRESIDENT: Sorry, I actually can't hear.
PN49
MS DOUST: I apologise. Your Honour, the answer that was just elicited from the witness was as to a conversation between a third party and an employee, and this witness is purporting to give evidence about the conversation, and of course that's something that, regardless of the application of the strict rules of evidence in this organisation, your Honour really shouldn't receive because it's not a reliable source of evidence.
PN50
THE SENIOR DEPUTY PRESIDENT: Well, yes, I can't give any weight to what might have been said.
PN51
MR GEE: I note my friend's concession about the application of rules of evidence in this tribunal, but I'd suggest your Honour could accept the evidence as evidence of a meeting between Mr Bennett and Mr Powell about the issue, not necessarily as to the contents of that.
PN52
THE SENIOR DEPUTY PRESIDENT: Right. How do you know that such a meeting occurred?---I made a telephone call this morning to a person who did check that for me in the organisation.
PN53
Right, okay. That's indirect evidence. Well, anyway - - -
PN54
MR GEE: I apologise, your Honour. We're just restricted by time.
PN55
THE SENIOR DEPUTY PRESIDENT: Yes. Look, I don't want to be overly technical about it but I'm not sure it's going to be all that - whether the issue is going to be - I mean, I'll say the working hours issue may or may not be relevant. I'm sure it is a relevant issue. But my understanding of the requirements on the Commission is it's an objective assessment of the acceptability of the, you know, the terms of the offer rather than what may or may not have been conveyed to people.
**** TRACY LEE SWINLEY XN MR GEE
PN56
MR GEE: Well, perhaps I can deal with it this way, your Honour.
PN57
Ms Swinley, if you examine the words towards the bottom of that first page there, does that reflect your understanding as to the arrangement of the working hours in the offer of employment from IBM?---It does.
I seek to tender that, your Honour.
EXHIBIT #AGL2 EMAILS RE WORKING HOURS
PN59
MR GEE: Ms Swinley, in your various discussions with Mr Day and Mr Heath has a concern ever been raised about the absence of overtime payments and/or time in lieu for work in excess of standard hours?---Not that I can recall, no.
PN60
Once again can I ask you to - no, I'll withdraw that. Do you recall whether an issue or concern has ever been raised about provision for flexible hours in working with IBM?---There were some discussions in one of the information sessions that I attended. It was a presentation that IBM made to the colleagues in Scope of this exercise, and there were some discussions around how time in lieu would operate, what that might look like.
PN61
Do you recall how or what message was conveyed by IBM in relation to that particular issue?---Yes, I do. I do recall that quite well because there was some lengthy discussion about it. IBM explained that they work on a flexible basis in terms of hours and that where there has been additional work undertaken that that is a matter that is negotiated between the person concerned and their leader as to taking time in lieu, and it was emphasised and reiterated by IBM through that session, that there is a very flexible approach to work.
PN62
And this information session that you describe now, is that the same information session that you describe, well, from around paragraph 24 of your statement onwards?---Yes. Indeed, the discussion I was talking about referred to 24 August 2006 at point 24 in my statement.
PN63
And at paragraph 40 of your statement you refer to IBMs presentations. When were those presentations made to the employees?---I've got the dates in here somewhere. The first one that I attended was 24 August, and I believe there was one held in Melbourne on 23 August. The date is in here somewhere, which I'll find in a moment. Then there were two further ones after that. The dates were around 7 and 8 September, but those dates precisely are provided in here somewhere.
**** TRACY LEE SWINLEY XN MR GEE
PN64
I might move on, Ms Swinley. Do you recall in your discussions with Mr Heath and Mr Day, do you recall whether an issue or concern was ever raised about a lack of certainty about career paths within IBM?---No, I don't recall that. In fact what I do recall is some contrary discussions about career paths in IBM, particularly from IBM in the sessions, that it being a very large organisation with significant and varied contracts that there was a lot of scope for career development in IBM.
PN65
Do you recall whether an issue or concern was ever raised about a loss of on call allowance?---There was some discussion about on call allowance in that first session that I attended, and I think the date again was 24 August, where there was some comparisons undertaken in the room between our colleagues and IBM as to what the respective on call allowance provisions were.
PN66
So do IBM have an on call allowance?---They do indeed.
PN67
Now, if I could ask you to turn to page 26 of your statement?---Yes.
PN68
Is the information on that page consistent with your understanding of IBMs on call arrangement?---Yes, indeed it is. That's what was discussed really on the day of 24 August from memory.
PN69
Thank you. Could I ask you to turn to paragraph 23 of your statement please, and paragraph 23 starts on page 5, it goes over to page 6. It's page 6 that I'll ask you to turn to?---Okay.
PN70
On page 6 you refer to - I'm paraphrasing, but a calculation that IBM, in respect of a long service leave entitlement. Now, with that in mind could I ask you then to turn to annexure C which starts on page 14. And your evidence is that this is a sample offer of employment from IBM. That's my words. But if you then turn to paragraph 18 there's an attachment A. Do you have that?---Attachment A, yes.
PN71
It's the page numbered 18 on your statement?---I do.
PN72
And on that page is a reference to long service leave and then the figure 593. Now, what does that represent?---Sorry, just let me grab that again. Okay, that list of items there is the items that are compensated by IBM in dollar terms, and long service leave is one of those. It has a figure next to it which relates to compensation for any long service leave differential that there may be between IBMs provisions and AGLs provisions.
**** TRACY LEE SWINLEY XN MR GEE
PN73
Just for clarify, when you refer to differential, is that what you describe in paragraph 23 of your statement?---Yes, it is.
PN74
Can I ask you now to turn to paragraph 37 of your statement please. In paragraph 37 you refer to a document marked C?---Mm.
PN75
Now, what is the purpose of that document?
PN76
MS DOUST: Well, I object to that.
PN77
THE SENIOR DEPUTY PRESIDENT: Yes, go on.
PN78
MS DOUST: The document is clearly not the document of the witness. It's a document - it's an unsigned document which purports to be in the hand of Bill Short, the human resources manager. It's on IBM letterhead. Now, this witness clearly isn't in a position to speak to either the state of mind of Mr Short or for the purposes of IBM.
PN79
THE SENIOR DEPUTY PRESIDENT: Well, possibly. Well, perhaps you might want to rephrase your question, Mr Gee.
PN80
MR GEE: What is your understanding of - - -
PN81
THE SENIOR DEPUTY PRESIDENT: Well, that doesn't really solve the problem. I mean, I suppose, well, who was this letter prepared by?---Bill Short of IBM, who is the human resources manager.
PN82
It is actually prepared by him?---Yes.
PN83
MR GEE: How did the document come to be prepared?
PN84
THE SENIOR DEPUTY PRESIDENT: Well, not, she may - - -
PN85
MS DOUST: I object to that as well. I mean, because again it's a question about a document that might be a business record of IBM, but being asked of someone who holds no role in that organisation the question is without any foundation from this witness.
PN86
THE SENIOR DEPUTY PRESIDENT: Well, not necessarily.
**** TRACY LEE SWINLEY XN MR GEE
PN87
MR GEE: That's not right.
PN88
THE SENIOR DEPUTY PRESIDENT: Well, no, that may or may not be true. I mean, if you could perhaps explain your knowledge of this document and how you come to know about it, if you like. Well, perhaps you want to again rephrase the question.
PN89
MR GEE: I'm happy for - - -
PN90
THE SENIOR DEPUTY PRESIDENT: Well, can you explain, you know, what your knowledge is of this document?---Yes. This document is an offer of employment that has been prepared by IBM to be provided to each of the colleagues employed by AGL that we identified that were being Scope of the work that IBM wanted to take on our behalf, offer of employment, permanent employment.
PN91
MR GEE: Do your knowledge have IBM made offers of employment to any Scope employees?---They have - - -
PN92
MS DOUST: Again I object.
PN93
THE SENIOR DEPUTY PRESIDENT: Well, no. Look, I mean, I think you're being overly technical. It's to the best of the witness' knowledge. If you can show that it's not true then it will be open for you to show it's not true. Is this actually a serious - - -
PN94
MS DOUST: It is, your Honour, and the basis for it is this. This witness certainly isn't from IBM, as I've said. There's no foundation I say to establish the basis of her knowledge. The statement that she gives to this Commission doesn't identify any particular employee said to have received this offer. So really the effect of allowing this evidence is quite unfair to the union because we don't have an opportunity to examine the evidence, to interrogate it and to challenge it.
PN95
THE SENIOR DEPUTY PRESIDENT: Well, I'm not sure - - -
PN96
MS DOUST: She simply makes an assertion that employees have received offers. Now, the normal way that you would give evidence of receipt of offer would be, for example, the person who made the offer might give some evidence of having conveyed the offer to the person. If she was the person who made the offer and created the offer and could come from this witness. She also might have been privy to the process so she might have been with the employees at the time of receipt of offer. You know, that would be the normal way.
**** TRACY LEE SWINLEY XN MR GEE
PN97
THE SENIOR DEPUTY PRESIDENT: Is it in serious contest that these offers were actually given to people?
PN98
MS DOUST: The identity of those who have received offers from IBM is a matter in serious contest in these proceedings, your Honour. And I apologise to you for receiving my submissions late in the piece, but we say that the very vice in this case is that unlike the previous cases where the Commission has to consider this issue of alternative acceptable employment, this applicant doesn't identify to your Honour that particular employees have received the offers, and provide evidence as to their particular terms and conditions of employment.
PN99
Now, that becomes quite critical we say, your Honour, in this context. We say there's a long history of controversy at this workplace about award coverage for the employees within the IT bureau. There's a history of letters going to those employees saying that they are outside award. There's a history of providing them with common law contracts of employment. So this employer's conduct has not been consistent with it taking the view that these employees are award covered all along. So there's a real issue here, your Honour, as to who were the employees sought to be covered by the award.
PN100
There's a range of different common law contracts which have been distributed to the employees. And for your Honour to understand the position we say your Honour would need to be able to identify who are the particular employees, what are their particular terms and conditions of employment, and get a sense of the precise offer that's been made to them. So the flaw in this case is that we have evidence from AGL one step removed from the process of making the offers giving us some hearsay evidence of what IBM has done after some discussions, and making the assertion to your Honour that each of those offers, without identify which offer was made to whom, provides a comparable offer. So yes.
PN101
THE SENIOR DEPUTY PRESIDENT: So it is an issue, okay. Well, I wasn't aware of that.
PN102
MS DOUST: These matters are very seriously contested, your Honour.
PN103
THE SENIOR DEPUTY PRESIDENT: Okay. Well, if it's an issue I'm going to ask the witness then.
PN104
First of all, you say these offers were given to, I think you described them as colleagues?---Mm.
**** TRACY LEE SWINLEY XN MR GEE
PN105
They would vary, the actual specific terms of the offers?---No. Only in the sense that - - -
PN106
Is this an absolutely standard letter that would go to every single one of the people who received it, there's no - - -?---Yes, that's correct. And I can identify them.
PN107
Including the attachment, attachment A does not vary for some people?
---Attachment A would vary only in the sense of the dollar amounts that an individual might have.
PN108
Well, that's quite important actually?---Yes, it does, it would vary - - -
PN109
The dollar amount is of such great importance to people. So it would vary. So it's just attachment A would vary?---The only other variation - - -
PN110
And the salary figure I'm presuming?---Yes. And the only other variations would be in the letter identifying whether a person's role was part time or full time and the location of their work.
PN111
Why would the salaries vary? This is because people are on different - - -?
---Exactly.
PN112
So are you able to - I mean, how do you know what was given to people? On what basis do you say that this was offered to the colleagues?---I was present when they were given out, but they were in envelopes.
PN113
You were present when they were all given out?---Yes. Well, for those who attended in person were handed an envelope, their name was called and a record was made of their acceptance of that.
PN114
Are you going to be able to identify - I mean, you're being put on notice really - who it was who actually received the offer? It's like actually who precisely it was. Are we talking about potentially - well, I think I remember something like 25 people was it?
PN115
MR GEE: The evidence of this witness is that there are - - -
PN116
MS DOUST: Perhaps the witness might - - -
**** TRACY LEE SWINLEY XN MR GEE
PN117
THE SENIOR DEPUTY PRESIDENT: Okay. Look, I'll ask the question. Well, you're on notice that we need to be - you're going to have to be clear about who exactly it is. But you're saying that you know that this was given because you were there when it was given to these people?---To those that were present who took receipt of an offer, yes.
PN118
Is this sort of, I mean - - -?---There were other people who were not present in the room when the offers were handed out and they were posted to them, and also an electronic version was sent to them - - -
PN119
And is it based on what you were advised by IBM?---Yes, that's correct.
PN120
I'll just make a point. I mean, it's obviously important that these issues - I'm not saying these issues aren't important to be addressed but, Ms Doust, you know, we're not bound by the rules of evidence.
PN121
MS DOUST: Not, certainly not.
PN122
THE SENIOR DEPUTY PRESIDENT: I accept that, you know, hearsay may not attach any weight. Maybe, you know, it does raise an issue about the quality of the evidence, but I'm not going to not accept something in as evidence. But if you just say, well, it's hearsay, you know, it may not be true, I'll hear your submissions on that.
PN123
MS DOUST: Certainly I'll make submissions on the issue of weight, your Honour, but we say it's particularly important here, and the basis upon which we put the submission is because of the focus in all of the decisions of the Commission which have dealt with this sort of application on needing to make that assessment for each employee. And indeed the factors that are set out in the regulation, those matters of seniority, work load and so on which are referred to in the note to the regulation make it clear that one has to have a look at each individual's position, their years of service, their particular role in the organisation and so on. So we do very seriously put to you, your Honour, that you cannot engage in some sort of global process in determining an application such as this.
PN124
Now, thankfully, your Honour, we make a submission prior to that one which goes to the competency of this application. And I know your Honour hasn't had the benefit of reading that, so I just say that to clarify because the submission that we put in that sense about dealing with the issue of acceptable alternative employment is put as an alternative to our primary submission, which is, this is not an application competent to be brought before your Honour because of the precise award clause.
**** TRACY LEE SWINLEY XN MR GEE
PN125
THE SENIOR DEPUTY PRESIDENT: Right, okay.
PN126
MR GEE: None of what my friend has so eloquently put to you amounts to a meaningful objection to the evidence, and I wish to address a couple of the points that have been put. I mean, my friend has very helpfully put out her submissions in respect of the evidence before the evidence has been completed, but nonetheless, it is not the case that the union takes issues that offers have been made.
PN127
THE SENIOR DEPUTY PRESIDENT: Well, I don't think it's for you to say what they take issue with.
PN128
MR GEE: Well, the evidence of Mr Day acknowledges that offers have been made.
PN129
MS DOUST: But not to whom.
PN130
THE SENIOR DEPUTY PRESIDENT: Well, I don't think it's the issue, precisely to whom.
PN131
MR GEE: I intend to make submissions at the appropriate time in reply to my friend's submissions, but none of it goes to the admissibility of this witness' evidence as to her knowledge as to how the offers came about and their terms, or the parameters upon which terms of offers of employment had been made. And that is the critical issue for determination by the Commission, and I'll make those submissions at the relevant time.
PN132
Now, it's appropriate at this point perhaps to raise a matter, and this is no reflection on my friend at all, it's simply a reflection of the timing. Given the time upon which we received my friend's submissions and the evidence of Mr Day we've been unable to deal with this in a fulsome way. In a general sense it's our submission that the Commission is able to make an objective assessment of the kind required by the regulation.
PN133
THE SENIOR DEPUTY PRESIDENT: I don't know that you need to get into this now. I know it's sort of only come up. I mean, you're in the middle of examining your witness, do you need to - - -
PN134
MR GEE: Maybe it may be best to put this in the absence of the witness if that eases your Honour's concerns.
**** TRACY LEE SWINLEY XN MR GEE
PN135
THE SENIOR DEPUTY PRESIDENT: Well, I just don't know, is there a need to address this now?
PN136
MR GEE: Only insofar as this. If your Honour - - -
PN137
THE SENIOR DEPUTY PRESIDENT: I haven't refused to accept your line of questioning so, I mean, you can continue to ask those questions. It's just you're put on notice really, the issue of who, precisely who got these offers.
PN138
MR GEE: Your Honour, it's that issue to which I am addressing at the moment. What I am able to provide, if your Honour feels it would be necessary in order to conduct that objective assessment, I am able to provide information that describes exactly the group of employees we are talking about.
PN139
THE SENIOR DEPUTY PRESIDENT: I think that's going to be useful and I think that's going to have to be in the form of proper evidence if it's contested, which it sounds like it may be. But do you need to do this now?
PN140
MR GEE: Well, if the evidence is to be adduced it needs to be adduced through this witness.
PN141
THE SENIOR DEPUTY PRESIDENT: Through this witness, okay.
PN142
MR GEE: Ms Swinley, can you tell me what this document is please?---This document was prepared by AGL detailing the various terms and conditions of the colleagues identified in the scope of the project that they currently have.
PN143
And for what purpose was the document prepared?---It was prepared to provide IBM with sufficient detail in order for them then to formulate comparative offers of employment.
PN144
And can you tell me when this document was provided - sorry, I withdraw that. Can you tell me when this information was provided to IBM?---If you refer to the date, I believe in my - it's been provided progressively to IBM since August. I can't be too precise about the initial date.
PN145
Perhaps if you turn to paragraph 16, does that assist?---Yes, that would, thank you. Yes, this table has been progressively updated over time, and what I refer to in 16 of my statement is the current salary rates that were updated as part of our salary review process that were incorporated into the table and also provided to IBM.
**** TRACY LEE SWINLEY XN MR GEE
PN146
Now, turning to the document itself, on the far left hand side there's a column with the heading ENPNO, which, do I presume correctly,
refers to employee number?
---That's correct.
PN147
And what do those numbers represent?---Individual employees.
PN148
And who are those individual - I withdraw that. Those numbers you say represent individual employees?---That's correct.
PN149
Are they the employees in Scope?---They are indeed.
PN150
Is there anybody in Scope who is not on this list? I'll withdraw that and ask it another way. Is this a complete list of all the employees in Scope?---As far as I'm aware that's correct.
PN151
And then if you move one to the right there's a column that says position. What does that refer to?---It's the title of the person's role they have at the moment.
PN152
Moving to the right again it's a column headed Entry Date. What does that mean?---that would be the date they commenced employment with AGL.
PN153
And the next column says TFR including super?---Yes. That would be their - that's their nominal salary plus superannuation into a total, what we call total fixed remuneration.
PN154
And what is the next point?---Super contribution of what's been made.
PN155
And is that in additional to or a subset of the TFR figure?---That would be a subset of I believe.
PN156
The next column says OT in the last 12 months, what does that mean?---The number of overtime hours that a person has undertaken in the last 12 months.
PN157
And then there's a column headed Incentive, and a reference to tier 4 in respect of all of those employee numbers. What does that mean?---Tier 4 is a category of employee and that triggers the incentive arrangements that would apply to that person.
PN158
And what does the next column mean?---The incentive payment that a person will have received in the year 2004 to 2005.
**** TRACY LEE SWINLEY XN MR GEE
PN159
I seek to tender this document, your Honour.
PN160
MS DOUST: Well, for the reasons that I've already given, your Honour, if your Honour receives this document then that is something which is extremely unfair to the union. It's unfair for the union's case because it doesn't identify the employees by name. All that it shows your Honour is a bunch of numbers, a bunch of position descriptions, a bunch of references in relation to dollars. Now, if we were provided with a list such as this with the corresponding employee names we would have been in a position in advance of this hearing to go to each of those employees and to check these details and to have a fair opportunity to respond.
PN161
But now this material is put to you without identifying those employees. So on two bases we object. The first is that it can't actually tell you anything about the conditions of any particular identifiable employee of AGL, and the second is because the unfairness of the addition of the document, which I assume will be used as the basis for a submission that all of these matters have been dealt with, or for an assertion that all of these matters have been dealt with, that would be extremely unfair to us because we really haven't had an opportunity to deal with these issues.
PN162
THE SENIOR DEPUTY PRESIDENT: Well, I mean, all the evidence has come in terribly late. Obviously we were trying to expedite the hearing of this matter, you know, for the sake of the parties. I am going to allow it into evidence. Now, what weight it's given I'm going to have to determine, and you can obviously make submissions on that, what it's actually evidence of. My understanding, this is material that AGL provided to IBM about the, you know, the various factors to do with these employees, though they're not identified by name?---That's correct.
PN163
Can I just ask, do these employee numbers, are these standard numbers?---Yes.
PN164
All employees would have access to what their employee number is?---Yes, they're unique numbers to each individual obviously, yes.
PN165
Yes. So the employees themselves would be able to identify themselves off this?---Absolutely. The employee number is used for a range of things in the organisation, it's commonly known.
PN166
Look, there is an issue about the procedure though.
**** TRACY LEE SWINLEY XN MR GEE
PN167
MS DOUST: In those circumstances, your Honour, we really just - the employees may well be able to identify themselves by number but - - -
PN168
THE SENIOR DEPUTY PRESIDENT: You wouldn't automatically be able to.
PN169
MS DOUST: As to whether we could do that in between now and when we make submissions to you later on this morning, your Honour, that's the gross unfairness of this.
PN170
THE SENIOR DEPUTY PRESIDENT: Well, we just might - I mean, I suppose what I'm thinking of is, well, I want to see how this goes, but I obviously don't want to do anything that I consider unfair, and I want to give both parties an opportunity to put their best case. We may need to have another hearing date or something to give you an opportunity. And I'm not making any criticisms of either party to be honest because, I mean, I think we tried to do this very quickly, I don't think anyone is acting - I don't want to make a judgment between either of you as to who is acting best or worst quite frankly. I just want to make sure that I'm able to make a fair and appropriate decision based on the evidence.
PN171
Now, I mean, Mr Gee has already flagged that he's going to have to put on additional evidence because he only received your statement last night. You only just got his now presumably, yes.
PN172
MS DOUST: Sorry, no. And with respect, your Honour, really the evidence that's come forth from the witness today isn't supplementary in response to the statement that - - -
PN173
THE SENIOR DEPUTY PRESIDENT: No, I don't think he was suggesting that. I don't think he was suggesting that.
PN174
MS DOUST: I think he had initially.
PN175
THE SENIOR DEPUTY PRESIDENT: Okay. Well, look, I accept that this is sort of - but look, what we might have to do, the best way of doing this is to give you an opportunity to adduce further evidence, you know, and if you need more, if you need a few days then we might do that. But I'd rather do that than sort of not admitting to evidence.
PN176
MR GEE: Your Honour, with respect, the concerns raised by the union in the evidence of Mr Day are not issues, do not take issue with anything that's on this page. This page reflects remuneration amounts, superannuation contributions and the like. The evidence of Mr Day relates to concerns about location. Then they have nothing to do with the terms and conditions of employment reflected in this document.
**** TRACY LEE SWINLEY XN MR GEE
PN177
THE SENIOR DEPUTY PRESIDENT: Yes. I didn't think they did. I haven't seen Mr Day's evidence.
