T125 - Redundancy Test Case
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
PRELIMINARY This case has been a matter of major significance and comes before the Commission some five months after its inception on 1 January 1985. The Tasmanian Trades and Labor Council (TTLC) being a statutorily registered 'organisation' in its own right, and contemporaneous party to all public and private sector awards of the Commission, was therefore able to bring this application to the Commission in its capacity as a peak organisation. In framing its application the TTLC has selected one award only as a vehicle by which to prosecute what it described as a "claim relating to job protection, termination and change". The award chosen is the Retail Trades Award affecting some 23,500 employees. However, Mr Lennon who pursued the application for the TTLC, indicated at the outset that the claim to be prosecuted before the Commission would be largely directed toward obtaining by way of variation to the Retail Trades Award what he described as "generally speaking the standards that have been granted by the Federal Conciliation and Arbitration Commission ....and should be ....granted by this Commission as a test case ....for State awards generally". He explained that the TTLC was, on behalf of trade unions, "generally ....pursuing this test case to improve the standard of job protection in Tasmania". However support for the application also came from the Shop Distributive and Allied Employees Association as well as the Federated Clerks Union. The main protagonists therefore were the TTLC and the Tasmanian Chamber of Industries (TCI) - itself a statutorily registered organisation and party to all private industry awards of the Commission. The TCI was well buttressed by the Retail Traders Association, the Tasmanian Sawmillers Association, Printing and Allied Trades Employers Federation of Australia, Tasmanian Hairdressers Association, Pharmacy Guild of Australia (Tasmanian Branch), Goliath Portland Cement Company, Tasmanian Electro Metallurgical Company Pty. Ltd., Meat and Allied Trades Federation of Australia (Tasmanian Branch), Tasmanian Licensed Clubs Association, Master Builders Association, Australian Mines and Metals Association (Tasmanian Branch), Tasmanian Farmers and Graziers Association. The Minister for Industrial Relations, as statutory intervener, exercised his discretion to present the official Government view on the application. Other interested persons appeared but made no submissions. The respective cases were well argued and supported for the most part by a great deal of documentary material covering a variety of subject matter ranging from the transcript of a radio talk-back programme to detailed information about international standards, including in particular I.L.O. Convention 158 and Recommendation 166. In addition, the TCI called oral evidence from two witnesses. One witness was a partner in a fairly large firm of public accountants. The other was the Managing Director of a large supermarket. In the latter case the Retail Trades Award has wide application. No oral evidence was called by the TTLC or any other employee organisation. The claim lodged by the Tasmanian Trades and Labor Council conveniently divided itself into three parts and was, according to Mr Lennon, fragmentable. That is, the claim was capable of being granted in whole or in part. The sections of the claim were identified as:- 1. TERMINATION OF EMPLOYMENT This embraced consideration of matters relating to - (a) unfair dismissals; (b) statement of employment on termination; (c) notice of termination; (d) time off during notice to seek other employment. 2. INTRODUCTION OF CHANGE This involved questions of -
3. REDUNDANCY This part of the claim necessitated consideration of such matters as -
During proceedings the Commission was invited to consider many decisions of Federal and State tribunals which bore directly or indirectly on various aspects of the claim as a whole. The material to which we were referred was too diverse and too detailed to easily permit an abridged analysis or chronological review of all that was put before us. Nevertheless each document tendered has been read and its value assessed in reaching the decision we have now taken. All exhibits have been catalogued and are referred to in the Appendix attached. By way of precursor to the detailed consideration which follows, we believe we should indicate now that while it might be convenient and in some cases even desirable to follow decisions of other tribunals - be those other tribunals Federal or State - but specifically those of the Australian Commission, it does not automatically follow that this Commission should feel itself constrained to slavishly do so regardless of the subject matter, flow on effect or local considerations. It is clear that if this were to be the sole function or charter of state tribunals the reason for their existence at all might be considered questionable. It follows therefore that this Commission should be seen to be a rubber stamp of the Australian Commission, or a jurisdictional crutch in circumstances where the Australian Commission has no power to make valid orders affecting employees covered by State Awards. This is not the case at all. This Commission has under its immediate jurisdiction something like 140 State Awards. Moreover, its award-making and dispute-settling powers extend without encumbrance to both the public and private sectors of the Tasmanian workforce not subject to Federal Awards. In round terms more than half the total workforce in this State is covered by awards and agreements of the Tasmanian Industrial Commission. Only about one third of the labour force is subject to Federal Awards; the residue being covered by State-registered agreements, contracts, or awards of the Commission. This pattern, it seems, mirrors to a greater or lesser degree the situation of other States. Thus it can be seen that State tribunals have a significant role to play in the nation's overall system of compulsory arbitration. However, while accepting that it is without doubt an integral part of the national conciliation and arbitration system, this Commission