Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Keppel Prince Engineering Pty Ltd

[2013] FWC 9862

[2013] FWC 9862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Keppel Prince Engineering Pty Ltd
(C2013/5834)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 16 DECEMBER 2013

Dispute in relation to redundancies.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU - the Applicant) made an application on 2 September 2013 under s.739 of the Fair Work Act 2009 (the Act) requesting that the Fair Work Commission (the Commission) deal with a dispute regarding redundancies by Keppel Prince Engineering Pty Ltd (KPE - the Respondent) in accordance with the dispute settling procedure in the Keppel Prince Engineering Pty Ltd Enterprise Agreement 2010-2014 (the Agreement). 1 A conciliation conference was convened on 16 September 2013 as a result of which the Respondent was to provide job descriptions for potential alternative positions to the Applicant for consideration by redundant employees. While this occurred it did not result in a resolution of the dispute and on 27 September 2013 the Applicant requested that the Commission determine the matter. A directions hearing was held on 1 October 2013 with the matter heard on 22 November 2013.

Background

[2] The Respondent has since 1985 provided a range of services to Portland Aluminium (PA). These services include maintenance services (electrical and mechanical), pot re-lining and supplementary labour. 2

[3] The Respondent also builds wind towers for the renewable energy sector. These wind towers are produced by a composite crew comprised of a number of the Respondent’s employees and a contractor, Beal Electrical Pty Ltd (Beal Electrical). The contractor performs the electrical fit out work on the wind towers and employs two electrical workers, one an A-grade electrician, to undertake this work. The contractor was first engaged in 2000/2001 to perform this work and has “completed the fit out of all wind towers manufactured by KPE”. 3

[4] In mid-July 2013 Portland Aluminium advised the Respondent that it required a cut in the number of maintenance personnel on site, i.e. at the aluminium smelter. 4 In response, the Respondent developed a proposal designed to avoid job losses which it put to Portland Aluminium on 15 July 2013. However, the proposal was not accepted. As a result, the Respondent subsequently determined by 23 July 2103 that “three electrical positions would need to go”.5

[5] On 23 July 2013, Mr Leigh Wiseman, the Respondent’s Electrical/Mechanical Supervisor for the maintenance crew at Portland Aluminium, spoke with Mr Wayne Barker, a CEPU employee representative, of the need to reduce Portland Aluminium “site electrician numbers by three”. 6 Also on that day, Mr Dan McKinna, Assistant General Manager for the Respondent, posted an internal memo in the work lunch room directed to all employees which informed them of “an immediate need to review and change the business”, an anticipated need to reduce the number of full time employees and invited expressions of interest in voluntary redundancy by 3.30 p.m. on 29 July 2013.7

[6] On 24 July 2013 Mr Barker informed Mr Wiseman that Mr Troy Knight of the CEPU had expressed concern about the continuing engagement of Beal Electrical in circumstances where redundancies were required.

[7] On 30 July 2013 Mr Wiseman commenced working with Mr Barker and another CEPU employee representative, Mr Wayne Wilksch, to develop a skills matrix to determine which of the electrical staff would be made redundant. The employee representatives indicated that they were happy to participate in the development of the matrix “but did not want to be a part of the assessment process or know names of prospective redundant employees”. 8

[8] The Respondent met with representatives of the Applicant on 1, 15 and 21 August 2013 to consult about the proposed redundancies. At each of those meetings, Mr Knight indicated to the Respondent “that to avoid having to make redundancies the company should stop using Beal electrical to do the wind tower electrical work and offer this work to whoever is to be made redundant”. 9 The Respondent did not agree to that proposal.

[9] At the 15 August meeting, the completed matrix, including the names of employees and their assessments, was provided to Mr Knight. Also discussed at that meeting, albeit in general terms, were other possible employment opportunities for potentially redundant employees. At the meeting of 21 August 2013, Mr Garner, General Manager for the Respondent, “explained that there were no current opportunities for electrical work but ... that KPE would offer redeployment to other tasks in our wind tower fabrication division”. 10 No employees expressed interest in these roles.