PN178
MR GEE: Again I hear what you're saying about my friend's objection and you'll allow the evidence, but the objection as to weight also is baseless for the reason I've just given. The evidence that's in this document does not change the concerns that the union has raised about the comparatively - - -
PN179
THE SENIOR DEPUTY PRESIDENT: No, I don't think that was the issue. Look, I'm allowing it into evidence. What I'm saying is, I want to make sure the union has - both parties have a fair opportunity to put their case while minimising, you know, the time it takes to deal with the matter. But, I mean, we might have to have - what I'm flagging is, we might have to adopt - give you an, you know, given that evidence is coming - this evidence has just suddenly appeared I assume, the union had not seen this before, I hadn't seen it before, the union may well want to take issue with it, and they obviously want to take issue with it. It's very hard for them when they suddenly see it now.
PN180
On the other hand you could quite frankly say something pretty similar about the material that you got last night. So I'm not trying to have a go at anyone. If I could put it this way. I'm not having a go at anyone, I just want to make sure that everybody is able to put their cases in the fairest way, but I don't want to stop people putting their case before me, because that's not going to make my job any easier. So I'm happy for you to tender it. I'm not acceding to Ms Doust's objection in that respect, but I want to have regard to the fact that she's concerned that she may not have time to properly, if you like, I mean, you know, test it.
PN181
MR GEE: As your Honour pleases. And for the record I do not take issue with the timing of it.
PN182
THE SENIOR DEPUTY PRESIDENT: No. I think somebody else might. I might make issue with the timing of it.
PN183
MR GEE: In hearing what your Honour has said I may be able to discuss this particular matter with my friend and perhaps report after an opportune break how we might deal with this particular issue going forth.
PN184
THE SENIOR DEPUTY PRESIDENT: Look, I mean, this is - we're sort of half - I think we've just got into this witness' evidence, or we're halfway through, I'm not sure. But, I mean, do you want a short adjournment to sort some of this out? Would it be useful for you to talk about these things, about what - I mean, what I'm flagging - I mean, you may have some other way of addressing this, but I'm flagging that maybe we'll need to - I want to get as much done today as we can, but we might need - I mean, depending on what people's availability is - another opportunity next week for example to further examine the evidence.
**** TRACY LEE SWINLEY XN MR GEE
PN185
MS DOUST: If your Honour is inclined to proceed in that way in relation to the issue of evidence as to the offers then one thing your Honour should perhaps take into account on that issue of programming are our submissions. And if I might just take a minute of your Honour's time now to run us through, to take your Honour through what our primary submission was. And my friends here have taken my submissions and hidden them I think.
PN186
THE SENIOR DEPUTY PRESIDENT: Well, that's a bit unorthodox. Look, what I was going to suggest was that we have a short adjournment and the parties have a discussion.
PN187
MS DOUST: I've found them, your Honour, I'm sorry. If I just explain our initial argument briefly, your Honour, it might assist you to deal with the question of programming. If I might hand up those submissions now? I think you had a copy of the submissions.
PN188
THE SENIOR DEPUTY PRESIDENT: Yes. But what I was going to suggest before we do that is that you actually have a discussion and see if you come to some mutually acceptable arrangement, then come back in 10 minutes time and then we'll see where we go.
PN189
MS DOUST: Mr Gee says he has only a few minutes left with this witness, and perhaps a break at the conclusion of her evidence-in-chief. But we press the objection to that document, your Honour.
THE SENIOR DEPUTY PRESIDENT: Okay. Well, I'm accepting the document in as evidence. This is material provided by AGL to IBM on employee remuneration. That's an unusual way of describing it I think.
EXHIBIT #AGL3 MATERIAL PROVIDED BY AGL TO IBM RE EMPLOYEE REMUNERATION
PN191
MR GEE: To your knowledge what use did IBM make of this information?
PN192
MS DOUST: I object.
PN193
MR GEE: The question was put - - -
PN194
THE SENIOR DEPUTY PRESIDENT: No, I'm going to allow the question?---It formed the basis of the offers to be made to our employees.
**** TRACY LEE SWINLEY XN MR GEE
PN195
At paragraph 39 of your statement you refer to a document marked D. I'd like you to turn to that document which starts on page 19, and if you then turn to page 20, which is still the document marked D. Do you have that?---I do.
PN196
And you see in the middle of that page is a paragraph that begins "I would like to assure colleagues," do you have that?---I do.
PN197
And then I'd like you to read that paragraph as well as the third last paragraph on that page, the one that begins "This arrangement," do you see that?---Yes.
PN198
Could you read those two paragraphs and tell me whether those paragraphs are still correct or accurate please?---There has been some development in relation to this and it concerns the time period for those people who do not accept the employment offer with IBM but who would work under the day to day management of IBM.
PN199
And is that what you now describe at paragraph 43?---Yes, that's correct.
PN200
At paragraph 41 you say that about 33 of the 60 employees have accepted offers of employment with IBM. Is that still the case?---No, that has increased since I prepared the statement. As of today the numbers are 35 plus an indication from a person to IBM that they intend to accept today also.
PN201
That is the evidence of this witness in-chief, your Honour.
PN202
THE SENIOR DEPUTY PRESIDENT: Thank you. Do you want to have an adjournment now?
PN203
MS DOUST: I'm happy to proceed that way, your Honour.
PN204
THE SENIOR DEPUTY PRESIDENT: Yes, okay, we'll just have a brief adjournment. This is really just an opportunity for you to see if you can have a look at the issue of any further programming that might be necessary and see if you can come to an agreed position. Can we just make it 10 minutes?
<SHORT ADJOURNMENT [11.02AM]
<RESUMED [11.17AM]
PN205
THE SENIOR DEPUTY PRESIDENT: Have you made any progress on how we should manage this case?
**** TRACY LEE SWINLEY XN MR GEE
PN206
MR GEE: Largely so, your Honour.
PN207
THE SENIOR DEPUTY PRESIDENT: Okay.
PN208
MR GEE: The suggestion has been put and it's agreed that the union would provide to me a list of their members. That list I will not provide to my client.
PN209
THE SENIOR DEPUTY PRESIDENT: Sorry?
PN210
MR GEE: The list of names that I receive from my friend I will not provide to my client.
PN211
THE SENIOR DEPUTY PRESIDENT: Okay.
PN212
MR GEE: But the list of members names I will then procure the information that is in the document marked AGL3, I will procure the information in respect of all of those members and provide that to my friend and we are hopeful that that can be arranged today even if it is after hours.
PN213
THE SENIOR DEPUTY PRESIDENT: Right.
PN214
MR GEE: The suggestion is then that the union has a period of time within which to interview their members, as I would understand it, for the purpose of determining whether any offers that they have received are, you know, matched or in some are or are not comparable with the information on that list and if they wish to contest any of the information on that list or whether the offers are comparable they would then seek to adduce some additional evidence and they ought to be given some time to do that.
PN215
THE SENIOR DEPUTY PRESIDENT: Yes.
PN216
MR GEE: One issue which I would seek clarification on with my client is how long that may be but I don't think that we will keep your Honour waiting any longer. I might just take a moment now, your Honour, to check that.
PN217
THE SENIOR DEPUTY PRESIDENT: Okay. Ms Doust, are you amenable to that approach?
PN218
MS DOUST: Yes, we're happy to receive that information and to be able to conduct some checks. That then leaves the issue of what
we do further today
and - - -
**** TRACY LEE SWINLEY XN MR GEE
PN219
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I have a suggestion but I don't know how this will fit with what you are saying that we obviously finish cross-examining this witness, we can't leave her where she is, and then we adjourn, give both parties - well, I was going to suggest until next Wednesday but that they may or may not be enough time, but I think it - well, my suggestion is give both parties to next Wednesday to put forward any further evidence they want to and to serve on both parties and the Commission any additional evidence and then the parties will be given another two days to next Friday to respond to any of that further evidence to seek further evidence in reply and then we have a further hearing Tuesday week to finalise the case.
PN220
MS DOUST: Yes, well, there's a couple of things to say about that. First of all, we're dealing with 25 members of the particular employer. We don't have any agreement with the employer about in any way facilitating access to the employees during work hours which I imagine would be, you know, in the few days of next week and realistically we might be in a position of wanting to put on statements from 25 individual employees going to issues such as seniority workload, those sorts of issues, your Honour, the matters that are addressed in Regulation 7.2.24.
PN221
THE SENIOR DEPUTY PRESIDENT: But I mean with all due respect you've had - it's not like this case has had a sudden start. I mean you've been on notice this case was on. I mean I don't know why, if you wanted to put that sort of evidence on why couldn't you have got that now?
PN222
MS DOUST: Well, with respect, your Honour, the application was lodged on
15 September. We made some inquiries I think perhaps about a fortnight ago about what directions were going to be made about the
provision of evidence and we were entitled, your Honour, to proceed on the basis that we need only meet the case brought by the applicant
party. We certainly couldn't be said to be under an obligation to prepare a case in response to something other than what was brought
by the applicant and what was brought by the applicant was really brought last Friday afternoon at approximately 5 o'clock with Ms
Swinley's statement and the outline of submissions. Now, that material was all put in a generic sense and that's the way the applicant
brought their case. Now, we were more than happy to deal with that on the basis that it was put, your Honour, and your Honour heard
me make my arguments earlier on about the insufficiency of that evidence. But it appears to us now with this material, this additional
material that's been tendered by Mr Gee that there's now specific evidence about particular employees who aren't named by the way,
but as to their particular conditions of employment. Now, that's a very different case to, if I might say with respect to the witness,
the bald assertions that are put in Ms Swinley's statement which don't identify any of the employees by name, by employee number,
by role, by conditions.
**** TRACY LEE SWINLEY XN MR GEE
PN223
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I'm not sure I totally agree with that but how long do you want? How long would you want?
PN224
MS DOUST: Well, it really depends, your Honour - - -
PN225
THE SENIOR DEPUTY PRESIDENT: Well, you've got to give - I mean - - -
PN226
MS DOUST: Well, it depends upon the extent to which AGL is going to facilitate that by giving us access to the employees at the workplace or during work hours for the purpose of preparing the case and that's something that we don't say is unreasonable because they bring, your Honour, a position to this Commission that individual employees should be denied a benefit under the award.
PN227
THE SENIOR DEPUTY PRESIDENT: Right.
PN228
MS DOUST: They seek to deprive those employees of a benefit under the award.
PN229
THE SENIOR DEPUTY PRESIDENT: Well, that's one way of putting it.
Mr Gee, are you able to - have you got any instructions on this?
PN230
MR GEE: I don't wish to get bogged down on this, but as your Honour will recall from the dispute conference not so long ago, it was the union that chose to keep their powder dry I believe was the quote until today.
PN231
THE SENIOR DEPUTY PRESIDENT: Yes.
PN232
MR GEE: Perhaps I should leave it there. I won't - - -
PN233
THE SENIOR DEPUTY PRESIDENT: Yes, we won't talk about what happened at the conference. But I mean I thought we had an agreement on how we're going to proceed and I'm not totally convinced that this is somehow some different case than what was flagged I have to say.
PN234
MR GEE: Yes.
PN235
THE SENIOR DEPUTY PRESIDENT: I understand the logic of what you're putting but I'm not - - -
**** TRACY LEE SWINLEY XN MR GEE
PN236
MS DOUST: And with respect, your Honour, two working days for the union's case to be put on, that's a fairly steep ask if you're talking about - - -
PN237
THE SENIOR DEPUTY PRESIDENT: Well, I want everyone to be able to put their case on. I'm trying to resolve this matter in a practical - you know, for the employees sake as much as anybody else's, perhaps more than anybody else's, as quickly as is reasonable but I don't want it to be - I don't want it to be - I don't want to deprive anybody of the opportunity to present their case.
PN238
MR GEE: The union has indicated it would need some time during working hours to be able to interview their members in relation to the information that we will be providing. It is my client's instructions that in the circumstances that is an entirely reasonable - - -
PN239
THE SENIOR DEPUTY PRESIDENT: That is?
PN240
MR GEE: Is an entirely reasonable request and will be facilitated with a meeting room and facilities during working hours to interview those members who the union wishes to interview.
PN241
THE SENIOR DEPUTY PRESIDENT: Right, thank you.
PN242
MR GEE: Now, to address your Honour's timetable, depending upon what time we get out of here today that process will even start today if Mr Rudd and Mr Day are available. Perhaps Mr Day could make those arrangements and commence that progress today. But today, Monday, Tuesday is certainly something that could be facilitated by my client. As to your other suggestion, your Honour, with respect, I think there would be some utility in dealing with Mr Day's evidence today and in the event that he wants to put on some supplementary evidence he can. In the event that he doesn't need to, well, we would have dealt with that and we will only need to deal with the remaining matters when we are next before the Commission. It is my submission that there is utility to the Commission and to the parties to be able to deal with Mr Day's evidence such as it is today.
PN243
THE SENIOR DEPUTY PRESIDENT: Yes. I'm actually getting a bit worried because of all of the issues we actually only have the court room this morning, so it's actually - I didn't think it was going to take this long. I think it might be best if we - look, I think I'm going to - I'll set down formal directions for further hearing of this matter but I'm going to - we'll finish with this witness and then we'll adjourn. Both parties will have until the COB next Wednesday to put on any additional statements and that gives the union perhaps this afternoon and certainly Monday and Tuesday to get hold of people to get any statements.
**** TRACY LEE SWINLEY XN MR GEE
PN244
MS DOUST: Can I be heard on the issue of the witness, your Honour?
PN245
THE SENIOR DEPUTY PRESIDENT: Okay, yes, yes. If you're keen for him to be heard I suppose then - no, go on, sorry.
PN246
MS DOUST: No, my view is if there's going to be supplementary evidence then the evidence should be dealt with together. I certainly don't want to be engaged in the process of cross-examining Ms Swinley today about certain matters, having her go off and perhaps make a supplementary statement to be served upon us next Wednesday and then go and have another go at that.
PN247
THE SENIOR DEPUTY PRESIDENT: Well, you might have to. I mean you might just have to cross-examine, if she puts on further evidence she could be called back on again, or she'd need be called back on again and examined a second time.
PN248
MS DOUST: Yes. Well, certainly it wouldn't be in my submission, your Honour, a fair way to proceed with a witness or a fair way for us to have to deal with the witness.
PN249
THE SENIOR DEPUTY PRESIDENT: Well, I don't think you can just leave her half way through her - - -
PN250
MS DOUST: Examination-in-chief, it's certainly not a process that I'm unfamiliar with. She's not under cross-examination at the moment so she's not under any obligation which prevents her from giving instructions or anything of that nature.
PN251
THE SENIOR DEPUTY PRESIDENT: Is that right? Okay. So she can talk freely?
PN252
MS DOUST: Free as a bird, your Honour.
PN253
THE SENIOR DEPUTY PRESIDENT: Okay, okay. Well, I mean we could do that. I just - okay. Well, maybe we should just adjourn. Mr Gee, I mean - - -
PN254
MR GEE: I must admit it is my submission that it is of utility and certainly efficient to deal with the evidence that's before the Commission today and that is the evidence of Ms Swinley and the evidence of Mr Day and then deal with any supplementary evidence which may or may not be put on because it all depends upon the outcomes of the interviews the union has with these witnesses. There may not be any supplementary evidence.
**** TRACY LEE SWINLEY XN MR GEE
PN255
THE SENIOR DEPUTY PRESIDENT: Yes, there may not be any.
PN256
MR GEE: And I don't see that as an efficient use of the Commission's time to adjourn on the hope or potential that there may be further evidence when there is evidence here and available to be heard today. That is my submission with respect, your Honour.
PN257
THE SENIOR DEPUTY PRESIDENT: Okay, okay. Look, I think we will go ahead. Look, we'll finish with this witness. We will then adjourn.
The parties will have till next Wednesday to put on any further material and then we'll have to COB Friday, the Friday after to
put on any further evidence in response to any evidence presented by Wednesday and then we will resume at Tuesday week at
10 o'clock. Now, I don't know if there are any problems with any availability.
PN258
MR GEE: I do apologise, I am unavailable until probably around about 1 o'clock that day, your Honour.
PN259
THE SENIOR DEPUTY PRESIDENT: Until when?
PN260
MR GEE: I will be available from around 1 pm. I know that's an unusual time to commence but I could certainly be in the Commission by that time.
PN261
THE SENIOR DEPUTY PRESIDENT: I will just check on which day we're taking about. This is the 17th. Well, are you free, Ms Doust, on that day?
PN262
MS DOUST: Certainly, your Honour.
PN263
THE SENIOR DEPUTY PRESIDENT: Yes. Well, we'll resume at 1 o'clock then. Okay. So where were we up to? You're still examining this witness.
PN264
MR GEE: I've concluded my evidence-in-chief.
**** TRACY LEE SWINLEY XN MR GEE
PN265
THE SENIOR DEPUTY PRESIDENT: Okay, great. Yes, okay. So you can proceed to cross-examine the witness.
<CROSS-EXAMINATION BY MS DOUST [11.31AM]
PN266
MS DOUST: Ms Swinley, did you hold a position in human resources or employee relations prior to starting with AGL?---Correct.
PN267
Where did you hold that position?---One position or all of them? The previous?
PN268
Perhaps you can just tell me generally your background so far as it's HR?---Yes, 15 years experience as an employee relations specialist in the HR generalist across private and public sectors.
PN269
So what sort of employers did you work with?---I'm not sure what you mean by what sort of?
PN270
Well, perhaps one or two names?---AMP, New South Wales TAFE, New South Wales Health.
PN271
Okay, yes. Am I correct in understanding you're currently doing a law degree?
---That's correct.
PN272
Have you nearly completed that?---So far so good, yes.
PN273
But are you very early on in the piece or are you - - -?---About midway through.
PN274
Midway. I suggest that with those 15 years working in employee relations you've got a reasonable understanding of IR systems both state and federal?---Yes, I think I just should clarify with you that it's not only being employee relations. My experience has been split across HR generalist and employee relations specialist so about half of each.
PN275
Okay. Well, with that background you've got a good understanding of IR systems, industrial relations systems both state and federal?---Yes, I would - yes, that would be correct.
PN276
And you've got an understanding of the operation of awards, certainly federal awards?---To a large extent, yes, as relevant to my experience.
**** TRACY LEE SWINLEY XXN MS DOUST
PN277
And you've also got a bit of an understanding about common law employment contracts, don't you?---Yes, that would be correct.
PN278
You would have studied contract law already, that's very early in the piece in the syllabus?---That's correct, yes.
PN279
Okay. And you would understand about the notion of probity of contract?---Only those parties in the contract can sue on the contract.
PN280
Absolutely, and only those parties to the contract are able to assert rights under the contract?---Yes, except in the case Trident v McNeill I suspect.
PN281
Well, it's very interesting that you say that. Just going to your email which is AGL2?---I'm sorry, AGL2, is that the one dated - - -
PN282
Sorry, that's dated - at the top it's got forwarded by Louse Kay?---Okay, yes.
PN283
"Hi Gareth", that document?---Yes, I have that.
PN284
You don't say, do you, that that email could somehow give any particular AGL employee any rights as against IBM so far as working hours are concerned?
PN285
MR GEE: I object at that.
PN286
THE SENIOR DEPUTY PRESIDENT: Yes, well, asking legal advice or a legal opinion isn't appropriate.
PN287
MS DOUST: Well, it's put forward by my friend as somehow being the basis for some entitlement or some term - - -
PN288
THE SENIOR DEPUTY PRESIDENT: Well, you can make submissions that it doesn't create any legal contractual rights but I don't think asking the witness's view on it is relevant.
PN289
MS DOUST: Yes. Going to AGL3, Ms Swinley, the description tier 4?---AGL3 being the spreadsheet?
PN290
Yes. What does tier 4 mean?---I think as I explained earlier it's a category of employee. It's like a scale and depending on which scale you're in determines the type of incentive arrangement that you work under.
**** TRACY LEE SWINLEY XXN MS DOUST
PN291
And is that part of the AGL - is called the Job Family?---Yes, would fit into the Job Family.
PN292
And Job Family is a system of classifications?---Yes.
PN293
Is that right?---Yes, that would be a rough explanation, yes.
PN294
And it's correct, isn't it, AGL takes the view that some of the employees who are working in the IT bureau aren't covered by this award?
PN295
MR GEE: I object to that. There's no identification of who my friend is talking about.
PN296
THE SENIOR DEPUTY PRESIDENT: No, you can ask the question.
PN297
MS DOUST: Well, your Honour, that's - - -
PN298
THE SENIOR DEPUTY PRESIDENT: You can ask the question.
PN299
MS DOUST: Do you need me to repeat the question?---Would you mind, yes, thank you.
PN300
AGL takes the view that some of the employees in the IT bureau aren't covered by this award?---I think AGL would be correct to say that some of the colleagues covered in this process are remunerated outside the terms of the award, their level of remuneration.
PN301
Does that mean it's a yes to my question, that AGL takes the view that some of those employees aren't covered by the award?---I think AGL takes the view that it would be no.
PN302
So they are covered by the award?---The award operates as a base, yes.
So if I might hand the witness a document. Just for the record I'm handing a statement of James Andrew Day. Can I have that marked for identification, please, your Honour?
EXHIBIT #AWU1 STATEMENT OF MR DAY
PN304
MS DOUST: I will just hand it to the witness. I've made a mark on that, AWU1. I'll take you to the 11th page of that document, there's some numbers down the bottom of the page. Do you agree that's a copy of a letter sent by the chief general manager of IT from the North Sydney office of AGL?---That's how it appears to me, yes.
**** TRACY LEE SWINLEY XXN MS DOUST
PN305
Well, that's the office that you work at? That's where you work over at the North Sydney office, is that right?---No, I'm actually at St Leonards.
PN306
Okay. But the management function is at North Sydney?---That's correct.
PN307
Okay?---No, sorry. No, we're at St Leonards. Our central office is at St Leonards.
PN308
Okay?---Haven't been at North Sydney for some time.
PN309
Was it at North Sydney in 1999?---Previously, yes, that's correct.
PN310
The document appears to be signed by someone called Beeran, P. Beeran?---Yes, that seems to be signed.
PN311
Do you know that person?---No, I don't.
PN312
You don't dispute this is a document of AGLs, do you?---No, it's certainly on AGL letterhead.
PN313
And you will see in the first paragraph it says that there's been an evaluation of the position of analyst programmer?---I do.
PN314
And it follows:
PN315
In line with this evaluation I'm delighted to advise you that it's now deemed to be an outside award position.
PN316
Is that the terminology you're familiar with?---Yes, it is something that is used in AGL. I am familiar with that.
PN317
You agree that this position of analyst programmer is a position that would be in the IT bureau?---I couldn't confirm that. I actually don't have, unless I look down on this list here and find an equivalent title. Yes, analyst programmer is in there.
PN318
What I suggest to you is that terminology outside award position means that the position is not covered by the award?---No, I don't necessarily agree with that. I think it goes to what I said earlier, the evaluation, I would read that for salary purposes.
**** TRACY LEE SWINLEY XXN MS DOUST
PN319
THE SENIOR DEPUTY PRESIDENT: So you wouldn't say that somebody who is described as an award position that the employer didn't have obligations under the award?---That's correct.