nonetheless believes that it has a fundamental responsibility to the Tasmanian community to closely monitor the local economic and industrial climate and to respond as required to the reasonable needs and expectations of those who employ, and those who are either employed or likely to be employed in this State. This general responsibility therefore requires all members of the Commission to weigh carefully any material relating to or based upon extra territorial considerations before deciding to accept that information as relevant. That same care applies in deciding whether to flow in whole or in part decisions of other tribunals. This task becomes even more onerous if decisions of other tribunals are clearly based upon considerations obviously extraneous to this State. Of course there are certain exceptions to this general rule. By way of illustration it could be said that during the period a system of centralized wage fixation has been in place and maintenance of real wages has been achieved by reference to Consumer Price Index movements from time to time, it has been convenient and indeed entirely appropriate to follow decisions of the Federal Commission in this regard. Those decisions of course mainly rest upon assessments made of the Australian economy as a whole. But in most other respects State tribunals, for their own reasons, appear to interpret their respective roles to be somewhat cerberian in character. They are the important custodians of the public interest of their respective States and in this regard constrained only by the legislative requirements of the Acts under which they are established. Against this preliminary explanation of our perceived function we must now turn to a consideration of the specific aspects of the claim before us. It is convenient therefore to deal with the application in the same order as the claim. Part 1 of the claim was couched in the following terms:- "TERMINATION OF EMPLOYMENT Unfair dismissals 1. Termination of employment by an employer shall not be harsh, unjust or unreasonable.
For the purposes of this clause, termination of employment shall include terminations with or without notice. 2. Without limiting the above, except where a distinction, exclusion or preference is based on the inherent requirements of a particular position, termination on the ground of race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction and social origin shall constitute a harsh, unjust or unreasonable termination of employment. Statement of employment 3. The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee a written statement specifying the period of his/her employment and the classification of or the type of work performed by the employee. Notice of Termination by employer 4. (a) In order to terminate the employment of an employee the employer shall give to the employee the following notice:
(b) In addition to the notice in subclause (a) hereof, employees over 45 years of age at the time of the giving of the notice with not less than two years continuous service, shall be entitled to an additional week's notice. (c) Payment in lieu of the notice prescribed in subclause (a) and/or (b) hereof shall be made if the appropriate notice period is not given. Provided that employment may be specified in part payment in lieu thereof. (d) In calculating any payment in lieu of notice the wages an employee would have received in respect of the ordinary time he/she would have worked during the period of notice had his/her employment not been terminated shall be used. (e) For the purpose of this clause service shall be deemed to be continuous for the employee's date of employment.
Time off work during the period of notice 5. Where an employer has given notice of termination to an employee, an employee shall be allowed up to one day's time off without loss of pay during each week of notice for the purpose of seeking other employment. The time off shall be taken at times that are convenient to the employee after consultation with the employer." Mr Lennon argued that the present situation regarding dismissal of employees is unsatisfactory. Provided the required period of notice if given, an employee, regardless of his period of service, capacity or conduct as an employee, can be terminated without reason or award right of redress. Mr Lennon conceded (and in fact catalogued in Exhibit L.1) that organisations acting on behalf of aggrieved members had always been able to seek relief from the then Industrial Board system established on the authority of the now repealed Industrial Relations Act 1975. However, while no criticism was levelled at the previous tribunal, the fact remains no award presently includes a prohibition against dismissals considered to be harsh, unfair or unreasonable. It was not in issue that this Commission has power to deal with such matters and is jurisdictionally competent to grant suitable relief as required. Moreover it is beyond question that the present Act from which the Commission's authority is derived has been carefully drawn so as to empower the Commission in the appropriate circumstances to make a recommendation or a non-appealable order settling or determining an industrial dispute about, any industrial matter. "Industrial matter" is interpreted in the Act to mean "any matter pertaining to the relations of employers and employees". "Industrial dispute" means a dispute elating to an industrial matter and includes a dispute relating to: "(a) the engagement, dismissal or reinstatement of any particular employee or class of employees; (b) the entering into, execution or termination of any contract for services in circumstances that affect or may affect an employee in, or in relation to his work; or (c) any question regarding the demarcation of functions of employees or classes of employees." Thus, jurisdictional difficulties of the kind that from time to time bedevil the Australian Commission do not arise in areas of Crown and private employment subject to awards or agreements of the Tasmanian Industrial Commission. Indeed we go further and suggest that provided an organisation is registered in accordance with the requirements of the Act, the Commission's capacity