T5419
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union
Appeal against order handed down by Commissioner Gozzi on 3.3.95 in Matters T4613 of 1993 and T4654 of 1993 - appeal dismissed REASONS FOR DECISION On the 8 February 1995 Commissioner Gozzi handed down a decision arising out of applications T4613 of 1993 and T4654 of 1993. These applications were made pursuant to section 29 of the Act to settle an industrial dispute between the applicants (The AWU-FIME Amalgamated Union, Tasmania Branch and Australian Municipal, Administrative, Clerical and Services Union) and Pasminco Metals - EZ (the respondent) following an announcement by the Company that a large number of employees were to be retrenched. In his decision Commissioner Gozzi found that the Company did not give adequate notice to its employees that retrenchments were to take place. On the 3 March 1995 he issued an order pursuant to section 31 of the Act which, in effect, required the Company to give employees 6 weeks notice that retrenchments were going to take place or payment in lieu thereof had to be made. The notice, for the purpose of the Order, was to commence on the 4 October 1993, being the date on which the Company ended speculation that retrenchments were to take place through issuing Info-Share Bulletin, Issue No. 25. On the 22 March 1995 The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union lodged an application under section 70(1)(b) of the Act against the Order arising out of application T4613 of 1993 and T4654 of 1993. There were four grounds of appeal, however, before they were addressed Mr Adams, for the appellant, directed our attention to decisions1 of other jurisdictions which dealt with the role of the appellate tribunals when dealing with matters under appeal. With these decisions the appellant, the respondent and this Appeal Bench are not in disagreement. FINDING: Ground 1: "The Commissioner erred in law in finding that valid notice of termination of employment was given to relevant employees by way of a notice circulated by Pasminco Metals - EZ on 4 October, 1993." On this ground of appeal, the appellant sought to convince us that Commissioner Gozzi fell into error by making a finding that a valid notice of termination of employment was given to certain employees of the respondent by general circular on 4 October 1993 and as such he had erred in law. It was contended that, for a termination of the contract of employment to be valid, the respondent was required to notify the person to whom the notice of termination was directed and he relied on a number of references2. There was no disagreement between the parties to this appeal and the Bench insofar as the law is concerned and how one conveys notice of termination of individual contracts, however, after examining all the evidence we believe the appellant has arrived at the erroneous conclusion that the Commissioner made a finding that valid notice of termination was given to employees on 4 October 1993. Clearly nowhere can it be found in the original decision or the Order where the Commissioner made such a finding. It seems very clear from his decision that he understood that 4 October was the date on which the Company notified all employees, via Info Share Bulletin No. 25 (general notice), that retrenchments were going to take place and that 18 October was the date on which those employees who were to be retrenched received their notice of termination. As is evident in the original decision, the Commissioner commended the Company for its extensive and ongoing support provided to those who were retrenched, however, he was critical of the fact that the Company did not strictly adhere to the terms of the 1993 PMEZ Retrenchment Package in that the Company had an obligation to discuss the retrenchments with the Union during the course of the operational review. The Commissioner was of the view that: "A reasonable period of notice to employees that retrenchments were going to take place would have been at least 6 weeks, given the extensive period over which the operational review was carried out". (Underlining ours) The forward notice, for the purpose of the Order, was to commence on 4 October 1993, being the date on which the Company ended speculation that retrenchments were to take place through issuing the general notice. At no stage did Commissioner Gozzi rely on 4 October 1993 general notice, issued by the Company, as constituting any more than the Company's announcement to employees generally that redundancies were to take place. For these reasons this ground of appeal is dismissed. Ground 2: "The Commission [sic] relevantly misdirected himself and fell into error in finding that the six weeks period of notice of termination of the relevant employees' employment commenced on 4 October 1993." The appellant submitted that the 6 weeks notice period found by the Commission to be applicable, should run from the date when valid notice of termination was given i.e. 18 October 1993, because he misdirected himself as to the validity of general notice circulated to employees on 4 October 1993. Given our decision on Ground 1 of this appeal this ground must also be rejected. The notice referred to in the original decision does, in our view, refer to what could be described as "advanced notice" or "a forewarning" of the reduction of employment levels and therefore it was open to the Commissioner to decide that the 6 weeks notice should commence from the 4 October 1993. Ground 3: "In making the findings that he did, the Commissioner denied the Appellant natural justice in so far as the appellant was not given the opportunity to lead evidence and/or put submission's on the question of the date valid notice of termination of employees' employment was given by Pasminco Metals - EZ." This ground is based on the premise that Commissioner Gozzi erred in law by finding that valid notice of termination was given to relevant employees on 4 October 1993. Given our decision rejected ground 1 it must follow that this ground is also rejected because it is based on a false premise. In any case, and as stated earlier, the Commissioner's only material finding in respect to 4 October 1993, was that it was the day on which the respondent, via a general bulletin, ended speculation and communicated to employees that retrenchments would take place. There was certainly evidence before the Commissioner to make that finding and the appellant was not denied an opportunity to address that issue or for that matter, the valid notice of termination given to employees on 18 October 1993. Ground 4: "In relation to the non Award Staff the Commissioner erred in not applying equity to the issue of superannuation payments when considering the differences between the two packages available." There seems to be some doubt in our minds about the validity of this ground of appeal, as it would not be hard to arrive at the conclusion that the appellant and Mr Grubb of the Australian Municipal, Administrative, Clerical and Services Union (the intervener) were expressing a disappointment with the outcome and were seeking a "second opinion". Commissioner Gozzi at page 55 of his decision stated -
"The submissions in respect to non award employees to be paid the same weeks per years of service benefit as that which was paid to award employees is rejected. There is overwhelming material before the Commission which supports the position of EZ that in considering retrenchment benefits superannuation entitlements are able to be offset. There is no doubt that non award employees were not disadvantaged and it simply is not an option for them to receive benefits from what amounts to two separate packages. Also it is noted that the change to non award employee benefits was communicated to non award employees and the then Federated Clerks Union (FCU) as early as October 1991." The appellant argued that the Commissioner didn't apply the provisions of section 20(1)(a) which states - "20 - (1) In the exercise of its jurisdiction under this Act, the Commission - (a) shall act according to equity, good conscience and the merits of the case without regard to technicalities or legal forms; and..." In dealing with this ground of appeal we have carefully examined the submissions presented during the course of the original hearing and this appeal. On all the evidence we are of the view that it was open to the Commissioner to arrive at the conclusion he did. We agree with the submission of Mr Forbes for the respondent, when he said - "So what Commissioner Gozzi did here was to simply exercise his discretion when determining what was a fair thing when it came to redundancy packages between award and non award employees. That was a matter for him." We dismiss this ground of appeal. Having dismissed each of the grounds of appeal for the reasons given, it follows that it is our decision to confirm the decision of Commissioner Gozzi arising out of Applications T4613 of 1993 and T4654 of 1993, dated 8 February 1995 and made the subject of this appeal.
Appearances: Date and place of hearing: 1 Australian Workers Union v Poon Bros (WA) Pty Ltd 1983 House v the King 1936 |