[10] On 22 August 2103 Mr Reidy for the Applicant wrote to Mr Garner requesting a meeting of CEPU members who “you have notified will be made redundant” and Mr Knight as a matter of urgency to “enter into genuine consultation about the redundancies to allow our members to save their jobs”. 11 Mr Garner responded to that letter by email later that day indicating that following discussions with employees and Mr Knight on 21 August 2013, the Respondent understood that the CEPU was going to lodge an application with the Commission to deal with the matter.12

[11] On 29 August 2013 three electrical employees were advised that their employment was to be terminated as a result of redundancy. They were asked to return any company property and clean out their lockers, after which they left the smelter site. Employees had not previously been given any indication as to which three electrical workers would be made redundant.

The Applicant’s Submissions and Evidence

[12] In short, the Applicant submitted that the Respondent had failed to meet its obligations under the Agreement in respect of observing the guiding principle of the Agreement as set out in clause 4.3(a)(i), i.e. full-time direct and ongoing employment, and in respect of consultation under clause 30 of the Agreement. The Applicant further submitted that the reasonable course of action, consistent with the spirit and terms of the Agreement, would have been for the Respondent to require “that the two employees of Beal go, Stephen Beal remain with his skill, knowledge and so on, ... and these two employees, the two redundant employees slip into that role, and carry out that work ...”. 13

[13] The Applicant seeks a determination that the Respondent:

(i) made members of the Applicant redundant without:

(a) giving due regard to its commitment to take all measures to achieve employment security for direct permanent employees (as per subclause 4.3(a)(ii) of the Agreement),

(b) ensuring that a contractor it was using at the time of redundancy was applying wages and conditions that were no less favourable than those in the agreement (as per subclause 4.3(b)(v) of the Agreement),

(c) properly consulting with the members (as per subclause 30.1(b) of the Agreement), and

(d) fulfilling its duty to be reasonable by adopting measures to mitigate the impact of the position being made redundant on the members (as per subclause 30.1(d) of the Agreement); and

(ii) offer the members it made redundant employment as electricians to carry out wind tower electrical work. 14

[14] Mr Knight and Messrs Shane Adams and Geoffrey Place, two of the three electrical employees made redundant by the Respondent, gave evidence for the Applicant.

[15] Messrs Adams’ and Place’s evidence was that:

(i) when alternative employment opportunities with the Respondent had been canvassed with them by Mr Knight in August, Mr Knight said “it wasn’t clear what the alternative positions were”; and

(ii) had the Respondent offered them redeployment to undertake electrical fit out work on the wind towers they would have accepted the role even though it would have paid less than working at Portland Aluminium. 15

[16] Mr Place also attested that about one week after the notice issued by the Respondent on 23 July 2013 he had been informed by Mr Wiseman “that the company was reducing the number of electricians”. 16

[17] Under cross-examination, Mr Knight confirmed that, in the meetings with the Applicant, Mr Garner had indicated on 15 August 2013 that “there would be potential work inside the Keppel Prince business, but that it wouldn’t be electrical work” 17 and on 21 August that the work would be around the wind towers and that further detail was provided in subsequent (unspecified) lower level meetings.18

[18] Under cross examination, Messrs Adams and Place both stated that:

(i) the Respondent had not discussed directly with them alternative positions with the company prior to them being made redundant on 29 August 2013;

(ii) at no stage prior to 29 August 2013 had the Respondent indicated to them that they were to be made redundant;

(iii) after they had been made redundant, more specific position descriptions of redeployment options were provided to them by the Respondent - the positions involved sand blasting and something to do with tower fit out; and

(iv) they were only interested in electrical work.

