C2001/5815, Transcript of Proceedings [2001] AIRCTrans 3406 (5 December 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 1369

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2001/5815

THE COMMUNITY AND PUBLIC
SECTOR UNION

and

CSL LIMITED

Notification pursuant to Section 99 of the Act
re the termination of employment of a staff member

MELBOURNE

10.15 AM, WEDNESDAY, 21 NOVEMBER 2001

PN1

MR T. WARD: I appear for the CPSU.

PN2

MR A. KENNEDY: I am from Freehills.

PN3

THE DEPUTY PRESIDENT: Mr Ward, I think it was your application.

PN4

MR WARD: Yes. Yes, we made an application in regard to a potentially dangerous situation where a CPSU member's reaction to brawling resulted in termination of employment. Other staff expressed their concerns by walking off the job for two hours on 8 November, because of concerns of health and safety and as a protest against the termination. That is the reason why we have notified the application and - - -

PN5

THE DEPUTY PRESIDENT: Sorry, when did this happen, Mr Ward, again? What was the date?

PN6

MR WARD: Which?

PN7

THE DEPUTY PRESIDENT: What was the date of the action, the industrial action?

PN8

MR WARD: 8 November.

PN9

THE DEPUTY PRESIDENT: 8 November, okay, thank you kindly.

PN10

MR WARD: So essentially this is about a termination that is also about the company's policy to workplace violence and the health and safety issues generated by, you know, by that sort of situation. The background to this particular event is that over a long period of time horseplay in this workplace has been - and practical joking - has been a feature of the workplace. Often this practical joking is directed at Jose Orrellana, the member who was terminated. And whilst it might have been funny to a lot of people in the workplace the jokes were often lost on Jose.

PN11

Now some examples of this are when Jose - the background is phone calls - when Jose's wife rang, people would say that Jose's not there or they would falsely claim that there was a phone call for Jose from his wife when there wasn't; in the weeks preceding the event he had water thrown on him the workplace. The actual incident occurred on 30 October, when - - -

PN12

THE DEPUTY PRESIDENT: I am sorry, Mr Ward, are you suggesting there is some sort of victimisation in the workplace of this - - -

PN13

MR WARD: I am suggesting that there - yes, I am. I mean, there is a history of horseplay. And I don't know if people would so much consider it victimisation but there are - there is - I think it is true to say that there is an atmosphere of horseplay where often the person who - the person most often who the jokes were directed at was Jose.

PN14

THE DEPUTY PRESIDENT: Right.

PN15

MR WARD: I think that accurately states it. The incident occurred on 30 October when Jose, the person who was terminated, was operating a machine. Another person walked across a 3 metre exclusion line and dug him in the ribs - which is quite painful if you - - -

PN16

THE DEPUTY PRESIDENT: What is a 3 metre exclusion line?

PN17

MR WARD: It is because there is a machine being operated and only people who operate the machine should be inside that area, for health and safety reasons. So this person who was not operating the machined moved through and dug him in the ribs.

PN18

THE DEPUTY PRESIDENT: Was in an unauthorised area, was he?

PN19

MR WARD: Yes.

PN20

THE DEPUTY PRESIDENT: Okay.

PN21

MR WARD: And the person who was terminated responded by - reacting by turning around and making contact with the person on the back of the head or the side of the head. The company conducted an investigation following that and the result of that investigation was the termination of the member on 7 November. The following day there was a mass meeting at the Broadmeadows plant and a two hour stop work. Since then we have had a lunch time meeting on the 13th. Now there have been terminations at CSL previously and, you know, in the normal course of events that occurs in companies and, you know, there can be good reasons for it.

PN22

In this case it is quite different. It is the first time and only time that I am aware that such an incident has resulted in industrial action. And what people have said to me, that their concerns are firstly fear that if one individual is treated in this way that others may be treated in this way as well, in other words, you know, there is an acceptable level of horseplay in the workplace. Someone is provoked and they react and they get the sack, so there is a general fear there. But also I could not underestimate a cause of the whole issue is the gross injustice that a lot of people feel in the circumstance because of the extenuating circumstances with the incident.

PN23

Jose was provoked, we had a situation where an atmosphere has been - an atmosphere of horseplay has been tolerated by the employer, which may have led - contributed to the incident. Jose has 14 years service with no record of violence. We believe the decision is harsh in its personal and economic circumstances. Jose's wife works part time, he has just bought a house, he has a large mortgage, two children - the prospect of no income or a lengthy process to address that is a real problem. We also - the members also believe that the penalty is disproportionate to the actual incident, particularly in view of extenuating circumstances.

PN24

Other factors which have inflamed the situation, we believe, is the characterisation of Jose, by management, as a violent man in the context that he has 14 years service with the company and no prior history of reacting in a violent way. And also in letters to the union the company has characterised what occurred as a serious assault. Now we believe, according to the agreed set of facts - I mean, there is not much disagreement in what actually occurred - but I think it is quite clear that this is not a serious assault in terms of the common usage of the words. So this is a - this response by the company has inflamed by the matter.

