T3179
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Federated Miscellaneous Workers Union of Australia HOBART CITY CRECHE
Determination of Threshold matter pursuant to s.21(2)(c)(ii)(iv) REASONS FOR STATEMENT In determining the threshold matter raised by Mr Abey I have taken into account that for all of the period of their employment the employees in question were subject to the Local Government (Community Services) Tasmania Award. Their industrial representation was, for one or two employees at least, by the Union. Certainly I am satisfied tat the history of involvement of the MEU and MOA in endeavouring to assist the Hobart City Creche brought with it an acceptance by those organisations that some job losses would occur. Arguably the realisation by the MEU and MOA that some employee rationalisation would have to take place to address a significant budgetary deficit of the Creche may have contributed to some employees forming the view that the MEU and MOA did not pursue as vigorously as it possibly could have the individual interests of employees. That view which was apparently formed by the employees who were made redundant is to some extent understandable. However it does not militate against the submissions of Mr Abey that extensive discussions were held between the HCC, MEU and MOA from at least in September 1990 through to the time of the redundancies on 7 June 1991 when, as I accept, avenues were explored to improve the viability of the Creche so as to keep it operating. There is no doubt in my mind that Creche employees would have been well aware that unless there was a dramatic improvement in the finances of the Creche redundancies would be inevitable. Indeed in April this year employees were informed that closure would have to be considered unless the problems faced by the Creche were able to be resolved. Against that background and following the involvement of employees in several meetings redundancies were effected on 7 June 1991. At the request of employees the MEU and MOA were present at the time when the redundancies were made. Also separate discussions were held with employees by a representative for the MEU and MOA. It is disputed between the parties in these proceedings whether an offer of individual representation was made by the MEU to any of the employees made redundant. There are some other aspects which I wish to refer to. I accept that the redundant employees approached the FMWU on the same day they were made redundant. The FMWU took the matter up with the HCC soon afterwards and met with the Council on 13 June. It appears that discussions with the Council officers did not reveal to the FMWU the whole extent of officer involvement in the redundancies. If this was the case it was indeed unfortunate that the FMWU was misled in that way. However that may be the real concern for the Commission is that there is a question mark on whether the jobs occupied by employees were really redundant; were employees fairly selected, and were there other options and were they fully explored. On balance I am satisfied that everything possible was done to avoid the redundancies. The period of discussions/negotiations involving the MEU and MOA with the HCC supports that conclusion. The selection of employees for redundancy is never an easy task and in this case I am satisfied that the redundancies were genuine and that the replacement positions were filled by casual junior employees producing a net saving of $37,000 for the Creche. The final test that I have applied myself to in determining this threshold matter is whether or not the employees had an opportunity to be represented by the employee organisations who had been most closely involved in negotiations with the HCC both in respect to the ongoing viability of the Creche and the redundancies which were ultimately effected. I have answered that question in the affirmative. Having regard to the contested submission on that point, and even if I was to accept the view that an offer of representation by the MEU or MOA was not made to the employees they could nevertheless have sought that representation from those organisations in the same way that they apparently did with the FMWU. I am not satisfied that when is occurring here; that is the redundant employees are not simply "shopping around" as it were to get the best possible deal. As I see it the employees in question were represented by the employee organisations involved with the Creche and who had that involvement all the way through to the time the redundancies were implemented. I therefore conclude from that that their industrial interests were not unrepresented or that they were somehow abandoned by those organisations but rather that economic reality determined that it was the positions occupied by them that had to be made redundant. For these reasons I uphold the preliminary matter raised by Mr Abey and accordingly I do not intend to proceed with this matter.
R.K. Gozzi |