C2001/3715, Transcript of Proceedings [2001] AIRCTrans 1875 (8 August 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 8539

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

C2001/3715

NATIONAL UNION OF WORKERS

and

QUEENSLAND PROPERTIES INVESTMENTS PTY LTD

Application under section 170LW of the Act
for settlement of a dispute re the issuing of
written warnings under the "GPRP" procedure

MELBOURNE

2.06 PM, MONDAY, 23 JULY 2001

PN1

THE COMMISSIONER: Mr Lyons, you are appearing for the applicant?

PN2

MR T. LYONS: Yes, Commissioner, I appear for National Union of Workers, and with me is MR J. TASEV, the union's site organiser.

PN3

THE COMMISSIONER: Yes, and Mr Amendola?

PN4

MR AMENDOLA: I seek leave to appear on behalf of the company, if the Commission pleases.

PN5

THE COMMISSIONER: Yes, Mr Lyons, do you have any objection?

PN6

MR LYONS: We do, sir, but perhaps I shall not waste my breath terrible long but suffice to say we don't see that the subject matter necessitates representation of the company by counsel. In the Court room today is the site manager and an employee relations manager, and given that for today's purposes we seek only a conciliation with your assistance, we think that the matter of representation by counsel ought to be for another day.

PN7

THE COMMISSIONER: Yes. Mr Amendola, what have you got to say to that?

PN8

MR AMENDOLA: If the Commission pleases. If the matter is only to be conciliated I don't see that there is any particular role for myself to play, however, a notification pursuant to section 170LW which deals with both conciliation and/or arbitration, we now know that it is in the sense that I asked Mr Lyons when I arrived whether it was merely for conciliation. He confirmed that it was. Obviously that puts a bit of a different slant on things. On the other hand, if there was going to be arbitration of this in the sense that it wasn't going to be settled, then obviously my client would want representation. We would say it would be appropriate to be represented, it would be appropriate to have certain directions in terms of what it would be that would be the subject of arbitration, etcetera, etcetera, etcetera.

PN9

THE COMMISSIONER: Indeed.

PN10

MR AMENDOLA: For the purpose of conciliation I don't see the need to play any particularly active role other than to perhaps speak briefly to my clients before you were to go into conciliation if that was the way you wished to proceed.

PN11

THE COMMISSIONER: Indeed. Mr Lyons, Mr Amendola, on the basis of what I have heard from both of you I am happy to grant Mr Amendola leave to appear and I will hear from you and then from Mr Amendola about the subject matter and also about how - what may be the most constructive and useful process for us to spend the afternoon. So Mr Lyons?

PN12

MR LYONS: Thank you, Commissioner. This matter as has been said is a notification pursuant to clause 15 of the Queensland Properties Investments Proprietary Limited Hume Distribution Centre Agreement 1999, which applies at the retail distribution centre of Safeway in the northern suburbs of Melbourne. The specific dispute concerns the issuing of three written warnings to afternoon shift delegates of the NUW. If I can provide for the Commission copies of two of those warnings. I will explain why I don't have the third one.

EXHIBIT #A1 WRITTEN WARNING FOR PAUL PIROTTA

EXHIBIT #A2 WRITTEN WARNING FOR HENRY RUIZ

PN13

MR LYONS: Thank you, Commissioner. We don't actually have a copy of the third warning, sir, we have sought a copy of that from the files of the employer but we were advised that there was some difficulty retrieving that. Perhaps my friend will be able to assist in providing a written copy but I certainly am able to explain to the Commission the subject matter of that warning, if not its actual exact terms. These warnings were issued to delegates of the union in March of 2001. They are under what is known as the GPRP procedure which is specifically contained within the enterprise agreement and which I attached for the Commission's information to the original 170LW notice. That program indicates that it is a:

PN14

A program is designed to be a process for ensuring employee's satisfactory job performance.

PN15

I will return to that point, sir, because we have some question about whether or not a process designed to address job performance has any application to allegations of the nature the company's made specifically, given that we say that that goes to the employee's performance as a store worker. These warnings relate to events which have occurred as a result of the workers' union delegates. So we say that there is some question to start with as to whether or not the warning process itself set down under the GPRP process ought have any application at all to an allegation even if it is made out.

PN16

THE COMMISSIONER: Sorry, Mr Lyons, but what about talking to Mr Adrian Carroll about being drunk whilst at work? That does not appear to relate to something which could properly be said to be the subject of a shop steward's duties, could it?

PN17

MR LYONS: Given that we say the facts indicate, sir, that the reason there was that conversation was the result of being requested by one of the members to take that up as a health and safety issue, that there was somebody potentially affected by drugs or alcohol on the premises.

PN18

THE COMMISSIONER: Mr Lyons, I am happy to hear formal opening remarks from you and from Mr Amendola but I take it from you said earlier that you do want us to go into conciliation conference this afternoon so I am just wanting to be clear about what this opening session is going to be about. If it is just getting some stuff on the record, that is absolutely fine, but if we are having a conciliation I wouldn't have thought it would be necessarily useful to start to get into detailed argument with each other.