to settle local industrial disputes is not necessarily confined to the industries or occupational groups embraced by State awards, orders or agreements. Notwithstanding the Commission's wide powers in dealing with applications for ad hoc decisions to be taken about, inter alia, unfair dismissals, the TTLC none the less pursued its claim for inclusion of a prohibitory provision in the Retail Trades Award, by way of a test case. This, it was argued, would put beyond doubt the fact that employers generally cannot, without the likelihood of review, capriciously dismiss an employee with or without notice. No doubt one of the reasons which motivated the TTLC to seek a general injunction of this kind was the fact that in the private sector most awards are "industry awards" and have what is tantamount to either common rule effect or have application to specific industries. Unlike the public sector, there are no cited employer or union respondents to those awards. SHOULD THIS BE REGARDED AS A TEST CASE? Before deciding Part 1 of the claim, we must first determine the threshold question of whether the decision we need make on the totality of the application, or any part of it, can or should be regarded as a "test case" intended to apply to all awards. In this regard we were provided with a great deal of information which was similar to or identical with that put before the Federal Commission and referred to in the Australian Commission's Decision of 2 August 1984 (Print F6230) and its supplementary decision of 14 December 1984 (Print F7262). As we have already observed, a significant part of that material related to custom and practice in other countries and very little to Australia as a whole. Almost none referred to the State of Tasmania generally and none at all related directly to the Retail Trades Award or any other award of the Commission for that matter. With the possible exception of part of witness Kent's evidence, this finding applies equally to all parts of the claim. When asked to define in unambiguous terms the vexed question of "technological change", Mr Lennon indicated that as different considerations could apply in different industries it would be better if that matter were left until after we had given our decision on the entire claim. None of the employers or the Government agreed that this case should or could be regarded as a test case. Moreover, we note that no application was made to have the mater considered pursuant to Section 35 (e) of the Industrial Relations Act 1984, which states: "Subject to this section .... the power of the Commission to make an award .... modifying or affecting not less than five awards of the Commission which provide for industries or occupations that are similar to the industries or occupations for which an award under the Commonwealth Act makes provision .... is exercisable by a Full Bench and not otherwise." This may have been due to the fact that there were not at that time at least five or more Federal Awards affected by the Metal Industry decision. We were therefore faced with what was tantamount to a re-run of the Metal Industry Case - itself somewhat devoid of "local information" except in a peripheral sense regarding unemployment statistics. The decision of the Australian Commission appeared in its final form to be something of a hybrid arrangement based largely upon New South Wales and partly upon South Australian decisions. In each case judgments by State industrial authorities were taken either as a consequence of, or having regard for, legislation dealing with termination due to retrenchment or redundancy caused by technological change. In South Australia the relevant legislative authority is to be found in the Industrial Conciliation and Arbitration Act 1972 (Section 82). In New South Wales the principal piece of legislation upon or around which many significant decisions have been taken is the Employment Protection Act 1982. However, the Australian Commission's decision, while similar in many respects to a miscellany of New South Wales' decisions by Fisher, P., is none the less more generous in some respects than either South Australia or New South Wales. For example, it makes no distinction between termination due to technological change and dismissals arising out of economic down-turn, restructuring following take over, loss of markets, down-turn in trade, or any other reason. Looked at critically we are left inescapably with the conclusion that detailed information about local industry, local practices, and local trends including likely Tasmanian private sector production, manufacturing and marketing performances for the next twelve months or so, has not been put before us in any meaningful way. Abstract information of the kind presented by the TTLC in mirroring the Federal case - however well presented and documented - is much too imprecise to allow us to make a decision intended to apply generally across all awards. Accordingly we refuse Mr Lennon's request that this application per se be regarded as a test case. We turn now to consider whether we should deal with any part of the application as if it were a test case or whether the matter should be limited to the Retail Trades Award. TERMINATION OF EMPLOYMENT RETAIL TRADES AWARD Nothing was put by way of evidence or submission to persuade us that Retail Trades Award is in need of further variation regarding termination of employment. No complaints were made and no evidence was called to suggest that employers are engaging in unfair practices regarding their employees, or that those activities have gone without challenge or redress. Indeed Mr Lennon tendered a collection of some seventeen decisions taken by members of previous Industrial Boards. Those decisions demonstrate beyond question that relief had been sought and granted where warranted. But those decisions related to a number of Tasmanian industries and covered a five-year time-frame. There was no criticism of employers in the retail trades and there was no criticism of the approach adopted to date. Indeed Mr Lennon observed: "I believe the approach that has been adopted by the Industrial Boards is not something that we were necessarily