C2001/1303, Transcript of Proceedings [2001] AIRCTrans 315 (21 March 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HODDER

C2001/1303

D AND R STAINLESS

AND

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

NOTIFICATION PURSUANT TO SECTION WR99
OF THE ACT OF AN INDUSTRIAL DISPUTE
RE ACTION TAKEN IN REGARD TO RESIGNATION
OF EMPLOYEE

BRISBANE

2.20 PM, THURSDAY, 1 MARCH 2001

PN1

MR R.J. McPHERSON: I appear on behalf of Australian Industry Group. With me today I have MR D. CLIFFORD, manager and owner of D and R Stainless; MR R. POWELL, in his capacity as manager and owner of D and R Stainless; and MR D. O'CONNOR, in his capacity as shop foreman.

PN2

MR B. BURTON: I appear on behalf of the Australian Manufacturing Workers Union. I have appearing with me - - -

PN3

THE COMMISSIONER: I don't want everybody's name.

PN4

MR BURTON: No. Well, I have appearing with me the organiser, MR B. CARDINAL and a number of members who are employed at D and S [sic] Stainless.

PN5

THE COMMISSIONER: Thank you. Mr McPherson?

PN6

MR McPHERSON: Thank you, Commissioner. I should start by thanking you, Commissioner, for bringing this matter on with such urgency. We are - - -

PN7

THE COMMISSIONER: Well, it would have been at 2 o'clock only I was held up having a medical examination.

PN8

MR McPHERSON: So, in any event, Commissioner, I thank the Commissioner for bringing the matter on such urgency. The Commissioner has before him a section 99 dispute notice. What we are seeking today, Commissioner, is the opportunity to be involved in conciliation discussions. It may be if the Commissioner sees fit that some of those discussions could occur off record and the AIG may even seek private discussions with the Commissioner in pursuit of those sorts of conciliated outcomes. Commissioner, we've sought a section 99 dispute conference because we are wanting to go down that avenue.

PN9

We have not pursued down other avenues that are open to us within the legislation, and I think it's worth observing that the union and their members have not pursued remedies that are open to their members under the legislation as well. What we're seeking today, Commissioner, is in the strongest possible terms a recommendation that this industrial action is unprotected industrial action and that the employees in question return to work.

PN10

THE COMMISSIONER: Well, for your information, Mr McPherson, an application under section 170CE was filed on behalf of Mr Baker on 28 February by the AMWU.

PN11

MR McPHERSON: Thank you, Commissioner.

PN12

THE COMMISSIONER: And that's U2001/1355.

PN13

MR McPHERSON: Well, that's an interesting development, Commissioner, and I think it will be something that's worthy of discussion in these negotiations.

PN14

THE COMMISSIONER: Well, not really: that's an application in its own right, it's not before this Commission. I'm simply informing you of that action.

PN15

MR McPHERSON: Thank you, Commissioner. Commissioner, in terms of background and context to this dispute, the employee at the - - -

PN16

THE COMMISSIONER: Well, first of all, I think I understand what the dispute is about. I'll ask Mr Burton what it is that he's got to say about the situation there. Mr Burton?

PN17

MR BURTON: Yes. If it please the Commission, I'd like to seek your indulgence because there's a bit of a history to why our people did what they did.

PN18

THE COMMISSIONER: Well, isn't this - I'm not concerned about why they did what they did, this is about resolving it.

PN19

MR BURTON: Yes, Commissioner, but the - I mean obviously events leading up to the dispute that our members took needs to be understood for the reasons why they took it. It was not a situation they did higgledy-piggledy. It was a situation that arose which affected one of their work colleagues and the manner in which the company dealt with that.

PN20

THE COMMISSIONER: Can I ask you this: is the notice - are the grounds contained within the notification accurate?

PN21

MR BURTON: Our members are in dispute, Commissioner, and - - -

PN22

THE COMMISSIONER: Well, no, it says this:

PN23

There's been refusal to work. There's the formation of a picket line preventing vehicular access to the site. There's a threat of a secondary boycott at a site of a client of the applicant.