PN320
It's just that they would be paid more than the award?---Exactly, yes.
PN321
MS DOUST: Well, why would you use the terminology outside to convey simply that you'd get an above award salary?
PN322
MR GEE: I object to that. There's no evidence on the face of that document that it's the witness's document so it shouldn't be put.
PN323
THE SENIOR DEPUTY PRESIDENT: No, I think she's employee relations manager for the company and she uses the terminology or is familiar with the terminology outside award and you can answer the question?---Could you repeat that for me, please?
PN324
MS DOUST: Sorry. Why would you use the terminology outside award simply to convey the fact of above award payments?---I can't explain why that terminology has been used in AGL, it's been there long before I was there, but in the context of this letter I would link that to remuneration.
PN325
Tier 4 something that would be considered outside award, to use the same terminology, isn't it?---It could well be, yes.
PN326
Well, not could well be, that's correct, isn't it?---That is correct.
PN327
Tier 4 in that scale of classifications is considered to be similarly outside award?
---It would be referred to as outside award.
PN328
So I suggest to you again that AGL has taken the view then that all of these IT bureau employees are outside award?---For remuneration, is that what you're referring to or wholly - - -
PN329
Yes?---Yes, see, I can't agree with that because I don't - that's not my view. It's for remuneration purposes.
PN330
Well, you could give an employee the entitlement to an above award payment simply by agreeing on an above award salary, couldn't you?---Yes, you could.
**** TRACY LEE SWINLEY XXN MS DOUST
PN331
Agree there's no need in those circumstances to describe a position as outside award?---When I read this letter it is actually referring to the remuneration. That's what the context of the letter is about. It's actually not referring, as far as I can read, in terms of anything else.
PN332
It's described as an outside position, not outside award remuneration, isn't it?
---That's correct.
PN333
And this is said to result from an evaluation of the position?---Yes, that's what it says, that's correct.
PN334
And it says that as an outside award employee there's a number of other things that attach to that being the incentive scheme, superannuation, salary sacrifice, et cetera?---That's correct.
PN335
Okay. Well, can I just take you back to my question before, you don't need to use the terminology outside award to simply give someone a pay rate which is in excess of the award rate, do you?---Perhaps not but that's obviously what was chosen in the context of this letter.
PN336
And I suggest that that choice is something consistent with AGLs general position in relation to these employees which is not to mean except that - sorry, I withdraw that. I suggest that its use in that context is consistent with AGLs position in relation to these employees which has been to deny award coverage?---Is that a question, sorry?
PN337
Yes, it is?---I don't agree with that.
PN338
Okay. Do you see this document annexes terms and conditions of employment?
---Yes.
PN339
So that's a common law contract of employment and you're familiar with those contracts being distributed to employees?---In the course of my work as I come across them I deal with them, yes.
PN340
Okay. Is it the case that a common law contract in similar terms has been distributed to all of the employees of the IT bureau?---In terms of from IBM?
PN341
Yes?---That's correct.
**** TRACY LEE SWINLEY XXN MS DOUST
PN342
So the IT bureau with AGL?---Are you talking AGL offering the contracts or the IBM contracts?
PN343
Sorry, I've taken you to the document which is AWU1 and I'm now referring to the document which starts at page 14?---Right, okay.
PN344
Sorry, AGL Gas Networks Ltd Terms and Conditions of Employment which was over the page from the letter that I just questioned you about?---I'm sorry, I have that.
PN345
No, no, I'm just seeking to clarify precisely which document we're discussing. You accept that's a common law contract of employment. Now, do you accept that similar contracts have been distributed to all of the staff of the IT bureau in Sydney, of AGLs IT bureau in Sydney?---No, I wouldn't agree with that. There are in fact some variations to this contract, this is one of them, it would be, because I have seen others.
PN346
And do you say then that a contract of some sort has been given to each employee?---Yes, I would agree with that.
PN347
And do you say that the employees who have received those contracts are also covered by the award?---If they're employed by AGL Corporate Services Pty Ltd, yes, there would be a nexus with the award.
PN348
Well, you accept that the award has got comprehensive terms and conditions of employment?---Yes. I don't have it in front of me but yes, it does from memory.
PN349
Do you accept this proposition, there's no need to have a separate common law contract of employment if you accept that a comprehensive award covers an employee's employment?---You could offer things in addition to the award or you could replicate conditions in the award.
PN350
Why would you need to replicate in a contract conditions which are - - -
PN351
MR GEE: I object to this.
PN352
THE SENIOR DEPUTY PRESIDENT: No, I am going to allow the question.
PN353
MR GEE: It calls for speculation, your Honour.
**** TRACY LEE SWINLEY XXN MS DOUST
PN354
THE SENIOR DEPUTY PRESIDENT: Well, it is presumably about AGLs employee relations policy as the employee relations manager. I mean perhaps the question was phrased a bit widely but I assume it's not been asked in some general, you know, general academic sense, you're asking about AGLs employee relations policy and the logic of it.
PN355
MS DOUST: Precisely and this witness is the person who - - -
PN356
MR GEE: The objection stands because it's not put in the context - the witness is being cross-examined about the content of this document. The witness has already given evidence that she wasn’t around at the time so if this line of questioning is to be allowed it ought to be confined to the period in which the witness has been employed.
PN357
THE SENIOR DEPUTY PRESIDENT: Well, I mean I must say, you know, obviously the witness wasn't there in 1999 or certainly wasn't the author of this document?---No.
PN358
Weren't there at all?---2003.
PN359
Yes. So obviously we're talking about - I mean while I see that you're referring to this particular document essentially it seems to me what's relevant is - I mean really what the witness can answer is about what the AGLs policy is or has been since 2003.
PN360
MS DOUST: It's certainly not intended to go any further than that, your Honour.
PN361
THE SENIOR DEPUTY PRESIDENT: Yes.
PN362
MS DOUST: Ms Swinley, in your current role as manager employee relationship AGL people and culture, are you responsible for the employee relations function across all of AGL?---Nationally that's correct. Through a reporting line.
PN363
Okay. But you report upwards to a manager who's not simply employee relations?---That's correct.
PN364
He has more general Scope of responsibility and you have individual employee relations managers or officers underneath you, reporting to you?---Yes, we do. We operate on a matrix structure so the business indeed has its own HR specialists in the business, in each of our businesses.
**** TRACY LEE SWINLEY XXN MS DOUST
PN365
Okay. Can I suggest this to you, in that role you are the person that has primary responsibility for all industrial relations matters
touching on employees of AGL?
---As they relate to strategic activities. It's not an operational role, it's a strategic role.
PN366
So you don't deal with the applications for leave and so on?---No, no.
PN367
But you have overall oversight over AGLs strategic direction in industrial relations?---That's correct.
PN368
So it's fair, isn't it, for us to assume that you would have a handle on AGLs policy in relation to awards?---In an ideal world, yes, that's correct.
PN369
We'll make all those assumptions?---Yes, okay.
PN370
You would be responsible for enterprise bargaining issues?---No, only for the strategic agenda setting in that process.
PN371
Sorry, you wouldn't be responsible to engage in the specific enterprise bargaining but you would be involved along with your other senior managers in setting the path of AGL as to whether or not it would bargain or not?---In an ideal world again absolutely.
PN372
Okay. And equally you would be the person that's making the calls in consultation with your other senior managers as to whether you
might go down the track of saying we'll be offering individual contracts, AWAs and so on?
---Absolutely.
PN373
As an overall strategic call and this is right, isn't it, the buck has to stop with you for, just to pick up something that I had on the radio this morning.
PN374
THE SENIOR DEPUTY PRESIDENT: All responsibility and no power probably, that's typical of an employee relations manager?---I love it.
PN375
MS DOUST: Well, I haven't offered you a position yet?---Okay.
PN376
We'll see how you go in this process?---As long as a common law contract, yes.
PN377
But you're the person who ultimately has to take responsibility for AGLs industrial relations policy?---Ultimately take the responsibility, yes, in accordance with the breadth of my position description and all of those things, absolutely yes.
**** TRACY LEE SWINLEY XXN MS DOUST
PN378
And so, I did have a question earlier on in the piece, my question was why would AGL have individual contracts then when it's got a comprehensive award covering the terms and conditions of employment of a group of employees?---As I said earlier, in some cases some of the terms and conditions might be generous than what's in the award, potentially for cultural reasons, individually focused remuneration sometimes it's a cultural issue as well.
PN379
Can I take you through this particular document then, please, Ms Swinley?
---Please do.
PN380
I take you, for example, to page 17?---Yes, I have that.
PN381
Do you see the provision there as to annual leave?---Yes.
PN382
Do you say that's giving people an additional entitlement over and above award conditions?
PN383
THE SENIOR DEPUTY PRESIDENT: Actually I am beginning to get a little bit concerned about it, I mean because if this is going back to a letter that was written in 1999. Now, it's clearly, as I understand, AGL still produce individual contracts of employment for these IT staff now. I mean it's not something that isn't done any more?---Well, I actually don't - - -
PN384
But you have said that your - your evidence was that even though they're described as outside award positions you're not denying that they're covered by the award and therefore any obligations under the award have prevailed?---That's correct.
PN385
Now, is it possible I suppose where this might be heading is there might actually be some conflict between this contract that was issued in 1999 and the award, is that where you're heading?
PN386
MS DOUST: No, your Honour.
PN387
THE SENIOR DEPUTY PRESIDENT: Okay.
PN388
MS DOUST: No.
PN389
THE SENIOR DEPUTY PRESIDENT: But I mean because we're overly focusing on the detail of this letter in 1999.
**** TRACY LEE SWINLEY XXN MS DOUST
PN390
MS DOUST: Can I just, your Honour, just very briefly perhaps with the witness out the room, with no disrespect to the witness?
THE SENIOR DEPUTY PRESIDENT: Yes, yes. No, that's okay. Yes, sorry, if you could just go outside for a minute.
<THE WITNESS WITHDREW [11.52AM]
PN392
MS DOUST: Sorry, I think the issue is really the opposite of where your Honour is heading.
PN393
THE SENIOR DEPUTY PRESIDENT: Okay, sorry.
PN394
MS DOUST: Which is really to put to this witness that these sorts of contracts are inconsistent with the acceptance now that employees are award covered and we seek to point to a course of conduct on the part of AGL to deny or avoid award coverage in the past and so that's what I'm - - -
PN395
THE SENIOR DEPUTY PRESIDENT: What's going to be the relevance of that?
PN396
MS DOUST: Well, it goes to a couple of issues. I mean the first issue is this, can your Honour be satisfied that your Honour is dealing with employees caught by the particular award.
PN397
THE SENIOR DEPUTY PRESIDENT: But you're going to argue that they sought to award obligations.
PN398
MS DOUST: Certainly, certainly.
PN399
THE SENIOR DEPUTY PRESIDENT: But you're not saying they're not covered by the award, are you? Is that your position?
PN400
MS DOUST: Well, it's difficult for us to know, your Honour, because we don't have the names of the employees.
PN401
THE SENIOR DEPUTY PRESIDENT: So you're saying I don't need to worry about this application because these people aren't covered by the award anyway so there's no obligation, is that what you're saying?
PN402
MS DOUST: Well, our primary submission is you and I have both not got the first idea as to which employees are caught by this application because we don't know their names.
PN403
THE SENIOR DEPUTY PRESIDENT: Right, okay.
PN404
MS DOUST: And we can't know what jobs they do and therefore whether or not they fall under this award. So that's the first submission to be made.
PN405
THE SENIOR DEPUTY PRESIDENT: Right.
PN406
MS DOUST: You certainly can't be certain of that.
PN407
THE SENIOR DEPUTY PRESIDENT: Okay.
PN408
MS DOUST: You can't be in a position to say that about any employee. The second issue goes to discretion, your Honour, and that is that this employer, we will submit, based on this sort of conduct has conduct itself in a way that is at times inconsistent with, I'm trying to put it neutrally, inconsistent with accepting its obligations under the award. As I'm instructed it's been a matter of continuing controversy and contestation between the parties that hasn't actually been finally determined.
PN409
THE SENIOR DEPUTY PRESIDENT: Right.
PN410
MS DOUST: So we do say that it goes to your Honour's discretion when you have an employer that conducts itself in a way saying we're not bound by the award, you're outside award employees.
PN411
THE SENIOR DEPUTY PRESIDENT: When it suits them.
PN412
MS DOUST: We've got these contract but, you know, something was in their interests and now they come and - - -
PN413
THE SENIOR DEPUTY PRESIDENT: You're saying they can't be allowed to have their cake and eat it, is that what - - -
PN414
MS DOUST: Precisely.
PN415
THE SENIOR DEPUTY PRESIDENT: Right, okay.
PN416
MS DOUST: Precisely, because we've never been allowed that same indulgence.
PN417
THE SENIOR DEPUTY PRESIDENT: Right, okay.
PN418
MR GEE: If I could be heard on that issue, your Honour? My friend raises two points and there's this concern or allegation that they don't who is covered. The witness has already given evidence and it's very clear evidence as I recall it that the people who are affected by the IT bureau transaction who are employed by AGL Corporate Services are covered by the award. They may not be remunerated in accordance with the award but it is not this witness's evidence that the company denies award coverage.
PN419
THE SENIOR DEPUTY PRESIDENT: No, I understand.
PN420
MR GEE: That deals with that issue in entirety. Any question that my friend may have that relates to the content of particular contracts of employment and what may or may not be historical disagreements between the parties is entirely irrelevant to the application before the Commission. Now, the only other thing I say about that is that my friend says that it is her submission that it has been my client's practice to deny award coverage in the past and there's been some conflict about that.
PN421
THE SENIOR DEPUTY PRESIDENT: We'd need some evidence.
PN422
MR GEE: There is a stunning lack of evidence as to that, I might say, and I don't need to say any more.
PN423
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I certainly don't think, I must say, I'm a bit concerned about grilling this witness on a contract that was issued in 1999 and so even if you could show that the contract was inconsistent with the award obligations at the time, I'm not sure how this witness is going to help you. I mean it's either true or not true but I'm not sure - the witness has said that they are covered by the award.
PN424
MS DOUST: Sure, and as I say, that's also consistent with this employer being an employer who, you know, in certain weather takes a certain view and in other weather takes a different view.
PN425
THE SENIOR DEPUTY PRESIDENT: Yes. Well, if you could put on some evidence to that effect but - - -
PN426
MS DOUST: Well, with respect, your Honour, we're entitled to adduce the evidence in a number of different ways, including under cross-examination.
PN427
THE SENIOR DEPUTY PRESIDENT: Right.
PN428
MS DOUST: What we do have is we've adduced some letters going to employees in that particular bureau that use this terminology outside the award.
PN429
THE SENIOR DEPUTY PRESIDENT: Yes. I suppose I'm a bit worried about the age of it, quite frankly, it's seven years ago.
PN430
MS DOUST: Well, yes, but it's certainly the case that this material hasn't been revoked. So this is what - - -
PN431
THE SENIOR DEPUTY PRESIDENT: Okay. Look, I am going to - - -
PN432
MS DOUST: But there's no evidence that it has been revoked.
PN433
THE SENIOR DEPUTY PRESIDENT: Okay, okay. Well look, we don't want to argue about this forever.
PN434
MS DOUST: It feels like - - -
PN435
THE SENIOR DEPUTY PRESIDENT: Look, I will let you continue with your line of questioning but just bear in mind there's going to be a limit to how much. I think, you know, grilling the witness about this contract in 1999 is going of limited, I think, is going to be of limited value. Now, if you want to ask her about stuff that was happening while she was here or at AGL, then I think that might be more helpful to your case. But I'm not going to stop you asking those questions but I'm just flagging that to you.
PN436
MS DOUST: If your Honour would just bear with me. If I can question the witness about the annexure JAD - sorry, page 4 of that document which refers to an offer of employment which was in 2004?
PN437
THE SENIOR DEPUTY PRESIDENT: Okay. That will probably be more useful.
PN438
MS DOUST: If the witness might be recalled?
THE SENIOR DEPUTY PRESIDENT: Okay. Well, can we get her back in again.
<TRACEY SWINLEY, RECALLED ON FORMER OATH [12.00PM]
<CROSS-EXAMINATION BY MS DOUST, CONTINUING
PN440
MS DOUST: Ms Swinley, does the tier 4 in AGL3 comprehend a position of senior specialist in AGLs Job Family?---This being 3, document 3? I didn't realise that, I'm sorry.
PN441
Yes, that one is 3?---Run that by me again, sorry, the question?
PN442
Does that classification tier 4, does that comprehend a role of senior specialist in the Job Family?---I don't know.
PN443
You're not sure?---No. I actually don't work with the evaluation process on a regular basis.
PN444
Do you know the employee Simon Walton?---I know the name of the person. I know that person as in Scope.
PN445
He's in the IT bureau?---I understand that, yes.
PN446
Okay. Now, do you accept that he is a person at senior specialist level?---I really don't know. I don't have the details of the people in front of me.
PN447
Okay. Have you never gone through the process of identifying for each individual their particular contract of employment?---I have indeed where there's a large number of them, yes.
PN448
Have you seen every contract of employment for every employee in the IT bureau?---Yes, I have.
PN449
Do you agree some of them date back as far as 1999?---That could be correct.
PN450
Okay. Are you aware of any steps taken to revoke any of the contracts issued at that time?---Not that I'm aware of.
PN451
I will ask you to accept if you can turn to page 4 of the statement of James Day which is AWU1?---Page 4?
PN452
Yes. I will ask you to accept that that's a contract issued by AGL to an employee in the IT bureau on or about 23 June 2004. Do you see that's got a contract of employment attached to it?---I do.
**** TRACY LEE SWINLEY XXN MS DOUST
PN453
And these were contracts that were issued with your oversight, strategic oversight?---Not necessarily so, not always so.
PN454
Did you have any role in making the calls about the issuing of contracts to these employees at that time?---No, I did not.
PN455
Who made those calls?---I think as I was explaining earlier, that we have people in the business and often that call is actually made
by the HR person that sit in the business. I don't often see these contracts. I'm not aware they're being offered
or - - -
PN456
So if I was to ask you questions about the reasons for the issuing of these contracts in 2004 or this contract in 2004, are you saying you wouldn't be able to explain why a particular contract was used?---I guess what I'm saying is I wouldn't have been aware of the offer of it, I wouldn't have seen it, and I wouldn't even have actually known about it being offered at that time. I don't actually - I'm not - I don't actually see the offer of contracts to individuals. They don’t come by me.
PN457
Okay. And do you say then that the contents of this contract are not familiar to you?---Yes, well, the type of the content in it is pretty standard content I guess, around terms and conditions of employment. It's nothing I wouldn’t have seen before, for example.
PN458
But have you been involved in giving any consideration to the issue of the issuing of common law employment contracts to employees in the IT bureau?---No.
PN459
You haven't been in making those calls?---No, no.
PN460
And do you suggest, do you, that every single one of the employees in - or every single one of the employee numbers in AGL3 has been issued with an offer of employment from IBM?---Yes, as far as I'm aware, as I mentioned earlier, I was in the room when IBM handed out offers of employment and for those people there the undertaking was given that they would be posted to that person and electronically emailed.
**** TRACY LEE SWINLEY XXN MS DOUST
PN461
If it was the case that one of the employees in that group had not been made an offer at this stage would you say that they should be covered by this order, the order that you seek from the Commission?---That person would be aware that they were in Scope and if the contract hadn't been issued to that person who - every single individual has been advised where they sit in the equation in terms of their location at IBM. I guess that person would be wondering why they didn't get an offer of employment but that would be oversight.
PN462
Well, the issue is, are you saying that if an employee hasn't received an offer of employment from IBM that they should be covered by any order that the Commission makes in these proceedings?---I don't know. I haven't turned my mind to that, quite frankly. I need to give that some thought to understand how that would work better but it's an order - I don't know. I couldn't answer that right now.
PN463
Thank you. The bureau services agreement with IBM, why isn't that signed as yet?---I'm actually not involved in the negotiations as such but my understanding is that the parties are still finalising the terms of that contract.
PN464
Have you seen the document?---I've seen aspects of the document that relate to the work that I do.
PN465
What's the term of the agreement?---Two years is the proposed term but it hasn't been signed.
PN466
Do you accept that some employees would prefer to try and seek some secure long term employment with a stable institution rather than having employment as part of a two year contract?---Their employment isn't restricted by the terms of the contract. The employment from IBM is permanent so it is stable.
PN467
But going to my proposition, do - - - ?---I don't know. That's something that would vary individually. I couldn't speak for those people in question on that.
PN468
You're a person who's been in HR, IR, ER, 15 years?---Around about, yes, that's correct.
PN469
And you deal with issues that touch on employees and their workplace?
---Absolutely.
**** TRACY LEE SWINLEY XXN MS DOUST
PN470
Their entitlements, their concerns?---Yes, that's correct.
PN471
And indeed you have to have an understanding of how employees think, don't you, to do the work that you do?---You try your best to obtain that understanding.
PN472
Okay. And you'd be familiar with the position of many employees for whom job security is absolutely the priority, wouldn't you?---In some cases that's important to people, in others it's not.
PN473
Sure, okay. I'm just saying that you would accept that it's the case for some employees that they would prefer to have secure long term employment with an organisation rather than employment which is under a contract?---Yes, for some people that would be so.
PN474
And with IBM, IBM will only be in a position to perform the work that it does for AGL while it holds the contract?---Yes, that's correct.
PN475
And the work that's being performed for AGL is very, very specialised work?---It could well be. I'm not an expert in IT in that sense but my understanding is that yes, they will do the work for the length of the contract.
PN476
Do you have an understanding of the sort of work that the employees perform in the IT bureau?---Not in any great detail, no. That's a matter for the business to identify to me.
PN477
Do you accept this proposition, that you might need to have an understanding of the particular skill set and work of an employee to get a sense of their employability in the labour market?---Me personally or generally speaking?
PN478
Generally?---Yes, generally. That's why we have resumes and things like that.
PN479
And your particular skill set can affect your transferability in an EBA in the labour market?---Absolutely.
PN480
No, you say you've been involved in a process of consultation with IBM regarding the terms and conditions of employment that they would offer to employees of AGL?---That's correct.
PN481
And I see that you've gone back and forth to IBM on a couple of occasions about various issues?---Absolutely.
**** TRACY LEE SWINLEY XXN MS DOUST
PN482
And that's because it's become clear to you along the way that the IT bureau employees aren't thrilled with the prospect of moving across to IBM?---I wouldn't agree with that statement. I would probably say that I've been in the room when these people have been involved in discussions with IBM and it's become apparent to me that there were some areas of concern, which are the ones that I raised with IBM directly.
PN483
Sure. Now, I think you accepted from Mr Gee that you understood that there was an objection by some employees to the idea of moving into a position where the employee will have to bill various client organisations?---That was in terms of the possibility that they may work on other - in other parts of IBM, yes.
PN484
Yes, okay. And just bearing in mind your 15 years experience in this area, you would accept, wouldn't you, that that would involve a considerable change in workplace culture for an employee?---It can, indeed.
PN485
You've said some of these employees have got lengthy employment histories with AGL?---They do.
