C2001/4188, Transcript of Proceedings [2001] AIRCTrans 2154 (31 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 8824

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2001/4188

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by the Australian Services Union for an
order to stop or prevent industrial action

MELBOURNE

8.30 AM, FRIDAY, 10 AUGUST 2001

PN1

MR J. BORNSTEIN: I seek leave to appear on behalf of the Australian Services Union.

PN2

MR P. HULL: I seek leave to appear on behalf of Moreland City Council.

PN3

THE SENIOR DEPUTY PRESIDENT: I take it there are no objections to the applications for leave to appear. Leave is granted to both. Mr Bornstein, it is your notification.

PN4

MR BORNSTEIN: Yes, your Honour, thank you. This is an application for an order pursuant to section 127 of the Workplace Relations Act. I will just briefly outline the situation and the relevant facts, if I could at this stage. It relates to seven employees of the council who are all employed in the provision of home care services. All of the employees have, at various times during their employment with the council, sustained injuries in their work. Many of the employees are longstanding employees. One worker commenced work with the council in 1985, others in 1990 and so on.

PN5

One worker is performing the full range of home care duties that she performed prior to being injured. Another of the workers, following her injury, returned to work and was offered quote unquote a permanent position. That offer was in writing and provided to her in May 1999. The offer was accepted and she has continued to work in accordance with that agreement.

PN6

THE SENIOR DEPUTY PRESIDENT: That is not a full range of duties for that person?

PN7

MR BORNSTEIN: That is the full range - I am sorry, no. In respect of that second person, she was performing modified duties or duties that were modified following her injury. Others are working hours up to 25 hours per week and I am instructed, your Honour, that home care workers do not work a 38-hour weeks. They tend to work within the range of, I think, about 25 to 28 at the top end and that is primarily because it is a reasonably hazardous working environment.

PN8

THE SENIOR DEPUTY PRESIDENT: Can you explain to me how it is a hazardous working environment.

PN9

MR BORNSTEIN: My instructions are simply that there is a large incidence of injuries in the work performed and for that reason there is some care taken not to have the workers working extended or excessive hours. That is across the board in terms of the provision of home care services in the council and, indeed, throughout councils in Victoria. Your Honour, on 21 June correspondence was received by the seven employees requesting a meeting with council management to discuss their rehabilitation progress. That letter was in identical form for each worker.

PN10

The meeting was to occur or requested to occur on 28 June and the seven employees who received that letter contacted their union organiser, Ms Maureen Lyons. Ms Lyons then contacted the council and spoke to the performance development adviser with the council and sought information about the nature of the meeting. She was advised that it was simply going to be a discussion about workplace progression. She was assured that was the only focus of the meeting and she was also assured that there would be no alteration to the employment arrangements in place. So she was told that she didn't need to attend the meeting, given that - - -

PN11

THE SENIOR DEPUTY PRESIDENT: If I might interrupt, my friend is going to matters which will be matters of evidence and will be contested. My understanding is that there are a number of people in the courtroom who will be called to give evidence over those matters and I would ask in this event that those individuals be asked to leave the room.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Bornstein?

PN13

MR BORNSTEIN: Your Honour, I am in your hands on that. I am not proposing to call - - -

PN14

THE SENIOR DEPUTY PRESIDENT: I think they should leave the room.

PN15

MR BORNSTEIN: They should leave the room, yes.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Bornstein.

PN17

MR BORNSTEIN: Your Honour, I was indicating that Ms Lyons, the union organiser, received those assurances from Ms Johnson, the performance development adviser - I will just get that title right. The meetings then did occur on 28 June. They occurred with each individual. Each individual was attended by Ms Johnson, who I have referred to earlier, and Ms Heidi Taylor, who is the business unit manager, as I am instructed, with the council. Each employee was told they were no longer going to be provided with work from the council - - -

PN18

THE SENIOR DEPUTY PRESIDENT: I will just interrupt you again. Was each person seen separately?

