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T4639 T4750 T4751 T4752 T4753 T4754 T4755 T4756 T4757 T4758 T4759 T4760 T4761 T4762 T4763 - 23 December

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

The AWU-FIME Amalgamated Union,
Tasmania Branch

(T.4639 of 1993)
(T.4750 of 1993)
(T.4751 of 1993)
(T.4752 of 1993)
(T.4753 of 1993)
(T.4754 of 1993)
(T.4755 of 1993)
(T.4756 of 1993)
(T.4757 of 1993)
(T.4758 of 1993)
(T.4759 of 1993)
(T.4760 of 1993)
(T.4761 of 1993)
(T.4762 of 1993)
(T.4763 of 1993)

and

Pasminco Metals-EZ

 

COMMISSIONER R.K. GOZZI

HOBART, 23 December 1993

Industrial dispute - unfair dismissals

STATEMENT AND RECOMMENDATION

Application was made on 18 October 1993 by the then Federation of Industrial, Manufacturing and Engineering Employees, Tasmania Branch, (FIMEE) seeking the Commission's assistance with regard to the alleged unfair dismissal of employees who were at that time members of FIMEE employed by Pasminco Metals-EZ (PMEZ). The application did not specify the names of employees who were said by the union, now called The AWU-FIME Amalgamated Union, Tasmania Branch (the Union) to have been unfairly dismissed. However on 14 December 1993, fourteen separate applications, T.4750 to T.4763 of 1993 inclusive, were filed with the Commission, each seeking the Commission's assistance in the following terms:

    "The dispute is with Pasminco Metals-EZ Risdon operating under the Electrolytic Zinc Award with regard to the harsh and unfair dismissal of an employee."

Each of the fourteen applications were identically framed however each one specified the employee who, in the opinion of the Union, had been unfairly dismissed.

Application T.4639 of 1993 and applications T.4750 to T.4763 of 1993 inclusive were listed for hearing on 15 December 1993. At the commencement of proceedings the Commission indicated that it would proceed to first determine as a threshold matter whether or not the appointment of temporary employees to full-time permanent positions constituted grounds for finding that the permanent employees subject to the foregoing applications were unfairly and harshly treated. The parties agreed with this procedural approach on the basis that further proceedings in the event of a finding on the threshold matter favourable to the employees concerned, may not be necessary.

Turning now to the threshold matter.

There are several compelling reasons which have persuaded me to conclude that PMEZ did in fact treat unfairly and harshly the employees in these matters. First among those reasons is the Memorandum of Understanding between the Union and PMEZ regarding the temporary employment of personnel in the Casting Division (Exhibit G5). That agreement between the Union and PMEZ clearly envisaged that the temporary employees would be deemed to be full-time, short-term employees. The initial arrangement between the Union and PMEZ was that the period of this short-term employment would not exceed 30 June 1993. Subsequently as demonstrated by PMEZ Notice dated 25 June 1993, (Exhibit F1) the period of employment for these short-term employees was extended to 6 July 1993. On 7 July 1993, PMEZ (Exhibit F2) again extended the temporary employment by advising the employees concerned in the following manner:

    "Dear

    The operations in the Casting Division have been reviewed and we are pleased to extend your contract.

    This period of employment shall be full time and not exceeding 12 October 1993.

    The terms and conditions of your original contract remain unchanged."

    Exhibit F2

In my opinion, having regard to the announced retrenchments by PMEZ on 4 October 1993, the temporary employment contracts applicable to full-time, short-term employees, should have been terminated by the Company in keeping with the Memorandum of Understanding. There is no doubt in my mind that the Union and PMEZ had in place a firm agreement that employees deemed by them to be full-time, short-term employees (Exhibit G5) would not displace permanent full-time employees.

Accordingly, I consider it entirely appropriate that in making selections for forced retrenchment PMEZ should have first terminated the short-term employment contracts as a step towards reducing their total workforce to the desired level. To the extent that it did not do so, in clear breach of its stated commitment to end those particular employment contracts on 12 October 1993, the permanent employees who were retrenched in their place were unfairly and harshly treated.

