Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Degremont Joint Venture
[2011] FWA 6698
•28 SEPTEMBER 2011
[2011] FWA 6698 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Thiess Degremont Joint Venture
(C2011/5770)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 28 SEPTEMBER 2011 |
Alleged dispute concerning change in roster for employees and terminating the employment of 160 electrical employees.
[1] This decision arises from an application by the Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) under s.739 of the Fair Work Act 2009 (the Act) between it and Thiess Degremont Joint Venture (TD) in relation to the Thiess Degremont (“TD”) and AMWU, AWU, CEPU and CFMEU Victorian Desalination Project Greenfields Agreement 2009 1 (the Agreement). The dispute concerns the proposed redundancy of CEPU members from the desalination plant project of TD (the Project) at Wonthaggi.
[2] The dispute was dealt with in conference on 8, 9 and 10 September 2011, without resolution, and was programmed for arbitration in accordance with clause 15.1(b)(vi) of the Disputes Settling Procedure - within Part 1 of the Agreement.
Background to the dispute
[3] The dispute concerns electricians directly employed by TD on the Project. Their employment, like that of other employees directly employed by TD, is governed by the Agreement.
[4] The work of the electricians is undertaken on rosters in accordance with clause 7.5 of Division A, Part 2 of the Agreement. Clause 7.5 provides:
“Rosters
(a) For the purpose of this Division the following indicative working rosters shall apply to the Plant:
(i) a 56 hour roster to be worked in accordance with the Industry Calendar based on 4 days of 10 hours each (Monday to Thursday) and two days of 8 hours each (Friday to Saturday).
(ii) The parties have developed a 4 on/4 off roster that is set out in Part 2 Schedule 1A – 4 on/4 off roster.
(b) The introduction of the roster arrangements provided for in 7.5(a)(ii) may be implemented at TD’s initiative and following full consultation and agreement with the relevant Union(s) via the Organiser and delegate. The Union(s) will not unreasonably withhold agreement.”
[5] Part 2 - Schedule 1A – Process Plant – 4 On/4 Off Roster, referenced in clause 7.5 of Division A, Part 2 of the Agreement, at clause 1 provides:
“1. Implementation
1.1 TD may implement a 4/4 roster in the manner provided for in clause 7.5 of Division A of Part 2 to apply only to particular parts of the work covered in Division A, or to employees with particular skills engaged on the work covered in Division A.
1.2 Where TD implements the 4/4 roster it will first call for volunteers. TD may exclude a volunteer if it considers the volunteer does not have appropriate skills or capability. If a call for volunteers is oversubscribed, TD will determine employees to move to the 4/4 roster by random selection – an employee representative may be an observer.
1.3 The implementation of the 4/4 roster may be terminated by TD. Once terminated, the 4/4 roster may be re-implemented in the manner provided for in clause 7.5 of Division A of Part 2.”
[6] The 4 on/4 off roster (4/4 roster) involves a lesser number of working hours per week per employee than the 56 hour roster but facilitates a greater number of hours of work on the Project, through increased numbers of workers because it involves two teams of employees, working across all seven days of the week, whereas the 56 hour roster involves one team of workers working across six days per week (Monday to Saturday).
[7] At the end of April 2011 around 190 electrical and related workers were employed by TD, of whom about 25 worked on the 4/4 roster. On or about 21 April 2011, TD and the CEPU reached agreement, in accordance with clause 7.5 of Division A, Part 2 of the Agreement on the operation of a new 4/4 roster, to accommodate the intention of TD to increase the available work hours and a consequent increase in the work output. On or about 2 and 6 May 2011, the majority of electrical employees commenced the new 4/4 roster, with a significant increase in the number of electricians engaged after that time to put in place two teams of electricians. Presently the number of directly employed electricians is around 480.
[8] In June and July 2011, TD became concerned that productivity (output/man hours) on the 4/4 roster was significantly down relative to the levels it expected and the levels achieved on the previous 56 hour roster. Towards the middle of August, TD undertook an analysis of productivity of the electricians working in the Reverse Osmosis Plant (RO Plant), a major component of the Project, which disclosed that the increased number of electricians employed upon movement to the 4/4 roster had not resulted in any gains in the weekly progress of the electrical work on the Project.