PN486
I think there's a handful that have got between 20 and 30 years?---Yes, that's my understanding.
PN487
Okay. Your observation of employees, the ones that have been in an organisation for a long time can sometimes find it more difficult to change to a different organisation?---In some circumstances that's true.
PN488
Have you spoken to the individual employees about how those employees with 20, 30 years experience will manage the change in culture?---No, that's actually not my role in the process. As I mentioned earlier, we have people in the business, for example, we have a business partner who's responsible for the IT group and she would be dealing with those people on location on a day to day basis and where they're not co-located, through other means. But she would be the person who would be I guess dealing with those issues with the individuals concerned.
PN489
Yes. Did you sit down with each letter of offer from IBM and compare it with each individual's contract?---No.
PN490
So anything that you say about the comparability of those terms is based upon what you've been told by someone else?---I guess it's based on this information here, this spreadsheet which was provided to IBM.
**** TRACY LEE SWINLEY XXN MS DOUST
PN491
Well, Ms Swinley, that doesn't provide us with any information about what was in the offers from IBM, does it?---No, I haven't seen the offers, the individual offers. The only thing that I've seen is the standard template and worked with IBM to develop that.
PN492
Okay. Now, the standard template that you've seen doesn't have a provision regarding hours of work, does it?---I'll just have to check that. I don't think it specifies the actual hours from memory. No, it doesn't specify, for example, the weekly hours of work.
PN493
It doesn't specify daily hours of work either, does it?---No, it doesn't.
PN494
And you accept this, don't you, that's a substantial difference from the current position?---In terms of the way in which these people work at the moment in AGL?
PN495
Yes?---I'm not familiar with the way that they work. I'm not on site with them.
PN496
But you understand that they have the capacity to have flexible hours?---They do.
PN497
And that means that they can perhaps start later in the morning and go later in the afternoon, it's not necessarily rigid nine to five or nine to 5.30, so flexibility at either end of the day?---That's possibly so.
PN498
Well, do you understand that to be the case with the IT bureau employees or not?
---That is my understanding, yes, but I don't know how they work it. I'm not in the operational space but I know that there's a capacity
to do that.
PN499
Okay. And the other flexibility that they have is I think there's some - so there are core hours but there are hours in the middle of the day when you can have your lunch?---That would be standard for anyone. Yes, that's not usual, yes.
PN500
Sorry, I think it's between 12 and two you can take a lunch break at any time there?---Okay.
PN501
Well, that's the understanding, isn't it?---I don't know. Yes, I don't know for these people how that works.
PN502
Right. Well, just going back to the flexible hours issue, if there's no provision in the IBM contract for flexible hours that's a substantial difference to the position currently, isn't it?---No, I wouldn't agree with that at all. Only from what I have discussed with IBM, they have been reiterating on numerous to people in this group that they do work on a very flexible basis so that they speak greatly about the capacity to manage your work and home life, that there's significant flexibility which is something that individuals and IBM do negotiate with their leaders and that was discussed quite significantly in those sessions that I was at.
**** TRACY LEE SWINLEY XXN MS DOUST
PN503
Well, you know as an employee relations professional there's a difference between what your contractual entitlements are and what the employer might afford from time to time, isn't there?---There can be. I'm not saying that that's the case in IBM because I don't know but - - -
PN504
No, sorry, I'm not saying in that particular case, but from the point of view of an employee having identifiable and enforceable entitlements, there's a difference between an employer's practice from time to time and having a contractual entitlement, isn't there?---There can be which is why it's good to have things like grievance procedures, yes.
PN505
But it's also good to have terms and conditions actually put down in writing, isn't it?---For some people that like to work that way, indeed.
PN506
AGL likes it, don't they?---What, in writing down terms and conditions?
PN507
Yes?---In some cases, yes, it does.
PN508
AGL has written down terms and conditions in contracts for each of these employees, hasn't it?---To my knowledge it has, yes.
PN509
Because the benefit is it's written down and there can be no uncertainty about the parties various positions and rights, isn't that the benefit?---Yes, that's one of the benefits, it does provide clarity.
PN510
You accept, don't you, that it is entirely valid for an employee to want any of their entitlements to be in a written down enforceable form, don't you?---Well, I'm an employee and I could necessarily require that myself but others prefer that - - -
PN511
Do you accept that that's a valid wish for an employee, don't you?---I accept it's a wish for an employee but I'm not sure that it can be always accommodate to cover all things, otherwise contracts would be - - -
PN512
Well, hours of work are fairly fundamental to employment, aren't they?---They are and IBM has in its presentation which I think is attached to my statement, been very specific about 37.5 hours per week.
PN513
You don't suggest that a PowerPoint presentation from IBM can constitute contractual requirement, do you?
**** TRACY LEE SWINLEY XXN MS DOUST
PN514
MR GEE: Well, I object to that. That's again calling for speculation as to legal conclusions?---I haven't finished my law degree.
PN515
THE SENIOR DEPUTY PRESIDENT: Well, I will allow the question. I mean technically you're right?---The question was, I'm sorry, could you repeat it?
PN516
MS DOUST: Well, you don't say that a PowerPoint presentation can give an employee an enforceable entitlement to anything, do you?---No, I don't.
PN517
Because you accept that a contract is normally a document that's written down and signed or adopted by both the parties, don't you?---It is indeed.
PN518
And a PowerPoint presentation isn't that?---No, it's not.
PN519
Because it's given to a group in general and how can you know who was there at any time?---Yes, it's given to a group in general, it's also made available on our Airnet system, so it's completely accessible. It's quite transparent - - -
PN520
I'm not suggesting that it hasn't been published. What I’m suggesting is that PowerPoint presentation doesn't give those employees any enforceable rights to those hours of work in a week?---No, it would not, I agree.
PN521
And there's no provision in the IBM contract for employees to be paid overtime of work in excess of their 38 hours a week, is there?---That's correct.
PN522
And there's no provision in the contract for employees to have time off in lieu?
---I'd have to re-read it again, but I don't recall seeing that, no.
PN523
Annexure C?---Thank you. No, although it may be contained in policy documents. I don't know if it's referred to in other policies there.
PN524
As an employee relations specialist?---Thank you.
PN525
With many years experience, you'd appreciate that there is a distinction between policy and contract of employment, don't you?
PN526
MR GEE: Sorry, I must object to that.
PN527
THE SENIOR DEPUTY PRESIDENT: Yes, I mean I'm not quite sure. I mean at the end of the day, I mean the witness's views on this aren't really going to make any difference. I don't want to sort of stop you really but I - - -
**** TRACY LEE SWINLEY XXN MS DOUST
PN528
MS DOUST: Well, the difficulty with it, your Honour, is that - - -
PN529
THE SENIOR DEPUTY PRESIDENT: It's either true or not true what her opinion is essentially.
PN530
MS DOUST: Well, no, but she keeps popping out with it and so I really do have to challenge it unfortunately.
PN531
MR GEE: Again, the witness is being asked about matters which are before the Full Bench of the Federal Court of Appeal under appeal in the Nikolitch matter. I don't see how this witness's evidence can shed more light on that, or any light on that that's of relevance to this matter.
PN532
THE SENIOR DEPUTY PRESIDENT: Look, you can ask your question but I'm not sure it's helping much.
PN533
MS DOUST: Well, your Honour, this witness is the person that has put the evidence forward saying that we've got acceptable comparable offers of employment from IBM.
PN534
THE SENIOR DEPUTY PRESIDENT: Right.
PN535
MS DOUST: Now, I think I - - -
PN536
THE SENIOR DEPUTY PRESIDENT: Well, it's obviously your - I mean, you know, there is an argument to say that and you can make the submission that, well, you know, if things like flexible hours aren't in the contract, they might be in the policy but it's of less value being in a policy than in a legally enforceable contract. Whether the witness agrees with you or not really doesn't vary the argument.
PN537
MS DOUST: Yes, yes.
PN538
THE SENIOR DEPUTY PRESIDENT: I mean it's up to you. I'm not - if you want to keep on asking those questions of the witness I must say I'm not going to keep on stopping you, but I just sort of wonder whether you're actually advancing your cause.
PN539
MS DOUST: All right, thank you, your Honour.
**** TRACY LEE SWINLEY XXN MS DOUST
PN540
You accept that the position under the IBM contract is substantially different from the position currently so far as hours of work, overtime, time off in lieu is concerned?---In terms of the contract itself, yes.
PN541
And this is correct, isn't it, AGL doesn't in its contracts reserve to itself the right to transfer employees interstate or overseas?---No, it doesn't. It's my understanding that it relates to metropolitan areas specifically as a right.
PN542
Okay. And that's a substantial difference to the position at IBM under the contracts, isn't it?---Yes, except IBM has given some undertakings on those things.
PN543
Well, the only undertaking was about consultation, wasn't it?---That's one of them, yes.
PN544
And you accept that in relation to consultation that that doesn't deprive IBM of the right of making the ultimate call on that?---No, that would be right.
PN545
So you would agree with this proposition, that the position at IBM so far as relocation is concerned is less favourable for employees who want security of work location?---I'm not so sure that I can agree to that. How IBM operates its provisions and how it engages itself is a matter for IBM. It's not something that I can comment on.
PN546
Not something you can control after the employees move across?---In terms of where they would like their people to work, no.
PN547
And they're obviously at liberty to change their policies from time to time as they see fit?---I suppose so.
PN548
But you're aware that this issue is a real serious concern for employees?---Yes, it was an issue that I discussed at length with the AWU and with IBM as a result.
PN549
Can I suggest this, that the approach taken in the contracts in your negotiations with IBM has been to compensate any particular losses by providing a cash compensation?---That's correct, where IBM were unable to provide the same provisions.
PN550
Just in relation to defined benefits super, I understand you got the advice from the actuary a couple of weeks ago?---That's correct.
**** TRACY LEE SWINLEY XXN MS DOUST
PN551
Okay. And you've conveyed that to IBM?---That has been done, yes.
PN552
And there's been no offer forthcoming in relation to defined benefits superannuation?---No, they are dealing with that now.
PN553
And there's quite a few on defined benefits superannuation in the group that are affected. I think there's maybe 10, 10 or 12?---In New South Wales?
PN554
Yes?---Yes, well, the list tells the story.
PN555
The list is employees in Victoria as well, isn't it?---Yes, it is.
PN556
Sorry, AGL3?---Yes, it is, I think. Yes, it's the total list.
PN557
That aren't covered by this application, that are covered by a different instrument?---That's correct.
PN558
But in any case, there's been nothing forthcoming from IBM in relation to defined benefits superannuation, has there?---No, but they advised me last night that that was coming.
PN559
That will be coming?---That will be coming.
PN560
But we don't know what it is?---Not yet, no.
PN561
So just talking about that approach of cashing up the benefits, that's the approach that's been taken for defined benefits superannuation?---Yes, as I understand.
PN562
Or it will be taken at some stage?---That's my understanding, yes.
PN563
And accelerated long service leave after 20 years?---That's correct.
PN564
Gas bill discounts?---Yes, that's correct.
PN565
I think there might be more than that but it's for at least those things that - - -?
---..... that's correct, yes.
PN566
Now, there's a number of features, I'd suggest, of work at AGL that's different from what you might experience generally in the private sector?---AGL is in the private sector.
**** TRACY LEE SWINLEY XXN MS DOUST
PN567
Sorry?---Yes.
PN568
Generally in the private sector?---Generally?
PN569
Yes?---In what sense, I'm not sure what you mean?
PN570
Well, I'll just give you examples, that accelerated long service?---It's a generous provision.
PN571
Yes. Defined benefits superannuation, you don't find that generally out there?
---You don't find that very often at all.
PN572
The capacity for salary sacrifice arrangements, although that's probably more common?---I think they're fairly common, yes.
PN573
Gas discounts, offering employees, you know, discounts on their utilities?---Well, that's what we do as our business and I guess that's something that we could offer.
PN574
Sure?---But other businesses may offer other different things.
PN575
Sure. Flexi time?---Flexible working arrangements is pretty standard practice I've heard, from my experience.
PN576
And RDOs?---I don't know about RDOs. Yes, I'm not sure.
PN577
Can I suggest this to you, it's the case, isn't it, that the employees from the IT bureau, so far as you know anything about them, place a real high priority on these sorts of benefits?---They may.
PN578
And from the point of view of your experience as an employee relations person, providing those sorts of benefits is something that's designed to promote a sense of security and cohesion in the workplace, isn't it?---There are many things that could work towards that. I mean, yes, they could be part of it. It depends on the individual and what they think is important.
PN579
But Ms Swinley, really, these sorts of benefits that AGL afford its employees, I suggest, set AGL apart from many employers out there in the broad spread of industry?---I'm not sure. I'm not sure about that.
**** TRACY LEE SWINLEY XXN MS DOUST
PN580
Well, you'd like to think of AGL as an employee friendly workplace, don't you?
---Yes.
PN581
And these are the sorts of things, giving employees gas discounts, RDOs, flexible work hours and so on, those are indicia of an employee
friendly workplace?
---They are some things among many things that employers offer to make them family friendly or a friendly workplace in my view.
PN582
And do you agree that AGL has adopted those policies because it encourages a sense of loyalty from their employees?---Not necessarily. In other parts of the business we're actually moving away from that, so yes. So there you go.
PN583
Historically?---Yes, it has historically but yes, historically. But certainly in other parts of our business we are not applying those things or working to move differently.
PN584
You're not expecting that in those areas you've tried to break down the relationship of loyalty with your employees, are you?---Certainly not, no.
PN585
But can I take you back to the question because I don't think you did really answer it. Those sorts of polices are adopted and used by employers because it encourages loyalty from employees?---It can encourage loyalty but for some people who work under those terms and conditions you never get their loyalty, so it's very hard for me to answer. It's not - - -
PN586
I'm not asking what those employees think. I'm saying from the employer's point of view AGL has over time both in consent award and in the policies it has adopted has extended a number of benefits to employees which are probably over and above what it by rights had to, do you accept that?---It would have been negotiated outcomes in those circumstances so yes, so that it's subject to negotiation outcome rather than pure extension.
PN587
Sure?---But they can operate to provide benefits.
PN588
Yes. And parties don't negotiate outcomes except to the extent that they're both willing to accept what's in the outcome?---Yes, correct, correct.
PN589
So AGL has agreed to afford all these benefits over the years to employees?---At the time that they were implemented, that's correct.
**** TRACY LEE SWINLEY XXN MS DOUST
PN590
And do you accept my proposal or proposition, don't you, that these features are probably over and above what AGL by rights had to
afford to these employees?
---Well, I'm not wishing to be obtrusive, but I think if you look at the time at which those things were negotiated perhaps they were
more prevalent across the rest of the organisation, perhaps that was standard. I don't know.
PN591
Do you agree some employees value those sorts of benefits equally to money in the hand?---That could well be the case, I would agree with that, yes. For some people that's so but I don't know what these people think.
PN592
Ms Swinley, you've dealt with employees, haven't you, since 1991?---I have. I have.
PN593
Do you not have an understanding of the types of approaches that employees take to these issues?---Yes, they are wide and varied, yes.
PN594
Sure. Some employees cash in the hand is gold?---Indeed.
PN595
But for other employees they're more concerned with the indicia of security?
---Indeed.
PN596
Okay. What I want to suggest to you is that these employees at AGL, they value these sorts of benefits, the ones that aren't direct
cash, equally to the money?
---These employees being the entire group or part of the group or - - -
PN597
The employees in the IT bureau?---Well, that could be your view but I don't know that to be a fact.
PN598
Well, you've dealt with - - -
PN599
THE SENIOR DEPUTY PRESIDENT: Well, really, I mean I think, you know, if you want to call them then that's one way of, you know, presenting the evidence if you think it's relevant. But I think continually asking this witness about what she must know about how they think, I really think you should move on from it.
PN600
MS DOUST: You accept, wouldn't you, that many employees prefer to have time off in lieu when they work overtime so they can spend time with their families?---For some people that would be good, for others it's not what they want. I don't know.
**** TRACY LEE SWINLEY XXN MS DOUST
PN601
Does AGL have a policy about family commitments of its employees?---I don't think specifically. I can't think of anything specifically right now.
PN602
Does it not deal with the issue of family obligations in its policies?---It may address it in some but I don't - I'm not sitting in front of them to actually read that or find that.
PN603
Have you discussed with these employees their particular family obligations that might be affected by moving employer?---I think as I mentioned earlier, I'm not involved in the discussions directly with employees. We have someone in the business who's the local business partner who does deal with these issues as they arise.
PN604
Thank you. Would your Honour just give a moment?
PN605
THE SENIOR DEPUTY PRESIDENT: Yes.
PN606
MS DOUST: Thank you. That's all, your Honour.
THE SENIOR DEPUTY PRESIDENT: Okay, thank you.
<RE-EXAMINATION BY MR GEE [12.33PM]
PN608
MR GEE: Ms Swinley, you've mentioned a couple of times in your evidence about a person who's been dealing with these types of issues in the business. Who is that, please?---A person called Janette Williams.
PN609
You were asked questions regarding the basis upon which you have given your evidence about the terms of employment offered by IBM and you answered I think in part that that information is derived from the document which I will refer to as AGL3, do you recall that line of questioning?---I do, that's correct.
PN610
Now, do you stand - you were also asked whether you had seen the agreement between - the terms of the agreement between IBM and AGL and you answered along the lines that you had seen some parts of it, is that right?---That's correct. I'm dealing with only aspects of the agreement.
PN611
And to your knowledge do those terms reflect what you have said at paragraph 14 of your statement?
**** TRACY LEE SWINLEY RXN MR GEE
PN612
MS DOUST: I object to the question.
PN613
MR GEE: It arises clearly out of the line of examination in cross and I'm entitled to ask the question.
PN614
THE SENIOR DEPUTY PRESIDENT: Yes, you can ask the - - -
PN615
MS DOUST: Well - - -
PN616
THE SENIOR DEPUTY PRESIDENT: Why are you objecting?
PN617
MS DOUST: Well, because I don't think it arises. The question that was asked of this witness in relation to the contracts offered by IBM was that she hadn't sat down and compared them. She hadn't seen those offers from IBM and hadn't compared them with the terms for each employee.
PN618
THE SENIOR DEPUTY PRESIDENT: Well, that was one of your questions.
PN619
MS DOUST: So how she can now go and give the evidence that Mr Gee intends to lead - - -
PN620
THE SENIOR DEPUTY PRESIDENT: No, I will allow the question.
PN621
MR GEE: Would you like to hear the question again?---Please, thank you.
PN622
Have you seen those parts of the proposed agreement between AGL and IBM that reflect what you say at paragraph 14 of your statement?---Those parts?
PN623
Well, you gave some evidence to the effect that - sorry, you were asked a question whether you had seen the proposed agreement between IBM and AGL?---Mm.
PN624
And my notes indicate that you answered that you hadn't seen all of it, you had seen some parts of it?---That's correct.
PN625
And I was asking you had you seen those parts of the agreement that reflect the matters you discuss at paragraph 14 of your statement.
PN626
MS DOUST: Object.
**** TRACY LEE SWINLEY RXN MR GEE
PN627
THE SENIOR DEPUTY PRESIDENT: Well, what's the objection?
PN628
MS DOUST: Well, there's actually not a proper foundation for the question and so he's led the witness into the answer because he's asked whether he's seen parts that reflect - sorry, he's asked the witness whether she's seen parts that reflect A, B, C. She should be asked to give evidence as to what she actually saw in the document. The best evidence is of course the document.
PN629
THE SENIOR DEPUTY PRESIDENT: I'll allow the question.
PN630
MS DOUST: Well, with respect, your Honour.
PN631
THE SENIOR DEPUTY PRESIDENT: Well, I'm allowing the - - -
PN632
MS DOUST: She hasn't given primary evidence as to what the contents of the document are so to jump from there to an assumption that it reflects - - -
PN633
THE SENIOR DEPUTY PRESIDENT: Is that right? I think you did - did you refer to the - - -
PN634
MS DOUST: She gave some evidence - - -
PN635
THE SENIOR DEPUTY PRESIDENT: She said she had been involved in negotiation of the bureau services agreement. But you did say you were aware of the content of the agreement, or parts of the agreement?---I think I - yes, I talked about the term of the agreement I think specifically at that time, the two years, and that I had seen parts of the agreement that relate to the work that I do.
PN636
Yes.
PN637
MS DOUST: Certainly hadn't given any evidence about it reflecting any particular position and A, B, C are assertions and conclusions.
PN638
THE SENIOR DEPUTY PRESIDENT: I am going to allow the question.
PN639
MR GEE: Would you like the question again?---Thank you.
PN640
Just if I can put it to you this way, you've now given evidence a number of times that you've seen parts of the proposed agreement but you haven't seen the entirety and your evidence was that you'd seen parts of the agreement that relate to your work, is that right?---That's correct.
**** TRACY LEE SWINLEY RXN MR GEE
PN641
Perhaps I can ask you this, in that case what parts of the agreement?---I've seen the parts of the agreement that do relate to IBMs obligation to formulate offers that are comparable and no less advantageous, the aspect of continuous service is certainly in there being recognised and the other key component I've been looking at is the day to day management component where people who do not accept offers will work under the day to day management of IBM. That's the best of my recollection at this point.
PN642
You were asked some questions about - well, you were put some propositions about whether a PowerPoint presentation was good enough to get ....., do you remember that line of questioning?---I do remember that.
PN643
And now I'm going to ask you general questions about the formation of the contract, perhaps I'll try and have some fun with that. You were asked some - sorry, I withdraw that. You were also put a proposition that a contract should be in written form, do you recall that question?---I do recall that question.
PN644
Now, can the contract take any other form?---It can be binding once it's offered verbally.
PN645
Sorry, I missed that, could you repeat that?---Verbal, verbal offers can be binding.
PN646
Can the contract be partly in writing and partly in other forms?---It can be.
PN647
Does the contract have to be in one document or can it be in more than one document?---No, it can be more than that.
PN648
Can a representation amount to a term of a contract?---It can.
PN649
You were asked some interesting questions about whether AGL was different to the private sector generally, do you remember that line of questioning?---I do recall that.
PN650
And the evidence that you gave, do you proffer that as evidence at large or is it evidence of your experience?---Yes, evidence of my experience.
PN651
Thank you. I have no further questions.
**** TRACY LEE SWINLEY RXN MR GEE
PN652
THE SENIOR DEPUTY PRESIDENT: Okay, thank you. You're excused?
---Thank you.
<THE WITNESS WITHDREW [12.40PM]
PN653
THE SENIOR DEPUTY PRESIDENT: We'll adjourn. Did you want to - - -
PN654
MS DOUST: Yes. Well, your Honour, in light of the evidence that's come from Ms Swinley - - -
PN655
THE SENIOR DEPUTY PRESIDENT: Yes, you've finished. You can step down?---I can go?
PN656
Yes, thank you.
PN657
MS DOUST: In light of Ms Swinley's evidence it wouldn't be our proposal to call any further evidence unless there was something further from the company.
PN658
THE SENIOR DEPUTY PRESIDENT: Okay.