The Respondent’s Submissions and Evidence

[19] The Respondent submitted that it had followed the consultation provisions of the Agreement and had taken steps to mitigate the adverse effects of its decision to make employees redundant as a result of the cuts to maintenance personnel required by Portland Aluminium. 19 It was further submitted on behalf of the Respondent that “The real crux of this matter is about the company’s decision not to cease using Beal Electrical, and to replace them with employees from the smelter site, who had been doing maintenance.”20

[20] Messrs Wiseman, McKinna and Garner all gave evidence for the Respondent. All three set out in their witness statements an outline of the issues canvassed in the various meetings with Mr Knight and other representatives of the Applicant. Other key aspects of their evidence is that:

(i) the profit margins on the wind tower contracts are minimal and in one case, Taralga, are zero - as such, the Respondent “needs to keep a very watchful eye on costs to keep the work viable”; 21

(ii) the wind tower work undertaken by Beal Electrical for the Respondent is “quite different from maintenance work”; 22

(iii) Mr Garner had “significant reservations” about the redundant employees being redeployed to undertake the wind tower electrical fit out work currently undertaken by Beal Electrical because he “considered the work to be very different” and that doing so “would have a negative impact on the production targets and costs that would be detrimental to KPE”; 23

(iv) Mr McKinna could only recall one occasion where an electrical employee of the Respondent had filled in for a Beal Electrical employee, with the feedback being that the Respondent’s employee “was too slow to meet the production requirements”; 24 and

(v) the staff involved in the production of wind towers “have specific training and qualifications required for the installation of access ladders into the towers”. 25

[21] Under cross examination Mr Wiseman indicated that:

(i) he believed that consultation regarding redundancies was usually carried out with employee representatives and that he used Mr Barker, a CEPU employee representative, as his avenue for communicating with employees; 26

(ii) he had no evidence indicating that anyone from the Respondent spoke directly to employees regarding the redundancies; 27

(iii) in terms of the reason for not informing the three employees to be made redundant once the skills matrix assessment had been completed in mid-August, he “didn’t want to put pressures on guys. I didn’t really know how the process was taking place up to that point in time” and he “wanted to keep it under [w]raps, until everything was sorted out” because he “didn’t want guys working underneath me that have got in the back of their mind, ‘I’m getting the axe, I don’t care anymore’ sort of thing”; 28

(iv) at no stage had the employee representatives questioned the Respondent’s practice of communicating through them or suggested that it was appropriate for the Respondent to meet directly with employees; 29 and

(v) when he offered to employee representatives that he go back to employees they “said, “No, we can do it”, adding that “they were more than happy enough to do it themselves”. 30

[22] Mr McKinna’s evidence under cross examination confirmed that only one of the staff undertaking electrical fit out work for Beal Electrical on the wind towers was an A-grade electrician, whereas both Mr Adams and Mr Place were. He went on to further respond that, apart from having the electrical work on the towers signed off, such work did not require high qualifications.  31

[23] Under cross-examination Mr Garner indicated that:

(i) while there had been over 80 redundancies at KPE over the period 2011-2013, prior to the latest redundancies only two of those previous redundancies involved electrical staff and both occurred earlier in 2013. Further, on that occasion the possibility of redeploying those two electrical staff to undertake electrical fit out work on the wind towers had not been considered, nor had it been raised with the Respondent; 32

(ii) the Respondent had no issues whatsoever with the employees most recently made redundant; 33

(iii) while he did not provide detailed job descriptions of the types of work available when discussing possible alternative employment opportunities with the Applicant, the nature of that work “was certainly fairly clear” and he responded to questions from employee representatives making it clear that the work was not “electrical work;” 34

(iv) the Respondent “went out of our way to make sure we created jobs ... we’re not about terminating people, and we wanted to keep the people, and we’re all about trying to keep employees”;  35

(v) he did not consider keeping Mr Beal and require that he stop using his two electrical employees, who would be replaced by the redundant electrical employees, as he did not consider it appropriate; 36

(vi) he had no doubt the redundant employees “would have been able to do the work, after a certain period of time ... there is a lot of training that needs to be done, so it would have taken us significant time and, potentially, significant cost ... to have that sort of production interference ... would have been extremely expensive and costly, which potentially could have been worse, when you take into account liquidated damages ...”; 37 and

(vii) it was not common practice to give prior notice to those employees who had been selected for redundancy. 38

[24] In response to questions from the Commission, the Respondent advised that the contract with Beal Electrical was terminable on 30 days notice without penalty. 39

The Relevant Provisions of the Agreement

[25] The dispute centres on whether or not the Respondent complied with its obligations under the Agreement. The clauses of the Agreement at the core of this dispute are clauses 4.3 - Security of Employment and 30 - Consultation of Part A of the Agreement. The relevant aspects from these clauses are set out below.