PN19

MR BORNSTEIN: Yes.

PN20

THE SENIOR DEPUTY PRESIDENT: So each was told - - -

PN21

MR BORNSTEIN: That they were no longer going to be provided with work at the council. They were told in some cases that they should just go home and they will receive WorkCover entitlements up to the age of 65. They were told that their continued employment was too burdensome for the council and so on and so forth. They were then immediately escorted from the building and have not been permitted back since.

PN22

THE SENIOR DEPUTY PRESIDENT: They are continuing to be paid, are they?

PN23

MR BORNSTEIN: What happens, your Honour, in this situation is if you have a WorkCover entitlement and you are not provided with work by your employer, you revert to 60 per cent of your pre-injury earnings. So these workers at the moment are receiving 60 per cent of what they received prior to being injured and given some of these workers were injured some years ago, it is quite a substantial drop in income. Some of the employees are earning as little as 140 or 50 dollars a week.

PN24

THE SENIOR DEPUTY PRESIDENT: Were they earning the same as their pre-injury earnings on 28 June?

PN25

MR BORNSTEIN: I am instructed the hourly rate they were receiving was $13 an hour, which is the current EBA rate.

PN26

MR HULL: Sorry, your Honour. There remains in the courtroom an individual who was at a meeting where there will be a question of contest between what was actually said. I am referring to the union organiser who is present.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, but Mr Bornstein does need somebody to instruct him, Mr Hull.

PN28

MR HULL: Well, indeed, but I have some difficulty because that is going to be a fairly central issue in terms of what was and was not said. In that event, if that is the case, well, then I would ask that the counterpart from my side be in attendance.

PN29

THE SENIOR DEPUTY PRESIDENT: You are entitled to have somebody to instruct you.

PN30

MR HULL: Well, I do but I specifically excluded those who would be called to give evidence.

PN31

THE SENIOR DEPUTY PRESIDENT: Are you able to continue with your submission without the presence of that particular individual?

PN32

MR BORNSTEIN: Your Honour, not really; I do require Ms Lyons to provide me with instructions. I don't think I will be saying anything - I am just trying to see what possible detriment Ms Lyons has in being here. She will give evidence simply about her conversations prior to the meeting and evidence about what has happened since the workers were prevented from continuing employment.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes. I think it is appropriate that Ms Lyons stays. If you need somebody to instruct you as to this particular meeting, have that person brought in as well.

PN34

MR BORNSTEIN: And I don't object to that at all, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, go on - sorry. At the time of 28 June, I asked you what the earnings of the seven individuals were.

PN36

MR BORNSTEIN: Your Honour, do you want me to give you those - - -

PN37

THE SENIOR DEPUTY PRESIDENT: Not specifically but were they the same as the pre-injury earnings is what I am interested to know?

PN38

MR BORNSTEIN: No, they were not. The pre-injury, they reverted to currently pre-injury income but because the pre-injury income sometimes relates to income that was being received up to six years ago there have obviously been pay rises and increases in rates through awards and EBAs since that time. I am instructed that the loss of income with seven workers is between 100 and $190 a week as a result of the decision not to provide them with work to do.

PN39

THE SENIOR DEPUTY PRESIDENT: Just one other question while you are interrupted. As of 28 June those who were on modified duties were they earning a full week's wages or were they on a lower income?

PN40

MR BORNSTEIN: That varied according to the hours that were being worked, but a number of the employees were working at the top range of the hours that can be performed as a home care worker.

PN41

THE SENIOR DEPUTY PRESIDENT: Even on modified duties?

PN42

MR BORNSTEIN: Yes, yes. Well, I am reminded also, your Honour, that some care will need to be taken about whether we describe their work as modified duties. We in fact say that they were actually given different jobs, but they were working at the higher end.

PN43

THE SENIOR DEPUTY PRESIDENT: I probably do not need that degree of detail at this stage.