As explained to the parties in the proceedings the Full Bench in the Termination Change and Redundancy Case (Print F6230) discussed, inter alia, criteria for selecting redundant employees. The following comments made by the Bench were particularly emphasised by me:

    "Our examination of the cases indicates that a variety of factors are considered by the parties and industrial tribunals in determining which employees are to be terminated in redundancy cases including skill, experience and physical ability of employees to perform the work, union membership, length of service, and age and/or residual working life. There is no doubt in our mind that the establishment of criteria and their application are appropriate questions for discussion between the parties."

and later:

    "In these circumstances, we consider that the criteria to be adopted in relation to which employees should be terminated in particular cases should depend on ..."

    Print F6230 p.36

Having regard to the agreement relating to the full-time, short-term employees and to the fact that their contract of employment was set to finish on 12 October 1993, I am of the very strong view that PMEZ should have acted to conclude those particular employment contracts. The circumstances surrounding the terms of engagement of these short-term employees should have formed part of the criteria relied upon to select employees for forced retrenchments. In the normal course of events, had the retrenchments not occurred when they did, the short-term employees would no longer have been employed; provided of course there was no further extension to their contract. In those circumstances the equivalent number of permanent employees would not have been retrenched. There was no contrary argument advanced by PMEZ save that the employees subject to these applications most likely would have still been retrenched having regard to the selection criteria relied upon.

Whilst that may have been the case, I agree with Mr Fenech for PMEZ that it would now be impractical to determine who, out of the permanent employees retrenched, may have retained their employment had the full-time short-term employees ceased their employment on 12 October 1993. Having regard to these particular circumstances I have reached the decision that it is entirely appropriate for the employees, subject to applications T.4750 to T.4763 of 1993 inclusive, which have been joined with application T.4639 of 1993, to be returned to their employment with PMEZ.

I recognise however the submissions of Mr Fenech that some further enforced retrenchment process may have to be considered by PMEZ in order to maintain its desired employment numbers. As I stated previously that would be by far the worst option for PMEZ to chose. There obviously are a number of alternatives including voluntary retrenchments and natural attrition which if relied upon in this case would obviate the need for forced retrenchments.

In the proceedings the parties addressed the question of whether employees, if the Commission found in favour of the Union's claim, should be reinstated or re-employed. I have concluded that re-employment is to be preferred as I understand from the submissions made that this poses the least financial difficulties for the employees concerned. It should be noted that as the employer in this matter, i.e. PMEZ, created the difficulty for these employees and the Commission having found in their favour on the basis of my determination on the threshold issue, every attempt should be made to minimise as far as is possible any impediments to their return to work. I am looking to PMEZ to assist in this regard.

A final point relates to the conciliation proceedings which resulted in eight employees not seeking re-employment. Accordingly, my recommendation for re-employment extends only to:

    R. Russell - T.4750 of 1993
    G. Gower - T.4752 of 1993
    N. Bourke - T.4753 of 1993
    M. Williams - T.4756 of 1993
    C. Morley - T.4757 of 1993
    A. Gravina - T.4758 of 1993
    D. Hart - T.4759 of 1993
    M. Russell - T.4762 of 1993

The recommended date of re-employment for the foregoing employees is 27 December 1993.

This recommendation is made against the background of extensive discussions with the parties both in formal proceedings and private conferences. The matter of the employment status of the full-time short-term employees was discussed on many occasions in the initial dispute relating to retrenchments. Since that time the Commission has been approached at various times to assist the parties. I consider that all options have been explored in the many discussions that have been held since October this year. This recommendation is regarded by me to achieve a fair and proper settlement of what amounts to a rectification of a mistake which ordinarily would not have occurred had the retrenchment process on 4 October 1993 not overtaken events.

 

R.K. Gozzi
COMMISSIONER

Appearances:
Mr J. Glisson with Mr J. Long with Mr M. Reeves for The AWU-FIME Amalgamated Union, Tasmania Branch.
Mr A. Fenech with Miss E. van Emmerik for Pasminco Metals-EZ.

Date and Place of Hearing:
1993.
Hobart:
October 19, 20, 26
November 8
December 15, 16, 21, 23