“4.3 Security of Employment Arrangements

(a) Overview

(i) The Employer is committed to maintaining a stable and skilled workforce, recognising its contribution to the operation of the Employer. Subject to the terms of this Agreement, full-time direct and ongoing employment is a guiding principle of this Agreement.

(ii) The Employer will take all measures to achieve employment security for the direct permanent employees of the Employer. All persons covered by this Agreement recognise the importance of measures to protect and enhance the employment security, health and safety, terms and conditions of employment and career development of the Employees.

(iii) ...

(b) Contractors

(i) Where the Employer makes a definite decision that it intends to engage contractors or labour hire companies to perform work covered by this Agreement, (which would ordinarily be undertaken by the employees), the Employer shall consult with the employees and their representatives, in accordance with this clause.

...

(v) The Employer shall only engage contractors and employees of contractors, to do work that would be covered by this Agreement if it was performed by the Employees, who apply wages and conditions that are no less favourable than that provided for in this Agreement. This will not apply where the Employer is contractually obliged by the head contractor/client to engage a specific nominated contractor to do specialist work.

(vi) This clause does not apply in respect of specialist contractors engaged by the Employer where the provisions of sub clause (v) are met. However, this exclusion will not be effective if the specialist contractor further sub-contracts any portions of the works for which it has been contracted by the Employer, unless otherwise agreed by the Employer and the Union.

...

(viii) No employee shall be made redundant whilst labour hire employees, contractors and/or employees of contractors, engaged by the Employer, are performing work that is or has been performed by the Employees on the particular site or project. This clause does not apply in respect of specialist contractors.”

“30 Consultation

30.1 Introduction of Change

(a) Employer's duty to notify

(i) Where the Employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant affects on employees, the Employer shall notify the employees who may be affected by the proposed changes and the employee representatives.

(ii) "Significant effects" include termination of employment, major changes in the composition, operation or size of the Employer's workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. Provided that where the Agreement makes provisions for alterations of any of the matters referred to herein, an alteration shall be deemed not to have significant effect.

(b) Employer's duty to discuss change

(i) The Employer shall discuss with the employees affected and their representatives, the introduction of the changes referred to in paragraph 30.1(a)(i) hereof, the affects the changes are likely to have on employees, measures to avert or mitigate the adverse affects of such changes on employees and shall give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions with employees affected and their representatives shall commence as early as practicable after the activities referred to in clause 30.1(a)(ii) hereof.

(iii) For the purposes of such discussion, the Employer shall provide in writing to the employees concerned and their representatives, all relevant information about the changes including the nature of the changes proposed; expected affects of the changes on employees and any other matters likely to affect employees provided that the Employer shall not be required to disclose confidential information the disclosure of which would be inimical to the Employer's interests.

(c) The Employer shall provide information in languages other than English for employees of non-English speaking background.

(d) Employer's duty to be reasonable

The Employer shall take reasonable steps to mitigate the adverse effects of change upon employees.

(e) This clause shall not derogate from any other obligations the Employer has under this Agreement.

(f) At all stages during this consultation process, the employees may seek the assistance of the Union, an employee representative and/or other representative.” (Underlining added)

The Issues to be Determined

[26] There are two threshold issues which the Commission is required to determine in this matter. The first is whether the Respondent met its consultation obligations under the Agreement. The second is whether the Respondent complied with its security of employment obligations under the Agreement, in particular the obligation in subclause 4.3(a)(ii) of the Agreement to “take all measures to achieve employment security for the direct permanent employees of the Employer”.

[27] On the consultation issue, the Respondent’s obligations are set out in subclause 30.1 of the Agreement. Specifically, subclause 30.1(b)(i) requires the employer to discuss major changes likely to have a significant effect on employees with “the employees affected and their representatives.” The reference to employees and their representatives is reflected throughout the remainder of subclause 30.1(b).