PN44

MR BORNSTEIN: Not at this stage. So your Honour, the employees were escorted from the council premises on that day having attended that meeting on 28 June and have not been permitted to work since that time. What we say in broad about that conduct, your Honour, is that it constitutes unlawful industrial action or illegitimate industrial action for the purposes of section 127 of the Act. I will just briefly take you to section 127 which I am sure you are familiar with, your Honour. It permits the Commission to make orders that industrial action stop or not occur and your Honour would be familiar with the considerations which have been described by a Full Bench in Coal and Allied which may guide the Commission's exercise of discretion under section 127.

PN45

Here we say - I should say the key issues that arise, key questions that arise from Coal and Allied are whether the industrial action is illegitimate and whether an order is warranted to prevent that industrial action continuing. We say the industrial action taken by the council is illegitimate for a number of reasons and I will just briefly describe those. We say the conduct is illegitimate because one, it is in breach of the employees contract of employment, it is inconsistent with their contracts of employment. Two, it is inconsistent with the relevant award. There is no capacity to stand down employees or to prevent them performing any work in this manner.

PN46

Three, the actions of the council in the way I have described in dealing with the union and providing assurances to the union were, as it turns out, deceitful and dishonest. Four, there was no proper consultation provided with the employees or their union. Five, the employees are in limbo now and are suffering loss of income. They were not well paid employees or highly paid employees to start with and they are now being provided with an income which by any standards is below the poverty line.

PN47

It goes without saying, your Honour, that the industrial action is unprotected and we will also be seeking to make a submission about the council's poor occupational health and safety record because as we apprehend it the council is going to rely on the fact that it has on its books a number of injured workers and that is one of the bases upon which it is said to these workers we cannot employ you. Now, your Honour, a subpoena to produce documents was issued by I think the Registrar - you issued it. I apologise, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: No, that is all right.

PN49

MR BORNSTEIN: It may be convenient to call that on. There are a large number of categories of documents that we say are relevant to the case we want to make and it maybe convenient today given that the matter is listed or you have listings this morning. We have not apprehended we would go to a full hearing today, but we can at least deal with matters of process and obviously one of the key matters of process.

PN50

THE SENIOR DEPUTY PRESIDENT: Well, we will not be going to a full hearing, obviously.

PN51

MR BORNSTEIN: No.

PN52

THE SENIOR DEPUTY PRESIDENT: Mr Hull wrote to me, I do not know whether you received a copy of a facsimile?

PN53

MR BORNSTEIN: No, I have not.

PN54

THE SENIOR DEPUTY PRESIDENT: Mr Hull, did you not - - -

PN55

MR HULL: No, I did not forward a copy, no.

PN56

THE SENIOR DEPUTY PRESIDENT: I would have thought that it was standard practice for lawyers in particular to copy the other side with letters to - - -

PN57

MR HULL: It is perhaps usual practice I did not forward a copy. I have no objection to passing over a copy to my friend.

PN58

THE SENIOR DEPUTY PRESIDENT: Well, there is certainly no grounds for objection. Would you do that, please, and Mr Bornstein needs to have an opportunity to look at that before he can respond.

PN59

MR BORNSTEIN: Thank you.

PN60

THE SENIOR DEPUTY PRESIDENT: Mr Bornstein, it is close type and it goes to two pages. Given my time frame, instead of you calling on the subpoena is it worth us hearing briefly what Mr Hull says about the situation and then adjourning into conference to see if I can try to resolve this matter rather than before we have to go into a full blown hearing?

PN61

MR BORNSTEIN: I would appreciate that and that may also give me time to cast my eye over that letter and I do not have any objection - - -

PN62

THE SENIOR DEPUTY PRESIDENT: What do you say about that procedure?