PN19

MR LYONS: No, I was intending, sir, merely to put what we say are the overall facts, understanding that if it became necessary that would need to be the subject of proper evidence.

PN20

THE COMMISSIONER: Yes.

PN21

MR LYONS: I agree it wouldn't be of any use, I think, to have a tit for tat rebuttal of the versions of the facts. So I was intending to be reasonably brief, sir, in the general outline. The three warnings in question, sir, if I turn to first of all to first of all, A1. A1 and A2 both relate to the issues associated with an allegation or a suggestion about Mr Adrian Carroll, who is another employee of the distribution centre. It is absolutely denied by the members in question that they did anything in the nature of the spreading of malicious rumours about anybody. Secondly, it is also denied that that can in any case by the subject of a properly formulated written warning from an employer. It is also denied that there was a failure to follow the issues resolution procedure.

PN22

It is generally at odds between the parties on the ground at the DC, sir, about whether or not a union delegate has any right to be approached at first instance by one of the employees and to have a discussion about a matter and whether or not what that delegate's rights are in terms of progressing that matter with the employer. It is my understanding the employer takes a very strong view that an employee must speak directly to the company first before seeking any advice from the union.

PN23

Now, we strongly reject that and we say very very firmly that not only do the members have a right to seek the advice of their delegate but that delegate, when approached, has a right which is recognised under the agreement, to provide some representation to those employees. So the two warnings A1 and A2 relate to a specific circumstance where the delegates were made aware of an allegation, sought to raise that allegation with the individual involved. That action has been reported back to management who have taken the approach of issuing a written warning against both the delegates in question.

PN24

So the third warning which was actually the original warning against Mr Ruiz was in relation to essentially him taking too much time to write up a set of notes that he had taken or was taking of a meeting he had had with management over occupational health and safety issue. Mr Ruiz is also a duly elected health and safety rep at the premises and he was issued a warning for taking too long to write up those notes. I might add, sir, that these warnings are a very serious matter for these employees for a couple of reasons. First of all as is the GPRP makes clear, once you are on a second step, there is only one more step before you are gone.

PN25

Secondly, due to the peculiar employment relationships pursued at this company both these members are employed as trainees through a group training company and at the conclusion of their traineeship a decision will be made about whether or not they are given full time permanent employment and fairly obviously outstanding disciplinary matters that are on their record can do naught but count against them in any judgment about whether or not they would be given permanent employment. So that is part of the reason that these matters are taken so seriously by the members of the union.

PN26

I might add this isn't a general objection to the issuing of warnings against union delegates, sir. There are other warnings against Mr Pirotta which we don't take issue with. So the union has not adopted a scatter gun approach to this. In closing, sir, I might as the opening indicate, that the union has taken an exhaustive approach in trying to settle the matter at the enterprise in line with clause 15 of the agreement. The members themselves have had direct discussions with their line manager in line with the agreement. Then with the site manager, the union site organiser, Mr Tasev, has discussed the matter with the distribution centre manager, which is the following step. Mr Tasev informs me he has done that twice.

PN27

On at least one of those occasions the union believes it was close to settling the matter but the solution fell through. Having been unable to settle in that form we have followed the final step which is to bring the matter to this place. So sir, in terms of what we would seek today, we would seek a conciliation conference. If that does not settle the matter we would seek an arbitration of whether or not the warnings were valid and I agree with Mr Amendola that an appropriate directions as to filing and serving etcetera are highly desirable if that became necessary, if the Commission pleases.

PN28

THE COMMISSIONER: Good, thanks Mr Lyons. Yes, Mr Amendola?

PN29

MR AMENDOLA: Briefly, Commissioner, because as you indicated it probably isn't going to be overly productive to sort of take a tit for tat response. In general terms insofar as the two warnings that constitute a A1 and A2 are concerned the issue related to people going directly to Mr Carroll. It is said by my learned friend, or my friend that this was an occupational health and safety issue and it was appropriate to approach Mr Carroll directly. Even in relation to the occupational health and safety policy of the company the first step is to approach a manager as opposed to approaching Mr Carroll directly. In a sense the process that was used is part of the problem but that can be the subject of further discussion today.

PN30

In respect of the GPRP generally, yes, the program is said to be designed to be a process for ensuring an employee's satisfactory job performance, but job performance relates to a number of things including the way an employee conducts themselves. The idea that it is limited to - I don't know - meeting certain performance standards of how many pallets you lift or what have you, and that is what it is limited to. I don't think that that is right but that might be an argument for another day if we ever get there. Insofar as the issues resolution procedure is concerned and the point made by my friend about what should take place in terms of kicking off the issues resolution procedure, clause 15.1 says:

PN31

Should any matter occur which gives cause for concern to an employee the employee shall raise such matter with the employee's section manager.

PN32

That is step number one. That does not mean they might not approach a union delegate, but step number one is to approach the manager. Again, a matter for another time maybe.

PN33

THE COMMISSIONER: Can I ask Mr Amendola, are you aware that there are or whether there are wider problems with regard to the operation of this clause 15, or does it appear as though the issues are confined to a narrow set of issues about people who have union roles and that there may be some fuzzy border issues between, if you like, their shop steward role and their normal day-to-day employee role.