dissatisfied with and that each case would be dealt with on its merits." Any organisation or private employer now has access to the Commission in relation to industrial disputes. On current experience therefore we see no reason to believe why, except in the case of non members of organisations, dispute notifications about dismissals cannot be dealt with expeditiously, and with the full force of law, within 24 to 48-hours of filing. For that reason we decline to vary the award in the way requested. DISMISSALS GENERALLY Having so decided we now turn to consider whether the question of dismissals generally is a matter upon which we could or should make some general pronouncement for the guidance of those affected by this and other awards. After anxious consideration of the views expressed by all participants in this case, we have decided that we should make the following general observations on the question of dismissals. (1) We are of the opinion that there is reposed in the Commission sufficient authority to expeditiously inquire into and rule upon any application dealing with disputes about dismissals or likely dismissals. (2) Where after investigation it appears to the Commission a dismissal or likely dismissal, with or without notice, is harsh or unjust or unreasonable, the Commission will take the appropriate steps to remedy that situation by way of recommendation or order. (3) The Commission will not take upon itself the role of management. Instead it will, by proper examination of the facts, decide whether a dismissal, for reasons of alleged misconduct or for any other reason was, in the circumstances of that case, harsh or unjust or unreasonable. (4) In each case the onus of proof must rest upon the complainant. What we have said is in truth no more than a declaration of the Commission's statutory responsibility in the settlement of industrial disputes, including disputes about dismissals. To the extent that this function is not being understood and for that reason needs to be made clear, the foregoing observations may be taken as a general statement of intent. SHOULD THIS OR ANY AWARD INCLUDE THE GENERAL STATEMENT OF INTENT? To include in any award or all awards a particular provision prohibiting harsh, unjust or unreasonable dismissals would, we believe, not only be stating the obvious, but may also preclude the Commission from dealing with such disputes when they arise. There is no doubt that were we to include such a provision, any future disputes about dismissals would then be regarded as award breaches. Such issues cannot be dealt with by tribunals not having judicial authority over questions of that kind. To state the position another way: Tribunals have jurisdiction to make judicial decisions over justiciable matters. This Commission has no power to consider award breaches arising out of non compliance with award provisions. However, courts of competent jurisdiction may deal with such questions and if found proven could be expected to impose a pecuniary penalty on the defaulter. Thus an aggrieved ex-employee, on whose behalf an action might be taken before a magistrate, may not by that means secure reinstatement or compensation. While it might be argued that the Commission could not award compensation in dealing with an application relating to an unfair dismissal in circumstances where the Commission itself is unfettered by an award prohibition in this regard, it is beyond doubt that in dealing with such a dispute it could, in the appropriate circumstances, order reinstatement without loss of pay. In that sense "damages" amounting to wages lost could be ordered. STATEMENT OF EMPLOYMENT No employer party to this award opposed the TTLC claim for a statement of employment to be issued on request following termination. We consider the request to be reasonable and capable of being granted in isolation from the remainder of the claim regarding termination generally. However, we note that sub-clause (c) of Clause 14 the Retail Trades Award already refers to the requirement put upon an employer to issue such a certificate on request. We therefore fail to see why an additional award variation is necessary unless the TTLC and the parties require sub-clause 14(c) to be recast in identical terms to the claim, which on face value is no more advantageous to the employee than the provision already in the award. BALANCE OF PART 1 OF APPLICATION The remaining parts of the application relating to termination of employment are dismissed for lack of supporting evidence to justify their inclusion in this or any other award of the Commission. INTRODUCTION OF CHANGE This part of the claim was argued in much the same way as the same matter was pursued before the Australian Commission by the ACTU. Shortly stated it might be said that while by no means exclusively confined to that area, reference to "technological change" mainly implied change directly or indirectly flowing from introduction of computers or computer based systems. No other example of new technology unrelated to computers or similar installations was given, although we do not doubt that innovative developments employing modern production methods or management systems would be possible to identify if the latest advancements in industry were to be filtered out and highlighted. But we are here concerned with one award having application to a significant number of employers and employees engaged in "the industry of selling goods by retail in shops other than those [shops] within the jurisdiction of the Automotive Industries, Bakers, Chemists, Meat Trades and Restaurants Awards". Apart from juniors the award makes provision for the classifications of sales assistant, senior sales assistant, section manager, buyer or orderer, manager of a store or branch, gunsmith, cleaner, corsetier, van salesman, storeman, clerk and various categories of driver. We were told that there are 3,500 retail outlets in Tasmania employing altogether some 23,500 staff. This averages out at just under 7 employees per outlet. Thirty per cent of the workforce is said to comprise of persons aged between 15 and 19 years having their first work experience. About half this number are females - many