PN63

MR HULL: I have no objection to that procedure, sir. Certainly I would want to put on record with respect to the subpoena that we do object to it and we will be applying for the subpoena to be set aside in whole, or if the Commission is not so persuaded, at least in part on the basis that it is, one, irrelevant, and two, excessively broad, three, it constitutes a fishing expedition. In answer to my friend's opening submissions, sir, there is not a lot I have to say. Essentially the facts as he relates them in terms of what has occurred by way of a letter being forwarded to the employees concerned, on the 21st, I think it was, of June, advising them of a meeting and then a meeting taking place on the 28th is correct.

PN64

They received a letter on the 28th which advised them that the council was no longer in a position to continue to provide them with modified duties as had been the case. We do not dispute that all the employees were WorkCover recipients. They had work related injuries that had been accepted and so on - - -

PN65

THE SENIOR DEPUTY PRESIDENT: Was an explanation given as to why council was not able to - - -

PN66

MR HULL: An explanation was given during the meeting and in the letter, sir, and that - - -

PN67

THE SENIOR DEPUTY PRESIDENT: And what was that explanation, Mr Hull?

PN68

MR HULL: I only have one copy, sir, but I can certainly hand up a copy of the identical letter that was given.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes.

PN70

MR BORNSTEIN: Your Honour, I have a copy of that letter.

PN71

THE SENIOR DEPUTY PRESIDENT: I assumed you would have, Mr Bornstein.

PN72

THE SENIOR DEPUTY PRESIDENT: I will just pause for a moment to read that if I may.

PN73

MR HULL: Certainly, sir.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN75

MR HULL: As your Honour will have taken from that letter, essentially the reasons that were given to the employees, explained to the employees was that due to the - put it this way, the lack of significant progress with respect to each of them to return to a capacity whereby they could undertake a full range of duties of which they were initially employed and the needs of the council to be able to meet in with growing demands for home care services it was determined that it was necessary in order to maximise the resources council had to be able to provide employees in that role that were able to perform the full range of duties.

PN76

THE SENIOR DEPUTY PRESIDENT: Mr Hull, lest home care services not be what I understand them to be could you spell them out just to make sure that what I think they are is indeed what you say they are?

PN77

MR HULL: Well, I am sure my instructor will correct me if I have got it slightly wrong. As I understand it, sir, it is the provision by the municipality of services to residents who have various disabilities either through illness or age or the like to provide assistance with the normal running of a household by way of cleaning, the full range of cleaning duties. It also extends to shopping duties, various other matters that individuals might require paying their bills, accompanying them to medical appointments and driving and so on. So there is a full range of assistance I believe given according to the need of the individual and I would believe that by an large it mostly goes to older residents in the community.

PN78

THE SENIOR DEPUTY PRESIDENT: That does accord with my understanding of it, thank you.

PN79

MR HULL: Now, as with all council services there is a limit in terms of the resources they have available. There is a growing population, aging population. The demands on those resources are growing. The position with the - one further reason for the decision to no longer provide modified duties is that there also other more recently injured employees of council who are also deserving, if I can use that word loosely, of modified duties by way of return to work programs.

PN80

As your Honour will be aware, there is a duty under the Accident Compensation Act where practicable for an employer to provide modified duties or alternative suitable duties or alternative suitable duties for an injured worker for the first 12 months following the date of a work related injury. All of these employees are well beyond that time and in the assessment of council none was making sufficient progress. Well, when I say none, I understand Ms Batsakis who is one of the seven in fact is continuing on with the duties she always has been and so she should in fact be excluded from this list, so we are really talking about six employees here.

PN81

THE SENIOR DEPUTY PRESIDENT: One is actually back at work?

PN82

MR HULL: Well, one is continuing on on my instructions in performing exactly the same function as she was prior to 28 June.

PN83

THE SENIOR DEPUTY PRESIDENT: I understood from Mr Bornstein that none of them was performing any functions.

PN84

MR HULL: If your Honour would excuse me for a moment?

PN85

THE SENIOR DEPUTY PRESIDENT: Yes, that is important.