PN24

Is that accurate?

PN25

MR BURTON: It's accurate in that our members have taken industrial action. It is accurate that they are assembled outside the workshop and it is accurate - I'm not aware of any proposed boycott of any site.

PN26

THE COMMISSIONER: All right. Well, tell me this: what do your members want to achieve by their industrial action?

PN27

MR BURTON: They want to achieve the reinstatement of Dallas Baker.

PN28

THE COMMISSIONER: Now, your organisation has filed an application under section 170CE - - -

PN29

MR BURTON: That's correct.

PN30

THE COMMISSIONER: - - - of the Act. Now, that's a matter in its own right, but then this notification goes on to say that your member resigned:

PN31

This employee sought conversion to casual rates of pay to facilitate a higher take home pay. This request was refused and the employee resigned as a result.

PN32

Now, that's a bit strange because normally it's people on casual wanting to become permanent that caused disputes, but I mean is that accurate? Is that what it is?

PN33

MR BURTON: No, that's not accurate, Commissioner. There was no intent, if you like, on my member to resign.

PN34

THE COMMISSIONER: Well, why isn't he still employed there?

PN35

MR BURTON: Because the company dismissed him.

PN36

THE COMMISSIONER: Well, there's a clear difference between what they say is that he resigned as opposed to you saying they dismissed him.

PN37

MR BURTON: That's correct, Commissioner.

PN38

THE COMMISSIONER: Mr McPherson, is that correct that the employee was dismissed by the company?

PN39

MR McPHERSON: No, Commissioner. The employee resigned his employment.

PN40

THE COMMISSIONER: Have you got any - what proof have you got of that?

PN41

MR McPHERSON: Well, what I've got is contemporaneous facsimiles to me and a statement that's been drafted by one of the administrative staff out there that testifies to the fact that Mr Baker had a conversation with his admin staff employee and said that he was going to go downstairs - he being Mr Baker - and explain to the boys that it was decision and he was happy with it.

PN42

THE COMMISSIONER: What to resign?

PN43

MR McPHERSON: Correct, Commissioner.

PN44

THE COMMISSIONER: This all sounds weird to me. Here you've got a bloke who wants to get a higher take home pay; makes application to be made a casual to achieve a higher take home pay; the company says "No" and then you say he resigns over it. Doesn't he want to take home any pay at all?

PN45

MR McPHERSON: Commissioner, you can act in haste and repent at leisure, but that is what we understand occurred. And the full background of it, Commissioner, is that on the 26th which I believe was Monday of this week, Mr Baker approached management and said, "I've heard about this casual position; they get 25 per cent; I'd like to go casual." The company said, "We need to read what the AIG material has been provided to us" - which in fact contains the totality of the clause, the amended clause, to the award - "and we'll talk to you about it later." The next day, being the 27th - - -

PN46

THE COMMISSIONER: Well, it's not an automatic right for a casual - for anybody to claim to be made permanent or vice versa.

PN47

MR McPHERSON: Well, the clause doesn't even go to the issue of reverse - - -

PN48

THE COMMISSIONER: No, certainly.

PN49

MR McPHERSON: But with respect to the company, they wanted to get their head around what it did say.

PN50

THE COMMISSIONER: Well, I'm trying to sort out what this dispute is all about. Here you've got the union and his workmates out on strike allegedly in support of him or supposedly in support of a guy who says, "You say he resigned; the union says you sacked him." Now, there's a pretty vast difference between those two situations: resigning and being sacked. So what do you rely on, Mr Burton, to say that your member didn't resign? Is he here?

PN51

MR BURTON: He's here, Commissioner. Yes, he is.

PN52

THE COMMISSIONER: Which is Mr Baker? Mr Baker, can you just come up to the bar table please? Now, I've got a very simple question for you, Mr Baker: did you resign your employment or not?

PN53

MR D. BAKER: I didn't want to resign. I wanted to - - -

PN54

THE COMMISSIONER: No, no. I've asked you what did you do - did you resign your employment or not?

PN55

MR BAKER: Well, I feel I was pushed into it.