[28] It is not disputed that the Respondent consulted the CEPU as the employees’ representative regarding the redundancies.

[29] As to whether the Respondent consulted the employees affected, Mr Wiseman’s evidence (see paragraphs [21](i) and [21](ii) above) was to the effect that no one from the Respondent had spoken directly to employees regarding the redundancies and that the usual practice was for such consultation to occur with employee representatives, in this case Mr Barker a CEPU employee representative. Mr Wiseman’s further evidence was to the effect that, when he suggested he update employees directly, the employee representatives said they would do it and were happy to do so and that at no stage did they suggest he meet directly with employees. These are relevant, mitigating considerations.

[30] Despite these mitigating considerations, the evidence supports a finding that the Respondent in not directly discussing the redundancies with affected employees did not fully meet its obligations under the consultation clause of the Agreement which, as noted above, refers to employees and their representatives throughout subclause 30.1(b). Putting aside the provisions of the Agreement, I consider that to be poor practice. I will return to that later in this decision.

[31] The question that flows from such a finding is what turns on that given the various discussions which the Respondent had with the Applicant as the employees’ representative and the follow up conversations which the Applicant had with its members. The answer to that question in my view is probably not much as it is likely that employees would have asked their representatives to put to the Respondent any alternative approaches to avoid redundancies they identified.

[32] The Agreement’s consultation clause also includes, at subclause 30.1(d), a duty which requires the Respondent to “take reasonable steps to mitigate the adverse effects of change upon employees.” The Applicant cited Council of the City of Sydney v Goldspar Australia Pty Limited (Goldspar’s Case) 40 as providing guidance on the issue of determining reasonableness. In that case, one of the issues considered by the Court was “whether a term that the Council would act reasonably and in good faith when issuing directions and notices” under the terms of the contract with Goldspar was to be implied.41 On this issue, the Court stated at paragraph 168:

“The best way for a single judge to travel through this thicket is to concentrate upon the particular contractual provision in question, in the particular contract, in the particular circumstances of the case.”

[33] As to the steps taken by the Respondent to mitigate the adverse effects of change upon employees, Mr Wiseman’s evidence was that he and Mr Baetz “put together a few business proposals to deliver to the Maintenance Manager at PA to try and avoid making any electrical positions redundant” which were rejected by Portland Aluminium on 15 July 2013. 42 Further, Mr Garner’s evidence under cross examination (see paragraph [23](iv) above) was that the Respondent “went out of our way to make sure we created jobs ... we’re not about terminating people, and we wanted to keep the people, and we’re all about trying to keep employees.” The evidence supports a finding that the Respondent did take steps to mitigate the adverse impact of the change on employees.

[34] As to whether that was sufficient to satisfy the duty to take “reasonable steps” overlaps with the second threshold issue to be determined, i.e. the requirement to “take all measures to achieve employment security for the direct permanent employees of the Employer” as per subclause 4.3(a)(ii) of the Agreement. This overlap arises because subclause 30.1(e) provides that clause 30 “shall not derogate from any other obligations the Employer has under this Agreement.”

[35] Clause 4.3 of the Agreement states at subclause 4.3(a)(i) that “Subject to the terms of this Agreement, full-time direct and ongoing employment is a guiding principle of this Agreement” and at subclause 4.3(a)(ii) that “The Employer will take all measures to achieve employment security for the direct permanent employees of the Employer” (underlining added). The clause goes on to state at subclause 4.3(b)(viii) that “No employee shall be made redundant whilst labour hire employees, contractors and/or employees of contractors, engaged by the Employer, are performing work that is or has been performed by the Employees on the particular site or project” (underlining added). On this latter provision, the evidence was that the electrical fit out work on wind towers had never been undertaken by the Respondent’s employees, other than for a two week period earlier this year when one of the Respondent’s electrical workers filled in for one of the contractor’s employees who was absent on leave, and that Beal Electrical has undertaken this work for the Respondent since 2000/2001 when it commenced wind tower production. This supports a finding that the work undertaken by Beal Electrical falls outside the scope of subclause 4.3(b)(viii).

