Finance Sector Union of Australia v Allianz Australia Insurance Limited
[2009] FWA 1243
•15 DECEMBER 2009
[2009] FWA 1243 |
|
DECISION |
Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)
v
Allianz Australia Insurance Limited
(C2009/146)
ALLIANZ AUSTRALIA BUSINESS PARTNERSHIP AGREEMENT 2006
(ODN AG2006/3156) [AG847209]
Insurance industry | |
COMMISSIONER ROBERTS | SYDNEY, 15 DECEMBER 2009 |
Redeployment and redundancy.
[1] This decision concerns an application by the Finance Sector Union of Australia (the FSU) made pursuant to s.170LW of the pre-reform Workplace Relations Act 1996 for the settlement of a dispute concerning the application of the Allianz Australia Business Partnership Agreement 2006 1(the Agreement). Allianz Australia Insurance Limited (Allianz) is the respondent to both the Agreement and this application.
[2] The application was the subject of unsuccessful conciliation on 4 September 2009. Directions were issued by me on 21 September 2009 for the filing of submissions, witness statements and supporting documents. That process concluded on or about 2 November 2009. The application was heard before me in Sydney on 12 November 2009. The FSU was represented by its Industrial Officer, Mr D Peddie and Allianz by Mr S Mellos and Ms M Hurley-Smith. At the conclusion of the hearing, the parties opted to make final submissions in writing. That process was completed by 26 November 2009.
Background
[3] The basis of the FSU application concerns the redeployment of two of its members, Ms M Bercel and Ms A D’Albora, by Allianz to the position in both cases of Recovery Officer (RO) when their previous position of Credit Control Officer (CCO) was abolished due to a business restructure which resulted in those roles being centralised in Melbourne. The redeployment of each employee was effective from 20 July 2009. The FSU maintains that the redeployment of the two employees has not been made to a ‘comparable position’ and that the redundancy provisions of the Agreement should apply. Allianz takes the opposite view.
Questions to be determined
[4] The parties have submitted the following agreed questions to be determined by the Tribunal:
“1. Have Ms Mirta Bercel and Ms Anna D’albora (the Employees) been redeployed to a ‘comparable position’ in accordance with clause 11.2.3 of the Allianz Australia Business Partnership Agreement 2006 (the Agreement) and within the meaning of the term defined in clause 2.3(h) of the Agreement?
2. If the position of Debt Recovery Officer (the New Role) is not a ‘comparable position’ for the purposes of the Agreement, can Allianz redeploy the Employees within a reasonable timeframe to an alternative ‘comparable position’ that may be available within Allianz?
3. If the New Role is:
(a) not a ‘comparable position’; and
(b) Allianz is not able to make a further assessment as to whether an alternative ‘comparable position’ is available within Allianz, then
(i) is the New Role a ‘suitable alternative position’ for the purposes of clause 11.2.4(a) - (f) of the Agreement and does the two month period set out in clause 11.2.4(d) operate from the time the New Role commenced; or
(ii) is Allianz now able to make within a reasonable timeframe the Employees a new offer of continued employment in another role which is a ‘suitable alternative’ role for the purposes of clause 11.2.4(a)-(f)?”
[5] Allianz has put a further question for determination:
“Is this a dispute or grievance relating to an ‘internal personnel related matter’ for the purposes of clause 10.2(a) so as to preclude Fair Work Australia from resolving the matter in accordance with clause 10.1(f) of the Agreement?”
The Terms of the Agreement
Comparable position
“11.2.3 Redeployment
The Company will endeavour to redeploy employees whose positions have been made redundant, in the first instance, into a ‘comparable’ position, or if such a position is not available, into a ‘suitable alternative’ position.
The following procedures shall apply when redeploying employees:
(a) The redeployment position shall not entail a change in duties significant enough to be unreasonable given the employee’s skills and ability, but also having regard to the training opportunities available to the employee.
(b) The redeployment position shall be at the same location or at another location that is within reasonable commuting distance (i.e. within the same metropolitan area as the employee’s substantive position). Allianz Australia will also consider other factors including the employee’s duties and responsibilities, family and personal commitments, and historical use of private and public transport.
(c) An employee whose position has been identified as redundant will not be entitled to any redundancy payment, nor will they be eligible for any payment in lieu of notice, if they decline to take up any Company offer of a ‘comparable’ position.