[9] In mid August 2011, TD determined to move most of those electricians working on the 4/4 roster onto a 56 hour roster. In addition to reverting to the 56 hour roster TD proposed a range of other steps including changing the management structure for electrical workers to enhance communications and workflow, a number of steps to increase and improve the level of supervision and increasing the number of electrical subcontractors. A consequence of these changes, if implemented, will be that approximately 160 directly employed electricians will be made redundant. On the afternoon of 17 August 2011, TD arranged for the electricians to attend meetings on the site, at which they were handed a memo which advised them that:
“. . . TD will move the majority of electrical employees to the 56 hour roster effective from 25 August 2011. Accordingly, please be advised on the following:
1. TD is meeting with the ETU today to notify them of this decision and to discuss associated issues;
2. The decision has been taken on the basis that we have not achieved the level of productivity from the 4 x 4 roster required to meet the needs of the project and on current performance, the roster does not provide value for money;
3. TD expects that there will be approximately 160 electrical positions demobilised (made redundant);
4. TD will commence consultative sessions on the demobilisation process with electrical employees and their representatives later today. These sessions will continue over the coming week;
5. TD intends to retain the most competent and skilled electrical employees on the project;
6. More information will be provided to you through your Supervisor and in the consultative sessions, commencing from today . . .” 2
[10] The decision to terminate the 4/4 roster for the majority of electricians was taken in accordance with clause 1.3 of Part 2 - Schedule 1A of the Agreement. It was a decision available to TD under that provision of the Agreement 3 and the right of TD to terminate the shift under the Agreement is not contested for the purpose of this arbitration. Equally, TD has a right under the Agreement to terminate the employment of any of its employees on notice,4 subject to the rights of the employees under the Act or other legislative rights.
[11] The dispute before me arose in the context of the decision by TD to terminate the 4/4 roster in favour of the 56 hour roster. The CEPU and its members were aggrieved by that decision and the issue in dispute for determination concerns a consequence, in part, of that decision - the intention of TD to terminate the employment of 160 electrical employees. This is evident from the relief sought by the CEPU as expressed in the CEPU’s application, 5 as follows:
“1. If the current 4/4 roster is to be terminated, a decision on the appropriate number of retrenchments to be made;
2. A decision on the timing of the retrenchments to be made;
3. A decision on the appropriate method for selection of the employees to be retrenched, including calling for volunteers;
4. A decision on whether employees who are retrenched should receive compensation for losses resulting from having to leave their accommodation in the Wonthaggi area at short notice;
5. Such further decisions that FWA considers appropriate.”
[12] The relief sought was more precisely identified in the course of the arbitration as follows:
“The Applicant proposes that Fair Work Australia decide the arbitration as follows:
1. That no electrical employees are to be made redundant in relation to or in connection with the termination of the 4/4 roster.
2. In the alternative to point 1, if retrenchments are permitted to be made in relation to or in connection with the termination of the 4/4 roster, the number of retrenchments should not exceed 60 electrical employees.
3. If retrenchments are permitted to be made in relation to or in connection with the termination of the 4/4 roster, the following procedure is to be followed:
(a) the Respondent must first advise the Applicant and the electrical employees of the number of electrical employees proposed to be made redundant;
(b) the Respondent must then invite the electrical employees to apply for voluntary redundancy; and
(i) if there are more volunteers than the number of redundancies advised pursuant to point 3(a) the Respondent shall select which volunteers are to be made redundant; and
(ii) if there are fewer volunteers than the number of redundancies advised pursuant to point 3(a) the Respondent shall:
(1) make all such volunteers redundant; and
(2) in respect of the balance of the proposed number of redundancies advised pursuant to point 3(a), the Respondent may select the additional electrical employees to be made redundant in accordance with the selection criteria as set out at Appendix 1 to this Decision, with the lowest scoring employees to be made redundant.
(c) in relation to the redundancies in 3(b)(ii)(2), before selecting and making those redundancies, the Respondent will invite the electrical employees eligible to do so, to apply for 4 weeks annual leave, and will allow a number equivalent to the number of redundancies in 3(b)(ii)(2) to take that annual leave. The Respondent will defer selecting and making the redundancies in 3(b)(ii)(2) until the expiration of the 4 weeks annual leave.
