Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ford Motor Company of Australia Limited
[2009] FWA 222
•7 SEPTEMBER 2009
[2009] FWA 222 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
v
Ford Motor Company of Australia Limited
(C2009/10165)
FORD AUSTRALIA ENTERPRISE AGREEMENT 2006 (VEHICLE AND SALARY)
(ODN ) [AC302795]
Metal industry | |
COMMISSIONER BLAIR | MELBOURNE, 7 SEPTEMBER 2009 |
Alleged dispute regarding the termination of an employee's contract.
[1] The following decision (now edited) was handed down at a hearing which took place before Fair Work Australia on 24 August 2009:
[2] “This is an application under section 739, an application to deal with a dispute. The applicant in the matter is the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, more commonly known as the AMWU Vehicle Division (the Union), and Ford Motor Company of Australia Ltd (the Company).
[3] There is no issue in terms of jurisdiction with the Commission. The jurisdiction arises out of, and with the consent of the parties, the Ford Enterprise Agreement 2006 (Vehicle and Salary). The matter in dispute is whether or not Mr Gucum is able to withdraw an application for voluntary separation package form that was submitted to the Company and signed by Mr Gucum on 17 November 2008.
[4] The Union's argument is that application form, application for voluntary separation package marked appendix A attached to the Union's submissions, is not a legally binding document and therefore Mr Gucum is able to unilaterally withdraw his application. It's important to note that a couple of important factors in the documentation. The documentation states:
“I hereby apply for a voluntary separation package from the company in accordance with the terms and conditions set out in the information provided to me.”
[5] It then says:
“Should the company accept my application I understand and acknowledge that termination of my employment will occur on 14 November 2008 unless otherwise agreed to meet with operational requirements.”
[6] As the Tribunal understands it, date on which the termination was to apply, 14 November 2008, has been extended into 2009. Further, the document states:
“I accept that a condition of participating in the Ford voluntary separation program is that the submission of a completed application is irrevocable and once received by HR cannot be withdrawn.”
[7] It's been put by Mr Georgiou that upon signing of the document by Mr Gucum, which was Friday, 7 November 2008, the following Monday or Tuesday Mr Gucum approached the Company for the purposes of withdrawing that application. Mr Norton, on behalf of the Company, says if that were the case then the Company was not made aware of that until March 2009. If Mr Gucum wanted to withdraw the application they could have actively instigated the dispute settlement procedure, but that was not done.
[8] Once the Company became aware in March 2009 that Mr Gucum wanted to withdraw the application discussions occurred between the Union and the Company, but no agreement was reached. Subsequently, the matter is before the Tribunal this morning for the purposes of arbitration.
[9] Based on the material provided to the Tribunal, and taking into account the arguments provided by the parties and considering the judgment of Deputy President McCarthy in Milisavljevic v Cooperative Bulk Handling Ltd, although that application was made as a section 170CE in the Workplace Relations Act 1996, the argument provided by Deputy President McCarthy is in very, very similar terms to that of Mr Gucum. At the end of analysing the argument put by the applicant in that matter his Honour, Deputy President McCarthy, from points 33 to 42 states very clearly that in that matter, and this is the matter that can be related to Mr Gucum, there was an invitation made by the Company for people who may wish to make an application for voluntary separation package.
[10] The Company provided every employee with an outline of what those entitlements would be. Mr Gucum decided to make an application for the voluntary separation package. There was no coercion, there was no stress, there was no pressure placed on Mr Gucum to accept such an application or make an application, and if Mr Gucum had decided not to make an application for a voluntary separation package there was no indication whatsoever that Mr Gucum's employment would be terminated.
[11] Based on the reasons provided by Deputy President McCarthy and taking into account the material provided by the parties in their outline of argument, the Tribunal would determine that the application for a voluntary separation package signed by Mr Gucum on 7 November 2008 is in fact a resignation.
[12] It is very clear that the resignation was on a voluntary basis and, again, Mr Gucum was not coerced into putting in such a resignation. It being such a resignation, Mr Gucum is not entitled to unilaterally withdraw such resignation.
[13] Accordingly, the Tribunal rejects Mr Gucum's application and determines that Mr Gucum's employment is to be terminated in accordance with the terms he has accepted under the voluntary separation package.
COMMISSIONER
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<Price code A, AC302795 PR989073>
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