(d) For the avoidance of doubt, in the event that the whole or part of the business of Allianz Australia is sold, outsourced or otherwise transmitted or assigned and the employee is offered and does not accept a comparable position with the transmittee, assignee or successor, the employee will not be entitled to a severance payment or payment in lieu of notice.
(e) By declining the offer of redeployment to a ‘comparable’ position an employee will be deemed as having terminated their employment with Allianz Australia.”
Redundancy
“11.2.4 Redundancy
In cases where a position becomes redundant, Allianz Australia will make all reasonable efforts to redeploy the employee concerned to a ‘comparable’ position elsewhere in Allianz Australia. In the event that there is not a ‘comparable’ position available, Allianz Australia management may offer the option of continued employment in a ‘suitable alternative’ position on the following basis:
(a) The offer is in lieu of retrenchment with the objective of continuing employment.
(b) The offer is to be made in writing.
(c) Where an employee accepts a ‘suitable alternative’ position in lieu of retrenchment, the employees current salary level will be maintained until such time as it is overtaken by the salary level of the position to which they have been redeployed.
(d) Where an employee is offered a ‘suitable alternative’ position, the employee will have a period of up to two (2) months to elect whether to accept the ‘suitable alternative’ position or be paid redundancy benefits. Should either the employee or Allianz Australia find during that period that the employment is unsuitable, the employee’s service may be terminated without loss of entitlement to retrenchment payments calculated to the date the service actually ends.
(e) Clause (d) above does not affect the ability of either Allianz Australia or the employee to elect prior to the conclusion of the trial period that the alternative position is unsuitable.
(f) Where employment in a ‘suitable alternative’ position is offered but not accepted by an employee, the employee’s rights in respect of retrenchment will be preserved.”
Evidence
[6] Ms Bercel and Ms D’Albora gave sworn evidence for the FSU. Mr L Braddick (Compensation & Benefits Manager), Mr T Southern (New South Wales Compliance Officer and Team Leader of Policy Services) and Ms G Anderson (Team Leader (Recoveries)) gave sworn evidence for Allianz.
Ms D’Albora
[7] Ms D’Albora submitted a witness statement. 2 It was Ms D’Albora’s evidence that she had been employed as a CCO for some twenty years by Allianz and before that, by HIH Insurance. She has approximately 33 years service within the insurance industry.
[8] She was advised on 11 June 2009 of the abolition of her CCO position and that she would be redeployed to the role of RO. “I was not provided with any alternative choices to this redeployment.” She took up the new role on 20 July 2009. She was concerned that she had no prior training or experience in the new role. She put her concerns to Ms G Koomen, an Employee Relations Consultant with Allianz but the response was that Allianz deemed the two positions comparable.
[9] Her role of CCO involved account reconciliation for insurance brokers and agents, the banking and receipting of premium payments, liaison and assistance to the underwriting department and cancellation of policies. The last duty only involved liaison with brokers and agents. Her former role did not require her “… to pursue any payment recovery activities for overdue or disputed payments from many brokers/agents, policyholders, or in relation to any insurance claims.”
[10] She enjoyed her previous role because:
“(i) I had long standing working relationships with all the brokers/agents, the majority for more than 15 years in working for Allianz and HIH. This was of mutual assistance to us, and allowed me to efficiently complete my work responsibilities in a satisfying way.
(ii) Working with the same underwriters on a regular daily basis and knowing how they would operate and complete tasks required, allowed me to feel confident that I could perform and resolve any reconciliation issues with them correctly.
(iii) One of our main responsibilities was to ensure collection of premiums for the due policies from our brokers/agents each month. Provided we achieved this within the month involved, no daily performance targets wee required of me by Allianz.
(iv) Having worked in this role for over 20 years I feel very comfortable and secure with the processes that I have been trained in and that I am experienced with, the people I work with, and the Brokers/agents and underwriter’s that I know. Being able to plan my working day, week and month using my training and experience allowed me to perform my role efficiently with great job satisfaction.”
[11] The main tasks of her new role of RO are to deal with the ‘third party’ section of each motor vehicle insurance claim by contacting the third party by telephone to discuss and confirm details of the claim. “If they have insurance, we need to ascertain if they are going to advise their insurer, in which case we would then contact their insurer. If they don’t have insurance we refer their file on to another Allianz ‘insurance officer’.”