PN659
MS DOUST: Now, I don't know what their intention is and whether your Honour is proposing to give them further time to adduce that evidence.
PN660
THE SENIOR DEPUTY PRESIDENT: Right. Well, it was more for you I think because I think you wanted to, or at least have the opportunity. But if you don't feel the need to now is what you're saying. Does the company want any more time?
PN661
MR GEE: As I understood your Honour' s proposal, there is now a short period of time within which the parties are going to be able to adduce further evidence.
PN662
THE SENIOR DEPUTY PRESIDENT: Further evidence. But I must say, now I'm getting an indication from the union that they don't want to. Is that right?
PN663
MS DOUST: We'd be happy to make submissions on the basis of the evidence that's fallen thus far.
PN664
THE SENIOR DEPUTY PRESIDENT: Right.
PN665
MS DOUST: And also on the basis of Mr Day's statement which we propose to tender.
PN666
THE SENIOR DEPUTY PRESIDENT: Right.
PN667
MS DOUST: I don't know how long my friend would expect to be with Mr Day. It's not a terribly voluminous statement. We have also reduced our submissions to writing
PN668
MR GEE: It would be my earnest ambition that I could be done with Mr Day within the time available but I don't think there's any possibility of getting on with submissions today, particularly with the prospect or potentially further evidence.
PN669
THE SENIOR DEPUTY PRESIDENT: But it doesn't sound like there is going to be further evidence. Well, not from the union. That's what you're saying, isn't it?
PN670
MS DOUST: No, if the company is minded to call some further evidence and I don't understand that was their position, we'd obviously want to have a proper opportunity to deal with any of that.
PN671
THE SENIOR DEPUTY PRESIDENT: Yes. But if they're not going to, you're not going to, if I can put it that way.
PN672
MS DOUST: Yes.
PN673
THE SENIOR DEPUTY PRESIDENT: I mean originally it was more because I thought the union indicated they might want to but now they're saying they don't. You're not seeking further evidence are you?
PN674
MR GEE: I would take that - in the discussions that occurred just prior to
Ms Swinley being subject to cross-examination and the position that the union took at that time about the status of the evidence,
if they're now saying that they no longer would seek to call any additional evidence, I take that as a concession that the offers
are otherwise comparable other than the matters that they've raised and if that's the case - - -
PN675
THE SENIOR DEPUTY PRESIDENT: Actually I don't think that's what - well, can you confirm that's what you're conceding? I didn't think that was - - -
PN676
MS DOUST: No, certainly not.
PN677
THE SENIOR DEPUTY PRESIDENT: No, no. Look, I have given both parties the opportunity, I'm still giving both parties the opportunity to call evidence if they wish to. If you don't wish to we can keep on going with what we've got. I mean it's fine with me but I'm giving you the opportunity. The union now says if you don't want to, then they're happy not to.
PN678
MR GEE: It's a matter then whether a Jones v Dunkel inference arises because the opportunity has been provided to the union to supply a list of names of members to confirm the details in AGL3 so that they can have an opportunity to interview their members and see whether the offers they have received are comparable or not with the information in AGL3. If the union doesn't want to take up that opportunity, at the very least the Jones v Dunkel inference arises in respect of the evidence that may have been called in that respect. On that basis I would be happy to proceed.
PN679
THE SENIOR DEPUTY PRESIDENT: Well, I'm not necessarily agreeing with that submission or not agreeing with it. I'm just saying that that's what the employer is going to argue, are you still happy to - - -
PN680
MS DOUST: No, I certainly understand what my friend says and just for the record, certainly don't think there's any Jones v Dunkel point that arises in these circumstances.
PN681
THE SENIOR DEPUTY PRESIDENT: Right, okay. So do you want to - I'm not ruling on whether - the union hasn't made a concession formally. I'm not ruling at this stage on the Jones v Dunkel point if you're going to put it, but are you happy not to adduce further evidence but to go with the evidence you've got?
PN682
MR GEE: May I take a very brief adjournment on that issue?
PN683
THE SENIOR DEPUTY PRESIDENT: Yes, we'll just have a - - -
PN684
MR GEE: It will be a matter of a minute or two.
PN685
THE SENIOR DEPUTY PRESIDENT: Yes, okay. We'll just very briefly adjourn.
<LUNCHEON ADJOURNMENT [12.45PM]
<RESUMED [2.33PM]
PN686
THE SENIOR DEPUTY PRESIDENT: Ms Doust.
MS DOUST: I call James Day, your Honour..
<JAMES ANDREW DAY, SWORN [2.33PM]
<EXAMINATION-IN-CHIEF BY MS DOUST
PN688
MS DOUST: Is your name James Andrew Day?---That's correct.
PN689
And you're the assistant secretary of the Australian Workers Union Technical and Administrative Professional Staff Branch?---That's correct.
PN690
Which is also known as the tax branch?---That's correct.
PN691
And you've prepared a statement for the purpose of these proceedings?---I have.
PN692
Do you have a copy of that in front of you?---I do.
PN693
Is that a statement I think that runs to some 27 pages including annexures?
---That's correct.
PN694
And the body of the statement is some three pages and goes to 10 numbered paragraphs?---That's correct.
PN695
Do you say that that statement is true and correct to the best of your belief and knowledge?---To the best of my knowledge, yes, that's correct.
PN696
I tender it, your Honour.
PN697
THE SENIOR DEPUTY PRESIDENT: That's AWU1.
PN698
MS DOUST: Thank you. I've just got a couple of brief additional questions.
Mr Day, in paragraph 4 of your statement, just going over the page onto paragraph - sorry, onto page 2, do you see you refer to annexing
two examples of letters of offer from AGL to AWU?---That's correct.
PN699
Two AWU members?---That's correct, yes.
PN700
Now, are you able to say, were both the members employed in the IT bureau at AGL?---That's my understanding, yes.
PN701
And I just want to get you to expand, if you would, on what you've said in paragraph 4. The second sentence you say:
PN702
The issue of award coverage has consistently been a matter of contention and dispute between the union and AGL.
**** JAMES ANDREW DAY XN MS DOUST
PN703
Do you see that sentence?---That's correct, yes.
PN704
Can you just clarify for a moment how long have you been dealing with AGL?
---Since my position as an organiser with the tax branch in 2002 I've had coverage of AGL throughout New South Wales.
PN705
And does your statement there refer to that period from when you were an organiser as well?---That's correct, yes.
PN706
And what do you mean by this statement that's been a matter of contention and dispute?---Given the award's vagueness as part of particular position descriptions that are covered by it, there's always been a contentious point between the union and the company of exactly where the award cuts off. There have been instances where people that are purely covered by the award or a certified agreement have been deemed outside of the award by each or various arms of the AGL company, much to the disgust of the union I may add, where the company has deemed them outside of the award and therefore not covered by the award or the certified agreements in place.
PN707
When you say deemed outside the award what steps do you say were taken to effect that or to purport to effect that?---Similar to these letters of offer, the company would merely mail them a letter deeming them outside of the award.
PN708
So use that term outside award?---That's correct.
PN709
And how did that purported deeming of employees have any impact on their continuing experience of the AGL workplace?---My understanding is that once deemed outside of the awards the classification structure contained within the award did not apply to those people any more, nor did the terms. They were made through the contract that was signed by the individuals which advised them of that deeming. As I said earlier, there's been several instances where people that were well and truly clearly covered by the award and a certified agreement were hence deemed outside of award and no longer covered by those instruments.
PN710
And how did that matter affect you in the performance of your obligations as an offer of the union, if at all?---Without the opportunity to have dispute settlement procedures similar to what's in the award or the certified agreement there was very little opportunity for us to investigate breaches of their terms and conditions and the access to those individuals was, I won't say denied, but it was constantly referred to that those people were outside of award and therefore no use being covered by the union.
**** JAMES ANDREW DAY XN MS DOUST
PN711
So do you say that employees who were deemed outside award the company took the position that you couldn't invoke the award dispute settlement procedures in respect of those individuals?---That would be a first statement, yes.
PN712
Okay. And in terms of the employees at AGL that your branch covers, is it simply IT professionals?---It's across all arms of the AGL business, agility, AGL retail sales. There's many arms of the business where people have simply been deemed outside of the award by the company.
PN713
Okay. And how many members do you have across AGL?---In rough numbers, somewhere in the vicinity of 800 across the country.
PN714
Okay. And I think you've got 35 members in information technology at St Leonards?---That's to the best of my knowledge, yes.
PN715
But not all of those are in the IT bureau as such, is that correct?---That's a fair statement.
PN716
Thank you, nothing further.
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Gee.
<CROSS-EXAMINATION BY MR GEE [2.39PM]
PN718
MR GEE: Mr Day, at the bottom of paragraph 4 of your statement, at the bottom of paragraph 4 as it begins on the first page of your statement you say AGL has indicated their view that the positions are not covered by the award?---That's correct.
PN719
I'd suggest to you that that's your extrapolation of what you've read out of the letters that you attach?---Are you speaking specifically about the bureau people or AGL in general?
PN720
Well, your paragraph 4 as I read it as a generalised statement not addressed to any specific individual at all?---It is my experience across the AGL group, that's correct.
PN721
And where you say that AGL has indicated their view that the positions are not covered by the award and that's an excerpt of the statement and I ask you to read the statement in entirety?---Yes.
**** JAMES ANDREW DAY XXN MR GEE
PN722
But you see where I'm referring to?---I do, yes.
PN723
I would suggest to you that that is what you have extrapolated from the documents that you have seen such as those that you attach, it's not something that's ever been expressly said to you by an AGL representative?---For the IT people in particular that is correct. We have had no certain statement, that is correct, for the IT people. However, within other arms of the business it has been my experience that once deemed outside of the award processes afforded to award people are no longer benefited to those people.
PN724
You don't give any examples at all of where you say you have been denied access to a disputes procedure or some such other benefit,
do you, in your statement?
---Within my statement, no.
PN725
Now, just very briefly - I withdraw that. You heard the evidence of Ms Swinley about what she understands a reference to an outside position means?---I would have to disagree strongly.
PN726
You did hear Ms Swinley's evidence?---I did, yes.
PN727
Paragraph 6 you give evidence that you've surveyed 15 members of the union, that's 15 of the 35, is that right?---That's correct, yes.
PN728
How did you survey them?---Face to face contact during lunch time periods.
PN729
Did you make any notes of that?---I did, yes.
PN730
Did you record who you spoke to and what their comments were?---Most definitely, yes.
PN731
I call for those notes.
PN732
THE SENIOR DEPUTY PRESIDENT: Well, do you have them here?---No, I don't.
PN733
MS DOUST: I have them.
PN734
THE SENIOR DEPUTY PRESIDENT: Can I just have a look at them first?---I must say, Commissioner, that those notes are not actually printed by me. They are printed by the members themselves.
**** JAMES ANDREW DAY XXN MR GEE
PN735
What do you mean, sorry?---The individuals in questions are the ones - sorry, the members that I interviewed are the people who physically wrote the notes, not myself.
PN736
Okay, right.
PN737
MR GEE: Well, what do you mean when you say survey then?---A series of questions was asked of those members around both their wishes going forward as a result of the announcement of the outsourcing and also their current environment and what their wishes were going forward.
PN738
But the notes you refer to are not your notes, you say they're notes prepared by your members?---They are the responses to the questions I posed to them. From memory there's also two of those purple books missing from two of our members. They are in my possession but I think they're actually at home.
PN739
THE SENIOR DEPUTY PRESIDENT: Okay.
PN740
MR GEE: I can continue on if that's of assistance.
PN741
THE SENIOR DEPUTY PRESIDENT: Okay.
PN742
MR GEE: Now, also in paragraph 6 you say that one of your members has not received an offer from IBM?---That's correct at this point, to the best of my knowledge, yes.
PN743
You don't suggest that that person is in Scope but has been admitted, you simply suggest that that person hasn't received an offer?---To this date we still don't know the entirety of who is in Scope. We've been told numbers of people but not names of individuals.
PN744
But to answer my question, you don't say that the person you refer to in paragraph 6 is in Scope but hasn't received an offer, you simply say that person has not received an offer?---As I said earlier, I'm not aware of precisely who is in Scope so I can't make that determination whether they are or not.
PN745
Likewise in paragraph 7 you refer to a member who is on leave in Sri Lanka?
---That's correct.
**** JAMES ANDREW DAY XXN MR GEE
PN746
You don't suggest that that person has received - I beg your pardon, I withdraw that. You don't suggest that that person is in Scope but has not received an offer, you just say you haven't been able to talk to that member?---That is correct, yes. I haven't been able to speak with that member since they left on medical leave.
PN747
Then in paragraph 8 you go on to talk about the 15 members that you have surveyed?---Yes.
PN748
Now, of those two were happy to take up the offers?---At the point that that survey was conducted, yes, those were the results.
PN749
Are you aware if they've done so or not?---Since that time that the survey was taken, no, I'm not.
PN750
And then you refer to the balance. Now, by my maths the balance that you refer to in paragraph 8 must be five members, is that right?---That's correct.
PN751
And those five members you say have reservations about the offers for a variety of reasons?---That's correct.
PN752
And your evidence is that those variety of reasons are what you set out in paragraph 10?---Those are the reasons that were given to me on the day, yes.
PN753
So you're not aware of any other reasons why people may hold reservations about the offers from IBM?---I can only speak from the people that I've interviewed and those were the main reasons those people gave, yes. Sorry, I take that back. Yes, you are correct that for those people that I interviewed, yes, those were the reasons given to me for that hesitation.
PN754
So the eight that told you they would prepare to take a redundancy package?
---Yes.
PN755
They didn't identify any particular concerns about the offer, they simply expressed a preference to be made redundant and receive a package?---They expressed their belief that they were entitled to the redundancy under the award given that their position was redundant.
PN756
But raised no concerns about the IBM offers in themselves?---They raised concerns about the offer which made them feel that redundancy was a better offer.
**** JAMES ANDREW DAY XXN MR GEE
PN757
I will put that to you again. Those eight members, your evidence is that those eight members have said to you that their preference is to take a redundancy package rather than work for IBM?---Correct.
PN758
But those eight people have not identified any particular concerns they have about the terms and conditions of employment they have been offered with IBM?---I did not notate it, but yes, it was given to me but their concerns were the primary motivator for their wish to accept redundancy.
PN759
You give no evidence of any concerns they may have held about the terms and conditions - - -?---Not within my statement, that's correct.
PN760
Paragraph 9 you talk about the long service leave benefit that people obtain after 20 years service with AGL. Now, I'd suggest to you that that's a benefit that applies to everybody in the IT section of AGL, would you agree with that?---I don't know, given that many of them have their terms of contract written into common law contracts, I can't be sure of each individual, no.
PN761
Well, it's your evidence that the members you spoke to who had significant periods of service got the benefit of the long service leave?---That's correct, but your initial question was all at AGL IT. I'm not sure about all of AGL IT.
PN762
Is it correct then that in your paragraph 9 you're suggesting that the members you spoke to received a long service leave benefit under the relevant clause of the award?---For some people that's actually stated within their, from memory, within their common law contract.
PN763
That's not the question I asked, Mr Day. The question I asked was in paragraph 9 is it not your evidence that the members you spoke to obtained a long service leave benefit under the award?---I don't know whether it's built out of the award or out of their individual contracts from memory. But yes, they did express that they enjoyed that benefit pursuant to that clause of the award. That benefit does exist within that clause of the award.
PN764
And can you tell me the date upon which you conducted the survey?---From memory it was the 23rd of last month which was a Monday.
PN765
Of?---Last month.
**** JAMES ANDREW DAY XXN MR GEE
PN766
September?---Correct.
PN767
So at the time you conducted the survey - sorry. It might assist this witness if I provide a copy of AGL1?---Thank you.
PN768
Mr Day, can I ask you to turn to page 13 of AGL1, that's annexure B to
Ms Swinley's statement, do you have that there?---Yes.
PN769
Do you see the words that are set out in that email?---
PN770
Tracey, here are the words I've been using to respond to concerns.
PN771
Yes. Could you just have a read of that next paragraph?---
PN772
Thanks for your question about the work location paragraph in your IBM employment offer. It is IBMs practice to discuss with an employee and agree in advance any change that would involve a move to an interstate or overseas location.
PN773
Were you aware that that was IBMs view regarding the location issue at the time you conducted the survey?---No.
PN774
Have you been made aware of that view since?---By my members, yes, recently.
PN775
On page 3 of your statement, (c), you talk about hours of work and patterns of work?---Yes.
PN776
You say that's a concern that's been raised by those five?---That's correct, yes.
PN777
Was that raised by all five members or some of them?---It was actually raised by more than five but given the numbers, yes.
PN778
You are the assistant branch secretary of the AWU, that's correct?---That's correct.
PN779
And how long have you been involved in the union, Mr Day?---As an official since late 2002, August I believe it was.
PN780
And what was your employment prior to that?---I was an aircraft engineer for Qantas Airways.
**** JAMES ANDREW DAY XXN MR GEE
PN781
Did you have any role in the union movement in that capacity?---I was a union delegate, yes.
PN782
So I suggest to you that you were reasonably familiar with workplace relations and the federal system of workplace relations in this country?---The Work Choices system, no, I'm not what you'd call 100 per cent on that.
PN783
THE SENIOR DEPUTY PRESIDENT: You'd be on your own if you were.
PN784
MR GEE: But you are aware that there have been recent amendments to the federal system under the banner of what we might all refer to loosely as Work Choices?---I'm aware of them but the minutia of the details, no, I'm not.
PN785
Have you heard of the Australian Fair Pay and Conditions Standard, Mr Day?
---Yes, I have.
PN786
Are you aware that the standard, if I can call it that, contains a number of minimum or core conditions of employment?---From memory, five yes.
PN787
And would you agree with me that the standard applies to all employees of constitutional corporations in Australia?---From memory, unless there is another instrument that gives better than those five core areas, yes, it would apply to all.
PN788
Thank you, Mr Day. And then is not an examination, well, it's not a test, one of those core conditions is ordinary hours of work, isn't it?---I believe so, yes.
PN789
In fact it's a cap on the ordinary hours of work, isn't it?---To the best of my knowledge, yes.
PN790
And it's a cap of 38 hours a week, isn't it?---Averaged over a 12 month period, yes.
PN791
Now, have you advised your members of how the standard will apply to them - I withdraw that. In your view will the standard apply to your members the subject of this application?
PN792
MS DOUST: Well, in what circumstances, your Honour?
PN793
THE SENIOR DEPUTY PRESIDENT: Sorry, what's the - - -
**** JAMES ANDREW DAY XXN MR GEE
PN794
MS DOUST: They're currently employed by AGL.
PN795
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN796
MS DOUST: We think there's some employees who have indicated accepted to Ms Swinley, we're not sure whether they're Sydney or Melbourne.
PN797
THE SENIOR DEPUTY PRESIDENT: Right. Well, do you want to clarify the question?
PN798
MR GEE: In the discussions that you've had with your members about the IBM offers of employment have you considered the application of the standard, in particular the ordinary hours of work component of the standard?---I have but given that they are averaged over a 12 month period that's still no consolation to my members who may be forced to work greater hours in one week than another week, or as dictated by a contract handed to them by IBM.
PN799
So you have discussed the application of the ordinary hours of work in the standard?---Only at a minimum, yes. Only to say that it does exist. How it applies, no, I haven't gone into it.
PN800
Could I now ask you to turn to page 37 of AGL1. I should say that that document starts on page 35 and it's annexure F of Ms Swinley's statement. Have you seen that document before?---No.
PN801
Have any of your members advised you that they've seen a document or presentation to that effect?---Yes, I've been advised. People have attended a slide show where this was presented, yes.
PN802
And did your members tell you or advise you that IBM had explained that their ordinary hours of work would be 37 and a half per week?---No. To the best of my knowledge, no.
PN803
Did any of your members advise you that IBM had explained to them what their capacity for flexible work arrangements are?---To the best of my knowledge, no.
PN804
Your evidence is not that those - I take it you weren't present at those presentations, were you?---No, I wasn't.
**** JAMES ANDREW DAY XXN MR GEE
PN805
In your discussions with - well, I withdraw that. In the course of your involvement in the proposed outsourcing of the IT bureau you've had a number of discussions with Ms Swinley?---From memory, two or three, yes.
PN806
And in the course of those discussions you've raised a number of issues and concerns on behalf of your members?---Both myself and my superior officer, Colin Heath, yes.
PN807
And was one of those issues the on call allowance?---At that time that wasn't apparent to us then, no.
PN808
Had you been made aware that there was a concern with on call allowance before you conducted the survey?---No, I was not.
PN809
Are you aware that IBM has an on call allowance?---No, I am not. I am aware however that the contracts given by IBM simply state that all hours have been paid for by your remuneration.
PN810
Now, Mr Day, in preparing your statement did you review the statement of
Ms Swinley?---No, I did not. In fact I haven't seen Ms Swinley's statement until today because of illness and other reasons.
PN811
But in putting your statement together you have given evidence of all of the concerns and issues raised by your members about the offers of employment that have been made to them by IBM?---I won't say all members but yes, of those members I surveyed those are the primary concerns of those people, yes.
PN812
I have no further questions, your Honour.
PN813
MS DOUST: Two things briefly.
PN814
MR GEE: Sorry, may I take one moment? I apologise to my friend. Your Honour, we are still substantially through the process of reviewing the documents called for. I suspect it will be no more than five minutes before the process is complete.
PN815
THE SENIOR DEPUTY PRESIDENT: Do you want a short adjournment?
PN816
MR GEE: Of no more than five minutes, your Honour.
**** JAMES ANDREW DAY XXN MR GEE
PN817
THE SENIOR DEPUTY PRESIDENT: Okay. We'll just have a short adjournment.
<SHORT ADJOURNMENT [3.02PM]
<RESUMED [3.11PM]
PN818
MR GEE: Thank you, your Honour.
PN819
Mr Day, I've been handed some 14 exercise notebooks?---Yes.
PN820
That appear to have been completed by 14 different people?---That's correct.
PN821
I think your evidence was you may have left one or two behind?---That's correct.
PN822
So that seems to tally up. Now, upon review of those documents I would suggest to you that five of the 14 people who have answered your questions answered the question do you want to go to IBM, yes, do you agree with that?---Yes, that's from memory, as it stays in my statement there, some eight members - sorry, some eight members indicated they would like to take a redundancy package. Two indicated that they would like to accept the offers from IBM and from memory, the balance between that two and five of which you speak said that they would like to join IBM.
PN823
What I'm now suggesting to you?---Sorry.
PN824
That five of the 14 books that I have contain the question do you want to go to IBM, yes, that would mean at least on my reading, that would mean five of your members are happy to go to IBM, not two as you say in paragraph 8?---From memory - - -
PN825
Do you agree with that?---From memory some of them did come with the condition, yes, if paid redundancy.
PN826
Well, I'll get to that. I have - I withdraw that. To be fair to the witness I ought to withdraw that line of questioning and start again. Your Honour, where I have commenced, where I asked the witness if he would agree that there were five who had said yes, I don't press that line of questioning. I'll start again.
PN827
THE SENIOR DEPUTY PRESIDENT: Okay.