4. In order to mitigate the adverse effects on any electrical employees made or to be made redundant, the Respondent shall take all reasonable and lawful steps to assist those electrical employees to obtain employment with any electrical contractors being, or to be, used, by the Respondent on the Project.
5. In order to mitigate the adverse effects on the redundant electrical employees, the Respondent shall make a redundancy payment of 4 weeks pay (calculated as if it was worked) to each electrical employee made redundant.
6. The Respondent shall within 48 hours of the making of this decision, allow Troy Gray (Assistant Branch Secretary of the Victorian Branch of the Electrical Division of the CEPU) to attend at the Project and hold a paid meeting of electrical employees then working on the Project to explain this decision. The said meeting is to last no longer than 1 hour. Troy Gray is then to be permitted to hold a similar meeting with the electrical employees engaged on the next roster panel at the commencement of that panel.” 6
[13] In its closing submission, TD opposed the making of any orders but advised that it would give effect to the following process in relation to the proposed redundancies: 7
“1. TDJV will give 7 days notice of the termination of the 4/4 roster.
2. TDJV will at the same time invite electrical employees to put in an expression of interest in being made redundant to a nominated manager of TDJV, such expressions of interest to be made within 48 hours.
3. TDJV reserves the right not to accept particular expressions of interest to retain the most skilled and capable workers to deliver the job successfully and safely. TDJV reserves the right to withdraw this arrangement if it becomes aware of any intimidation or violence being directed at employees to coerce them to nominate to be made redundant.
4. Subject to its exercise of the rights set out in paragraph 3, TDJV will select the balance (if any) of electrical employees to be made redundant in accordance with the selection criteria set out in the ‘TDJV Selection Criteria’ (attached).
5. TDJV will advise those electrical employees to be made redundant on or after the 7th day that notice is given of the termination of the roster and their employment with TDJV will cease immediately. TDJV will pay each employee who is made redundant pay in lieu of the requisite period of notice set out in the Victorian Desalination Project Green Fields Agreement 2009.
6. TDJV will provide the following compensation to any recent employees (being any electrical employees who commenced employment within 6 weeks of the announcement of the cessation of the 4/4 shift on 17 August 2011) who are made redundant as a result of the change in roster:
(a) any school fees foregone (in respect of the employee’s children attending school in the Project area) as a result of them being made redundant;
(b) school uniform costs (in respect of the employee’s children attending school in the Project area) which are no longer required because the employee has been made redundant; and
(c) where a recent employee can demonstrate that they have entered into a minimum term lease, TDJV will use its best endeavours to assist the employee to reassign the lease.
7. TDJV will provide a list of redundant employees who are interested in further work on the Project to electrical subcontractors who are engaged on the job in future and will provide a reference if it is requested to do so.”
[14] In addition, in response to a question by me in the hearing of 23 September 2011, TD, through its instructing solicitor, advised by email of 23 September 2011, of the following practice in respect of the re-engagement of employees made redundant:
“The practice that TDJV has adopted with employees in the civil workforce was that, if employees were made redundant and subsequently re-hired within 3 months, the employees’ previous service would count towards their continuity of service with TDJV. The only relevant circumstance that TDJV can identify is that the prior service would be taken into account in respect of selection for any subsequent round of redundancies. Long service leave is portable and redundancy is paid on a weekly basis so has to relationship to length of service.
TDJV proposes to adopt the same approach with any Electrical Trades Employees who are made redundant but subsequently re-employed by TDJV on the Project.”
Submissions and evidence
[15] I have had the benefit of written outlines of submissions by each party in advance of the evidence and hearing and written final submissions, together with oral submissions from each party.