[12] “We are required to type in all details on the computer system of each claim that we deal with. We need to note the response of the third party and what occurred in that conversation. We also need to note our own actions (i.e. ‘we called and left a message on the third party’s answer phone). We are required to complete approximately 50 such claims a day. Once I have dealt with a new recovery claim to this point, it is then transferred to another employee and is no longer my responsibility for following through to completion.”
[13] ROs are also required to answer a ‘phone queue’ of third party return calls and deal with any issues arising from those calls.
[14] She does not enjoy her new role because:
“(i) Dealing with ‘third parties’ (being the general public) I never know what kind of person and response I will receive when I call them. This uncertainty gives me a sense of anxiety. In my short time performing this role I have been abused and spoken to aggressively each day, by about 10% of the people I have to deal with.
(ii) I do not speak English as a first language, so my understanding of some of the technical terms used in motor vehicle damage claims, and my accent, make phone discussion difficult with many of the people I must talk to.
(iii) My current target is 50 claims per day while I am training, and this will be increased to 80 claims per day in future. If I do not complete this target on one day, it will accumulate for the next day. As these targets are often not met it makes me feel I am failing in this role, and adds to my anxiety.
(iv) As the claims I deal with are transferred to another party once I have established the initial contact and basic details, I do not have the sense of task ownership and completion that I experienced in my previous role.
(v) My knowledge and experience in this type of work is limited: Since being placed in this role, I have been in continuous training which I have been told could take up to six months to complete. I feel that my 20 years experience as a Credit Control Officer has had no relevance or comparability to this role nor have I been able to contribute any of my previous knowledge or skills.
(vi) My team leader has advised me that I will be required soon to go out with a claims assessor to visit a panel beater as further training in my role. This is to familiarise me with various types of motor vehicle damage and the type of parts required to repair it. I have never had any wish to pursue this type of work, and I feel Allianz is unreasonable in requiring me to do this towards the end of my working life.
(vii) My health has been adversely affected by my redeployment to the position of Recovery Officer. My doctor declared me unfit for work due to depression from 6 to 18 October 2009 and issued a medical certificate for this period.”
[15] In her supporting oral evidence, Ms D’Albora said that in her previous role she was largely dealing with the same group of brokers over a period of many years. 3 Her discussions with those brokers never gave rise to any argument or dissent about payments.4 In her current role, she receives abuse from those she calls on a daily basis and this causes her significant anxiety.5
[16] During Ms D’Albora’s oral evidence, I stated to Mr Peddie: “I thought it was established that the type of job was the same but the clients are different and the content of the telephone calls is different.” 6 Mr Peddie replied: “Yes, Commissioner, that's so.”7
[17] Ms D’Albora went on to say that employees of other insurance companies with which she now deals are sometimes aggressive as well. 8
[18] In cross-examination, Ms D’Albora agreed that the core competencies of her previous and current positions are the same. 9 She further agreed that she possesses the skills to do the work of RO10 and that other employees have successfully made the transition.11
[19] Ms D’Albora reaffirmed her evidence that her former position did not involve any unpleasantness. 12 She agreed that training was not refused and she received regular assistance as required.13 She had not undergone any training in her role as a CCO.14 She agreed that the training provided is sufficient to allow her to carry out her new role.15
[20] Ms D’Albora agreed that her current salary was the same as that paid to her in her previous role, that she held the same job classification grade and was working in the same location. 16 She was then asked: “I think you previously said in your prior answers that it’s the same core competencies involved in the two different jobs, accepting that they are different jobs, but you said, did you not, in your earlier answer that they had the same core competencies?” and answered: “Yes.”17
[21] However, it was Ms D’Albora’s continued view that the duties she now performs are not the same as her previous role. 18
Ms Bercel
[22] Ms Bercel submitted a witness statement. 19 It was Ms Bercel’s evidence that she had been employed as a CCO for some eighteen years by Allianz and before that, by HIH Insurance. She has approximately 23 years service within the insurance industry.
[23] Ms Bercel states that her health has been adversely affected by her redeployment to the position of RO and she was declared unfit for work due to depression from 30 September to 9 October 2009.
