T8243, T8268, T8269, T8270, T8271, T8273
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australian Workers' Union, Tasmania Branch and Hercules Resources Pty Ltd
Industrial dispute - termination of employment - union membership - arbitrated - payment ordered REASONS FOR DECISION These were applications for dispute hearings made under section 29(1) of the Industrial Relations Act 1984 (the Act) by The Australian Workers' Union, Tasmania Branch (the Union). The disputes concerned the termination of the employment of Messrs Barry D'Monte, Corey Flint, Patrick Lowe, Steve Perry, Darren Purton and John Ralston (the six employees) at the Hercules Resources Pty Ltd zinc mine at Williamsford (the Company). The Company had sub-leased the mine from the Pasminco Rosebery Mine and was conducting a "remnant" mining operation Pasminco having abandoned the workings some years previously as uneconomic. The Company operated the mine on the basis of a two year State registered enterprise agreement which had expired in November 1998. Prior to the redundancies there had been about 27 employees employed by the Company at the mine. The six employees were made redundant and in the first instance the Union claimed the Company had failed to properly consult, to make redundancy payments and to pay correct wages. The Union also claimed that the Company had underpaid wages and it questioned the selection criteria used. The matters were heard on two occasions. Mr R Flanagan represented The Australian Workers' Union, Tasmania Branch at both hearings. The Company was represented by Mr W FitzGerald of Australian Mines and Metals Association (Incorporated) at the first hearing and Mr M Fruin at the second hearing. The six employees were all made redundant on 4 February 1999. Initially, the Union lodged an application1 on behalf of all six employees who were made redundant, but after a preliminary hearing on 16 February 1999, lodged six separate applications on behalf of each of the six employees on 22 February 1999. In the six individual applications the Union claimed that the employment terminations were harsh, unjust and unreasonable and contrary to the relevant International Labour Organisation (ILO) Convention: the Union sought the reinstatement of the six employees. At the commencement of the second hearing on 5 March 1999 the Union requested that all the applications (including the one made on 8 February 19992) be joined and heard concurrently. A number of private discussions between the parties and the Commission were held during the course of proceedings with a view to reaching a settlement between the parties, but, they were not successful. The Company submitted that as the six individual applications (for reinstatement) had been made 18 days after the date of employment termination, in accordance with section 29(1B) of the Act, they were out of time and ought to be dismissed for that reason. The Company relied on and canvassed the six well known principles accepted as tests in extension of time applications as set out in the 1984 case, The Hunter Valley Developments Pty Ltd v Cohen3 (the Hunter Valley case). The Union pointed out that on 8 February 1999 it had lodged a dispute notice in respect of the termination of employment of the six employees (albeit in redundancy terms) and, in consideration of the provisions of section 20(1)(a) of the Act, concerning disregard for "technicalities or legal forms", submitted that the Commission should extend the notification period. The Union reminded the Commission that at the first hearing4, 12 days after the employment terminations, it had made it quite clear, on the record, that it was seeking the reinstatement of the six employees. The Union also relied on a case decided by a full bench of the Australian Industrial Relations Commission, Clark v Ringwood Private Hospital5 which in particular upheld "representative error" as a sufficient reason for the granting of an extension of time. The Commission accepted the Union's submissions as to the granting of an extension of time for the six applications based upon the following conclusions arrived at after considering the six principles set out in the Hunter Valley case.
I also accept the Union's reference and submissions concerning representative error and agree that the applicants were not to be blamed for any delay in the lodgement of (technically correct) applications. The Union's request that all the applications be joined for hearing was granted. The Union submitted that the six employees' employment was terminated principally because they were members of the Union, but, also they were given no opportunity to respond to the process of assessment which led to them being chosen by the Company as the employees to be made redundant. On these two points the Union said that the employment terminations were harsh, unjust and unreasonable. The Union requested that if reinstatement was deemed impractical or undesirable then the Commission should make orders by way of a compensation payment for unfair dismissal or by way of an order for a redundancy payment. The Union brought forward as a witness Mr Ian Wakefield, the Branch Organiser responsible for the mining areas in the state. The Company brought forward as a witness Mr Steven Papas, the Hercules Mine Manager. In particular Mr Papas gave evidence as to his assessment process in deciding which employees were to be made redundant: he also explained in detail the situation at the mine for the Company, the method of mining involved, the likely life of the mine and the economic factors bearing on the Company all of which brought about the redundancy decisions. Mr Papas said everyone at the mine knew about the dwindling ore resources and the likely reduction or closure of the operation and he had kept them all informed closely since about September/October 1998: from the start the mine had been expected to be productive only for about two years, he said. The Union, in its submissions, referred to and relied on the ILO Convention and a previous decision of the Commission in the matter Shop, Distributive and Allied Employees Association, Tasmanian Branch v Fosseys Australia Pty Ltd T/A Coles Variety6 which detailed reasons why a further redundancy payment order would be made. The Company outlined the history of the mine and the limited nature of the resource when the Company took over the site: even though more ore had been extracted than originally expected the Company said that the mine's continued operation was extremely doubtful. The Company outlined the background and procedures involved with the redundancy decisions and submitted that everything required had been done: to each redundant employee five weeks annual leave had been paid, not four; untaken sick leave had been paid out; two weeks pay in lieu of notice had been paid as well as full payment for work done. There had been no reflection on the work performance of each redundant employee. The Company said that the selection process had been based on operational requirements only, which was a valid reason for employment termination consistent with the ILO Convention requirements. The Company further said that all its employees at the mine had been engaged for a specific time (the life of the mine) and for the specified task of mining the remaining ore. DECISION On the evidence before the Commission I am unable to accept that the six employees were made redundant solely because they were members of the Union. On the basis of the evidence also I accept that the Company did have a valid reason for terminating the employment of the six employees and the selection process was not unfair even though it could have been openly explained. For these reasons I reject the applications relying on the grounds that the employment terminations were harsh, unjust and unreasonable and on that basis contrary to the ILO requirements. However, I am satisfied that, in the terms of the ILO Convention, the six employees are entitled to a severance payment. Because of the nature of the Company's operations the Commission has some sympathy for its position, but, there was no evidence of any set term of employment and obviously other employees have remained with the Company: the Commission is satisfied that a genuine redundancy situation existed. In all the circumstances, therefore, I do not propose to reinstate the six employees or order alternatively a payment in compensation as I am satisfied that the Company had a valid reason to reduce the number of its work force. I will order that a severance payment be made to each employee concerned calculated on the basis of two weeks pay for each year of service or part thereof at the average weekly wage he was receiving when his employment was terminated. ORDER In accordance with the power vested in me under section 31(1) of the Industrial Relations Act 1984 in settlement of this dispute I hereby order that Hercules Resources Pty Ltd (ACN 009 579 560) pay to: Barry D'MONTE an amount of $3658.10 Corey, FLINT an amount of $4544.43 Patrick LOWE an amount of $1783.29 Steve PERRY an amount of $1899.42 Darren PURTON an amount of $2068.48 John RALSTON an amount of $2164.10
P A Imlach Appearances: Date and place of hearing: 1 Tasmanian Industrial Commission T8243 of 1999 |