[16] In addition, evidence was given on behalf of the CEPU by Mr G Bornstein, in-house lawyer of the Victorian Branch of the Electrical Division of the CEPU, and electrical workers engaged by TD on the Project - Mr S Riches, Mr G Walsh, Mr B O’Reilly and Mr M Delaney - and Mr T Gray, Assistant Branch Secretary of the Victorian Branch of the Electrical Division of the CEPU. Evidence for TD was given by Mr B Murphy, a lawyer employed by Herbert Geer, instructing solicitor for TD, Mr J Rzesniowiecki, General Manager, People, Safety and Environment for the Australian Construction Business of Thiess Pty Ltd and Mr G Locke, Delivery Director for TD. The evidence of Mr Locke and submissions in relation to it were received in confidence, pursuant to an order under ss.593(3) and 594(1) 8 of the Act, due to the commercially sensitive nature of information within it. In light of that order this decision will not disclose such information and submissions relating to it. In light of the order, I will not set out the submissions of the parties in relation to Mr Locke’s evidence and will address relevant submissions in my consideration, both generally and when dealing with particular aspects of the relief sought by the CEPU.
Consideration
General
[17] The dispute before me concerns the proposal by TD to make redundant 160 electrical workers. The CEPU, relying on a related Federal Court of Australia decision, 9 characterised the dispute as a dispute relating to any and all matters arising out of or in connection with the application or interpretation of clause 1.3 of Part 2 - Schedule 1A of the Agreement10 - the application by TD of its right to alter shift arrangements from the 4/4 roster to the 56 hour roster. In my view the disputes procedure in clause 15 of Part 1 of the Agreement does authorise Fair Work Australia to arbitrate the matters in dispute arising from the application of the Agreement and, in particular, the redundancies arising from the application of the right of TD to reinstitute the 56 hour roster.
[18] As noted by the submissions of TD that authorisation is subject to the terms of the Agreement as a whole and the intention of the parties in formulating the Agreement:
- The Agreement states that it ‘is a complete statement of rights and obligations of TD and each of its employees engaged on the project’ (cl. 32.3) and ‘the complete statement of mutual rights, industrial interests, and obligations as between TD and the CEPU. . .’ (cl. 32.4).
- Under clause 32.2, the parties are not permitted to take ‘any action (industrial or otherwise) in support of or for the purpose of advancing any other, additional or extra claims against TD prior to the nominal expiry date of this Agreement’ (emphasis added).” 11
“ The parties expressly agree that the Agreement establishes all of the terms and conditions of employment for the duration of the Project ‘and that it satisfies all claims, and provides for the total industrial interests in respect of the employment of employees who are covered by this Agreement’ (Part 1 cl. 32.1 on p.35).
[19] Further, I accept that an arbitration of the matters in dispute is constrained by the requirements in s.739 of the Act that provides:
“(5) Despite subsection (4), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.”
The number of redundancies - no redundancies or 60 or some other lesser number
[20] Much of the conflict in evidence and submissions went to the level of productivity achieved under the 4/4 roster and the factors which contributed to a decline evident in the TD productivity data and their relative importance. I have considered all of that material but do not need to refer to it in detail for the purposes of my decision. Nor is it appropriate to do so in light of my confidentiality order.
[21] There can be no doubt that there has been a significant decline in output per man hours used following the introduction of the 4/4 roster in May 2011. Whilst there is uncertainty as to the precise extent of the decline, reflecting the frailties of productivity measurement and deficiencies in the baseline derived from the resource document used by TD - the NECA Manual of Labour Units - data for electrical work on the RO Plant, which was openly produced in Federal Court of Australia proceedings, 12 discloses that a significant increase in the electrical workforce associated with the introduction of that roster did not increase the level of electrical work completed. Equally, it is clear that issues inherent in or associated with the 4/4 roster contributed to the productivity decline, despite differing views as to the significance of that effect. On the evidence, it is clear that other factors - engineering, supervision, work planning and logistics issues - also contributed to the decline. The relevance of other factors is evident in the range of measures instituted by TD to address the problem, as recorded in paragraph [9] of this decision. It is not possible, from the evidence, to quantify with any precision the contribution of each factor to the productivity decline. Nor, in my view, is it necessary to do so. The simple fact is that TD was confronted by a significant productivity issue, affecting the efficiency with which electrical work was being undertaken, which required a response. Whilst other packages of responses may be available, the response developed by TD management is not unreasonable and is better informed than any assessment available to Fair Work Australia or the CEPU and its members. There is no basis for Fair Work Australia to find that redundancies should form no part of TD’s response to the productivity issues confronting it. Nor is there an appropriate basis for me to second guess the TD response and make my own judgements as to an “appropriate” number of redundancies, particularly without the benefit of reporting information available to TD, which informed its response. Further, the total number of redundancies reflects the range of measures instituted by TD and not solely the application by it of its rights under clause 1.3 of Part 2 - Schedule 1A of the Agreement. Accordingly, I am not satisfied that I should intervene to alter the number of redundancies affected.