[24] The remainder of Ms Bercel’s witness statement was in almost identical terms to that of Ms D’Albora.
[25] In her supporting oral evidence, Ms Bercel said that she does not enjoy her new role at all. 20 Her former position would only involve speaking to a broker around ten times a week.21 Most of her former work involved sending emails rather than direct telephone contact.22 There was no recovery role.23
[26] Ms Bercel went on to say that she lacked qualifications for her new role. 24 She is fearful of making telephone contact with customers as they are often angry.25 Mr Peddie asked her: “Do you feel that you can do the job of recovery officer in a reasonable and competent way at all, or do you have concerns?” and Ms Bercel replied: “Well, I believe that I can do – I can do any job that you put in front of me, because I am able to you know – but at the same time I don't think that's the point. The point is I just not happy with what I'm doing at the moment because it's not what I been doing all my life.”26 Her health has been affected by the change in role.27
[27] In cross-examination, Ms Bercel agreed that the competencies for the CCO and RO roles are identical. 28 She further agreed that she is competent to perform the RO role.29 She went on to say that the RO role did not involve recovery of money but it still leads to unpleasant conversations when she is required to contact people in relation to obtaining details concerning accidents.30
[28] Ms Bercel went on to say that she received training in the RO role. 31 She agreed that the new position involved the same salary, grading and location as the CCO role.32
Mr Southern
[29] Mr Southern submitted a witness statement. 33 It was Mr Southern’s evidence that he has held his current positions since around July 2009 and has been employed by Alllianz since approximately March 1999.
[30] “The [CCO role] required Ms D’Albora and Ms Bercel to perform duties including but not limited to:
(a) responsibility for the collection of insurance premiums from Allianz’s broker and agent portfolios (primarily in New South Wales) for general insurance;
(b) liaising with brokers verbally and in writing regarding outstanding insurance premiums for particular insurance products;
(c) managing outstanding debts and unallocated cash;
(d) managing an assigned portfolio of accounts, and
(e) ensuring outstanding debts were collected.”
[31] “The key objective of the [CCO role] as set out in the position description was to ‘be responsible for an assigned portfolio of accounts. The job holder will at all times display the highest level of customer service and applies his/her detailed credit control knowledge/skills to ensure an sufficient allocation, collection and follow up of any outstanding premium to allow for a timely payment of commissions.’”
[32] “In performing the [CCO role], the Employees were responsible for:
(a) liaising with various brokers on a daily basis;
(b) having regard to Allianz processes and procedures particularly in relation to the collection and administration of debts;
(c) the preparation of weekly reports;
(d) making and answering telephone calls;
(e) reconciling the premium debt paid by a broker with the Allianz policy;
(f) making recommendations to Allianz in relation to a particular debt; and
(g) meeting monthly targets set by Allianz.”
[33] “In the performance of the [CCO role], the Employees were also required to have a working knowledge of matters such as:
(a) laws relating to debt collection and insurance;
(b) Allianz’s procedures in relation to recovery and administration of premiums and related debtor transactions; and
(c) privacy laws.”
[34] He went on to say that the CCO role required the meeting of Key Performance Indicators.
[35] In relation to the positions of CCO and RO, Mr Southern said:
“(a) [Both roles] share the same core competencies;
(b) both roles involve debt recovery;
(c) the [CCO role] and the [RO role] require an employee to interact with customers both verbally and in writing;
(d) both roles require the Employees to interact with external customers verbally and in writing;
(e) the [CCO role] and the [RO role] both require an understanding of the legal framework relating to debt recovery and insurance.”
[36] In response to Ms D’Albora’s witness statement, Mr Southern said that the tasks involved in the CCO and RO roles “are consistent with the skills and knowledge that Ms D’Albora was required to have in order to perform the [CCO role].” She was required as a CCO to deal with external customers, to have a working knowledge of technical matters relating to credit control procedures and was expected to communicate those procedures to Allianz customers.
[37] In response to Ms Bercel’s witness statement, Mr Southern said that Ms Bercel “was directly responsible (as a CCO) for the recovery of overdue or disputed payments from any brokers/agents in relation to outstanding insurance premiums.” His further response to Ms Bercel’s statement was in line with his response to the statement of Ms D’Albora.