of whom work part time. Against this factual background we are required to consider the relevance of the international material presented to the Federal Commission and again before us. Nothing was put by the TTLC to suggest that retail traders in this State have in recent times, introduced new technology at the expense of jobs, or that this was likely to happen in the near future. CONSULTATION AND CONFIDENTIALITY Paradoxically however, Mr Lennon, in exercising his right to cross-examine the TCI's witness, Mr Kent, General Manager of the Purity chain of supermarket outlets in Tasmania (and now a subsidiary of Woolworths), adduced information of some concern to us. Mr Kent's disclosure seemed to pin-point a potential problem area in need of some form of immediate redress. Mr Kent explained that prior to being taken over by Woolworths the Purity organisation had introduced a system of computerised stock control, ordering, charging out and deliveries. This occurred some 14 years ago. No staff losses resulted. In fact additional higher level jobs were created as a result of that exercise. However, because competition is keen between supermarket operators, security, of necessity, assumes paramount importance. For this reason prior consultation with employees about change of any kind was not then, and is not now a realistic proposition from the point of view of management. Many rank and file employees have family or other associations with staff of competitors. And while Mr Kent implied no deliberate information leakage or staff sabotage, it seemed inevitable that in the circumstances he described confidential information of all kind would sooner or later fall into the hands of competitors. His response to a question on the subject of prior consultation was: "You are then consulting your opposition. And I have no intention of consulting with my opposition in a competition market place." And later he said: "... In recent times ... everything has leaked from the company to the opposition." Mr Kent then identified a potential problem area not specifically referred to in the Commonwealth case although it may have been discussed during the hearing. On the other hand, the problem might be unique to this State. Mr Kent observed: "As a subsidiary of a Mainland based company, decisions are taken by the parent company in the first instance and passed on to subsidiaries later." For that reason he felt it would be quite unrealistic, perhaps to the point of being impossible, to expect or require consultation about the possible effects of likely technological change prior to a positive decision having been taken either by the parent company or, to the extent it was possible to do so, by the local subsidiary. But even after a decision had been taken the time for consultation and implementation might be limited if the alteration proposed was intended to give the company or outlet concerned a marketing edge over its nearest competitor. We also found Mr Kent's further admission during cross-examination by Mr Lennon that in not taking into account any likely effect on staff following introduction 14 years ago of computerisation, the employer concerned was not at that stage minded to consider staffing consequences in any event. As it happened, jobs were created and not lost. But Mr Kent's frank and enlightening explanation from the point of view of management, and Mr Lennon's dogged determination to secure for workers protection from occurrences of this kind, present us with something of a dilemma, bearing in mind the absence of wide ranging evidence giving direct support to the claim as a whole. Clearly, it would be unwise and inequitable to require prior consultation on likely change if in doing so an employer would then be putting a staff member in the position of becoming a possible security risk to the company by which he was employed. On the other hand it would be difficult to ignore the fact that, while there was no evidence of this happening at present, with more and more mergers occurring in the market place, trading competition must inevitably tend to become more keen. And with labour costs constituting 50 per cent or thereabouts of retail costs, it would be reasonable to assume large traders would be well seized of the need to remain competitive by pruning costs including labour costs. Job losses because of "rationalisation" ought not occur without some protection being available to employees adversely affected by decisions of this kind, or changes to the status of employees' following transmission of businesses as a going concern. Any technology or change likely to increase turnover or reduce direct labour costs might reasonably be expected to present some measure of attraction to management. Introduction of new technology or processes could occur regardless of the effect on stafffing levels or the nature of employment. For example, full time staff might be replaced by part-time or casual employees. Or perhaps they may not be replaced at all. There is also the matter of the impact new technology can have on employees who do not necessarily lose their jobs. To illustrate this point it might be that a large retailer decides to introduce modern procedures into his office. Although costly to install, mechanisation undoubtedly increases production and probably impacts on labour requirements or the class of labour required to operate that equipment. But not all employees who are presently trained and efficient operators of more conventional keyboard equipment, for example, might find it easy to adjust to new computerised hardware. This tends to beg the question of what transpires in this event? If they cannot be found other employment are they then dismissed as unsuitable for the work available? And if they are dismissed or feel compelled to leave of their own accord, are they then to be regarded as the victims of redundancy due to new technology? This Commission cannot decide such questions in splendid isolation and in general terms. Each case needs to be judged on its own merits. Nevertheless we feel it would be wrong for the Commission to turn its back on what we feel is a potential problem. But in relation to the Retail Trades