PN25

Now, what remedies are available to the union? Our member has given instructions to a solicitor to initiate unfair dismissal proceedings. That solicitor has also instructed me that I am not to attempt to conciliate on this occasion because that may prejudice the unfair dismissal claim, so we are not seeking to do that today.

PN26

THE DEPUTY PRESIDENT: Which sort of leaves open the question of what do you want from me?

PN27

MR WARD: Okay. What we are seeking today is to conciliation to see if there - see if there is a way forward where the Commission can assist us in conciliating the dispute and, in particular, the broader matters of the dispute.

PN28

THE DEPUTY PRESIDENT: What is the current state of play in respect of industrial action? Subsequent to the stoppage has there been any more - is there likely to be any more?

PN29

MR WARD: Well, we had the lunch time meeting where our view was that it was a lunch time meeting. The company's view is that it was unauthorised industrial action. We will be required to report back to people and basically say that, "We have tried this, we have spoken the company, we have been to the Commission, we have tried conciliation," and basically give them a snapshot of where the situation is at.

PN30

THE DEPUTY PRESIDENT: Okay.

PN31

MR WARD: And I am not sure the reaction of people who will be there. All I can say is that in view of the - Jose's situation where - I mean, an unfair dismissal will take many months if it goes through to arbitration, and that will have serious economic consequences upon him. There is also the gut feeling amongst members that the termination was wrong and pressure upon the union to fix it quickly, and that is why we are here today to do all we can to fix the problem in a way that, you know, doesn't sort of have industrial action as the first response, we are trying to avoid that and that is why we are here. But there is a problem and our members want to see it fixed quickly so we are seeking your assistance in resolving the dispute. So we want to try conciliation.

PN32

THE DEPUTY PRESIDENT: Okay, I guess I am not sure, Mr Ward, given the instructions that you have received from the solicitors, how far we can advance that. I mean, I am happy to advance it as far as we can.

PN33

MR WARD: Okay.

PN34

THE DEPUTY PRESIDENT: However, it seems that you are somewhat constricted, or restricted by your own instructions.

PN35

MR WARD: Well, given this is a section 99 I wasn't aware that there would be a possibility of running an unfair dismissal for a section 99 application.

PN36

THE DEPUTY PRESIDENT: No, well, I am not suggesting that there is but what we have is a dispute which has been lodged under 99 which seems to hinge around a termination.

PN37

MR WARD: Yes.

PN38

THE DEPUTY PRESIDENT: If we are going to sit down and have some discussion about that, it is pretty hard to do it in the absence of discussion about the termination, is I guess what I am saying.

PN39

MR WARD: Well, I believe the termination is relevant and it can be discussed and can for part of the conciliation but it is not formally part of an unfair dismissal.

PN40

THE DEPUTY PRESIDENT: Okay. Just one question, while your are on your feet, was there any discussion with the company prior to the industrial action taking place - like subsequent to the termination, prior to the industrial action taking place? I am assuming there is a disputes procedure or a grievance procedure in the award.

PN41

MR WARD: There is. I mean, as an organiser I got a phone call in the morning. I wasn't involved in the actual investigation and so forth. I got a phone call that said, "Come to a meeting." And the actual action that people did take was actually much more limited than what it could have been and there were motions to have further escalations which were not supported by the meeting.

PN42

THE DEPUTY PRESIDENT: Had your dealings with the organisation in the past, and with the members there in the past, been such that they do avail themselves of the grievance procedure in respect of matters that arise?

PN43

MR WARD: Generally, yes, but I mean I think that the message that the people wanted to send was that they were very angry and that they wanted to have this situation fixed up quickly because, right or wrong, the view of the meeting seemed to be that the company would just lock in on a position which probably isn't an unreasonable view to take.

PN44

THE DEPUTY PRESIDENT: All right, thank you, Mr Ward.

PN45

MR WARD: Thank you.

PN46

THE DEPUTY PRESIDENT: Well, look, I am of a mind to probably go off the record in this matter, obviously subsequent to hearing from Mr Kennedy but I will reserve some judgement on that until I have heard from the other party.

PN47

MR KENNEDY: I actually think you hit the nail square on the head, Commissioner, with saying that this appear to be to do with an unfair dismissal rather than anything else. And, clearly, what Mr Orrellana seeks in reinstatement to employment and that is something that we can't deal with under a section 99 application and something that has to be dealt with under section 170CE. The matter does relate to a dispute which has arisen from the dismissal of one of the union members, Mr Orrellana, who was dismissed from his employment with CSL following an incident on 31 October 2001.

PN48

In this instance, Mr Orrellana struck a fellow employee around the head. There was an investigation carried out over the following - it would have been almost two weeks, which resulted in the summary termination of Mr Orrellana's employment on the grounds of gross misconduct. The initial reaction from the union, without consulting with the employer, was to call a stop work meeting at - at 8 am on the 8th of the 11th which, of course, caused some disruption in the workplace. This was followed by a further stop work meeting at 1 pm and then a work stoppage later in that day, two hours before the shift ended, which caused some problems for the respondent.