[38] In cross-examination, Mr Southern agreed that the telephone calls made by the two applicants during their time as CCOs did not appear to involve any confrontation or aggression from customers. 34
Mr Braddick
[39] Mr Braddick submitted a witness statement. 35 It was Mr Braddick’s evidence that he has held his current position since around September 2007 and has worked for Allianz since January 2002. He is required to conduct both informal and formal evaluations of roles within Allianz and conducted an informal evaluation of both the CCO and RO roles in June 2009.
[40] “As part of this informal job evaluation process I compared the [RO role] Job Description and the [CCO role] Job Description to try and understand the nature of the roles. In particular, I wanted to understand: (a) the skills and competencies required by both roles; (b) the type of work required to be performed in both the [CCO role] and the [RO role]; and (c) the target areas of both roles.”
[41] “This step allowed me to familiarise myself with both the roles I was evaluating. From my review of the [RO role] Job Description and the [CCO role] Job Description I formed the view that: (a) the[CCO role] and [RO role] had similar competencies at an identical level (For example both roles had nine (9) identical competencies which were all competency level ‘core’); (b) the skills required to perform the [CCO role] and the [RO role] were similar (for example, customer service driven, and both requiring good communication skills); (c) the references to terms such as ‘working knowledge’ within the [RO role] Job Description indicated that a person would need to possess the skills to develop that knowledge rather than having to be an expert; (d) both roles had a debt recovery focus; (e) both the [CCO role] and [RO role] had a focus on debt management; (f) both roles required an employee to interact with customers and to possess good communication skills; (g) both roles required an employee to analyse basic financial information; (h) both roles require the same level of basic financial awareness; (i) both roles required an employee to meet key performance indicators (KPIs) or targets; (j) the job descriptions indicated similar tasks to be performed in different departments; (k) both roles had similar requirements to develop, improve and to work within a team.”
[42] “The [RO role] was within the National Recoveries Unit. Both the [RO role] and the [CCO role] are within the Technical and Operations Division of Allianz. I formed the view that both the [RO role] and the [CCO role] required a core skill set which include: (a) good customer service skills; (b) interaction with clients of Allianz regarding debt; (c) meeting set KPIs or targets; (d) a working knowledge of debt management; and (e) financial awareness at an administrative level. At the completion of this analysis I was of the view that the [RO role] was a comparable position for the purposes of the Agreement.”
[43] In August 2009 he conducted a formal job evaluation of the CCO and RO roles. From the evaluation he formed the view that both roles were comparable positions.
[44] Mr Braddick was not cross-examined.
Ms Anderson
[45] Ms Anderson submitted a witness statement. 36 It was Ms Anderson’s evidence that she has held her current position since March 2008. She manages approximately twelve employees as Team Leader (Recoveries) and both Ms D’Albora and Ms Bercel report directly to her. Ms D’Albora and Ms Bercel were two of three employees redeployed into the RO role on 20 July 2009. The National Recoveries Unit comprises three subdivisions: (a) the Initial Contact Team; (b) the Insured Team; and (c) the Uninsured Team.
[46] Both applicants currently work in the Initial Contact Team.
[47] “Allianz’s Claims department is the initial contact point that an Allianz customer will have when making an insurance claim against their insurance policy. For example, a customer will call Allianz’s Claims department to arrange for their car to be repaired following a motor vehicle accident. In general terms the role of the Claims department is to: (a) take the initial call from Allianz’s insured customer; (b) note the nature of the claim; (c) take down the customer’s details; (d) obtain the contact details of any third party; (e) upload that information into Allianz’s computer system; (f) determine whether the claim needs to be referred to the Unit; and (g) if required, set up a recovery file for referral to the Unit.”
[48] In response to the witness statement of Ms Bercel, Ms Anderson said that: “… the skills and knowledge that Ms Bercel was required to have in the [CCO] role are consistent with the skills and knowledge she is expected to have in the [RO role].” Her evidence went on to provide details of training provided to Ms Bercel during the period 2001 to 2009.
[49] In response to the witness statement of Ms D’Albora, Ms Anderson said that Ms D’Albora had not been in receipt of ‘continuous training’ but “received appropriate training as required from time to time”.