Award it is difficult to identify with any real precision the areas within the 3,500 retail outlets in this State that ought to be included or excluded from any order we might make. We are aware that the Federal and New South Wales Commissions exempted employers of 15 or less staff from award prescriptions relating to termination, change and redundancy, consequent on technological and other forms of change occurring in the work place. And we are mindful of the strong submissions of the TCI and RTA for this Commission to follow suit. Accordingly we will include in the award a suitable prescription qualified by the words "where reasonably practicable". The purpose of this provision will be to enjoin employers to consult with their employees or their organisations after a decision has been taken to introduce new technology or change likely to affect the jobs of employees to the extent that positions would become redundant. It will also apply where other persons have the nature of their duties significantly changed as a direct consequence of the voluntary introduction of new equipment or procedures. The particular provision will apply to all employers and all employees covered by the award other than casuals. We also intend to exclude employers and employees affected by the "general application" requirements to which Statutory Rule No. 295 of 1984 specifically refers. Our intention is to ensure that where reasonably practicable as much notice as possible is given of technological or other change likely to either result in redundancy or otherwise significantly impact on the nature of the work - including the character of that work - of existing employees. It means that an employer will have a moral, if not legal obligation to consult following a decision taken to introduce change that will significantly affect employees. A change, say, from hand written ledgers to machine accounting involving automated and non-automated programmes designed to perform many additional functions would be but one example if it meant that the persons concerned had to acquire new skills in a new work environment or be replaced altogether. We believe it is only fair that an employer should give to those employees who will be affected or are likely to be affected as much forward advice as is, in the circumstances of a particular case, reasonably possible, bearing in mind the nature of his business. However we accept that there could be many problems associated with any hard and fast rule that did not also recognise the potential difficulties of compliance which could be experienced by a Tasmanian subsidiary of a large mainland retailer. We also understand the position of small traders who are already hard pressed to compete against large distributors. But small traders also employ people. And small traders along with large employers are expected to act fairly and reasonably toward their employees, just as they are entitled to expect those whom they employ to give a fair day's work for a fair day's pay. We invite the parties to prepare a draft clause giving effect to this decision and embodying a definition of "technological change" and occurrences of the kind referred to, together with any inclusions which might be agreed. Recourse may be had to a member of the Bench in case of need. In coming to this decision we make it clear we are putting both employers and employees somewhat on trial. In this regard we find ourselves in complete agreement with Mr Lennon's statement that: "We are relying on fair play by both sides in both instances. And I am sure when fair play is not undertaken by both sides the Commission will intervene." And Mr Abey's homiletic postulation that: "... the appropriate remedy is through education rather than through harsh, unjust legislative measures." This prompts us to add some contextual comment of our own: Employers and employees may be assured the Commission will respond positively to any situation which on subsequent examination is shown to have involved a case of unfair, unjustified or unreasonable treatment. However, we believe we should leave definitive clarification of "unfair, unjust or unreasonable treatment" to the educative processes and good sense of the parties. Nevertheless, we would observe that it would be consistent with our perception of reasonableness if an employer was to release an employee for an hour or so to attend a job interview if that employee is being dismissed through no fault of his own. An employer would be acting outside our expectation of fairness if he deliberately, unreasonably or avoidably failed to give notice of, or consult about, change. This would be of particular significance if, in failing to give notice or consult, employees were thereby deprived of sufficient time to prepare for the impact of technological or other change expected to either cause job losses or require significant alteration to existing skills, processes or work environment. Where it can be demonstrated that an employer has acted unfairly in this regard, that might be a factor to be taken into consideration in dealing with an application for redundancy payments, or some other form of relief arising out of action by an employer. RESIDUE OF PART 2 For reasons discussed earlier, and except to the extent indicated, we decline to allow the TTLC claim in the form presented. Whether the TTLC is compelled to re-apply in the foreseeable future will depend upon the measure and success of the "education" process we expect to flow from this decision. TCI ALTERNATIVE PROPOSALS We would also caution the TCI that had it not been for the fact we have rejected most of the "borrowed" material presented by the TTLC in this case, thereby depriving us of sufficient local evidence to support the application now falling for decision, we came close to regarding as an "offer" all those "alternative proposals" tendered by the TCI an identified specifically as Exhibits A.4, A.7 and A.11. We found those documents difficult to separate from what might ordinarily be regarded as counter-claims. Moreover, it could be argued that when read in conjunction with the TTLC application Exhibits A.4, A.7 and A.11 almost constituted the parameters of