**** JAMES ANDREW DAY XXN MR GEE
PN828
MR GEE: There were a series of 20 questions that you asked of your members?
---That's correct.
PN829
The last of those questions was would you like to go to IBM, or words to that effect?---From memory, yes.
PN830
And of the 14 responses you got the answer was either yes no qualification and in one case, yes, I would like to go to IBM, there were four of those responses, do you agree with that, not two as you've said in your statement?---I would have to agree with that if that's how they tally, yes.
PN831
MS DOUST: Well - - -
PN832
THE SENIOR DEPUTY PRESIDENT: Well, yes. I mean are you , just to clarify, I mean do you recall that that is the - because you haven't got them there in front of you?---Right.
PN833
I mean Mr Gee has got them there. Do you recall that there were four or are you just sort of agreeing because that's what he's put
to you and you can't remember?
---From memory as he's quite correctly put out, there was people who put in the qualification yes, if I was made redundant I would
choose to go to IBM.
PN834
Right?---From the specific numbers, no, I can't remember.
PN835
Right, okay. You can't specific numbers.
PN836
MR GEE: I would like to show the witness the four books to which I refer.
PN837
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN838
MR GEE: Mr Day, these are all people who have received offers of employment from IBM, aren't they?---I don't know. I would assume so, yes.
PN839
Now, in three of the books that I've handed to you the answer to that question is yes with no further qualification and in one of those cases the answer is also yes with some words in qualification, is that right?---Well, actually one of them has provided issues and then that's actually crossed out but yes, two of them state unequivocally yes, one states yes with a - sorry, one states a blank yes, one states I would like to go to IBM, one states yes and one says yes with provided issues crossed out, that's correct.
**** JAMES ANDREW DAY XXN MR GEE
PN840
And if I can hand you a fifth of the notebooks. What's the answer to the question in that fifth, Mr Day?---
PN841
I would go to IBM if I got a better offer and a higher salary.
PN842
So I would suggest to you that that's a conditional yes, do you agree with that?---I would have to say yes.
PN843
Then we move on - look, it may be more convenient - no, I will deal with this just one by one. I would like to show the witness another two books. Now, Mr Day, can you just review those books for me. I suggest that one of them is an unqualified - in respect of that last question which is whether that person would go to IBM, one person has answered with an unqualified no which we can be an unconditional no?---Yes.
PN844
Another person has answered no but in effect they might be prepared to go if some redundancy was paid. Would that be an accurate description of that person's response?
PN845
MS DOUST: I actually object to that question being put because it's actually not a fair - - -
PN846
MR GEE: I withdraw, I withdraw that. Could you read the second response, please, Mr Day?---Say again?
PN847
Could you read the second response?---
PN848
Do you want to go to IBM? No. If redundancy given I might join for a few months and resign at a later date.
PN849
Could you read the exacts words that are given?---Precisely -
PN850
No. If redundancy given otherwise I might join for a few months and resign at a later date.
PN851
Thank you. I would like to show you another four books. I'm showing you another notebook with an unqualified no, is that correct?---That's correct.
PN852
That states two, maybe three nos?---Three nos and a conditional yes which is a half a no, isn't it? That's correct, yes. Three of these say a flat no. That one says a flat no. That one's no but give me redundancy and I might think about it and that one's a flat no, you're correct.
**** JAMES ANDREW DAY XXN MR GEE
PN853
Now, here comes another four books, Mr Day, and before you look at them I'll put to you a proposition that in general those four say that they're not going to go unless redundancy is paid.
PN854
MS DOUST: No, I object to that as well again.
PN855
THE SENIOR DEPUTY PRESIDENT: It's not accurate.
PN856
MS DOUST: No.
PN857
MR GEE: Mr Day, could you please review those four books and say how they've answered that question?---No, they don't want to go to IBM without redundancy. This person may go to IBM so long as they're afford their redundancy.
PN858
Could you use the words?---The exact words -
PN859
Maybe with redundancy.
Do you want to go to IBM? No, not without redundancy.
PN860
This person's given a number of options. One option is redundancy paid up front by IBM - sorry, by AGL -
PN861
Then I would accept IBM offer as a new starter.
PN862
The second option is:
PN863
Redundancy, 50 per cent of redundancy paid up front and then carry the rest of the years of service to IBM.
PN864
And option 3 is redundancy.
PN865
Then there are only two books left. If I could now ask the witness to look at these two. Could you tell me how those last two members have answered that last question, please, Mr Day?---This person is undecided as they have not yet received an offer from IBM. And this person says that it depends on the conditions offered.
PN866
Now, that means in respect of the evidence that you have originally given at paragraph 8, you say you've surveyed 15 members?---Mm.
**** JAMES ANDREW DAY XXN MR GEE
PN867
You have got notebooks from 14?---That's correct.
PN868
One of those members hasn't received an offer from IBM?---That's correct.
PN869
And therefore you're not in a position to say whether that person is in Scope or not in Scope and if they're in Scope they've been - I'm confusing myself now. With respect to that person who hasn't received an offer it may be that that person is in Scope?---Again, I don't know because I don't know who's in Scope.
PN870
So you have responses from 13 members who have received offers of employment from IBM?---That's a fair statement, yes.
PN871
Four of those responses indicate they're happy to go to IBM. Four of those responses indicate that they're not going to go to IBM?---Again I'd have to count them all off in sections again but I'll take your word for it.
PN872
And there are five left who fall in the camp of depends if they get redundancy or depends on the conditions, so it's an it depends, not sure, is that right?---That would be a fair summation, yes.
PN873
I have no further questions.
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
<RE-EXAMINATION BY MS DOUST [3.25PM]
PN875
MS DOUST: Mr Gee, asked you earlier on in your evidence that you had no examples where I think the union had been denied access to a benefit on the basis that award coverage was denied and then you said, "Within my statement, no". Do you recall having given that evidence?---Yes, I do.
PN876
So does that mean that there are examples that aren't in your statement?---I could give you anecdotal examples, yes.
PN877
Well, can you give me an example of that situation?---Within another AGL company called Agility there are people that are called network distribution officers who clearly fall within the certified agreement and the award where the company simply deemed them outside of award, put them on TFR and when their salary increases were due under the certified agreement and we attempted to get those increases put in, the company stuck to its guns that they were off award and treated by this Job Family system which was differing benefits.
**** JAMES ANDREW DAY RXN MS DOUST
PN878
Do you have any other examples of that sort of situation for employees deemed off award?---There was another instance which we're involved in at the moment within the retail area where an employee who is questionable whether or not they're covered by the award or not and the company is utilising dispute settlement procedures that I would say are not coherent with the award conditions.
PN879
And what has the company said to you about the application of the award in that situation?---That Job Family has its own dispute settlement procedure which is an internal procedure.
PN880
You gave an answer to Mr Gee where you were asked about concerns being expressed by employees?---That's correct.
PN881
Sorry, I'll just take you back to that section of your evidence. He was asking you about the indication that you'd given that there were eight members who would prefer to take a redundancy and you were answering those questions. He then suggested to you that there was no evidence about those employees having expressed concerns about the offers from IBM, do you recall that?---Yes, I do.
PN882
He indicated that there was no evidence I think about those employees having expressed concerns and your answer to that was no, not within my statement. Do you recall that?---That's correct.
PN883
Is it the case that concerns were expressed by those employees?---The simple fact that our membership within the IT department has literally doubled in two weeks would say to me that people are concerned for their entitlements. The fact that they've joined the union to investigate whether or not what's happening to them is - - -
PN884
In relation to those employees were there concerns expressed to you?---During meetings and telephone calls, yes. They're not extrapolated within these documents, but yes.
PN885
Certainly?---Both myself and Nathan feel that phone calls from literally all of our members expressing concerns about the position they've been placed in.
PN886
And what issues have been the subject of those concerns?---The fact that the IBM contract states that you can be moved anywhere within the world, albeit I have learned today that it says you will be consulted before you - sorry, not consulted. It will be discussed with you before you moved. That's something that I learned of today. The fact that some people have flexible arrangements to do with their working hours and that they're current working core hours will change. The fact that some people currently enjoyed payment for overtime or time in lieu for overtime which the IBM contract simply says you've been remunerated for all hours required by the company.
**** JAMES ANDREW DAY RXN MS DOUST
PN887
And as a union official are you in the business of pursuing members interests and having their interests represented in the form of a slide show?---Not really, no.
PN888
What sort of instruments does the union advocate to its members to - - - ?
---Collective bargaining agreements built on awards.
PN889
And what is the reason for that position?---That all of the information pertaining to one's employment is in a registered format that contains a dispute settlement procedure with each individual section of a person's employment conditions tabled and agreed to.
PN890
Thank you. Thank you, nothing further.
THE SENIOR DEPUTY PRESIDENT: Okay, thank you.
<THE WITNESS WITHDREW [3.30PM]
PN892
THE SENIOR DEPUTY PRESIDENT: Mr Gee.
PN893
MR GEE: I understand that that is the conclusion of the union's evidentiary case.
PN894
THE SENIOR DEPUTY PRESIDENT: Yes.
PN895
MR GEE: Your Honour, this application has been filed seeking an order be made pursuant to Regulation 2.24 of the Workplace Relations Regulations and that regulation is found in chapter 7, part 2, division 1(b) of those regulations. It is our submission that the Commission has the jurisdiction to determine - - -
PN896
THE SENIOR DEPUTY PRESIDENT: Sorry, go on. Sorry.
PN897
MR GEE: - - - this application and grant the application pursuant to that regulatory power. It is necessary to take your Honour to the underlying award provision in some detail which I intend to do in short order. It is our primary application that, (1), the Commission has the power to determine the application under that particular regulation, (2), the exercise of that power is a matter of discretion, (3), that the evidence before the Commission when considered in context is sufficient to favour an exercise of that discretion to grant the application in the terms sought, and (4), in the circumstances the Commission ought grant the application in the terms sought.
PN898
Arising out of developments today it's necessary to make a brief suggestion in the alternative and that is that should the Commission be minded to grant the application but is not satisfied that it has sufficient evidence before it going to whether the offers of employment from IBM are comparable in the relevant sense to their terms and conditions of employment with AGL, then rather than not grant the application the Commission ought consider adjourning this matter in the manner contemplated by your Honour earlier this morning to allow an opportunity for that additional evidence to be procured for the union to have an opportunity to consider that evidence.
PN899
It is my respectful submission that that would be a preferable course than simply granting the application and that is for this reason, if the application were not granted for the reason that I have just described it would in my respectful submission not present a fresh application being made on exactly the same grounds with additional evidence being procured. Given the nature of the transaction that's been described and the six month time in which the offers will remain open it will not be prejudicial to the AWU members who have not accepted offers of employment to adopt the alternative course that I suggested this afternoon, but I must stress that is in my submission in the alternative and I press for my client on the application strongly.
PN900
Before turning to my submissions it is necessary to address the submissions, the outline of submissions filed on behalf of the AWU. In short the union's primary reason for opposing the application is a technical in that at paragraph 5 of their outline they suggest the regulation does not apply. Now, that submission cannot succeed for reasons that will become clearly shortly, but it requires a consideration of the terms of the award. Now, does your Honour have a copy of the award that is subject to the application?
PN901
THE SENIOR DEPUTY PRESIDENT: Well, I do and I've got the key provision and you're talking about really it's - - -
PN902
MR GEE: It's clause 14.
PN903
THE SENIOR DEPUTY PRESIDENT: 14, yes.
PN904
MR GEE: Now, clause 14, now this is an award made by consent of the parties, by Commissioner Larkin on 12 December 2001. Now, the parties are the AWU, my client in this matter and a number of other companies, all of whom fall within the AGL group of companies. Now, when one turns to clause 14 one sees that it is - clause 14.1 provides a definition of the term redundancy. Clause 14.2 provides a scale of severance payments to be made in the event of redundancy but subject to further order of the Commission. Clause 14.3 and clause 14.4 when read together relate to the circumstances whereby redeployment to an alternative position is an option but it's redeployment to a position within the company or at best or if to be read broader than that, within the group of companies who are party to the award. I don't press either interpretation in particular, it's one or both of those things.
PN905
THE SENIOR DEPUTY PRESIDENT: Sorry, could you say that again?
PN906
MR GEE: When one reads 14.3 and 14.4 it becomes clear that those two subclauses provide for a redeployment circumstance being redeployment inter company.
PN907
THE SENIOR DEPUTY PRESIDENT: What does inter company mean?
PN908
MR GEE: Well, it either means within the same company or within the group of companies listed - - -
PN909
THE SENIOR DEPUTY PRESIDENT: Well, inter company can't surely mean within the - that would be intra company.
PN910
MR GEE: I don't want particularly want to - - -
PN911
THE SENIOR DEPUTY PRESIDENT: It couldn't mean within the same company.
PN912
MR GEE: I'm not particularly minded to read it, suffice to say that it could be either or both of those things.
PN913
THE SENIOR DEPUTY PRESIDENT: Okay. So it's either within the same company or what?
PN914
MR GEE: Or within the - - -
PN915
THE SENIOR DEPUTY PRESIDENT: The companies in the group.
PN916
MR GEE: Or identified as parties to the award, yes.
PN917
THE SENIOR DEPUTY PRESIDENT: Right.
PN918
MR GEE: Now, the wording in clause 14.2 that we rely on are the words that say and I quote:
PN919
And subject to further order of the Commission.
PN920
Now, those words are not limited or read down in any particular way. It is simply a matter that in my respectful submission means that the application of severance payments is subject to a further order of the Commission and a broad application of those words means that the Commission is able to contemplate the application that's currently before it. Regulation 2.24 enables the Commission to consider an application of this type if a term of a pre reform award permits the employer to make the application and where the employer has obtained alternative employment.
PN921
Now, we say on an ordinary reading of clause 14.2 it is a term of a pre reform award that permits the employer to make an application for an order, in this case to vary or avoid the obligation to make severance payments. We don't say that the wording in clause 14.2 is restricted to an application of this type. We say it is sufficiently broad to allow an application of this type be made and thus we satisfy one of the requirements set out in Regulation 2.24.
PN922
THE SENIOR DEPUTY PRESIDENT: So you're relying on a pretty broad reading of what permits means?
PN923
MR GEE: Yes.
PN924
THE SENIOR DEPUTY PRESIDENT: So it could permit lots of things.
PN925
MR GEE: That's right.
PN926
THE SENIOR DEPUTY PRESIDENT: And you're one of the things it permits is this.
PN927
MR GEE: Exactly.
PN928
THE SENIOR DEPUTY PRESIDENT: Because it doesn't expressly provide for it.
PN929
MR GEE: It doesn't expressly exclude it.
PN930
THE SENIOR DEPUTY PRESIDENT: Have you got any cases or whatever to indicate that at least of one of the meanings of those words in the award is about this kind of situation?
PN931
MR GEE: I do intend to take your Honour to an authority that supports the submission I make. I don't - - -
PN932
THE SENIOR DEPUTY PRESIDENT: In relation to these kinds of words as opposed to because there certainly are awards that have the kind of language that's in the regulation.
PN933
MR GEE: Yes.
PN934
THE SENIOR DEPUTY PRESIDENT: And it's different to the very least, they're different words.
PN935
MR GEE: Yes, it is. But merely because it's different does not compel a different result.
PN936
THE SENIOR DEPUTY PRESIDENT: In your submission, yes. But what I’m saying is have you got examples - obviously it would be ideal in relation to this award, but other awards with similar wording where this actually being used to mean that?
PN937
MR GEE: I don't. But in my submission the authorities that I will take your Honour to overcome that.
PN938
THE SENIOR DEPUTY PRESIDENT: Okay.
PN939
MR GEE: The second requirement in Regulation 2.24 is that the employee has obtained alternative employment, and that requires the Commission to conduct the objective assessment on the merits.
PN940
THE SENIOR DEPUTY PRESIDENT: Yes. I mean, can I say you spent a lot of - both of you spent a lot of time talking about what the employees thought and what their concerns were. The Regulation specifically refers to an objective assessment.
PN941
MR GEE: It is my submission that what the employees objectively think of the offer is entirely irrelevant to the exercise.
PN942
THE SENIOR DEPUTY PRESIDENT: Is?
PN943
MR GEE: Is entirely irrelevant.
PN944
THE SENIOR DEPUTY PRESIDENT: Irrelevant.
PN945
MR GEE: Now, at paragraph 4 of our submission we note that the power conferred on the Commission in the Regulation is not a power to vary or set aside the award, it's a power to make an order, and that is the form of relief we seek in our applications before the Commission. Now, we say on a plain reading of clause 14.2 it is an award that permits an application for an order, this is an application for an order, and thereupon the exercise requires the Commission to make an objective assessment of the type set out in the Regulation.
PN946
So it is not self evident that the award excludes an application of the type that we have made. The clause contains no words that would exclude an application of the type made in this matter. Now, it is a broad jurisdiction that has been conferred on the Commission to determine whether in this particular case severance payments ought to be paid. It is a facilitative provision and as such it enables the Commission to determine the application upon its merits and conduct the discretionary exercise to which I have referred.
PN947
Because of it's nature it should be read broadly so as to enable the Commission to hear and determine an application in any case where an award provides for such an application to be made and, in my respectful submission, that is what we have here today. In support of that submission section 110 of the Act applies, in that the Commission, in particular section 110(3) - sorry, subsection (1)(c), in that the Commission must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
PN948
To agree with the union's submission is to render the words in clause 14.2 nugatory or null. Now, those words are there, they must have some work to do. The union in its submission, there's no suggestion as to what work those words will have if an application of this kind can't be made. Now, perhaps to illustrate that the union seeks to rely on the award history, as do we. Now, if your Honour turns to paragraph 10 of the AWUs submission it describes in part the redundancy provision in an antecedent award being the Gas Industry, AGL Gas Companies Interim Conditions Award 1991. Now, the clause described in the submission comes from that award, and in its context that award provided a very narrow scope for redeployment in that redeployment had to be to a position within the same department within the same company and on the conditions set out in clause 12.5.1 reproduced in the union's submission.
PN949
Then we move on to the successor award to the 1991 award, that's the 1996 award which the union has excerpted in paragraph 11 of its submission. Once again we agree that clause 12.7 of that 1996 award also provided - is correctly described therein. Now, in the 1996 award there was a much broader application of the redeployment provisions, and it does not appear that redeployment was restricted to the same company and the same department, and there were very comprehensive redeployment and redundancy provisions in that award, and I tender the relevant provisions from that award.
PN950
You will see that it's clause 12 of that award that's titled Redeployment/Voluntary Separation and Redundancy. I won't read any of it, suffice to say it goes on for about a page and a half in total. And then behind that is appendix 2 which is headed Redeployment Process which sets out in very prescriptive terms how the redeployment process is to apply. Now, the 1996 award is the antecedent award to the award that's the subject of this application, the 2001 award. If one considers the 2001 award none of those provisions are there. It's a significantly different redundancy provision in the 2001 award.
PN951
For the first time we have the words in 14.2 that we rely on, that the payment of severance payments are subject to further order of the Commission. The award is significantly different in its 2001 guise than it was in its antecedent guise. The fact that the terms are significantly different must mean the parties intended for different provisions to apply. When one considers clause 14.2 of the 2001 award in that light it is an inevitable conclusion that something different must have been intended.
PN952
The words in 14.2 "and subject to further order of the Commission," must be given their ordinary meaning and they must have effect. In support of that submission I rely on the authority of Kucks v CSR Limited, a decision of the Industrial Relations Court of Australia, decision number 141 of 1996. On page 4 of that decision - I think the copy I've given to your Honour's associate has two pages per page on it, and page 4, that is the second page, there is page 4 of 9. At approximately point 5 of that page under the heading Legal Principles the court describes what is the separate rule as to how provisions of awards are to be interpreted.
PN953
I read that decision from the heading Legal Principles, and down to about point 7 and I stop before the paragraph beginning "Consideration is relevant to the award," and I rely on the authority to support the submission that I have just made. In conclusion in dealing with that - - -
PN954
THE SENIOR DEPUTY PRESIDENT: Well, have you got any evidence that while - I understand the argument to say that, well, this was different from the previous award, the words are quite - were inserted in the 2001 award they must have meant some difference.
PN955
MR GEE: Yes.
PN956
THE SENIOR DEPUTY PRESIDENT: Have you got any evidence as to what was the intent, what was the - I'm just seeing what the expression is in the authority - the evident intent, evident purposes.
PN957
MR GEE: I don't, your Honour, and I don't understand my friend to have that evidence either. And it's my submission that that evidence is not necessary if you take the words and give them their ordinary meaning.
PN958
THE SENIOR DEPUTY PRESIDENT: Okay.
PN959
MR GEE: And it is my submission that when one conducts that exercise the only logical conclusion is that the parties must have intended for applications for orders to have been made but not in their final way. There's no attempt to restrict the kind of application or the kind of circumstances in which an order can be sought. For example the provision could quite reasonably be read to allow an application for an order to increase severance payments or reduce severance payments in a particular circumstance, or avoidance severance payments.
PN960
THE SENIOR DEPUTY PRESIDENT: Okay. But we're now in a situation where, or we might be about to turn to this, but now we're post Work Choices, does that have any - and there's a specific regulation with specific wording that doesn't refer to a general ability to vary obligations in relation to redundancy. It has a pretty precise provision in the regulations. Why doesn't that matter?
PN961
MR GEE: Your Honour may be aware that, as I understand it, there is currently a decision reserved before a Full Bench of this Commission in which his Honour the President is the judicial - or presiding in that case, involving Baycorp Advantage ..... where that particular issue is under consideration. The approach that we've taken is not to rely on the power of variation in section 552 for that particular reason. We say regulation 2.24 is a facilitative provision, it relies - that applies if (a) there's an obligation under a pre reform award to pay redundancy pay, and we say that is the case here, and (b) a term of the pre reform award permits the employer to make an application to the Commission - again we say that's the case here - in circumstances where the employer has obtained alternative employment.
PN962
Now, yes, it's a very specific set of circumstances, but there's no reason why the Commission ought to agree the order in this case is not applying or allowing an application of the kind contemplated in the regulation. There is no attempt in the regulation for example to restrict it's application to awards that contain the standard TCR test case clause.
PN963
THE SENIOR DEPUTY PRESIDENT: So why do you say that? I mean, not the whole clause, but it does - well, aren't those words based on the TCR decision?
PN964
MR GEE: I see no intention in the wording of the regulation for that to be the case. The only restriction I see in the regulation is that contained in subregulation 3, that the regulation will cease to have effect after 12 months. That restriction doesn't arise in this particular circumstance. Look, I simply rely on a view that the regulation is a facilitative provision, it enables the Commission to determine applications of this sort so long as there is an obligation under the award to make redundant payments, and the same award allows for an application of this kind to be made. That's clearly the case in our submission.
