C A T C H W O R D S INDUSTRIAL LAW - Termination of Employment - Redundancy - Selection criteria.-Whether genuine redundancy-Alternative employment arranged for the Applicant. INDUSTRIAL RELATIONS ACT 1988, S.170EA,S170DE. MAXWELL CHARLES BARBER -V- CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NO. TI 144 OF 1994 Judicial Registrar: L Farrell Place: Launceston Date: 16th February 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY TI 144 of 1994 B E T W E E N: MAXWELL CHARLES BARBER Applicant AND CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Respondent MINUTES OF ORDER Judicial Registrar Farrell 16 February 1995 THE COURT ORDERS THAT: 1 The Application is dismissed. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules INDUSTRIAL RELATIONS COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY TI 144 of 1994 B E T W E E N: MAXWELL CHARLES BARBER Applicant AND CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Respondent BEFORE: JUDICIAL REGISTRAR FARRELL PLACE: LAUNCESTON DATE: 16th FEBRUARY 1995 REASONS FOR JUDGMENT-DELIVERED EX TEMPORE-REVISED FROM TRANSCRIPT . This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant sought an Order declaring that the termination of his employment by the Respondent contravened the Act. The Applicant also sought an Order for compensation. He did not seek reinstatement. At the time of his termination the Applicant was an Industrial Officer employed by the Tasmanian branch (hereinafter referred to as "the branch"), of the Forest and Forest Products Division,( hereinafter referred to as "the division"), of the Respondent Union. Evidence in this matter was given by Mr Barber, the Applicant, Mr Beattie and Mr Riley, who were members of the State Management Committee of the branch. The State Management Committee is hereinafter referred to as "the committee". Mr Grey, who holds the position of secretary of the branch, also gave evidence, as did Mr O'Connor, the assistant secretary of the division. Mr Butler, the president of the branch, Mr Bushby, an accountant, Ms Ralph, the administration officer of the branch, and Mr Hampton, an employee of the Forest Education Advisory Training Service Pty Limited also gave evidence. I find the facts in this matter as follows. The Applicant was employed from 5th April 1993 to 20th July 1994 as an industrial officer of the Respondent. In addition, he held a position on the committee of the branch and was a trustee of the branch. He was an effective unionist, well liked, and a capable trainer. The Applicant had been employed on a full-time basis on the north-west coast of Tasmania with the assistance of a partial wage subsidy pursuant to a resolution of the committee passed on 20th March 1993. On 4th August 1993, a resolution of the committee was passed requiring the continued employment of the Applicant on the basis that a number of members were to be transferred to the branch following an amalgamation with the Federated Engine Drivers and Firemen's Association division of the Union. On 23rd October 1993 minutes of the committee relate as follows:- With respect to Max Barber, it was identified that he was employed on a government grant which required an obligation of employment from the Union at least until December 1993. If the employment could not be continued there would be a service vacuum which required filling, hence the position that Brenton Best (FEDFA north-west Coast) would transfer to the CFMEU F and FPD. The minutes go on to say: The Federal Secretary, whilst noting the position of the Tasmanian branch expressed some surprise at the change in attitude, however indicated the position being taken is in accordance with the current rules. Further, Federal Secretary is prepared to progress the above on the basis that Jaquie Murphy and Mike Grey can indicate at the division's federal conference (22nd November 1993) the financial capacity of the translated division to carry the seven employees and identify the persons who would become redundant if the branch was not financially able to maintain seven persons. Mr Barber was present at the committee meeting and as far as the record is concerned, at all meetings except possibly the meeting of 12th December 1993. In November 1993, a National conference of the Union was attended by Mr Grey, the then secretary, Mrs Murphy and Mr Butler, as well as the Applicant. The Applicant was present during discussions in a room which was separate from the main conference. Those discussions concerned the budget of the branch for the forthcoming year and the Applicant was advised in that room that he would have to move to a job in March 1994 arising out of what was referred to in the course of this hearing as the Helshum funding. The Helshum funding was a government grant that would be available to fund workplace education or training in the forest industry of Tasmania. It was not known what format would be used but sometime in 1994 an independent company was set up with directors drawn from industry and from the Union movement. Those directors included Mr Grey. The company's name is Forest Education Advisory Training Service Pty Limited and it subsequently employed two persons in the position of project officers. A meeting of the committee on 12th December 1993 resolved to note the budget and structure as put to the national conference. A further meeting of the committee on 21st May 1995 was presented with financial reports for the three previous months showing a worsening financial position. A resolution was passed at the same meeting which, although the actual wording was disputed by the Applicant, resolved that the Applicant should be seconded to the position of project officer. A national conference of the division on 30th May 1995 made various resolutions about the financial situation in Tasmania. The Applicant then met with Trevor Smith, Mike Grey and Mr Butler on 30th June 1994. There were discussions about the financial situation of the Union. The Applicant was asked to apply for the project officer job at the Forest Education Advisory Training Services Pty Limited and Mr Grey undertook to have the time extended in which he could apply. The Applicant agreed to apply for the job and he shook hands with Mr Smith on it. His job application was put into the Trades and Labour Council on 8th July 1994, and I note that the Trades and Labour Council was the body to whom applications had to be submitted. An interview for the position was arranged for 20th July 1994. In the meantime, the Applicant, Mr Riley and Mr Beattie and Mr