[22] It may be that there is scope for a package of additional measures to be developed and implemented which is capable of reducing the number of redundancies immediately required or facilitating an increase in the number of directly employed electricians reasonably soon after the redundancies are effected, in both instances at a level of productivity which meets the operational requirements of TD. However, it is not appropriate for Fair Work Australia to assume the role of management in an arbitration such as this and impose a package of measures upon the parties. Any scope for the development of such a package should be explored cooperatively between the parties. I recommend that TD and the CEPU explore any measures capable of reducing the number of redundancies or in part reversing the reduction in the numbers of directly employed electricians, whilst facilitating productivity of electrical work at a level which meets the operational requirements of TD.
The process for effecting the redundancies
[23] The CEPU has sought that an order be made in respect of the process for effecting redundancies as set out above. TD has set out in Exhibit TDJV 7 the process it proposes to utilise. There is considerable commonality between the two processes, but there are substantive differences in the following respects:
1. Both parties propose a role for voluntary redundancies. However, the selection of volunteers is conditioned in the TD proposal by a right for it not to accept particular expressions of interest for voluntary redundancy in order to retain the most skilled and capable workers to deliver the job successfully and safely, whilst the CEPU seeks an order that all volunteers be accepted.
2. The CEPU seeks, within the process for involuntary redundancies, an opportunity for electrical employees eligible to do so, to apply for four weeks annual leave, and that TD allow a number equivalent to the number of redundancies affected to take that annual leave and defer the selection and making of the redundancies until the expiration of the four weeks annual leave.
3. TD is proposing a variation to the selection criteria applied by it in respect of past redundancies on the Project, modifying the weight accorded to length of service.
[24] I am satisfied that the process for effecting redundancies proposed by TD is reasonable and should be given effect, save for the TDJV Selection Criteria proposed by TD.
[25] The reservation by TD of a right to not accept particular expressions of interest for voluntary redundancy on the basis of its skills requirements is not unreasonable and is a common practice in affecting redundancies. The CEPU contended that the acceptance of volunteers for redundancies was the standard practice in the construction industry, relying on the evidence of its witnesses drawn from their experience on major projects. 13 The evidence of Mr Rzesniowiecki was that industry practice varies with volunteers being sought in some cases but not in others but where volunteers are sought the employer retains the right to accept or reject those volunteers.14 Mr Rzesniowiecki’s evidence was that volunteers were not sought in respect of redundancies of civil trades on the sea water lift pump when the roster changed from the 4/4 roster to the 56 hour roster.15 I am not satisfied that industry practice is for the unconditional acceptance of volunteers for redundancy. The evidence of the CEPU members established that volunteers for redundancy were sought and accepted on other projects they had worked on but did not shed light on the existence or otherwise by a right of the employer to refuse volunteers. In the absence of evidence as to a clear industry practice and given Mr Rzesniowiecki’s evidence as past TD practice on the Project, I am not persuaded that TD should be prevented from retaining a right to refuse volunteers on the basis of skills required. I do note that in my experience it would be rare for an employer who does have a right to not accept volunteers for redundancy on the basis of skills requirements to exercise that right to any great extent. In my experience, the exercise of that right would generally arise in practice in relation to very particular rather than generic skills. I would expect that TD would reasonably exercise its right of refusal in practice and in doing so have regard to the context of the change in rosters and potentially significant impact on the personal circumstances of some employees concerned, as suggested by the evidence of Mr Walsh.
