T2994, T2995 and T2996
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Federated Engine Drivers' and Firemen's Association of Australasia, Transport Workers' Union of Australia, The Australian Workers' Union, and Pasminco Mining-Rosebery
Industrial dispute - retrenchments and unfair dismissals REASONS FOR DECISION These applications by the Tasmanian Branches of The Australian Workers' Union, the Transport Workers' Union of Australia, and the Federated Engine Drivers' and Firemen's Association of Australasia, concerned the retrenchment of 101 employees by Pasminco Mining-Rosebery. The TWU and FEDFA applications were couched in the following terms:
When the applications came before the Commission for hearing The Amalgamated Metal Workers' Union and the Electrical Trades Union of Australia, Tasmanian Branch, sought and were granted leave to intervene in the proceedings. As all of the applications were similar in nature I decided to join them for procedural convenience. Mr Best, appearing for the FEDFA, encapsulated the reason why the union parties to these proceedings sought the intervention of the Commission. He said:
Transcript p.2 It is a matter of record that the Commission supported the thrust of the submissions made by representatives for the applicant organisations and interveners. That was that Pasminco Mining-Rosebery (Pasminco) failed in its obligation to consult with State union officials and site delegates prior to announcing and immediately effecting 101 retrenchments; the bulk of which impacted on members of the applicant unions. It is acknowledged by the Commission that regular site meetings took place between Pasminco management and union site delegates in the preceding 3 month period before the retrenchments. At those meetings the economic situation of the company was discussed. Mr Skinner said:
Whether the retrenchments were a surprise or not to employees generally and to those who were retrenched in particular, is not the issue here. The issue is the failure of Pasminco to enter into any kind of discussion at all on who was to go. The unions claimed that prior consultation may have ameliorated the impact of the job losses especially if a voluntary retrenchment programme had been implemented. In acting in a totally unilateral fashion Pasminco did not provide any opportunity for achieving the target reduction in workforce numbers by agreement. In that context, most would acknowledge that voluntary retrenchments obviate the trauma associated with forced labour reductions. I recognise that a voluntary programme may be subject to a range of other factors such as available labour force skills, work records and the like. But at least the opportunity should have been taken for all of those matters to be discussed between the parties in the first instance. Payment in lieu of notice, as was made in this case, does not satisfy that basic requirement, in my opinion. It seems to me that Pasminco instead of paying for that time, would have been better served to utilise some of that time to ascertain jointly with the unions which employees would be best placed to go having regard not only to the requirements of Pasminco but also for those of the individuals concerned. It has to be remembered that the Rosebery mine of Pasminco is on the West Coast of Tasmania and the impact of the retrenchments on a small isolated community is far reaching, particularly when employment opportunities in the general locality and indeed in the rest of the State reflect the present difficult economic environment. I understand that when retrenchments have to be made that the ongoing operating efficiency of the business is a key factor; and properly so. However, I do not think it is an unreasonable proposition for a balance to be achieved between ongoing operating efficiency and the needs of specific individuals. That may mean that in the very short term less than optimum efficiencies may have to be accepted whilst retraining is undertaken. That appears to me to be a much more viable approach compared to the prospect of long term unemployment which certainly is not in the public interest. I consider also that if employers are serious about team building and as a consequence increasing productivity, then an important prerequisite is to develop a management style that facilitates those kind of outcomes. Fundamental to that is the communication process and the meaningful involvement of all of those who play a part in the industrial life of the enterprise. This type of involvement was not able to be demonstrated in these proceedings. In this matter many off record discussions took place between the parties and the Commission. In the event a very small number of employees were offered ongoing employment by Pasminco but not necessarily in the classifications that they had worked in previously. In addition Mr Best sought arbitration in respect of the reinstatement of three employees. Mr Best disputed information provided by Pasminco going to the amount of residue transport and heavy vehicle work available. Whilst I understand the concern of Mr Best that the information provided to the Commission on future transport and driving and operating heavy equipment requirements was reflective of only one week's work, I accept the sworn evidence that these duties will remain at a significantly low level. In that context I also accept that circumstances could arise from time to time where work associated with the transportation of ore, mullock and spillage may exceed full-time hours of one or more employee. In order to monitor the peaks and troughs of those particular work flows I confirm the requirement of the Commission for Pasminco to maintain appropriate records to show the extent of work undertaken in the relevant areas. Those records are to be made available to the FEDFA and TWU on request and in any event on a monthly basis, commencing one month from the date of this decision. This process should enable a quantitative assessment to be made on whether or not a full-time job or jobs exist. Also it should provide useful information to what extent, if any, contractors are used to perform the work in question. In the event that the further intervention of the Commission becomes necessary in this matter, fresh applications should be filed.
R.K. Gozzi Appearances: Date and Place of Hearing: |