PN34

MR AMENDOLA: Commissioner, I am not aware, is the short answer in the sense that I have only - my client, for whatever reason only got notification of the dispute a bit late in the piece, which is not a matter of blame or concern so I don't know. In respect of what is before you today my friend has raised what is said to be a broad issue as to how one approaches dispute resolution. I have made reference to 15.1. I don't understand there to be a broader problem that what is before you is really what has occurred in respect of these particular issues but I may stand corrected in terms of the view of the applicant in relation to that, Commissioner.

PN35

THE COMMISSIONER: Yes. Mr Amendola, I think it would be useful - you have referred to the need for you to have - if we go into conciliation for you to be given a bit of time to have a talk to your clients and that might be one of the areas that you might want to focus on in terms of getting yourself ready for us to have a conciliation type discussion.

PN36

MR AMENDOLA: Yes. Certainly, Commissioner, as I said I don't see the - we basically reserve our rights, I don't see the need to go on and on about the differences between the parties on this.

PN37

THE COMMISSIONER: Yes.

PN38

MR AMENDOLA: One matter though, there is an issue about whether the issues resolution procedure had been complied with. However, and I raise that as a matter of formality, but if one was to go through a process of conciliation today and the matter not reach settlement at that point in time, although I mentioned to my friend before we commenced today that we took that view, we wouldn't be taking the point that one should therefore go back and try and conciliate again, or try and go through the dispute resolution procedure before going to arbitration.

PN39

In other words, what I suppose I was trying to say shortly, is if conciliation does not bring the matter to resolution we won't be taking the point although we say it arises that the dispute resolution procedure wasn't complied with in terms of the steps that were taken. We say that there were a couple of jumps in the process. But be that as it may, if the matter does not settle today the matter will go to arbitration.

PN40

THE COMMISSIONER: Yes. You are saying, we are at 15.5½ which is we are at the part of it that says:

PN41

- be referred to a member of the Australian Industrial Relations Commission for conciliation.

PN42

The next step beyond that is arbitration.

PN43

MR AMENDOLA: In a practical - - -

PN44

THE COMMISSIONER: Not going back to 15.1.

PN45

MR AMENDOLA: In a practical sense, Commissioner, that is right.

PN46

THE COMMISSIONER: Good, all right, fine, thanks very much, Mr Amendola. Mr Lyons, do you have anything else to say in regard to that, no. Well, I think it would be useful now for me to adjourn these hearings on the record, allow each of you. I think Mr Amendola probably needs 10 minutes?

PN47

MR AMENDOLA: No more than that, Commissioner.

PN48

THE COMMISSIONER: All right.

PN49

MR AMENDOLA: It may be, Commissioner, that it is just a talk to my client for the purpose of my client to take part in conciliation - - -

PN50

THE COMMISSIONER: Yes, indeed.

PN51

MR AMENDOLA: - - - without the necessity for me to be here.

PN52

THE COMMISSIONER: Indeed.

PN53

MR AMENDOLA: But I would take not more than 10 minutes.

PN54

THE COMMISSIONER: No, all right, well, perhaps if I adjourn and I will come back at 2.30 and we will go into conciliation conference at that point. All right, I adjourn these proceedings and I will resume with you in conciliation at 2.30.

SHORT ADJOURNMENT [2.24pm]

RESUMED [5.50pm]

PN55

THE COMMISSIONER: Yes, Mr Lyons, what have you got to report to me?

PN56

MR LYONS: Thank you, Commissioner, the parties are able to report for the record that we have reached a settlement of the matters in dispute, with your great assistance, and that settlement has been committed to a form of words, which I understand your associate has a copy of and which will be issued under your hand at some point?

PN57

THE COMMISSIONER: Yes, I think perhaps if you would care to read. It won't take you too long to read it onto the record, I think would be of assistance, then Ms Bentley can tell me whether she is happy with those words or not.

PN58

MS BENTLEY: Yes, sir.

PN59

MR LYONS: Certainly, sir, settlement will be as follows:

PN60

Whereas the National Union of Workers, NUW, has pursuant to clause 15.5 of the Queensland Properties Investments Proprietary Limited ...(reads)... NUW and the company agree to consider the current wording in operation of clauses 15 to 24.

PN61

THE COMMISSIONER: Thank you very much, Mr Lyons. Ms Bentley?

PN62

MS BENTLEY: Yes, sir, on behalf of all of the words I would say that is a true representation of what it is that we agreed to settle on.

PN63

THE COMMISSIONER: Good, thank you very much. Then on the basis of that wording I accept that this dispute has been settled in that form, and I hope you don't need to come back to me again to revisit any future issues arising out of this particular matter. I thank both parties for their constructive engagement in the negotiation process through conciliation today. Thank you and I now adjourn these proceedings.

ADJOURNED INDEFINITELY [5.55pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 WRITTEN WARNING FOR PAUL PIROTTA PN13
EXHIBIT #A2 WRITTEN WARNING FOR HENRY RUIZ PN13