PN56

THE COMMISSIONER: No. Just tell me what you did. Did you resign?

PN57

MR BAKER: I said to my employer that due to my financial hardship that if I couldn't go casual then I would have to give three weeks notice.

PN58

THE COMMISSIONER: So did you give three weeks notice?

PN59

MR BAKER: I asked for three weeks notice.

PN60

THE COMMISSIONER: It's not a matter of asked for; did you give three weeks notice?

PN61

MR BAKER: Yes.

PN62

THE COMMISSIONER: And what did the company say when you gave three weeks notice?

PN63

MR BAKER: Mr Powell said that if I want to leave he'd pay me one week and to leave now.

PN64

THE COMMISSIONER: Well, does the award prescribe one week?

PN65

MR BAKER: No, it doesn't, Commissioner.

PN66

THE COMMISSIONER: Well, what was the notice that Mr Baker would have had to have given under the terms of the award?

PN67

MR BURTON: Mr Baker has been employed there for - he's now in his fifth year. He would have been entitled to four weeks notice in my view.

PN68

THE COMMISSIONER: All right, but he was happy to give three.

PN69

MR BURTON: He was happy to give three.

PN70

THE COMMISSIONER: So were you happy to walk away with three weeks pay, Mr Baker; is that what you're saying?

PN71

MR BAKER: I was under the understanding I was entitled to three weeks.

PN72

THE COMMISSIONER: Well, you see the thing about notice is you've got to give notice; it works both ways. If the employer wants to get rid of you, under normal circumstances he'd have to give you three weeks notice. If you want to leave, you've got to give him three weeks notice. You don't get paid three weeks. If they want you to work the notice out, they've got a choice: they can say, "We don't want you to work the notice out, here's the three weeks" and away you go. But if they say, "All right, you've given us three weeks notice, you work the notice out, and at the end of the three weeks your employment will be finalised." I mean I'm trying to sort out what it is that you really want.

PN73

MR BURTON: Well, Commissioner - - -

PN74

THE COMMISSIONER: Just a minute, Mr Burton. You don't seem to know too much about what your member has done. I want to know what you want, Mr Baker? What do you actually want?

PN75

MR BAKER: Well, originally I would have preferred to go on casual rates.

PN76

THE COMMISSIONER: All right, but that's not - you need to understand you can't just demand that you be made a casual.

PN77

MR BAKER: I didn't demand anything, sir.

PN78

THE COMMISSIONER: All right. So when you found out you couldn't be a casual, you decided to give notice.

PN79

MR BAKER: I thought it better for myself and my family that I should move on and I told my employer.

PN80

THE COMMISSIONER: All right. So you gave three weeks notice and the company said, "You can have one."

PN81

MR BAKER: "You can have one and go now". Yes. "Pack your tools and go now."

PN82

THE COMMISSIONER: All right. Well - - -

PN83

MR McPHERSON: Commissioner, could I - not wanting to break your stride just - - -

PN84

THE COMMISSIONER: Well, I want to try and resolve this - - -

PN85

MR McPHERSON: Yes, and - - -

PN86

THE COMMISSIONER: - - - without us going through some great palaver.

PN87

MR McPHERSON: Commissioner, I couldn't agree more. I just wanted to be accurate about this point. My instructions are that Mr Baker has said, "Look, you know, I understand I have to give three weeks or I'm entitled to three weeks", and the company said, "Well, look, we are prepared to let you go on a week's notice. We'll pay you the balance of today and a week's notice". And that was an agreed position, you know, for the - - -

PN88

THE COMMISSIONER: An agreed position?

PN89

MR McPHERSON: It was agreed - - -

PN90

THE COMMISSIONER: Well, it's contrary to the award for a start.

PN91

MR McPHERSON: Commissioner, it's certainly contrary to the award - - -

PN92

THE COMMISSIONER: So, you know, so forget that. Forget that straightaway, Mr McPherson - - -

PN93

MR McPHERSON: Let me make this submission, Commissioner, we'd be more than happy to part with the three weeks notice if that is a resolution to this dispute.