Piester, all sought to examine the financial records of the branch and it was arranged for that to be done on the same day that the Applicant was to have his interview. A facsimile transmission was tendered into evidence. It was sent from Mr Beattie to Mr Grey. It was dated 19th July and it was sent from the Burnie office of the branch in the presence of the Applicant. It contained a threat to confiscate the financial records of the branch. Mr Grey was concerned about the threat. He discussed it with the division secretary. Mr O'Connor, the assistant secretary, was at the office on the morning of 20th July 1994 when the Applicant Riley, Beattie and Piester arrived to see the records and for the Applicant to have his interview. Mr O'Connor asked to speak to the Applicant alone. O'Connor raised with the Applicant the financial problems of the branch. He raised also with him that he had a commitment to take the job of project officer. The Applicant told Mr O'Connor that he had agreed to apply for the job of project officer but not to take it. O'Connor remarked, "That's a lawyer's answer". He explained in Court what he meant by that remark and I think it was understood by the Applicant that what was meant was that the Applicant was trying to get out of the agreement that had been reached between the Applicant and Smith on 30th June 1994. O'Connor advised the Applicant that he would be dismissed if he did not take the project officer's job. The conversation was heated but I accept it is clear on the evidence that the Applicant's employment was not terminated by Mr O'Connor. Mr O'Connor's evidence was not challenged by the Applicant. In addition, Mr Riley in evidence stated that when the Applicant left the room in which he had been speaking to Mr O'Connor he said, "If I don't accept the job I'll get the fucking sack". Following that, discussions took place between Mr O'Connor, Mr Grey, Mr Beattie and Mr Riley. The Applicant left without examining the book or attending the interview for the job that had been arranged. The Applicant's employment was terminated by a letter from Trevor Smith, secretary of the division to the Applicant's home on the same evening. Accompanying that letter was a letter from Mr Grey setting out details of the payments he was to receive on termination. He received a payment of two weeks in lieu of notice and four weeks wages as severance payment. He was advised that his position was made redundant. The letter from Mr Smith dealt with the process that the division went through in coming to the decision to terminate his employment , the financial difficulties of the branch, advice regarding his redundancy payment and "....regret that despite your previous commitment you have not co-operated with the Union's effort to find you suitable alternative employment". The Applicant conceded that the national secretary, that is, Mr Smith, was authorised to terminate his employment and he did not challenge the Respondent's compliance with its own rules. It was part of the Applicant's case that he had concerns about whether the alternative job really existed. The Respondent called the appointee, Mr Hampton, who gave evidence that although he had received a rejection letter he had again been approached in late July that he had actually commenced his employment in early August. I find that on the evidence before me the Respondent did have a valid reason for dismissing the Applicant because of its operational requirements. Extensive evidence was led as to the worsening financial problems of the branch, what was done about it and the need to reduce the number of employees. The Applicant's counsel asserted in submissions that the Respondent could have borrowed money or sold assets. These matters were not put to the Respondent's witnesses and, in all the circumstances, I do not accept that the Respondent was obliged to do so. There was no evidence of a written selection criteria. however, it is in my view unnecessary given that there were only four industrial staff employed by the Union. They were the secretary, Mr Grey, Mr McLean, Mr Best and the Applicant. The Respondent had credible reasons for favouring the Applicant for redundancy over the other employees. It was in evidence that Mr Best's wages were met by a different division of the Union, being the division from which he had come. That meant that there would be no savings from the termination of his employment. Mr Grey's duties were largely administrative. Mr McLean serviced most of Tasmania other than the north-west. In my view, the Applicant - rather than any other employee of the respondent -was chosen by fair means having regard to the operational requirements of the Respondent. I turn now to consider whether the termination was harsh, unjust or unreasonable in accordance with Section 170DE(2). I find on the evidence before me that the Applicant was aware of the need to reduce the number of employees and that it was his position that would be made redundant and that was the reason he was being pressured to take the job of project officer with the Forest Education Advisory Training Services Pty Limited. The Applicant knew of the possibility of the redundancy of his position as early as 1993 and he knew, after talking to Mr Smith on 30th June 1994, that it was crucial to the continued operation of the branch that he take the position of project officer. Evidence was given by Mr Grey in the matter that all that was required of the Applicant was to attend the interview. It is clear that the Applicant held a belief that he could prevent his position being terminated through his membership of the committee. He knew of the threat by Mr Beattie to confiscate the financial records of the branch. He walked out of the building on 20th July 1994 without proceeding to the interview for the project officer job. In my view, the process of consultation and investigation prior to redundancy were exhausted at that point when the Applicant left the meeting with Mr O'Connor and then left the building without attending the interview. The Respondent's officers were faced with a hostile management committee and with financial difficulties. I do not accept that any further process ought reasonably have been gone through by the Respondent before proceeding to the termination of the Applicant. The Application is therefore dismissed. I certify that this and the preceding 4 pages are a true copy of my reasons for judgment. DATE OF HEARING: 14th & 15th February 1995 FOR THE APPLICANT: Mr Tremayne. FOR THE RESPONDENT: Mr Young.