PN965
Paragraph 8 of the union's submission, they suggest that to read clause 14 so as to allow the application would be to render ineffective the benefit afforded to employees in clause 14.3 to in effect ..... redeployment or redundancy. Now, that can't be the case. If clause 14.3 considers circumstances relating to an internal redeployment, it doesn't consider the present where the transaction involves AGL having obtained an offer of employment from an external party. Clause 14.2 clearly has application broader than an internal redeployment and as a general rule of construction clause 14.3 must be read in its context, in that it is subordinate to clause 14.2 and cannot be read as overriding the ability of clause 14.2 to have the severance payment prescription varied by order of the Commission. To do so would be to frustrate or render meaningless the words of clause 14.2.
PN966
Now, before I turn to the merits I think it is of benefit to note at least in passing what this tribunal has had to say about the purpose for severance payments. Now, in the termination and change in redundancy case of 2 August 1994 the Commission in that case made some pertinent observations at page 39. Now, commencing at approximately point 5 of page 39 the Commission noted that in the instance where an employer might warrant an application for relief from the obligation to pay the general prescription, one of those instances where the employer retains acceptable employment.
PN967
Now, I'll stop there for a moment. I don't say that this case is necessarily binding because it's certainly not in contest that what we have here is not the standard TCR clause. Certainly the Full Bench's consideration of severance payments in the context of the test cases is worthy of taking into consideration. Now, the Full Bench notes that:
PN968
We do not wish to prevent an employer making an application to be exempted from the general prescription ...(reads)... recognised as service with the new employer.
PN969
I'll stop the quote there. In the most recent redundancy test case, that being in 2004, the Full Bench in that matter noted at paragraph 133 - I'm sorry, I withdraw that. The Full Bench referred to the passage that I have just read at paragraph 129, that's the passage from the TCR1 decision. Paragraph 133, the Full Bench notes that the decision taken in the TCR number one decision was that the primary reason for the payment of severance pay did not relate to the requirement to search for another job and/or to tide over an employee during a period of unemployment.
PN970
And the Commission in the 2004 matter goes on to note in the same paragraph that they have not been persuaded that in these respects the Commission's approach in the TCR1 decision was wrong. But the observation one can make on there is that the purpose of severance payments is to offset the loss of non transferable service credits. When one considers the evidence in this case, which I shall turn to in a moment, one should take into account the previous decisions of this Commission. I'm now going to refer to three decisions, your Honour, on the list of authorities I've earlier provided.
PN971
The first is the decision of Commissioner Eames dated 17 March 2004, it's the ANZ matter. It's in relation to the ANZ Group Award 1998. In paragraph 4 of that decision it describes that the application sought in that matter was (a) an order in effect varying the obligation to make severance payments to nil, or (b) in the alternative, variation of the subject award. Now, the award in question had redundancy provisions that did not exactly reflect the TCR clause, but at paragraph 29 it was the company's submission that the expression, acceptable alternative employment in the clause of the relevant award has the meaning that expression has in the context of TCR provisions generally.
PN972
They also - the employer in that matter also contended that the employment offered to the employees who transferred was acceptable alternative employment. But, your Honour, I've just noted the time.
PN973
THE SENIOR DEPUTY PRESIDENT: Well, we can keep on going. I mean, I can keep on going. I mean, I can keep on going certainly.
PN974
MR GEE: Certainly, sir. When one turns to paragraph 73 the Commissioner in that matter's description of some of the FSUs contentions, in that they were contended that the letter of offer by INGA in that matter, and INGA in that matter is in the place of IBM in this matter, was inadequate in a number of respects and that former - and that the employees in question had little choice but to accept the offer because if they didn't they'd lose their severance pay entitlements. Now, in going on to determine that matter Commissioner Eames dealt with the merits of the application starting at paragraph 84, and at paragraph 89 he determines to conduct the objective exercise as at the date the offers were made, and makes findings at paragraphs 90 and 91, that in that particular matter the offers ought to be regarded as acceptable.
PN975
Now, the Commissioner goes on then in paragraphs 92 to 94 to consider career prospects. It doesn't appear to have ..... in particular respect in that matter. In the second case to which I refer your Honour to is the matter of Deroll Nominees issued on 12 September 1990. Now, Deroll in my submission is authority for a number of propositions. First there is the well known proposition that the requirement to obtain an offer of alternative employment does not mean the employer has to procure a concluded agreement between another employer and its employees, but has to be a prime moving force in the creation of that offer.
PN976
But Deroll Nominees also considers - is also relevant for a couple of other purposes. If your Honour considers the bottom of page 3 of that decision, in that matter there was a considerable part of the case devoted to question of onus, and it was argued by the unions that the failure of the employer to adduce evidence of particular matters caused the company to fail to make out a case for an exemption. Commencing on the last line of page 3 in that decision it says:
PN977
We have no doubt that there is an onus on the employer invoking ...(reads)... in a particular case.
PN978
Now, it was the matter in that case that when your Honour turns over to page 5, under the heading of Acceptable Alternative Employment, the Bench went on to conduct the objective exercise of considering or assessing the evidence in that case. Now, without going to it in detail, the evidence in that case was adduced from a number of individual employees. That is not the case here. There is no evidence of any individual employee led in this matter. But when your Honour considers the Deroll Nominees case starting under the heading Acceptable Alternative Employment on page 5 and continuing for the balance of the decision, it is clear that of primary relevance in that matter was the evidence of each individual and his or her reasons for defining the alternative employment.
PN979
On page 8 of the decision in the second last paragraph the Commission notes that the conclusions drawn in that matter are reached based on an examination of the total evidence given by each witness. So to the extent that Deroll Nominees is relevant to the question of acceptable alternative employment, it is not authority for the proposition that the Commission must have before it evidence of each of the offers of employment to each of the employees in Scope. It is evidence to the contrary. It supports the proposition that where such evidence is led the Commission must consider the evidence of the offers in respect of each individual employee.
PN980
The last case to which I will take your Honour to is the Westpac Bank v FSU case of SDP Duncan on 9 November 2000. In my submission the current application has a number of factual matters that are quite apposite to the matters in that matter. If one starts on page 9 under the heading Evidence of that matter, in that particular case evidence was led for the applicant, being Westpac, by Mr Cooper who is the head of human resources information technology operations and e-business, and various observations are then made about why another person was not called to give evidence.
PN981
At paragraph 14 it notes that for the union in that matter, evidence given by a number of persons including employees and union representatives. On paragraph 15 his Honour the Senior Deputy President considers the issues to be discussed in that matter. Of relevance here is the second question, whether Westpac deigned employment, the third question, whether the employment is acceptable alternative employment. And I mention the fourth issue, the misrepresentation issue, only to point to the distinction. There's no question of misrepresentation arising in this matter.
PN982
Now, his Honour the Senior Deputy President considers the second of those issues starting at paragraph 26. It was submitted in that case that there was no contest as to whether it was Westpac who obtained the offers of employment in that particular case, and as it turns out they were offers of employment from IBM. An identical submission is made in this case, that there appears to be no contest whatsoever that AGL has not obtained the employment. In fact it's our submission that AGL - on the evidence AGL had clearly obtained the offers of employment within the meaning required by Deroll Nominees.
PN983
The third issue is discussed commencing in paragraph 27, and that is whether the employment was acceptable alternative employment. Westpac submitted that the test was an objective one. That's clearly the case here. It does not mean acceptable to the employee. As authority for that proposition, a number of decisions I'd turn to. I don't read those. At paragraph 32 the Senior Deputy President then considered what terms and conditions and employment were offered. Now, interestingly they were set out in an exhibit which is a letter from IBM. It was not in the form of individual offers made to individual named employees.
PN984
It was Westpac's submission as summarised at paragraph 33. In that particular matter that led or amounted to an offer of alternative employment. At paragraph 32 the union's reasons for posing that view are set out, and there is some parallel in this matter but not on all counts. And then his Honour turns his mind to the question of the objective exercise at the beginning of paragraph 36. At the top of page 18 he says:
PN985
There is no doubt in my mind that Westpac set out to secure acceptable alternative positions, and in doing so ...(reads)... they are subjective.
PN986
THE SENIOR DEPUTY PRESIDENT: So a sort of strange thing to say isn't it? I'm not sure why he says that's subjective, I mean, leaving aside how significant they are. Because subjective surely means, you know, if somebody said, well, I don't, you know, I don't - if somebody says, well, I just don't like it, I don't want to go, I don't want to accept these terms and conditions even though they are in fact just as good, that's subjective, you know. But to say, well, I mean, career prospects might be hard to actually work out, what the career prospects are. But it is an objective reality. It might be a difficult one to ascertain. I'm just pointing out that, I mean, I note what he said, but it's just a slightly odd - I mean, it's a slightly odd thing to say that they're subjective career prospects.
PN987
MR GEE: Well, at least in respect of the issue of career prospects he deals with that, his Honour deals with that at paragraph 37, it can't be measured.
PN988
THE SENIOR DEPUTY PRESIDENT: Well, that might be true. That's not what the word subjective means though. It might be very hard to measure or estimate.
PN989
MR GEE: It's subjective in the sense that it cannot be quantified.
PN990
THE SENIOR DEPUTY PRESIDENT: That's not what the word subjective means. It's just not what the word - okay. Look, I'm sorry, I'm just - I don't want to go over Senior Deputy President Duncan, but it's just not what the word subjective means. It might be difficult to calculate, that is actually, it might be inexact. There's a difference between subjective and inexact or hard to measure. Look, sorry, that's just by the by. But I just - I suppose I'm flagging that I wouldn't necessarily accept what Senior Deputy President Duncan said on that point.
PN991
MR GEE: It's my respectful submission that the reasoning of the Senior Deputy President in that matter, which was not subject to an appeal - - -
PN992
THE SENIOR DEPUTY PRESIDENT: Yes, it's not a Full Bench.
PN993
MR GEE: Sorry?
PN994
THE SENIOR DEPUTY PRESIDENT: It's not a Full Bench. I'm not saying everything of the decision I totally wouldn't follow. I'm just pointing out though that I think he's actually not quite correct there in the way - certainly in the language he's using. These things are at least in principle objective. They may be hard to measure, but that doesn't mean they're not objective. I'm being a bit - anyway let's not - I just mention it.
PN995
MR GEE: Look, maybe I can put it this way. The issue of career prospects and the relevance of a registered industrial instrument are not matters that are described in the note to Regulation 2.24. Now, I don't suggest that - - -
PN996
THE SENIOR DEPUTY PRESIDENT: No. Well, that's not an exhaustive list.
PN997
MR GEE: I accept that, I agree with that and I adopt that position. I just make that observation.
PN998
THE SENIOR DEPUTY PRESIDENT: Yes. But I think you will need to - well, it's up to you, but you might want to address those points, because if they - okay, having accepted that they're not in the list, having pointed out that I don't think that they're actually subjective and therefore excluded by not being an objective test, you might want to actually say something about those points because they are obviously relevant. In my view they're relevant, and I'm not saying that they're determinative, but they are relevant.
PN999
MR GEE: I've now dealt with the issues at paragraph 36 and 37. The Senior Deputy President turns his mind to the TCR decision in paragraph 40. He notes the importance of securing alternative employment and that he in fact rewards an employer who obtains an acceptable alternative employment by opening up the prospect of liability for a lesser amount of redundancy than would otherwise exist. He says:
PN1000
It has been decided that obtaining the offer is sufficient.
PN1001
I don't - his Honour is not suggesting that obtaining the offer is sufficient to avoid the liability, but obtaining the offer is sufficient to allow the application to be made. His Honour then goes on to consider the issue of misrepresentation which, as I said, doesn't arise in this case. Now, what his Honour the Senior Deputy President ultimately does in that matter is, for those employees who had not accepted offers of employment at the time of the decision he reduced the redundancy payment by 50 per cent, but because he made a positive finding of fact there had been misrepresentation in the circumstances of that transaction.
PN1002
There is no allegation of a question of misrepresentation that arises in this matter, so at least that part of his decision is distinguishable. So when one considers the test that the Senior Deputy President applies at paragraph 55 they are quite easily applied in the present case. The first test his Honour proposes is that is the employment offered acceptable alternative employment? And that is the test that requires the objective assessment. And second, are there circumstances which would lead to a reduction in severance pay following a finding favourable to the employer under the first test? Now, that clearly is an exercise of discretion. And the third test doesn't arise because, as I said, that relates to the misrepresentation issue. Bearing those authorities - - -
PN1003
THE SENIOR DEPUTY PRESIDENT: Actually, I might just try and get an indication as to how long you think you're going to be. Have you got any idea, Mr Gee, how long you'll be? It's just to make some housekeeping arrangements.
PN1004
MR GEE: No more than 10 minutes, your Honour.
PN1005
THE SENIOR DEPUTY PRESIDENT: Okay. You've made submissions in writing but I presume you'll want to - - -
PN1006
MS DOUST: I'll be fairly brief. I'm proposing to confine myself to just responding to Mr Gee.
PN1007
THE SENIOR DEPUTY PRESIDENT: So we probably will be finished by five on that basis. I'll try not to ask too many questions. Okay, carry on, Mr Gee.
PN1008
MR GEE: Now, when one turns to the evidence, as I've said before, it's not in issue that it is AGL that has obtained the offers of employment. That's clearly set out in Ms Swinley's witness statement, and it wasn't challenged in cross-examination and it wasn't challenged in the evidence of Mr Day. I think that issue is dealt with satisfactorily. The issue is whether the offers are acceptable alternative positions. Ms Swinley gives evidence at paragraph 14 as to the conditions that they've been able to procure from IBM. Ms Swinley was not challenged that that was the case. There's no evidence that's been led to the contrary.
PN1009
And so the Commission must conclude on the evidence before it that in making offers of employment to the employees the subject of this application, IBM will recognise that service with AGL is continuous for all purposes, IBM will recognise all accrued leave entitlements save and except for the arrangement for annual leave whereby people will be paid out leave over and above 10 days but can take a balance of up to 10 days across to IBM with them, and that (c) the offers of employment will be on terms and conditions no less favourable overall.
PN1010
No evidence has been put forward of any individual employee who has been made an offer of employment on terms that do not satisfy those three conditions.
PN1011
THE SENIOR DEPUTY PRESIDENT: I think there will be an argument about that, at least on the last point I assume. I assume not the first two points.
PN1012
MR GEE: I've flagged an earlier intention that an opportunity had been given to the union to be provided with information that would allow them to interview their members and confirm whether anyone took issue with that, the evidence of Ms Swinley. That opportunity was not taken up and, in my submission, a Jones v Dunkel inference may be drawn, that is, that the union holds the view that - I withdraw that - that is, any evidence that the union would hope to have procured under that particular proposal would not assist their case.
PN1013
The evidence of Ms Swinley is that the information set out in AGL3 was provided to IBM over a period of time and prior to the date that IBM made the offers of employment on or around 7 September, and that to the knowledge, in the knowledge of AGL offers of employment have been made that satisfy all of those criteria set out in paragraph 14 and consistent with the document annexed as C to Ms Swinley's affidavit.
PN1014
Now, in answer to that the union relies on the evidence of Mr Day. Now, Mr Day's evidence at its highest raises the concerns of five members, and of those five members some of them raise one or more concerns but they are all exhaustively listed in items A to G on paragraph 3. The first issue relates to redeployment. Now, that has been addressed in Ms Swinley's evidence. The evidence is, at AGLs request the offer of employment was amended to require consultation prior to any decision to redeploy a person, and the evidence is further that IBMs practice is not to redeploy in the absence of agreement, set out in annexure B to Ms Swinley's evidence. And again there's no evidence to suggest that that's not the case.
PN1015
The second issue is having to work for multiple external clients. I must admit I fail to see how that can be a concern that relates to a term or condition of employment. It doesn't appear to do with the quantum of work, simply whether work is performed for which clients of IBM. Now, there is a reference to work load issues, and then the third issue is hours of work and patterns of work. Now, in my respectful submission the evidence must be, the conclusion must be at the very least the employees are entitled to the benefit of the ordinary hours of work provisions in the Australian Fair Pay and Conditions Standard set out in the Act.
PN1016
Mr Day almost got it right. The guarantee in respect of maximum ordinary hours of work is 38 hours per week, and if there is an agreement in writing to average those hours over a period of time of not more than 12 months then that can happen. But in the absence of a written agreement to average the hours of work the guarantee is a cap on 38 hours of work per week, whether or not it is set out in an offer of employment from IBM. That is simply the law.
PN1017
There's no evidence at all about what the concern about the patterns of work is or who is concerned or what the particular nature of the concern is, and nor can it be regarded and given any weight. The concern at D relates to the absence of overtime payments and/or time in lieu for work. Well, there's no evidence - I withdraw that. The evidence such as it is of individual employees' terms and conditions of employment is that people are in receipt of what's referred to as TFR or total fixed remuneration.
PN1018
The evidence at annexure C - that is in respect of their employment with AGL. The evidence in respect of the offers of employment from IBM set out at annexure C indicates that remuneration takes into account all hours worked in excess of normal hours of duty. There's no evidence as to the actual incidents or frequency of overtime or additional hours. But once again the conclusion must be that the standard in respect of ordinary hours of work would apply, in that an employee must not be required or requested by an employer to work more than, in this particular case, reasonable additional hours, and that's in section 226(1)(b).
PN1019
AGL3, well, the evidence of Ms Swinley in respect of AGL3 was that one of the columns included overtime worked in the last 12 months. That relates to employment with AGL. It's not evidence of the frequency of additional hours of work that may occur or may not occur in employment with IBM, and as such ought not be regarded as either in favour of or against the proposition that the offers are comparable. Such is the nature of overtime work in the general sense.
PN1020
The issue of the concern at E in respect of flexible hours was addressed in the evidence of Ms Swinley, in that it appears that IBM have flexible work arrangements. Once again - well, in my respectful submission I don't see how that issue can be held against the proposition that the offers are comparable, in that it must be impossible to quantify that benefit to particular employees. Look, in relation to the issue at F about lack of certainty about career paths, in my respectful submission that's dealt with in the evidence of Ms Swinley at annexures E and F, in that IBM have given employees information about career opportunities within IBM. Ms Swinley has addressed that in her evidence.
PN1021
And if one considers the reasoning of his Honour the Senior Deputy President in the Westpac authority, it's not one that ought to mitigate against a finding that the offers were comparative. The last of the concerns identified by Mr Day relate to the loss of on call allowance. And again the evidence of Ms Swinley is not that there is no on call allowance with IBM. In fact annexure E of Ms Swinley's evidence at page 26 discloses in general terms what the on call allowance is. In any event it's a non occasion allowance and, in my respectful submission, can't be used to mitigate against a finding that the offers in an overall sense are comparative.
PN1022
Now, your Honour ought to take note of the concerns that aren't there. There's no evidence of any concern by the employees about loss of coverage of the AGL award in their employment with IBM, there's no concern raised about particular salary offers or superannuation offers or anything like that. I think the evidence is illustrative for what it doesn't contain rather than what it does contain. When one considers the material provided in AGL3, when one considers the standard terms set out in annexure C to Ms Swinley's statement, when one considers the matters set out in Ms Swinley's otherwise, particularly at paragraph 14 of her statement, the conclusion that must be drawn on the evidence before the Commission is that the offers of employment from IBM are comparable in the sense contemplated by the regulation, and on that basis, on the evidence before the Commission the Commission must conclude that IBMs offers of employment to Scope employees are acceptable alternative employment for the purposes of the regulation, and the application on that basis ought be granted. If the Commission pleases.
PN1023
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Gee.
PN1024
MS DOUST: Your Honour has a copy of my submissions, and if I might go to the first point that I think your Honour raised with Mr Gee. Your Honour queried, asked Mr Gee was he really relying upon a broad reading of the term permits in that Regulation 2.24. Now, I'll just take your Honour to that. Does your Honour have that before you?
PN1025
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1026
MS DOUST: Regulation 2.24(1)(b) to the pre reform award permits and so on and so forth. The answer to your Honour's question and to Mr Gee's statement is this. If in fact permits is to be read broadly in that context there is absolutely no point in continuing on in that regulation to provide such a specific and definite form of words.
PN1027
THE SENIOR DEPUTY PRESIDENT: Why not, sorry? Can you expand a bit on that?
PN1028
MS DOUST: Why not? Well, why would you use that form of words rather than an employer is permitted to make further application to the Commission in respect of the issue of redundancy pay, or the award contains any leave reserved clause in it whatsoever. The Commission now no longer exercises a general arbitral power as it used to, and so you would see awards that would have provisions in it like subject to further order, because it was thought that, you know, that parties would regularly be coming back to this Commission. Those are the long gone days, your Honour, but parties would be coming back and having disputes resolved. That's what subject to further order refers to.
PN1029
What 1(b) refers to is very specific circumstances, and I'll hand up some examples of cases that refer to those sorts of clauses. The first one I'd refer to is Steppes Pty Ltd trading as the Beaufort Darwin, and that refers to clause 50(e) which is set out on the second page, your Honour, at the top of the second page. The second decision I'd like to hand up - I'm sorry, this comes in several parts. I'll give you first the extract from the AILRs and second of all the extract from the relevant award. This is the Graphic Arts Services Association of Australia application. I apologise, I was unable to find a case, your Honour, but the extract is there from the Industrial Law Reports. The matter was brought before Commissioner Cargill in November 1998, and refers to this issue about finding alternative employment.
PN1030
Well, in the extract which is attached to the back, a lengthy one of the Graphic Arts General Interim Award 1995, your Honour will see, turning over and over and over I think to 4.43 something - yes, (e). I think that's on page 3 of 5. There's that alternative employment clause:
PN1031
An employer in a particular redundancy case may make application to the Commission.
PN1032
And just to round out the job lot I'll hand up the application by Agri Business Employer's Federation re the Clerical and Salaried Staff Agri Business Award 1999. And the particular clause there is set out on the first page, 13.5 of that particular award, referring in terms very similar to the Regulation. So, I mean, to summarise, your Honour, Regulation 2.24(1)(b) has a particular sort of clause in mind. It's described it in very specific terms, and that description correlates with a particular form of clause that was advanced in the TCR test case standard, and that's been adopted in various awards since then.
PN1033
As I say in my submissions, the award that you're dealing with, your Honour, is not one that flows from that line really.
PN1034
THE SENIOR DEPUTY PRESIDENT: Can I just ask you, you say in paragraph 8 of your submission that clause 18 of the award deals with the issue of redundancy payments and alternative employment in a different manner, and you refer to clause 14.3 and so on. But what work do you see - I'm just trying to find where it is now.
PN1035
MS DOUST: 14.2, your Honour, subject to further order.
PN1036
THE SENIOR DEPUTY PRESIDENT: Yes. What do you think it means? Wouldn't it envisage - I mean, leaving aside the issue of the regulation, just forget that for a minute. I mean, I heard what you said about that. But let's say we were in the old world, what do you think was intended? Because you seem to be suggesting in your submission here that this issue is dealt with in clause 14.3, that the situation where you get offered another job is dealt with, you know, in those provisions.
PN1037
MS DOUST: Yes.
PN1038
THE SENIOR DEPUTY PRESIDENT: So are you saying that the subject to a further order of the Commission couldn't be about not paying redundancy where there was adequate alternative - acceptable alternative employment?
PN1039
MS DOUST: Yes, precisely. You wouldn't read it that way because 14.3 contemplates the question of alternative employment, it considers that issue.