PN94

THE COMMISSIONER: All right. Is that what you want, Mr Adam: three weeks pay?

PN95

MR BURTON: Commissioner, can I seek to talk to our member? He's not fully conversant with these situations and that's why he's asked me to be involved.

PN96

THE COMMISSIONER: All right. I'll give you a brief adjournment to ask him what it is he wants. I mean there's an offer on the table by the company to give him three weeks pay and not work it out as I understand it, Mr McPherson, and that brings the dispute to an end. Your members go back to work. Now, if that's all he wants, I think it's easily fixed. If he wants something more than that, well, maybe this has got to go a bit further. So I'll adjourn briefly to allow you to discuss the matter with your member.

PN97

MR BURTON: Thank you, Commissioner.

SHORT ADJOURNMENT [2.34pm]

RESUMED [3.05pm]

PN98

THE COMMISSIONER: For the record the parties have met in private conference under the chairmanship of the Commission. Now, as I understand it a position which may resolve this matter has been reached. Are we in a position to confirm that, Mr McPherson.

PN99

MR McPHERSON: Yes, Commissioner.

PN100

THE COMMISSIONER: Mr Burton.

PN101

MR BURTON: Yes, Commissioner.

PN102

THE COMMISSIONER: Now, are the parties clear on the terms that have led to this matter being adjourned?

PN103

MR BURTON: Commissioner, I would appreciate it if you would read them into transcript, please.

PN104

THE COMMISSIONER: Very well. Mr McPherson, based on what I've told you are you in a position to put that on the record?

PN105

MR McPHERSON: Yes, Commissioner.

PN106

THE COMMISSIONER: Could you do that now, please?

PN107

MR McPHERSON: Would the Commissioner prefer that I do that or would the Commissioner like to put that on transcript and seek that the parties confirm that that is the position.

PN108

THE COMMISSIONER: Well, I didn't keep a note of it, you did. So perhaps you might put it on the record on my behalf.

PN109

MR McPHERSON: Certainly, Commissioner. As we understand the position that's been agreed it is thus. The union and their members will return to work tomorrow at the normal starting time. There will be no pay for any of the employees who have been involved in the industrial action. The section 170CE application will be withdrawn. The union and their member, Mr Baker, Dallas Baker, will sit down in discussions with the employer in respect of the issue of Mr Baker's ongoing employment.

PN110

And in those discussions the union will not pursue the position that Mr Baker has a right to be a casual status employee.

PN111

THE COMMISSIONER: Well, when you say he won't pursue it, he is entitled to raise it on the understanding that he has no automatic right to claiming that position or demanding that position.

PN112

MR McPHERSON: That's correct, Commissioner.

PN113

THE COMMISSIONER: Yes.

PN114

MR McPHERSON: I would confirm that.

PN115

THE COMMISSIONER: Very well. Mr Burton, are they the terms that your members have agreed to return to work under?

PN116

MR BURTON: If the return to work includes, and I'm of the opinion it does, Dallas Baker.

PN117

THE COMMISSIONER: Yes, certainly Mr Baker, yes.

PN118

MR BURTON: Then I have no problems.

PN119

THE COMMISSIONER: Very well.

PN120

MR McPHERSON: Yes, Commissioner, I can confirm that Mr Baker is part of that.

PN121

THE COMMISSIONER: Very well. Well, under the circumstances - Mr Burton, it's your notification. Are you happy for the Commission to adjourn the matter now and to give the parties leave to have - - -

PN122

MR BURTON: Isn't that - - -

PN123

THE COMMISSIONER: I'm sorry, Mr McPherson, it is your application. Yes, I'm sorry. I was a bit confused about who owned it. Are you happy enough then if I adjourn this matter now, Mr McPherson and give the parties leave to have the matter re-listed if that becomes further necessary?

PN124

MR McPHERSON: Yes, Commissioner.

PN125

THE COMMISSIONER: Very well, on that basis I shall adjourn these proceedings and the best of luck.

PN126

MR BURTON: Thank you, Commissioner.

PN127

MR McPHERSON: Thank you.

ADJOURNED INDEFINITELY [3.09pm]