[26] I see no reasonable basis for the CEPU proposal to defer the implementation of the redundancy process through the introduction of a four week period on annual leave for the required number of electricians. The CEPU proposal is to defer the redundancy selection and implementation for four weeks through the taking of annual leave by the requisite number of electricians. It appears the purpose is to create a further four week period in which alternate employment with subcontractors can be explored 16 (and, perhaps, in which alternatives to some or all of the redundancies can be further explored). I see no basis to defer the implementation of the redundancies in circumstances where they have been deferred for some weeks already on the basis of undertakings by TD to the Federal Court of Australia to allow the disputes procedure to be given effect, during which time alternative outcomes have been explored. Further, the further four week delay proposed by the CEPU does not appear to materially impact on the possibility of alternate employment with subcontractors.
[27] In relation to the final issue - the basis upon which length of service is comprehended within the TDJV Selection Criteria - I see no reason why the length of service criteria in the TDJV Selection Criteria should be altered by TD from that which it applied to the selection for redundancy of civil construction workers on the Project. 17 I recommend that TD amend the TDJV Selection Criteria in this respect and will make an order to that effect, if necessary.
Alternate employment with subcontractors
[28] The CEPU seeks an order that TD take all reasonable and lawful steps to assist those electrical employees who are made redundant to obtain employment with any electrical subcontractors being, or to be, used, by it. The TD process includes the provision of a list of redundant employees, who are interested in further work on the Project, to electrical subcontractors who are engaged on the job in future and agreement to provide a reference, if requested, which reflects reasonable and lawful steps to assist employees made redundant. The CEPU proposed no additional specific reasonable and lawful actions by TD. I do not understand there to be any issue between the parties in relation to this step to mitigate the impact of the proposed redundancies. If the CEPU seeks any further specific reasonable and lawful steps to assist employees, they should be raised with TD at the earliest possible time.
Additional redundancy pay and other measures to assist employees made redundant
[29] Each party advanced specific proposals of assistance for employees made redundant, to reflect the particular circumstances of the proposed redundancies. Those circumstances involve the remote location of the work, the differential impact on the personal circumstances of employees associated with the two forms of roster and, in that context, the escalation in the number of electricians engaged on the Project from May and continuing up until August. The latter consideration arose in circumstances where employees were required to reside within reasonable proximity to the Project 18 and in the context of the evidence of Mr Borenstein19 that a large number of electricians were engaged since May with a reasonable expectation of continuing employment until the end of 2011. The evidence of Mr Murphy20 was that whilst TD recruiters advised that there were no guarantees of ongoing employment, it was likely that there would be work for a minimum of three months or up until Christmas 2011.21 I accept that some employees accepted employment on the Project on the basis of an expectation of continuing employment for those periods of time and made accommodation arrangements on that basis.
[30] The CEPU proposed that, in order to mitigate the adverse effects on the redundant electrical employees in the circumstances referred to above, TD be required to make a redundancy payment of four weeks pay (calculated as if it was worked) to each electrical employee made redundant. TD, in its proposed process, accepted that there would be some level of heightened detriment to some employees in the particular circumstances of the proposed redundancies, including in its process:
“. . . the following compensation to any recent employees (being any electrical employees who commenced employment within six weeks of the announcement of the cessation of the 4/4 shift on 17 August 2011) who are made redundant as a result of the change in roster:
(a) any school fees foregone (in respect of the employee’s children attending school in the Project area) as a result of them being made redundant;
(b) school uniform costs (in respect of the employee’s children attending school in the Project area) which are no longer required because the employee has been made redundant; and
(c) where a recent employee can demonstrate that they have entered into a minimum term lease, TDJV will use its best endeavours to assist the employee to reassign the lease.”
[31] In my view the requirement of s.739(5) of the Act prevents the augmentation of redundancy entitlements by the imposition upon TD of an obligation to make an additional redundancy payment of four weeks pay to electricians made redundant. Clause 11 of Part 1 of the Agreement prescribes the entitlement of employees in respect of redundancy, a contribution of specified weekly amounts into the Protect Fund, consistent with the industry specific redundancy scheme arrangements within clause 17 of the Building and Construction General On-site Award 2010 22 (albeit at a higher level than prescribed in the award). This entitlement, like all redundancy provisions, is formulated generally to provide compensation for redundancy, notwithstanding different impacts of redundancy upon particular employees. An order to require an additional payment in respect of redundancy would alter the redundancy payment arrangements within the Agreement and is precluded by s.739(5) of the Act.23 I am not satisfied, in any case, that an additional four week payment to each electrical employee made redundant is appropriate to meet the particular adverse effects of the redundancies on some employees.