[50] In cross-examination, Ms Anderson said that only a minority of telephone calls would involve ‘confrontational behaviour’ by those being contacted. 37 She went on to say that eighty per cent of the Initial Contact Team’s work was done by letter.
Submissions
FSU
[51] In written submissions, Mr Peddie said that both Ms D’Albora and Ms Bercel were redeployed to the RO role without “consultation with them about other roles which may have been of interest to them.” He went on, in summary, to say:
- The qualifications and experience for the CCO and RO roles are quite different.
- Neither person wished to undertake such work as attending panel beaters to familiarise them with various types of motor vehicle damage and parts required to repair such damage.
- The nature of the duties and telephone contacts are now significantly different to those performed in the CCO role.
- The health of both persons has suffered following the change of roles.
- Neither person had any prior training or qualifications for the position of RO.
- Both persons were now subjected regularly to aggressive or abusive clients.
- “FSU submits that there are relevant case law precedents which have determined that two roles will not be considered ‘comparable’ simply because they are at the same salary level. In general, these precedents indicate that the duties and responsibilities of the new role must be of similar importance and status, have similar promotional opportunities, have similar opportunities in relation to increasing experience and/or knowledge of an area of expertise, and have the same terms and conditions as the former position.”
- Neither person ever sought the new role and neither person wishes to increase their knowledge, experience or expertise in debt recovery.
- The redeployment is not to a ‘comparable position’ but rather is to a ‘suitable alternative position’.
- Both persons should now be entitled to take redundancy.
[52] In relation to the additional question to be determined, submitted by Allianz, Mr Peddie said that there is no definition of ‘internal personnel related matter’ within the Agreement and the current application concerns the application of the Agreement.
Allianz
[53] In written submissions, Mr Mellos said that the formal and informal internal job evaluations had established that the CCO and RO positions are comparable. This is in accordance with the terms of the Agreement. He further submitted that: “(a) duties and functions that are to be carried out by employees performing the [CCO position] and the [RO position] …; (b) key objectives of the [CCO position] and the [RO position] …; (c) division of the National Recoveries Unit …; (d) responsibilities of employees performing the [RO position] …; (e) fact that both the [CCO position] and the [RO position] both involve the same daily tasks to be performed.”
[54] In cross-examination, Ms D’Albora had agreed that the core competencies of the two positions are exactly the same and that she has the skills to perform the RO role. In cross-examination, Ms Bercel had agreed that she was capable of carrying out of the RO role but was unhappy in doing so.
[55] Mr Mellos further submitted that the evidence from Allianz’s witnesses was largely uncontested during the hearing. Mr Braddick was not cross-examinated concerning the two job evaluations he conducted nor the conclusions he drew from those evaluations. Mr Southern was not cross-examinated concerning the duties that employees were required to perform in the CCO role. Ms Anderson was only subjected to limited cross-examination and the core of her evidence was not challenged.
[56] In summarising Allianz’s position, Mr Mellos said that:
- The RO role is a ‘comparable position’ within the meaning of the Agreement.
- The RO position is of equal or greater work value compared to the CCO role.
- “The [RO role] requires the Employees to perform tasks consistent with the skills, ability and knowledge they required in the performance of the [CCO role].
- Allianz conducted both informal and formal job evaluations.
- The RO role does not unreasonably change the employees’ duties.
- Appropriate training opportunities have been offered.
- The two roles are both within the Technical and Operations Division of Allianz’s business.
Conclusions and Findings
[57] In its further question for determination [see para 5 supra], Allianz raises what in effect is a jurisdictional point. Briefly, it is my view and I find that the three agreed questions put to the Tribunal for determination are questions which can be determined by me. This case is clearly about the application of the Agreement and the Agreement allows the Tribunal to determine such matters. The curious argument by Allianz that the redeployment of Ms D’Albora and Ms Bercel is an ‘internal personnel related matter’ is not valid. There is no provision in the Agreement referring to an ‘internal personnel related matter’ and the case before me clearly is about the application of the Agreement. Therefore the additional question posed by Allianz is resolved in the negative and, as far as it operates as a jurisdictional issue, is dismissed.