PN86

MR HULL: My instructions are that there is one. It is the first individual on the list, sir.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes, and the other six you accept are not performing any work at all?

PN88

MR HULL: Yes.

PN89

THE SENIOR DEPUTY PRESIDENT: And you say that one - could you give me the name, please?

PN90

MR HULL: Yes. Hrysoula, H-r-y-s-o-u-l-a.

PN91

THE SENIOR DEPUTY PRESIDENT: H-r-y-s?

PN92

MR HULL: O-u-l-a Batsakis, B-a-t-s-a-k-i-s.

PN93

THE SENIOR DEPUTY PRESIDENT: And you say is at work performing the full range of pre-injury - - -

PN94

MR HULL: Performing the same duties as she was prior to 28 June, which are modified duties. I understand there is no change.

PN95

THE SENIOR DEPUTY PRESIDENT: It would be useful if I could have a brief explanation of the duties that each of these people performed and the nature of the injury that has required them to go onto modified duties, or is that too complicated at this stage/

PN96

MR HULL: No, well, I can address you in general terms on it, sir.

PN97

THE SENIOR DEPUTY PRESIDENT: I just want to get an understanding.

PN98

MR HULL: Yes. Most of the injuries relate to the sort of things that you would expect to occur for an employee working in those circumstances. They tend to be muscular injuries, sprains, repetitive strain injuries, of that nature, that require restrictions on lifting or physical exertion and they vary from individual to individual. The modified duties likewise vary depending on the nature of the particular injuries of each individual, but they range from the extreme limited duties, one such as lid writing, sir.

PN99

THE SENIOR DEPUTY PRESIDENT: Such as what?

PN100

MR HULL: Lid writing.

PN101

THE SENIOR DEPUTY PRESIDENT: Which means?

PN102

MR HULL: Lid writing means writing on the lids of food that is prepared, the contents therein.

PN103

THE SENIOR DEPUTY PRESIDENT: And that is the limit of one particular person's duties?

PN104

MR HULL: Yes, well, as I understand it with perhaps some further very minor duties in terms of maintaining a tidy office and extremely minor functions.

PN105

THE SENIOR DEPUTY PRESIDENT: That is at one extreme and the other is - - -

PN106

MR HULL: Yes, the other manner in which these functions were organised was to have two employees attending at the one residence of the individual receiving the home care, so that depending on the nature of the injuries the injured worker would be performing the light duties such as dusting, wiping and so on, whereas the other employee would be performing the heavier vacuuming, more physical work. There is another issue that arises there in terms of the effect of that in placing a more onerous role in terms of the physical demands of the job on the non injured employee with the taking of all of it if you like rather than it being spread out.

[9.00am]

PN107

So that is the way in which it has been handled, has either been the shared duties at the particular locations at work or significant modifications and relocation to other like parts of the council's activities. Mainly the food preparation area.

PN108

THE SENIOR DEPUTY PRESIDENT: Mr Hull, while you were interrupted and I will ask Mr Bornstein this question as well, what is your submission as to the ability of your client to have terminated the employment of these people?

PN109

MR HULL: We say that the - well, our clients were given proper process.

PN110

THE SENIOR DEPUTY PRESIDENT: Yes, of course.

PN111

MR HULL: Absolutely entitled to justify to terminate on the basis of incapacity to perform the required duties.

PN112

THE SENIOR DEPUTY PRESIDENT: I have interrupted you sufficiently. Go on.

PN113

MR HULL: No, no. Well, indeed, we would say with respect to that that had that occurred, that there would be no basis for these proceedings, but in any event we do say, and that is jumping forward a little bit, that with respect to the allegation that what has occurred and what has occurred is a removal of or the non continuance of the modified duties. We say that on basis whatsoever can that be regarded as industrial action. The subsequent question to whether it is illegitimate, we say irrelevant to the question, because it is simply not industrial action and - - -

PN114

THE SENIOR DEPUTY PRESIDENT: Well, why is it not industrial action?