the entire claim. This could be taken to mean that the maximum employers were prepared to concede was set out in Exhibits A.4, A.7 and A.11, while on the other hand the minimum the unions were prepared to accept was that described in the TTLC application. On this occasion we have accepted Mr Abey's explanation that this was not the purpose of the TCI exhibits. But we have done so in the belief that others might well have taken a different view. We do not quarrel with the parties presenting alternative arguments to the Commission. But it needs to be made quite clear to the Commission and to those against whom those arguments are put that those who wish to argue that way do not ipso facto intend to create in the minds of employees or other organisations a feeling of expectation that the least that can be awarded in the circumstances is that represented by the lesser or alternative proposal advanced by way of rebuttal. It should be remembered that industrial tribunals are mainly lay tribunals established to regulate the wages and working conditions of working people. And while those tribunals must always apply the principles of natural justice in all their dealings with employers and employees, other subtleties of law are best left to those who practice that profession and to the courts reserved for that purpose. It is therefore unwise in the extreme to present material which on its face purports to concede an award improvement if in reality the opposite is intended. Employees covered by that award are apt to view any apparent concession of that nature as a non conditional offer. REDUNDANCY We have already indicated that we consider information and material about other countries of the western world inappropriate to merit determination of the application before us relating to the Retail Trades Award. Put another way, it seems to us unlikely in the extreme that, had it not been for the ACTU case (Print F6230 and F7262 supra) which seemed to have been decided largely on that information after giving some recognition to what applies in other States, material of the sort presented by both unions and employers would have been used to support an application of this kind before the Commission. No tribunal can make a merit finding without evidence of some kind to support or justify the decision taken. In this case we have been denied that specific information. We have been invited instead to come to the same conclusion as the Australian Commission, but for reasons not even remotely associated with the retail trades industry in Tasmania. And to the extent that the New south Wales, Victorian, South Australian and more recently Western Australian Industrial tribunals made decisions about employees in those States who are subject to the employment environment of those States and those States only, such individual and collective judgments have no precedential attraction here. Decisions by those tribunals were taken for the reasons given by those tribunals, and at various times. But most were decided during periods of escalating unemployment of which redundancies due to economic down-turn were unquestionably a major causative factor. This case is being decided in a less atrabilious atmosphere and in the light of evidence about falling unemployment and strong economic growth. It is also being decided against a background of the birth in Tasmania of an entirely new industrial tribunal which, by the terms of the legislation under which it operates, is by no means rendered ineffectual by reason of jurisdictional limitation. Furthermore, the Commission has already demonstrated a readiness to respond quickly to any application filed. Both the TTLC an TCI referred us to an impressive list of ad hoc arrangements reflecting in Federal awards, and agreements, matters dealing directly or indirectly with the broad question of redundancies. We were also taken through some decisions of Tasmanian Industrial Boards given over the past five years. These were individual decisions relating to individual employers and their employees who services had been or were being terminated due to retrenchment or redundancy. Although the Australian Commission was able to conclude that on balance it would be better to foresake this form of ad hockery in favour of general standards which would, we infer, thereafter be regarded as both maximum and minimum, it does not follow automatically that this will be the end result. Before this case concluded we were made aware of one organisation's view on the status of the Metal Industry Award provision. Although the TTLC quite fairly indicated it would, if the claim succeeded, not regard any specific redundancy payment prescription as a minimum or benchmark level to be built upon, the Federated Clerks Union, in response to a challenge by the TCI, gave a less than satisfactory response to the same question. We have no difficulty therefore in deciding to reject the notion of making specific provision for redundancy or retrenchment procedures in favour of continuing the case-by-case approach. Moreover, we are firmly of the opinion that circumstances can and almost certainly do differ between employers and employees in the same industry and in different industries. A simple example might be where an automotive electrician is retrenched from a position with a large motor firm in a city and is able to obtain another job with a similar firm perhaps even in the same neighbourhood and within a relatively short time. On the other hand, an automotive electrician employed by the only motor garage in a country town who loses his job would not find alternative employment easily. He may be compelled to sell his home, if he were a married man, and move to the city with his family in order to follow his chosen avocation. This could be both costly and traumatic. Alternatively, because no other work of that nature was available in his home town, and in view of the costs involved in selling up and moving to the city, he may be compelled to seek locally less skilled employment for which he has had no prior training. No fair minded person would argue that the degree of disability was the same for both employees. Moreover, perusal of the reasons