T5625, T5626, T5627, T5628, T5629 etc
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Simon Evan Mackenzie Allen and Retirement Benefits Fund Investment Trust
Industrial dispute - terms and conditions of redundancy REASONS FOR DECISION These applications for dispute hearings, were made under Section 29 of the Industrial Relations Act 1984, by ten persons who were, at the time of lodging the applications (28 June 1995), employees of the Retirement Benefits Fund Investment Trust (the Trust). They were Simon Evan Mackenzie Allen, Ian John Allingham, Kevin Shane Glass, Terence Leigh Hancock, Geoffrey Ronald Jones, Bruce Alan Ludeke, Geoffrey Parsons, Louella Maree Scott, Michael Clarence Scott and Kathryn Frances Wiggins (the applicants). In January 1995, the State Treasurer, the Hon Tony Rundle, MHA, announced that the Trust would be wound-up. The applicants were in dispute with the Trust over their redundancy agreements with the Trust which were all in the same terms. For the purposes of hearing, the applications were joined. It should be noted that the hearing of these applications took place in two sessions, one before the redundancy date and one after. At the second hearing (the Trust having for all intents and purposes in these matters ceased to exist in the meantime) the Retirement Benefits Fund Board (the Board), as if it were the Trust, took up the responsibilities of the Trust in these applications as provided for in Section 5 of the Retirement Benefits Amendment (RBFIT Dissolution) Act 1995:
Originally the applicants sought orders from the Commission in relation to two matters in particular:
Very late in the series of events leading up to the redundancies, which all took place on 30 June 1995, the Trust presented the applicants with a copy of the State Government's "Employment Rationalisation Program Future Employment with the State Government" Policy and requested them to endorse it with their signatures. No matter what the significance of the Trust's request, I am satisfied that the applicants (reasonably) took it to be a further term of their redundancy agreements that they accept the Policy, and they disputed such a proposal. The Trust claimed that it was merely bringing the Policy to the applicants' notice. After private discussions between the parties, the Trust formally withdrew its request that the Policy be acknowledged by signature endorsement and that part of the applications was settled. As to the question of whether or not the applicants had been made redundant involuntarily, the parties initially sought time to continue negotiations but, eventually the hearing resumed because no settlement could be reached. At the commencement of the second hearing the following statement by the Board (the Trust having ceased to exist on 30 June 1995) was read out: "The Retirement Benefits Fund Board's position is: in regard to matters T Nos 5625 - 5634 of 1995 that: One There should be no room for dispute with regard to - a) the terms of employment by the Trust of the several applicants; b) the terms of employment offered to seven of them by the Board; and c) the fact that Messrs Hancock, Parsons and Glass were not offered employment by the Board. So the Board sees there is no dispute with regards to those three matters, particularly with regards to that last one. Secondly Whether or not by declining the offers of employment and electing instead to avail themselves of the redundancy provisions in their contracts with the Trust, seven of the applicants thereby accepted voluntary redundancy or were made redundant voluntarily is a question of law, and in the opinion of the Board on that question (which by statute has now assumed the rights and obligations of the Trust) is irrelevant. Thirdly The Board has no interest in the outcome of the current proceedings because each of the applicants has been paid his or her full redundancy entitlement under the employment contracts with the Trust and because it is not a potential employer of any of the applicants the Board will at no time have to consider whether or not the Crown's stated policy in relation to the repayment upon re-employment by the Crown of redundancy payments should be applied in respect of any of the applicants. Fourthly The question of whether or not the policy should apply will only fall for determination if at some future time one of the applicants is offered employment in the service of the Crown, and it will then, the Board presumes, be a matter for consideration and determination by the Commissioner for Public Employment. Finally Since the Commissioner for Public Employment would not then be bound by any determination made now by the Tasmanian Industrial Commission in proceedings to which he was not a party, it would seem to the Board to be curious that the Commission would purport to make any ruling on the issue, as such a ruling at best be in the nature of an "advisory opinion" which of course the Commission has no jurisdiction to give." The Board then withdrew from the hearing which proceeded ex parte. The applicants, through their legal representative, Mr Peter Evans, submitted that:
In the light of the foregoing circumstances the Commission was requested to order that the termination of the applicants' employment with the Trust was imposed by the Trust and was not a voluntary termination on their part. Decision It is unfortunate and regrettable that the Board representing the employer in these matters, for whatever reason, chose to depart the scene. There is no doubt that the applicants were in genuine dispute with their employer over their redundancy and were entitled to the recourse of law given them under the Act. A question of whether a redundancy is voluntary or not is clearly a matter of industrial law within the responsibility and jurisdiction of the Commission. I hardly consider the opinion of the Board (the employer) on the subject of these redundancies "irrelevant", as claimed by the Board. It is also important to note in all this context that the applicants were at all times employees of the Trust under the then Section 20 of the Retirement Benefits Act 1993, and they were not employees under the State Service Act 1984. For the purposes of the Industrial Relations Act 1984, the applicants were private employees not State employees. I am satisfied that the applicants were made redundant by their then employer, the Trust. On the evidence put before me and on the basis of Mr Evans' submissions I am also satisfied that the applicants were not offered suitable alternative employment which they could have accepted in lieu of redundancy. It may be that such a suitable alternative was offered to some or all of the applicants (the Board asserted that there was) but I was unable to ascertain information relevant to that because the Board (representing the Trust) deliberately withdrew from proceedings and thus denied me that opportunity. In this last consideration I note and accept the submissions of Mr Evans: "... And if the other party to it chooses when evidence has been put before you - and you're aware - I mean this evidence was here - not to come along and dispute it and not to put any evidence before you to the contrary of it, it's not then incumbent upon you to launch some independent inquiry. You're properly entitled to deal with the evidence that's been put before you and in the absence of anything to the contrary to make that decision. And I'd submit that that's the situation you're in, in this particular case." On the evidence before me I find that the applicants were made redundant involuntarily by the Trust and I so order.
P A Imlach Appearances: Date and place of hearing: |