PN115

MR HULL: Well, it is not industrial action we say, sir, because whilst - if you look at the definition of industrial action under the Act, you can look at any restriction of work that fits the definition.

PN116

THE SENIOR DEPUTY PRESIDENT: Well, this is an absolute restriction on it.

PN117

MR HULL: Well, yes, yes, but whilst it might qualify for industrial action, what we say, sir, is that the determination is broader than that and the Commission must look at the context in which that restriction takes place. If it was simply taken - - -

PN118

THE SENIOR DEPUTY PRESIDENT: But does not that go to legitimacy rather than whether it constitutes industrial action?

PN119

MR HULL: Well, perhaps that might be an argument of a different way of approaching the question, sir, but what - - -

PN120

THE SENIOR DEPUTY PRESIDENT: I do not want to get into that sort of detail at this stage - - -

PN121

MR HULL: Yes, but - no, but what we do say, sir, is that a restriction or limitation on work that falls within your ordinary prerogative of management in the deployment of labour and the use of its - the allocation of duties. Without more does not amount to industrial action. If it is accompanied by - and I would not want to be dogmatic about this, but ordinarily I would say that if it was accompanied by some sort of demand or some aim or some - it was -could be seen as part of a broader purpose, well, then, indeed, it may well be.

PN122

So exactly the same fact situation, may or may not be industrial action. On the question of legitimacy, I would say that is perhaps of further step, whereas it might be - it might be properly regarded as industrial action, then there is a still a further question of whether that is legitimate or illegitimate industrial action. What we say here is that it simply is not industrial action. What this is is no more than an employer confronted with a situation, with a number of its employees as occurs and has occurred in the past and was continuing to occur in the future.

PN123

Where it has employees who are incapacitated due to injury, who are unable to perform the full range of the duties for which they were originally employed, have been on modified duties under a return to work program. They have been under that arrangement for a significant period of time. There has not been a significant improvement in their capacity to return to ordinary duties and there comes a point where the employer is entitled, we say, to terminate that arrangement. Now, what has happened here is the employment has not been terminated at this stage.

PN124

THE SENIOR DEPUTY PRESIDENT: Yes, I accept that. Mr Bornstein complains about the manner in which this event occurred in relation to each of the seven.

PN125

MR HULL: Yes.

PN126

THE SENIOR DEPUTY PRESIDENT: He says that they were - that the union or Ms Lyons was advised that nothing would happen in relation to the work and that her attendance was not required. What do you say about that?

PN127

MR HULL: That is disputed. That is disputed.

PN128

THE SENIOR DEPUTY PRESIDENT: Well, what do you say - - -

PN129

MR HULL: There is a - in the fax that I sent you yesterday, sir, and my friend now has a copy, I need to make a correction in that. In terms of that, refers to there being no contact from the union. That is incorrect and that - I do not maintain that. They were my instructions at the time and I have since so clarified those instructions.

PN130

THE SENIOR DEPUTY PRESIDENT: Yes, well, just tell me briefly what you say happened?

PN131

MR HULL: What we say happened is that there was a telephone conversation between Ms Lyons and Ms Johnson. That no assurances were given - made. That there had been a, subsequent to the 28th, on 29 June, a meeting took place with Ms Lyons and officers of the council. That meeting broke down after a short period with no progression - no matters being discussed. As I understand, it was a fairly hostile meeting and it lasted, I think, a very short period and broke up with no constructive discussion at all. And beyond that, there has been, to the best of my knowledge, no further discussions between the union and the council.