PN1040
THE SENIOR DEPUTY PRESIDENT: Right. So what do you think it means at 14.2, those words in 14.2?
PN1041
MS DOUST: What do I think that 14.2 means? It might have meant a number of things in days gone by, but as - - -
PN1042
THE SENIOR DEPUTY PRESIDENT: I suppose in days gone by, I mean, my understanding is this provision only came in in relatively recent times, not this year but nevertheless - - -
PN1043
MS DOUST: This provision in the award?
PN1044
THE SENIOR DEPUTY PRESIDENT: Well, that's what was put by Mr Gee, was that the award was changed in - - -
PN1045
MS DOUST: In 2001.
PN1046
THE SENIOR DEPUTY PRESIDENT: 2001, okay. Well, five years ago.
PN1047
MS DOUST: It changed as a result of the award simplification process, your Honour.
PN1048
THE SENIOR DEPUTY PRESIDENT: Well, the previous provision I think was put in in '96, and then this came in in 2001, that's my understanding from what Mr Gee says. So we're not talking about some old provision that goes back into the dim distant past, we're talking about 2001. What do you think it meant if it didn't mean - if it didn't envisage at least amongst other things what Mr Gee says it envisages, what did it envisage?
PN1049
MS DOUST: Well, in part, your Honour, the answer to that question is this. Your Honour is not here today exercising the power of the Federal Court on an award interpretation.
PN1050
THE SENIOR DEPUTY PRESIDENT: Yes, sure.
PN1051
MS DOUST: We don't have to determine finally today whether, you know, the whole gamut of things that 14.2 might apply to. Historically - - -
PN1052
THE SENIOR DEPUTY PRESIDENT: But you have to try and work out what it - but, I mean, it would be - it's obviously important for me to work out what it does mean.
PN1053
MS DOUST: What your Honour does have to work out is whether or not it is a cause of the nature contemplated by 2.24(1)(b), that's what your Honour has to determine.
PN1054
THE SENIOR DEPUTY PRESIDENT: That's true. But let's say for - I mean, I've already heard what you said on that, but let's say for argument's sake that you give a broad reading to permit, you're going further. You're not only saying, well, you've got to give a broad reading to the term permit in the Regulation, but you're saying this doesn't permit it anyway.
PN1055
MS DOUST: Yes.
PN1056
THE SENIOR DEPUTY PRESIDENT: It's an extra you're making isn't it, which is because of clause 14.3 in the award, that's not what that was on about, that was about something else.
PN1057
MS DOUST: Yes.
PN1058
THE SENIOR DEPUTY PRESIDENT: I'm asking you what's the something, what was it?
PN1059
MS DOUST: The 14.2 is on about?
PN1060
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1061
MS DOUST: Well, the honest answer is, I cannot say, I do not know. I seriously suspect that the parties who drafted it did not know.
PN1062
THE SENIOR DEPUTY PRESIDENT: Yes. It's a bit risky. I mean, you might be right of course, but it's very risky to suggest that someone has put something in the award - that's the Commission's - put it in the award when it has no meaning at all.
PN1063
MS DOUST: Well, fortunately my experience tells me that one can't always assume that these things occur in an entirely logical and rational manner, and you can probably assume that, your Honour, I've asked the question and I've tried to find out what the intention was, and if I was in a position to enlighten you further about that I probably would.
PN1064
THE SENIOR DEPUTY PRESIDENT: Okay, fair enough.
PN1065
MS DOUST: And so that's as far as my submissions can go. What I can say to you is this. As against the reading that Mr Gee submits we've got the argument about the specificity of the Regulation. 14.3, you read 14.2 in a way which is consistent with 14.3 which gives 14.3 something to do. And 14.3 says that it's the employees' choice about accepting the alternative position, and it's in the event of that choice that no severance pay is payable.
PN1066
Now, that is something that still may work to the benefit of the company, and that's something that your Honour has to consider. There is a clause which will have its own operation in due course in the event of offers being made which meet the definition in this particular clause, and that's probably a matter that comes in at the point your Honour has to consider - - -
PN1067
THE SENIOR DEPUTY PRESIDENT: Well, that basically would mean that, I mean, if you read it the way you read it anyway, I mean, that means that if they go to IBM they don't get - I mean, some employees want to have their cake and eat it, perfectly understandable in a sense, but they wanted to get the package and take the job according to the notes that were out before. This says you can't get that I think, at least it means you can't get that.
PN1068
MS DOUST: Well, you know, depending upon how you interpret the particular issues in the clause. And in this clause it focuses on similar status not less - - -
PN1069
THE SENIOR DEPUTY PRESIDENT: Yes, okay, subject to those.
PN1070
MS DOUST: So it's a slightly different test to what your Honour would consider if you were considering a proper application made under Regulation - - -
PN1071
THE SENIOR DEPUTY PRESIDENT: But in principle you're saying that's what it's designed to do. Yes, okay.
PN1072
MS DOUST: And your Honour can see from this that the parties when preparing this award have contemplated the issue of alternative employment, they have thought about what will happen in relation to alternative employment. They've said okay, well, it's about the employee electing, the employee may accept the new position, not shall. An employee can't obviously be compelled to accept an alternative position, but it's only in the event that they accept the new position that no severance pay will be payable.
PN1073
And that, your Honour, we say is a very important right for these employees. They have got a right in this award which is different to what's contained in your TCR clause. They've got different rights, and those rights have been recognised in one form or another I say in my submissions over the past 15-odd years of award regulation. There's been a different scheme at AGL. So to come along now and apply what is effectively the TCR standard, to say if you offer alternative employment you lose your redundancy or you can have your redundancy taken away from you by an order of the Commission, would be an inappropriate exercise of the Commission's discretion from a discretionary point of view.
PN1074
But that circumstance illustrates how ill fitting this particular clause is with that particular regulation. And we say the application is an invitation to error, it's an invitation for this Commission to err in understanding its jurisdiction. My friend relies upon section 110 of our equity, good conscience and merits of the case. Would that we could use that to construct jurisdiction in whatever court or tribunal we felt we'd like to bring a claim in on any given day. Well, your Honour, clearly that can't get your Honour over a jurisdictional point.
PN1075
THE SENIOR DEPUTY PRESIDENT: To satisfy the law.
PN1076
MS DOUST: And equally referring to the rationale in the TCR case, again in this situation it's inapposite because that's not the standard that's applied here over many years, that's not the standard that employees have looked to, it's not what they've understood governs their employment. And you will see at paragraphs, I think 10 and following, your Honour, are set out the provisions of the previous awards, which show that the question of alternative employment as an alternative to redundancy has always been dealt with on the basis that the employees' choice is given primacy.
PN1077
Our second argument is an alternative, and we say that your Honour can't really be satisfied on the evidence you've heard today to determine whether or not the offers that have been made by IBM constitute acceptable alternative employment. And you will see at paragraph 17 I say the onus lies on the employer. There's a reference for that I think at about page 4 of Deroll, which my friend handed up, right at the top. So if your Honour's of the view that your Honour does have jurisdiction to consider the matter, the starting point has got to be the onus is on the employer.
PN1078
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1079
MS DOUST: Thank you, your Honour. And what was said in Mr Gee's submissions, we do say it is incumbent upon the employer to bring forth evidence showing so that the Commission can consider it, the circumstances of each individual. Now, the evidence that your Honour has before you today, I think perhaps the most important thing that your Honour can take away from what Ms Swinley said, was in cross-examination when she said she hadn't actually seen the letters of offer that had come forth from IBM and hadn't gone through the process of comparing each and every one of them as against the contracts and conditions applying to each of the individuals.
PN1080
And your Honour certainly doesn't see in Ms Swinley's statement anything to identify the particular individuals, to identify their particular conditions. And perhaps most importantly, your Honour, because this is effectively required by the Regulation which refers in the note to the acceptability of alternative employment being an objective assessment requiring the Commission to consider matters including pay, hours of work. And your Honour has heard us in relation to hours of work. But seniority is an important factor there. And there's been no evidence by the employer here as to what's been done to deal with the issue of employees who have, you know, particularly long service.
PN1081
And that's an important factor that this Commission should be considering in the event of an application such as this. Now, the first really that my friend has got to the point of examining the circumstances of the individual employees was when they called for Mr Day's notes. And that's a telling step, your Honour, and it shows I think that this process has not been undertaken properly by the company, so there hasn't been consideration given to the circumstances of each of the individuals. This is not like the Westpac case where there was some 880. This is 25 individuals that we're dealing with.
PN1082
And, your Honour, it's not just Deroll that talks about that need to focus on the situation of individuals, it's also that more recent decision of Q, re Q Automotive Group. I might hand a copy of that one up. And in that matter which was a very recent decision of his Honour, Senior Deputy President Richards in Brisbane on 28 September, his Honour referred to, I think it was a state award that had become ...... And your Honour sees on the second page at paragraph 6 the particular clause in that award about alternative employment. And again it's in very specific terms.
PN1083
And the passage there I'd refer to appears at page 18 - sorry, page 8 of the printout, for which I apologise, it's just an Internet printout.
PN1084
THE SENIOR DEPUTY PRESIDENT: Mind you, only had one person.
PN1085
MS DOUST: I'm sorry?
PN1086
THE SENIOR DEPUTY PRESIDENT: It's all right ..... but he only had one person in that case. Sorry, that doesn't affect the principle, not necessarily anyway.
PN1087
MS DOUST: And at a certain point the Commission might take a different approach. We certainly don't say that 25 - - -
PN1088
THE SENIOR DEPUTY PRESIDENT: Well, as I say, with Westpac certainly Senior Deputy President Duncan didn't go through - - -
PN1089
MS DOUST: 880. But we're a fair way short of that to be fair. And the focus is, your Honour, we say consistently on the importance of having taken a properly informed approach to these questions, because it's not just a question of either taking people's redundancy pay off them or letting them have it. On occasions the Commission has varied it and so on, taken a different view.
PN1090
THE SENIOR DEPUTY PRESIDENT: Sorry, continue. That's another matter, sorry.
PN1091
MS DOUST: Thank you, your Honour. But I'd like to draw your Honour's attention to the discussion by his Honour there in paragraph 51 about the investigation into the circumstances of each employee being particularly important as to the degree of hardship to which employees may be exposed might differ widely. Long serving employees because of age, et cetera, reference to emotional trauma. Paragraph 52, the Commission continues:
PN1092
Regard would also need to be had with ...(reads)... exhausted.
PN1093
Et cetera. But I think it's telling in this case, your Honour, that the only witness that you've heard from the company has been Ms Swinley, who, apart from not having done any comparison of the offers in contracts of employment, indicated that she said that the issue of dealing with the employees' concerns about the matter was dealt with by someone else entirely, I think Jeannette Williams. And bearing in mind it's the company's onus in this application, we say it's just not sufficient to come here on the basis of one pro forma letter from IBM and to say that everything is hunky dory.
PN1094
And to conclude, the final alternative argument in our submission is that you should not conclude that the positions offered by IBM are acceptable alternative positions. If you're against us on all the other points, your Honour, and we canvassed some of those issues in cross-examination of Ms Swinley. Things such as flexible hours, overtime entitlements, the absence of allowances in the IBM offer which are contained within the award, the absence of an overtime provision in the IBM offer, the capacity of IBM to transfer employees interstate or internationally, and so on.
PN1095
And those matters we say aren't satisfactorily dealt with on the basis that IBM has indicated that in relation to hours that they adopt a particular practice with hours. It's not acceptable for award employees who currently have a whole number of very certain and definite protections around one of the most central features of their work, that being the amount of hours that they are required to work, and arrangements to ensure that they get paid overtime rates when their hours exceed that, or they get time off in lieu, the capacity to work a 19 day fortnight and the capacity to work flexitime. Those things are absolutely fundamental to people's working lives.
PN1096
This is certainty an objective assessment that your Honour is required to look to those factors in making an objective assessment, hours of work included, of the position. And one just simply needs to ask the question, if IBM is so willing to afford flexible work arrangements and the like, and the various allowances that they were said to provide for on call work, why aren't they contained in the letter of offer in some sort of enforceable form so that these employees can be given the assurance that it is something which will remain and something enforceable to their benefit.
PN1097
So for those reasons, your Honour. Perhaps the final reason is this. In our view any order that you would make under this, your Honour, would likely be productive of considerable confusion. That's what we say, because we say that the employees have not been identified sufficiently by the employer. You heard, your Honour, that there was one employee who hadn't been made an offer, and Ms Swinley was unable to - - -
PN1098
THE SENIOR DEPUTY PRESIDENT: I heard you on this before, but the order I think sought refers to it would, you know, the obligation to pay redundancy pay would be removed for those employees to whom an offer had been made. So why isn't that enough? I mean, if they hadn't been made an offer then there is an obligation to pay redundancy pay. Why do you - I mean, why is this a problem?
PN1099
MS DOUST: Well, you were asked to make an order in paragraph 1 that AGL has obtained offers of acceptable alternative employment for employees of the IT bureau.
PN1100
THE SENIOR DEPUTY PRESIDENT: Yes. But I think the proposed order in the application anyway referred to, you know, removing the obligation for those to whom an offer had been made. And if there are some people who haven't received an offer then the obligation would remain on that basis. Well, whether I've been asked to do that or not - I think I have been asked to do that - but if the Commission was to do that - forget about all the other arguments, just on this - if the Commission were to do that why wouldn't that be quite certain in its impact as long as it was - it would be a fairly straight forward matter of working out - the employee would know if they've been made an offer.
PN1101
MS DOUST: Well, your Honour, that might be right. Perhaps I should turn to my other point to make in relation to the issue of confusion, and that is, can I just take your Honour briefly to Mr Day's statement which is AWU1.
PN1102
THE SENIOR DEPUTY PRESIDENT: Yes, I've got it.
PN1103
MS DOUST: And that is, you'll see in the annexures there too at page 7 there's provision in that employee's common law contract for a redundancy entitlement, and there's an attached schedule of redundancy entitlements. In the second contract that's attached, if your Honour goes to page 19 of Mr Day's statement in the annexure there, again provision for a redundancy payment. I think Ms Swinley accepted that employees in that section - and I'm sure the transcript will prove me wrong or right - but I gathered the nub of the evidence was, we thought it fairly likely that employees had contracts which were some sort of variation of these.
PN1104
Now, if that's the case and these employees have a separate contractual entitlement to redundancy, it's obviously productive of great confusion. So perhaps - - -
PN1105
THE SENIOR DEPUTY PRESIDENT: Well, is it? I mean, if the Commission is to remove an award obligation, but if I have an obligation under a common law contract then I would have thought it was quite clear. I mean, that's the - you know, Federal Court judge to work out.
PN1106
MS DOUST: It certainly - - -
PN1107
THE SENIOR DEPUTY PRESIDENT: You wouldn't have a right to - well, I mean, depending - no, it's true. Look, it would depend on the terms of that, it's true, of the contract. But no, the Commission wouldn't have the power to take that away.
PN1108
MS DOUST: It's quite clear to your Honour and I. It's a different matter when you talk about an employer having an order of the Commission and taking it back to the workforce.
PN1109
THE SENIOR DEPUTY PRESIDENT: Okay.
PN1110
MS DOUST: So it's got the capacity to be productive of confusion amongst the workforce. And then what happens is the matter has to go back to some other court to determine the entitlement that arises out of the contract. And so in our view, your Honour - and this argument runs in parallel with the argument that we made about award coverage. In our view, or in our submission this employer has conducted themselves in a way which hasn't been precisely on the straight and narrow so far as award coverage is concerned, if I might use that sort of loose terminology, certainly being correspondence to at least some employees indicating that they are outside award.
PN1111
In our submission that sort of description is completely superfluous if one wants to indicate that the employees' are going to be receiving over award benefits. So is the issue of a comprehensive contract of employment. And your Honour heard Mr Day's evidence about the approach of the company in various cases to saying that certified agreement provisions no longer applied, dispute settlement provisions no longer applied. So it's a matter of your Honour's discretion, if your Honour was satisfied on each of the previous issues, as to whether or not an order should be made in the circumstances.
PN1112
We say the employer's conduct at least in issuing contracts of this nature, if not in, you know, not accepting their award entitlement, their award obligations at all times, certainly disentitles it to an order of this Commission. And the other discretionary reason is that it will cause considerable confusion and will not assist I think in the final resolution of this matter. On the other hand your Honour knows that the terms of 14.3 which deal about circumstances which, where the employee does accept an alternative offer, there's a simple and straight forward answer. And if these offers from IBM are so jolly good one would expect that in due course a number of employees would move across.
PN1113
So that way your Honour can have confidence that this matter will be dealt with in the appropriate way in due course. And your Honour doesn't have to, as a matter of the exercise of discretion, fall into all of the traps that have been laid down I say by this application.
PN1114
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN1115
MS DOUST: If the Commission pleases, unless there's anything further?
PN1116
THE SENIOR DEPUTY PRESIDENT: Nothing, thank you.
PN1117
MS DOUST: Might I just have a moment just to check with my colleagues?
PN1118
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1119
MS DOUST: I think we're happy with that, thank you.
PN1120
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Gee?
PN1121
MR GEE: I'll be very brief. I might just deal first with Ms Doust's concluding comments. I have something constructive to say about that last lot of submissions. If your Honour turns to paragraph 23 of the AWUs submission, the first sentence of paragraph 23 is simply a furphy, as is the last. However the second sentence is correct and I adopt it, in that if somebody has a right under a contract of employment to a particular redundancy benefit then that right will not be affected by the granting of the application in the terms sought. And my client has no intention of conveying anything contrary to that inevitable and very clear observation to the extent that it's needed an undertaking is given to that effect.
PN1122
THE SENIOR DEPUTY PRESIDENT: Right.
PN1123
MR GEE: Which draws me on my second point. It is rather offensive of my friend to suggest that an undertaking is even needed.
PN1124
THE SENIOR DEPUTY PRESIDENT: Actually I don't think she did.
PN1125
MR GEE: Well, sorry - - -
PN1126
THE SENIOR DEPUTY PRESIDENT: You just proffered it, but I don't think she actually said it.
PN1127
MR GEE: Well, my friend has made some rather offensive submissions about the corporate behaviour of my client that is just unwarranted and unsubstantiated by evidence. Most importantly, it's not relevant to the application before you. And it might be described as a fluffy piece of fluff and given no weight. Look, my friend's argument about confusion just doesn't arise, it's just a furphy. Now, that's all I need to say about that. Ms Doust took you to a number of authorities, the Steppes case, the Graphic Arts case and one other. But to read Regulation 2.24 as applicable to only those kinds of cases where the TCR clause arises is an unnecessarily restrictive, narrow and technical submission. There is nothing in the Regulation - indeed the body of the Regulation which is contained in the second amendment of the Workplace Relations Regulations, its suggested ought be read in that way. I've said my piece on that.
PN1128
Look, in dealing with the issue of what does the award mean, what does the award clause mean? 14.3 sets up a particular circumstance where it would appear that an employee may have an option to take up a redeployment opportunity or a redundancy option. That option is still subject to 14.2, which includes the capacity that the severance pay prescription is subject to further order of the Commission. So it's not the case that 14.3 has no work to do if this application is granted. But it must be recognised that the option available to employees is still subject to the words of 14.2.
PN1129
Ms Doust made some submissions about Ms Swinley's evidence, in that she hadn't conducted a line by line analysis of the offers of employment. In my view that's not an unreasonable or inappropriate position to take. Ms Swinley is not a party to those offers. That is an offer from IBM to individual employees. It would be going much further than the requirement to obtain the offer as is contemplated in Deroll to require a company to in fact vet an offer of employment which is essentially a confidential document as between the offer - - -
PN1130
THE SENIOR DEPUTY PRESIDENT: Well, the trouble with saying that is, well, that might be true as a general proposition. But you're actually seeking a benefit, if I can put it that way, for your client on the basis of those offers.
PN1131
MR GEE: Yes.
PN1132
THE SENIOR DEPUTY PRESIDENT: So to say that, you know, well, it's nothing to do with your client because it's a private matter between IBM and these prospective employees is a bit rich, if I can put it that way.
PN1133
MR GEE: I accept that. But the objective assessment requires an effective analysis of two propositions. One is that the offer was obtained, and I don't think it's in doubt that that is the case, and two, that the offers were on an objective assessment acceptable. Neither of those tests require my client to conduct a line by line analysis of the individual offers of employment. The evidence before you is that that has occurred. It's analogous to the evidence in the Westpac situation, yes, there are 880 employees in that circumstance, there are 60 employees in Scope here offering 25 or thereabouts, who are employed by ...... It doesn't change the fact that if the evidence is satisfactory on the material before the Commission in this matter, that test will be met.
PN1134
Not only did Ms Swinley give evidence that she had not conducted a line by line analysis, she did give evidence in cross-examination that she had reviewed the contracts of employment for all of the new Scope employees. Now, when one considers that in the context of her other evidence such as the letter, the standard letter of offer, annexure C, the statement at paragraph 14 of her evidence and the discussions that flow between the parties, her conclusion that must be drawn is that the offers are acceptable alternative employment. Nothing further.
PN1135
MS DOUST: Before your Honour rises I wonder if I might get my submissions marked?
PN1136
THE SENIOR DEPUTY PRESIDENT: Okay, yes. We didn't mark them.
MS DOUST: And I meant to do it because I spoke largely to them, and I apologise for bringing this up late, your Honour.
EXHIBIT #AWU2 SUBMISSIONS OF APPLICANT
PN1138
MS DOUST: Thank you, your Honour.
MR GEE: In that case it may be convenient to mark our submissions as well.
PN1140
MR GEE: And we also tender an excerpt from the 1996 award.
PN1141
THE SENIOR DEPUTY PRESIDENT: I don't normally mark - I mean, this is an award of the Commission. I shall reserve my submission.
PN1142
MS DOUST: If it please the Commission.
<ADJOURNED INDEFINITELY [5.15PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
TRACY LEE SWINLEY, SWORN PN14
EXAMINATION-IN-CHIEF BY MR GEE PN14
EXHIBIT #AGL1 STATEMENT OF TRACY SWINLEY PN19
EXHIBIT #AGL2 EMAILS RE WORKING HOURS PN58
EXHIBIT #AGL3 MATERIAL PROVIDED BY AGL TO IBM RE EMPLOYEE REMUNERATION PN190
CROSS-EXAMINATION BY MS DOUST PN265
EXHIBIT #AWU1 STATEMENT OF MR DAY PN303
THE WITNESS WITHDREW PN391
TRACEY SWINLEY, RECALLED ON FORMER OATH PN439
CROSS-EXAMINATION BY MS DOUST, CONTINUING PN439
RE-EXAMINATION BY MR GEE PN607
THE WITNESS WITHDREW PN652
JAMES ANDREW DAY, SWORN PN687
EXAMINATION-IN-CHIEF BY MS DOUST PN687
CROSS-EXAMINATION BY MR GEE PN717
RE-EXAMINATION BY MS DOUST PN874
THE WITNESS WITHDREW PN891
EXHIBIT #AWU2 SUBMISSIONS OF APPLICANT PN1137
EXHIBIT #AGL4 SUBMISSIONS OF RESPONDENT PN1139
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