[58] Both Ms D’Albora and Ms Bercel worked in the CCO role for extended periods: 20 years and 18 years respectively. They were comfortable in that role and enjoyed the work. Both women anticipated performing such work until their retirements. In July 2009 the abolition of the CCO role in Sydney led to their redeployment by Allianz to the RO role. The new role is not to the liking of either Ms D’Albora or Ms Bercel and has caused them significant anguish. They both believe that the new role cannot be considered to be comparable to their old jobs, and the FSU submits that this triggers the redundancy provisions of the Agreement. Due to their respective lengths of service, both women would be entitled to significant redundancy payments if the RO role is found not to be comparable to the CCO role. Neither woman wishes to expand her career horizon or the range of duties she performs, but concede that they are both quite capable of performing the RO role.
[59] There was little or no dispute between the parties during the hearing that the core competencies of the CCO and RO roles are basically the same. At the heart of both Ms D’Albora and Ms Bercel’s evidence is a deep unhappiness that their daily work has been changed. Both women appeared to believe that the only comparable position to that of CCO is one with essentially the same duties. Unfortunately, such a role is not available within Allianz in Sydney. The FSU’s argument is that the two employees should be made redundant.
[60] The terms of the Agreement the FSU has negotiated with Allianz mandate that Allianz must make all reasonable efforts to redeploy an employee whose position has become redundant to a comparable position elsewhere within the Company. Where such a comparable position is not available then Allianz may offer the option of a suitable alternative position. Where employment in a suitable alternative position is offered but not accepted by the employee, then the employee can claim redundancy benefits. The offer of suitable alternative employment “is in lieu of retrenchment with the objective of continuing employment.”
[61] The following is clear to me from the evidence and submissions:
- The core competencies of the CCO and RO roles are effectively identical.
- Both Ms D’Albora and Ms Bercel are currently carrying out the RO role to the satisfaction of Allianz.
- Suitable training is available.
- The pay scales for the two roles are the same.
- The grading of the two roles is identical.
- The physical location of the two roles is the same.
- The two employees remain within the same division of Allianz.
- The new role involves some change in the type of work undertaken.
- Both women were comfortable in their old roles and are most uncomfortable in their new roles.
- The RO role involves some occasional unpleasantness from those persons the two women must contact by telephone.
- The change from CCO to RO has caused significant anguish to both women.
- Allianz is required under the Agreement to take all reasonable steps to avoid retrenchment of employees.
[62] The simple fact in this case is that both Ms D’Albora and Ms Bercel have been taken out of their long term comfort zone and are now doing work which they don’t like. They would prefer to leave Allianz with redundancy benefits. I am unable to accommodate that wish. In the light of the evidence and submissions in this case, it is my finding that the RO position is a ‘comparable position’ to that of CCO and that Allianz has accordingly acted within the terms of the Agreement in redeploying both Ms D’Albora and Ms Bercel. Therefore, in terms of the agreed questions to be determined [see para 4 supra], this finding satisfies Question 1. Having made this finding, there is no need to proceed to determine Questions 2 and 3.
COMMISSIONER
Appearances:
D Peddie for the Finance Sector Union of Australia.
S Mellos, with M Hurley-Smith for Allianz Australia Insurance Limited.
Hearing details:
2009.
Sydney:
November 12.
Final written submissions:
26 November 2009.
1 AG847209.
2 Exhibit FSU 2.
3 Transcript PNs747-749.
4 Transcript PN751.
5 Transcript PNs758-759.
6 Transcript PN774.
7 Transcript PN775.
8 Transcript PN788.
9 Transcript PN837.
10 Transcript PN843.
11 Transcript PN866.
12 Transcript PN883.
13 Transcript PNs901-902.
14 Transcript PNs906-907.
15 Transcript PN911.
16 Transcript PNs953-956.
17 Transcript PN962.
18 Transcript PN963-965.
19 Exhibit FSU 1.
20 Transcript PN213.
21 Transcript PNs238-240.
22 Transcript PNs242-243.
23 Transcript PN247.
24 Transcript PN256 and following.
25 Transcript PNs269-270.
26 Transcript PN303.
27 Transcript PN306.
28 Transcript PNs538-539.
29 Transcript PN532.
30 Transcript PN577 and following.
31 Transcript PN618 and following.
32 Transcript PN648.
33 Exhibit Allianz 3.
34 Transcript PN1054.
35 Exhibit Allianz 2.
36 Exhibit Allianz 4.
37 Transcript PN1076.
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