PN132

What we would say in any event, sir, is that this is a matter - I understand that there may have been a telephone call also to the chief executive officer via Mr Parkinson of the union, that there was nothing followed up from either side on that, in that particular matter. This matter was raised as a secondary issue. What I was going to say, sir, that in any event what we say in these circumstances, what ought to be happening and if there is to be any involvement of the Commission at all, is the application of the grievance or dispute settlement procedure under the enterprise agreement and my clients have no difficulty in participating in that procedure. And if there are particular issues with respect to the particular individuals, which representations wish to be made, then the council is, of course, prepared to give those representations proper consideration.

PN133

THE SENIOR DEPUTY PRESIDENT: Yes. What clause in the agreement is it. Do you have that handy?

PN134

MR HULL: If you would bear with me. I should point out, sir, that there is perhaps a - I do not know that much turns on this, but there is a - the agreement that is referred to in the application is the agreement 2001. That was not, in fact, certified until 23 July. So - arguably by yourself. There is perhaps some issue as terms of which agreement ought to apply. We would say that it is the previous one, but in terms of the dispute settlement procedure, I take it that that would be the matter when the issue was raised and that is clause 9, prevention and resolution of disputes.

PN135

Now, there is no mandatory requirement under that provision for referral to the Commission, but referral to the Commission is open to either party under that provision. Now, I mean, needless to say, we also make the observation that these matters are some six weeks old, sir, and there has been a tangible lack of concern by way of any matter of urgency from the union in this regard and to come here today to say that this is an issue of industrial action requiring orders of the Commission, does not fall well from the mouths of the applicants.

PN136

That what we have is an attempt to bring about the exercise of the Commission jurisdiction and, indeed, to seek to gain a wide - extremely wide range of documents on the basis of the subpoena that has been - the summons that has been issued, that again we say is - ought not be allowed to stand, but should be said aside on the basis that none of the requirements there are relevant to the issue that is before. The issue that is before you, sir, is a question of whether or not the action of which is there no dispute, not the standing down, the decision to discontinue the modified duties constitutes industrial action.

PN137

Now, on the information that you currently have before you, sir, we would say that a decision ought to be able to be made in that regard and that is that it is not industrial action. The only possible additional, sort of, contextual situation or information that your Honour might require, would go to the question of what discussions, if any, have occurred between the council and the union. And that is a matter of contest. The union says that assurances were given. We say that they were not given. And that, unfortunately, will be - as I understand it, will be a dispute between two individuals on either end of a phone call and I do not know the Commission is going to be able to do much with that. However, if we look at the subpoena - - -

PN138

THE SENIOR DEPUTY PRESIDENT: Let us not just at the moment.

PN139

MR HULL: Let us not?

PN140

THE SENIOR DEPUTY PRESIDENT: Let us not.

PN141

MR HULL: Certainly, certainly. Can I just say perhaps in closing, sir, that there is a wide use of the word stand down in the application. We do not concede that this is in any way, shape or form a stand down, certainly as that term is ordinarily understood. We say that term as ordinarily understood, it involves a suspension of the contract. We dispute that there has been any alteration of the contract of employment to - we say nothing has changed there.

PN142

That the contract remains as it was and the only difference has been a relaxation in the requirement of the duties that have been demanded by the employer arising out of the work related injuries and the duty that lasted for a period of 12 months under the Accident Compensation Act to provide modified work. So we, I guess in some respects, say there simply is no case to answer and in that event, necessarily the summons should fall.

PN143

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Bornstein, before I adjourn into conference, I think the only think I would like to particularly hear you on is what you say about the utilisation of the prevention and resolution of disputes clause in the enterprise agreement, and that does not preclude you from saying anything else you want to say.

PN144

MR BORNSTEIN: Yes. I am instructed in relation to that matter that there was discussion about that, I think in a meeting of the 29th and Ms Lyons suggested that could be used, provided the employees were to remain working and that position was not accepted by the counsel and the matter has not been progressed to that time. Beyond that, we say that issue is not particularly relevant in the application we make today. That we apprehend there has been a jurisdictional challenge of sorts made to the application. I am happy to address you on that today if you would like me to.