for decision in the termination, change and redundancy case (supra) suggests the opinion we hold that different considerations apply in different cases, may not be a view held only by this Commission. We take no issue with the TTLC - nor did the employers - that prima facie persons retrenched or made redundant from positions reasonably regarded as permanent or on-going should, if the employer himself does not enter into some suitable arrangement with those persons, be able to take their case to a tribunal of competent jurisdiction in order to seek relief. But were we to determine this matter in terms of the TTLC application and vary the award accordingly, we are convinced that we would then be without absolute power to deal with disputes arising from those provisions. Clearly industrial tribunals do not as a rule have the judicial authority necessary to deal with breaches of award prescriptions. Furthermore, we note that the "bottom line" of the Metal Industry Award disputes procedure included in that award to deal with local disputes about dismissals, leaves unanswered the question of what happens if a dispute cannot be settled by conciliation. This Commission cannot, in determining an industrial dispute about any matter, including dismissals, make an order the effect of which would be to vary an award. It can require that an application to vary be made, but this would have no relevance in disputed matters relating to terminations. Nor can it deal with a dispute about the scale of payments to be observed by employers in relation to dismissed employees if the relevant award already contains such a provision. We acknowledge that there may be arguments for and against fixed versus ad hoc prescriptions. In the case of breach of specified provisions, remedial action sought from civil courts, even if successful, would not necessarily result in an award of compensation to an aggrieved employee - only a penalty on the recalcitrant employer. We have therefore decided against providing for that kind of result by facilitating access to the Commission. It is our view that individual applications to the Commission are likely to be few and decisions given on those issues are expected to be prompt. However we feel the TTLC should monitor this procedure over a period of twelve months with a view to re-applying after that time if it appears what we propose is not achieving its intended purpose, or is otherwise considered to be working against the best interests of all concerned. TRANSMISSION OF BUSINESS Finally we turn to the question of termination following transmission of a business. The Commission expects that peak organisations will closely monitor the situation of employees likely to be summarily or consequentially terminated as a direct result of business change, new technology or merger. We say now that the Commission stands ready to consider at short notice any situation giving rise to suggestions that full-time employees or part-time employees of long standing will be or are likely to be adversely affected by happenings of this sort. The Commission is mindful of at least one case that occurred earlier this year involving the transmission of a business which in the result left a great deal to be desired from the point of view of equity and fair play. If it becomes necessary to in future include rigid conditions in this and other awards relating to termination, change and redundancy, it will because the expressed views of the TTLC regarding fair play and those of the TCI relating to education, have either fallen on deaf ears or have not been adhered to for other reasons. AGREEMENTS In conclusion, we would point out that nothing we have said should be regarded as a prohibition against any employer or employee organisation entering into an individual arrangement relating to any of these matters. However, it follows any such agreement will be subjected to the usual tests laid down by current wage fixing principles and the statutory test of public interest. COST Having decided not only against the test case approach but also against variation of this award to include actual periods of notice of dismissal and redundancy payments, we do not need to comment on cost. We do however record our concern at what appears to be an adverse or retaliatory action in the Metal Industry in this State. Evidence produced by Mr Abey (Exhibit A.13 - Analysis of Survey Results of M.A.I.T. members on Impact of Termination, Change and Redundancy Decision, Metal Industry Award) indicated some quite disquieting trends. No matter what allegations of slanting might be levelled at the questionnaire distributed among metal industry employers in Tasmania, the fact remains responses to that questionnaire suggest that whatever the intention of the Federal decision about protecting jobs the opposite seems to be occurring. In fact if the trend disclosed continues, it appears there may be a deliberate drift away from "permanency" in favour of casual hire - at least in the State of Tasmania. We hope our decision not to follow the leader will, from the employers' viewpoint, not discourage further permanent appointments. Only time, the state of the economy and the conduct of the parties concerned will provide an accurate measure of whether our overall decision on this application was correct or otherwise. DATE OF OPERATION Any variation to the award flowing from this decision will operate from the first pay period commencing on or after 15 September 1985. APPENDIX 'A'
ADDITIONAL MATERIAL TENDERED BY TASMANIAN FARMERS AND GRAZIERS ASSOCIATION BUT NOT MARKED AS EXHIBIT Copy of Automotive Industries Industrial Board Decision on Matters Referred for Determination pursuant to Section 24(2) of the Industrial Relations Act 1975 Decision 17 September 1980 (A35 of 1980) Extract from Volume 1 "Technological Change in Australia - Report of the Committee of Inquiry into Technological Change in Australia 1980", pages 130 to 132 Extract from AILR, 24.8.1983 - 387 re Employment Protection - Retrenchment Decision, New South Wales Industrial Commission High Court Decision Koowarta - v. - Bjelke-Peterson and others, 1982 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||