[36] Focussing more closely on the interaction of subclauses 4.3(a)(i) and (viii), the practical effect of the words “subject to the terms of this agreement” in subclause 4.3(a)(i) is to make the guiding principle set out there in subject to the terms of subclause 4.3(b)(viii). Accordingly, the evidence that the tower electrical fit out work had never been undertaken by the Respondent’s employees supports a finding that the work is not subject to the Guiding Principle set out in subclause 4.3(a)(i) because it falls outside the scope of subclause 4.3(b)(viii).

[37] If so, the focus then shifts to the requirement in subclause 4.3(a)(ii) that the Respondent will take “all measures” to achieve employment security for its employees and how it interacts with subclause 4.3(b)(viii). As there is no express provision indicating that one clause prevails over the other, the clauses operate alongside one another. Read through that prism, subclause 4.3(b)(viii) can be seen as a statement of how employment security is to be achieved for direct permanent employees in circumstances where work is performed by contractors or employees of contractors, among others. In other words, the proviso that the contractor or the contractor’s employees “are performing work that is or has been performed by the Employees on the particular site or project” operates alongside and confines the scope of the obligation in subclause 4.3(a)(ii). This supports a finding that not requiring Beal Electrical to shed its two electrical employees to allow the Respondent to redeploy the potentially redundant electrical workers to undertake the electrical fit out work on the towers would not be inconsistent with the Respondent’s obligations under the Agreement.

[38] This in turn supports a finding that the steps taken by the Respondent to mitigate the adverse effects of change upon employees as outlined in paragraph [33] above were reasonable in the circumstances.

Conclusion

[39] As noted at paragraph [13] above, the Applicant seeks, inter alia, a determination that the Respondent offers those of its members it made redundant employment as electricians to carry out wind tower fit out work.The basis for that submission is, in short, that the Respondent is required to do so under the Agreement.

[40] Similar issues to those traversed in this matter are canvassed in Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Telstra Case) 43. In that case Telstra appealed against an earlier decision of Commissioner Smith who found that in making a number of employees redundant Telstra had not complied with its consultation obligations under the relevant enterprise agreement and determined that Telstra should reinstate two of four of the employees made redundant and conditionally reinstate a third. Telstra’s obligations under the relevant agreement were to give the union an opportunity to consult with it on measures to avert the proposed redundancies and to mitigate the adverse effects of the retrenchments.

[41] In Telstra Case the Full Bench said:

“[56] While we have found that Telstra did not discharge its obligation to provide the CEPU with an opportunity to consult, it does not follow that Telstra should be compelled, directly or indirectly, to reinstate the employees. The employees elected to be retrenched rather than to pursue other redeployment opportunities and Telstra’s offer of further consultation on measures to avoid the terminations was not availed of ... For these reasons the remedies granted by the Commissioner ... were inappropriate in the circumstances.”

[42] While the circumstances in this case are not identical to those in the Telstra Case, they are sufficiently analogous as to provide guidance. As I remarked at paragraph [30] above, I consider the Respondent’s approach in this case of not discussing the proposed changes directly with affected electrical employees to be poor practice. However, I find that at the end of the day the absence of the company discussing the proposed redundancies directly with its employees was of little, if any, practical significance, for two reasons. First, the extensive engagement by the Respondent with employee representatives regarding the redundancies and, second, the absence of any expression of interest by employees, particularly the redundant employees, in redeployment to non-electrical positions associated with wind tower production. Pertinent to the second reason is the evidence of Messrs Adams and Place which was that both remained only interested in electrical positions. Against that background, and consistent with the approach adopted by the Full Bench in the Telstra Case, I find that reinstatement on the grounds that the Respondent did not fully comply with its consultation obligations under the Agreement by not discussing the change directly with employees is inappropriate in this case. Further, for the reasons outlined at paragraph [34] above, I find that the Respondent did take “reasonable steps” to mitigate the adverse effects of change upon employees.