PN145

We say the application is clearly within the jurisdiction of the Commission and I have - I comment my friend on his very eloquent description of stand-downs as a relaxation and of a requirement to attend for work, but whatever that description is and however eloquently it is put, it clearly falls within the definition within section 4 of the Act and the Commission certainly had jurisdiction, and then the question becomes one of discretion. I will just briefly, before we go into conference, raise several other issues. There will be a vigorous challenge to the question of whether the employees are on modified duties in a number of cases.

PN146

That is not the case, as I am instructed. One employee in particular was performing exactly the same work she performed prior to being injured. To the extent that there has been some policy implemented, it has been implemented in an indiscriminate manner. Obviously we had problems about the process in which the union was dealt with, but the policy has also been applied regardless of whether it was to be properly applied to employees on modified duties.

PN147

THE SENIOR DEPUTY PRESIDENT: Just interrupting you there. If it be the case that one or another employee was not on modified duties, would that employee be in receipt of any WorkCover payments? I would have thought not, but I am not really sure how this all works.

PN148

MR BORNSTEIN: I am instructed, yes, that the - yes, because they were still providing certificates. I will have to get some further instructions. I am a little bit in the dark on that, too, your Honour, but I will need to - - -

PN149

THE SENIOR DEPUTY PRESIDENT: Yes, it just seems a little inconsistent that somebody is not on modified duties, but still subject to a certificate and receiving WorkCare payments.

PN150

MR BORNSTEIN: Yes, that is one of the matters that I will need to properly elicit evidence about, obviously. In any event, we will obviously be far apart on that issue. In terms of why my friend describes as the delay, that is simply explained in this way. The union acted immediately and once it was told about what had happened, there was a meeting on the 29th where the union made clear that it vigorously opposed what had happened. There was some confusion amongst the employees about what, in fact, had happened to them. Whether they had been terminated or not, unfair dismissal applications were lodged.

PN151

A letter was then sent by the council clarifying the position, confirming that the employees employment had not been terminated, so that accounts for the reason why the matter has not been brought on prior to today. There was some toing and froing in correspondence about that issue, unfair dismissal applications and the withdrawal of those applications. The most important thing I think, your Honour, that may fall for some sort of resolution today is the question of jurisdiction. Although my friend does not describe quite in that fashion, he is clearly challenging your jurisdiction to deal with the matter, and it may be - - -

PN152

THE SENIOR DEPUTY PRESIDENT: Yes, but he is not saying that we should not go into conference, though.

PN153

MR BORNSTEIN: No.

PN154

THE SENIOR DEPUTY PRESIDENT: I think we can do that. Would you answer the question that I asked of Mr Hull as well. Assuming for a moment that the six or seven people are unable to perform their full range of functions and have been unable to do so for a considerable period of time, if proper procedures were adopted, would the council be entitled to terminate their employment?

PN155

MR BORNSTEIN: It is a complex question. It is hard to answer that without looking at each situation individually. There has been a recent article about this actual - the range of situations you get to deal with with injured workers and their return to work and whether they were, in fact, performing modified duties or whether the contract is now a new contract and so on.

PN156

THE SENIOR DEPUTY PRESIDENT: Do you have a reference to that?

PN157

MR BORNSTEIN: It is the Law Institute - - -

PN158

THE SENIOR DEPUTY PRESIDENT: Not now, but if you could provide it.

PN159

MR BORNSTEIN: It is in the Law Institute Journal recently articled - the April edition Law Institute Journal. There are number of cases which ultimately I will be seeking to take you to, which deal with those issue.

PN160

THE SENIOR DEPUTY PRESIDENT: Well, it might be appropriate to adjourn into conference at this stage. Does that suit you both, gentlemen?

PN161

MR BORNSTEIN: Yes.

PN162

MR HULL: Yes.

PN163

THE SENIOR DEPUTY PRESIDENT: We will adjourn into conference.

NO FURTHER PROCEEDINGS REPORTED