PN49

In response to this the company threatened to take section 127 proceedings to stop the industrial action and since then there hasn't actually been any industrial action. There has been this lunch time stop work meeting which we say was unauthorised as it was out - it was actually during work time, it was between 1.30 pm for 45 minutes - from 1.30 pm for 45 minutes. The issue of health and safety is a new one that has arisen. The action has always been over the reinstatement of this employee on the grounds that the - his colleagues believe that the termination was harsh and that there were mitigating circumstances. Those grounds are a matter for the Commission to consider on an application for unfair dismissal.

PN50

You would also have noted that the sole remedy being sought is reinstatement, and there is really nothing else to it in this case. But if that fails on this conciliation it is something which I am instructed CSL will not agree to. There is no other powers under section 99 for the Commission to deal with that issue, and it does have to proceed under 170CE. One of the things we have offered is to use this conciliation, this is in order to proceed - or to speed things up - is to use this conciliation as the unfair dismissal conciliation. That would cut up to 2 months off an application. We offered this on the basis that the applicant would submit his application for unfair dismissal forthwith by close of business today.

PN51

This is the employer trying to help things along. We are trying to move things along and get this matter resolved quickly through the proper processes under section 170CE, using the proper procedures and giving the opportunity for the Commission to exercise its powers for remedies under those sections. That offer, to use this conciliation for the purpose of unfair dismissal, has been rejected as you have heard. My colleague over there has been instructed not to pursue that route, which is a shame as it would have substantially sped up this whole matter.

PN52

The other things, to do with alleged bullying and health and safety, there are proper procedures as was pointed out under the enterprise agreement to deal with these issues. There is also a policy in place. The respondent has a harassment policy which can be used. None of these have been exercised, none of these policies have been pursued, none of the procedures have been pursued, no complaints have been made by any staff in relation to bullying. Initially it was put forward as a mitigating circumstance. It was investigated and there was found no evidence of bullying, and it was put forward in relation to these two employees who were involved in this altercation.

PN53

There were no allegations being made involving other employees. No one else has been identified as being a bully in the workplace. There is no health and safety issue here, Commissioner. And really all I can do is repeat that the respondent is quite willing to deal with this conciliation today as a conciliation on the unfair dismissal, providing that results in a further conciliation being avoided on the unfair dismissal application in order to speed the whole thing up.

PN54

THE DEPUTY PRESIDENT: So you are suggesting that outside of that there is no point to any conciliation?

PN55

MR KENNEDY: Outside of that there is absolutely no point. And the sole remedy sought is reinstatement of this employee, and the only way he can ever obtain reinstatement is to pursue his rights under section 170CE.

PN56

THE DEPUTY PRESIDENT: Mr Kennedy, it just seems to me that you have got a circumstance of some reasonably heavy-handed approaches by both parties in the circumstances. You have got on the one hand some industrial action that was taken apparently without any course to prior discussion, without any recourse to the grievance procedure, so obviously fuelled by some people that were somewhat hot-headed perhaps at the time. You have got a response to that by the Company in terms of threats to seek orders under section 127 of the Act.

PN57

So it looks as though we have got some conflicts between the parties. If we leave it all at that and we all go away and say, well, it will all get sorted out somewhere along the line, I am not sure that that does too much in respect for either parties' positions here and now.

PN58

MR KENNEDY: I think there was this initial hot-headed reaction and I think things have actually cooled off in the workplace now. There was this last meeting which was last Tuesday, and there doesn't seem to be any action or industrial action planned since that. I think the parties do appreciate the proper - I think both parties appreciate, really, that the proper way to deal with this matter is through an unfair dismissal application. And the respondent has offered to try and speed this up as quickly as possible and we are still making this offer to try and deal with this conciliation today as an unfair dismissal. Conciliation in order to speed things up and come to a speedy resolution. The point is, Commissioner, we can conciliate today but I am not quite sure where it is going to get us or what remedy we are going to end up with if we are conciliating on the section 99.

PN59

THE DEPUTY PRESIDENT: Well, neither am I, but I am probably of a mind at least to sit together and see if we can get anywhere with it at all. I agree with you, there doesn't seem to be too many avenues of recourse other than the ones that you suggest, but we do have some parties that are a fair distance apart in the way they are seeing the world at the moment, and perhaps we would make some progress on reconciling that at least.

PN60

MR KENNEDY: Well, Commissioner, if you are minded to have the conciliation, then of course we will participate in that.

PN61

THE DEPUTY PRESIDENT: Do you have anything you wanted to add, Mr Ward?

PN62

MR WARD: No.

PN63

THE DEPUTY PRESIDENT: Okay, thank you. All right, we will go off the record.

SHORT ADJOURNMENT [10.35am]

RESUMED [11.14am]

PN64

THE DEPUTY PRESIDENT: I will reconvene the matter of the section 99 notification. This was a matter in respect of a termination of employment. There is an application currently being put into place under section 170CE of the Act in respect of the termination of employment. The parties have agreed that in the interests of advancing this matter, we will move into a conciliation conference in respect of the 170CE application, so that, in effect, brings these proceedings to a close for the time being and I will adjourn accordingly. Thank you.

ADJOURNED INDEFINITELY [11.15am]