[43] As to whether the Respondent complied with its obligations under the Security of Employment Arrangements set out in the Agreement, Goldspar’s Case sets out a useful approach which I have followed in navigating the interaction of the various elements of clause 4.3.

[44] In my view, the inclusion in subclause 4.3(a)(i) of the words “Subject to the terms of this Agreement” together with the inclusion of the words “are performing work that is or has been performed by the Employees on the particular site or project” in subclause 4.3(b)(viii) acts to constrain the effect of the Guiding Principle set out in subclause 4.3(a)(i).

[45] Further, I consider the requirement set out in subclause 4.3(a)(ii) that “The Employer will take all measures to achieve employment security for the direct permanent employees of the Employer” is similarly constrained by virtue of the existence of the requirement set out in subclause 4.3(b)(viii) that contractors and/or employees of contractors be “performing work that is or has been performed by the Employees on the particular site or project.” I would have found differently had subclause 4.3(b)(viii) contained words to the effect “performing work that is, has been or is capable of being performed” but it does not.

[46] As such, I find that the Respondent’s actions in not redeploying the potentially redundant electrical workers to undertake the tower electrical fit out work currently undertaken by Beal Electrical was not inconsistent with its obligations under clause 4.3 of the Agreement.

[47] For all these reasons, I decline to make the determination sought by the Applicant.

[48] Finally, I return to the issue of the Respondent’s approach in this matter (and it appears previous redundancy rounds) of undertaking consultation through employees’ representatives, in this case the CEPU. In my view this equates to the Respondent effectively outsourcing its responsibility to discuss the redundancies with affected employees to the Applicant. Putting aside the provisions of the Agreement, I consider such an approach to be poor practice, as was the Respondent’s decision not to inform those electrical employees who were to be made redundant of their potential fate as soon as possible after the skills matrix had been completed in mid-August 2013. Doing so would have enabled the affected employees to make informed decisions as to whether or not to express an interest in the alternative jobs canvassed in the discussions with the Applicant. Further, it would have assisted affected employees in considering those alternative jobs if further specificity regarding the nature of

those jobs had been made available to employees as part of the consultation process. I would strongly encourage the Respondent to revisit its approach should the need for redundancies arise again in future.

DEPUTY PRESIDENT

Appearances:

K. Reidy for the Applicant.

A. Dalton with H. Baetz and B. Waugh for the Respondent.

Hearing details:

2013.

Melbourne:

November 22.

 1   AE886191

 2   Exhibit D3 at paragraphs 2 and 3

 3   Ibid, paragraph 9

 4   Ibid, paragraph 13

 5   Exhibit D1 at paragraph 12

 6   Ibid, paragraph 13

 7   Exhibit R1 at Attachment A

 8   Exhibit D1 at paragraph 20

 9   Exhibit R1 at paragraph 4

 10   Exhibit D3 at paragraph 21

 11   Ibid, Attachment 1

 12   Respondent’s Outline of Submissions at paragraph 34

 13   Transcript at PN479-480

 14   Applicant’s Outline of Submissions at paragraphs 1 and 2

 15   Exhibits R2 and R3

 16   Exhibit R3 at paragraph 10

 17   Transcript at PN50

 18   Ibid PN54

 19   Respondent’s Outline of Submissions at paragraph 65

 20   Transcript at PN487

 21   Exhibit D3 at paragraph 7

 22   Ibid, paragraph 11

 23   Ibid, paragraph 18

 24   Exhibit D2 at paragraph 8

 25   Ibid, paragraph 14

 26   Transcript at PN155 and PN172

 27   Ibid, PN175

 28   Ibid, PN191-192

 29   Ibid PN219

 30   Ibid PN220

 31   Ibid PN273-274 and PN304-305

 32   Ibid PN325-335

 33   Ibid PN356

 34   Ibid PN358-360

 35   Ibid PN379

 36   Ibid PN381-382

 37   Ibid PN383

 38   Ibid PN406

 39   Ibid PN515

 40 (2006) 230 ALR 437

 41 [2006] FCA 472 at PN166

 42   Exhibit D1 at paragraphs 10 and 11

 43 (2007) 163 IR 134

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