[32] Accordingly, I decline to alter the arrangements proposed by TD to recognise the particular circumstances of the redundancies. I do, however, recommend that consideration be given by TD to providing an ex-gratia payment to individual employees who can demonstrate significant personal and/or financial detriment associated with the particular circumstances of their employment and the redundancy.
Paid meeting of electrical employees working on the Project to explain this decision
[33] The CEPU sought an order that TD allow Mr Gray access to attend at the Project and hold a paid meeting of electrical employees working on the Project, to last no longer than one hour, to explain this decision in respect of each roster panel. The making of such an order would alter the rights of access under the Agreement and under the Act and is not permitted by s.739(5) of the Act. No such order will be made. However, I recommend that TD facilitate such meetings in order to communicate this decision to its members.
Conclusion
[34] On the basis of the evidence and submissions available to me, I will not make an order in respect of the number and timing of redundancies proposed by TD.
[35] Whilst I decline to make an order in respect of the number and timing of redundancies, I recommend that TD and the CEPU further explore any measures capable of reducing the number of redundancies or in part reversing the reduction in the numbers of directly employed electricians, whilst facilitating productivity of electrical work at a level which meets the operational requirements of TD.
[36] I am not satisfied that I should alter the processes for giving effect to the redundancies proposed by TD, save for the length of service criteria in the TDJV Selection Criteria. I recommend that TD amend the TDJV Selection Criteria attached to its proposed process 24 to incorporate the length of service criteria it applied to the selection for redundancy of civil construction workers on the Project25 and will make an order, if necessary.
[37] I also recommend that the parties consider any further specific reasonable and lawful steps, if any, which the CEPU believes TD could take to assist employees made redundant to obtain employment with any electrical subcontractors used by TD. I further recommend that consideration be given by TD to providing an ex-gratia payment to individual employees who can demonstrate significant personal and or financial detriment associated with the particular circumstances of their employment and the redundancy.
[38] Finally, I recommend that TD facilitate meetings with electrical employees in order to communicate this decision to its members.
[39] I direct TD to advise me of the position taken by it in respect of my recommendations by no later than noon, Monday, 3 October 2011. In the event that TD does not accept my recommendation in relation to the amendment of the TDJV Selection Criteria in respect of length of service, the CEPU is at liberty to file a proposed order giving effect to that element of my decision.
SENIOR DEPUTY PRESIDENT
Appearances:
H. Borenstein SC on behalf of the Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union of Australia.
F. Parry SC on behalf of Thiess Degremont Joint Venture.
Hearing details:
2011.
Melbourne:
September 19, 20 and 23.
1 AE873094 PR992391.
2 Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [2011] FCA 1020 (31 August 2011) [2011] FCA 1020 at para 9.
3 Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [2011] FCA 1020 (31 August 2011), at para 70.
4 Clause 5.4 of Part 1 of the Agreement.
5 Form F10, question 7.
6 Exhibit CEPU 12.
7 Exhibit TDJV 7.
8 PR514755.
9 Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [2011] FCA 1020 (31 August 2011).
10 Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [2011] FCA 1020 (31 August 2011), at paragraph 68 and 69.
11 Exhibit TDJV 6 at para 18.
12 Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd.
13 Transcript, at paras 622, 829, 1118 and 1184.
14 Transcript, at para 1428.
15 Transcript, at para 1482.
16 Exhibit CEPU 13, at para 97.
17 Exhibit TDJV 2, at para 23.
18 Exhibit TDJV 2, attachment JR1.
19 Exhibit CEPU 1.
20 Exhibit TDJV 1.
21 Exhibit TDJV 1, at paras 6, 14 and 16.
22 MA000020.
23 Boral Resources (NSW) Pty Ltd v Transport Workers’ Union of Australia[2010] FWAFB 8437, at para 29.
24 Exhibit TDJV 7.
25 Exhibit TDJV 2, at para 23.
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