C1400/200, Transcript of Proceedings [2001] AIRCTrans 66 (22 February 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 5822
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C NO 14002 OF 2000

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING
AND ALLIED SERVICES UNION OF AUSTRALIA

AND

AUSTRALIAN GAS LIGHTING

NOTIFICATION PURSUANT TO SECTION 99
OF THE ACT OF A DISPUTE RE SACKED
WORKER, BREACHING AGREEMENT, IGNORED
DISPUTE SETTLING PROCEDURE

MELBOURNE

11.04AM, WEDNESDAY, 7 FEBRUARY 2001

PN1

MR M. RIZZO: I appear on behalf of the ASU.

PN2

MR D. RILEY: I appear on behalf of the CPU, with me MR J. MADDISON.

PN3

MR B. TREGLOWN: I appear on behalf of AGL, with me MR M. DE BOER and MR R. MILES.

PN4

THE COMMISSIONER: Thank you. Yes, Mr Rizzo?

PN5

MR RILEY: Commissioner, there is two matters before you - - -

PN6

THE COMMISSIONER: I am sorry, I beg your pardon, Mr Riley, yes.

PN7

MR RILEY: If the Commission pleases, we are here before you this morning in regards to one of our employees being stood down and effectively retrenched by the company. Just a bit of history of the case, Commissioner. One of our members, Bob Wiley, has been employed by the company since 1994 as a meter reader. Last April he injured himself on the job, his left knee. Subsequent to that he went to the doctor's and returned to work straight away continuing on his normal duties, but after a further two weeks the injury came to be such a painful experience for him that the company offered modified duties and put him in the office.

PN8

Since then, Commissioner, Mr Wiley's main duties have been input into a computer and been doing some clerical work around the office. Subsequent to that Megan Keehan, the manager for health and safety and rehab for AGL approached our member end of November and notified him that due to his injury that AGL had no employment for him and as such his employment would be terminated at a date to be fixed by Martin De Boer.

PN9

We were notified of those statements, Commissioner. We then on the eighth of the 12th notified a dispute against AGL Limited on the basis that (a) that there a manning levels clause, manning levels clause in the way they can downsize, and (b) there's also provisions under the Accident Compensation Act of 1985 which makes the company have some obligations to injured workers. After notification was notified to the company there was a meeting held on 11 December at which stage AGL stood down the injured worker on full pay, told him to stay home until such time as this has been resolved.

PN10

Basically from our point of view, Commissioner, today we want to try and get the company to abide by the dispute settlement procedure which is the status quo that will remain until such time as this is resolved. We believed that the modified duties that have been offered by the company has no further aspect of injuring the worker himself and the basis of our claim today is that we request that AGL reinstate him back into modified duties and that we go into the processes of the enterprise agreement. If the Commission pleases.

PN11

THE COMMISSIONER: Which is the agreement? The AGL Electricity Limited Enterprise Agreement 1999?

PN12

MR RILEY: That is correct.

PN13

THE COMMISSIONER: And what are the relevant provisions in relation to settlement of disputes?

PN14

MR RILEY: Commissioner, I do have - - -

PN15

THE COMMISSIONER: Clause 8?

PN16

MR RILEY: Yes, I do have - - -

PN17

THE COMMISSIONER: No, it is all right. I have got a copy of the agreement. I just wanted to check that we were on the same tram, that is all.

PN18

MR RILEY: Clause 8 specifically note down to (c), it just says:

PN19

The status quo at the time of - - -

PN20

THE COMMISSIONER: So we are at 5, are we?

PN21

MR RILEY: That is correct.

PN22

THE COMMISSIONER: Have you had the mediation?

PN23

MR RILEY: We asked for that, Commissioner, and they just proceeded to stand down the employee. So we come in now.

PN24

THE COMMISSIONER: All right, go on.

PN25

MR RILEY: I actually do have some exhibits, Commissioner, if you want to hand up. Firstly the enterprise agreement stating the status quo. We also do have a letter notifying the dispute and asking for a mediator to be involved in this process and then we have a copy of the letter that was sent to Mr Wiley saying that you are retrenched and you are stood down until further notice or until it is resolved.

PN26

THE COMMISSIONER: Right. Mr Rizzo?

PN27

MR RIZZO: My interest is one of intervening in this matter, Commissioner. Obviously the issue of retrenchment is of great concern to our union as well. So I am here as an interested party but I am more of a party in the next dispute that is listed before you.

PN28

THE COMMISSIONER: All right.

PN29

MR RIZZO: If the Commission pleases.

PN30

THE COMMISSIONER: That is quite clear. Yes, I should say to the notifier in this matter, which is the CEPU, that the delay in listing the matter was caused by the illness of Commissioner Holmes.

PN31

MR RILEY: I am not aware of that, sir.

PN32

THE COMMISSIONER: Very well. Mr Treglown?

PN33

MR TREGLOWN: Thank you, Mr Commissioner. Firstly I would just like to acknowledge the history of events that was pointed out by Mr Riley. They are ostensibly a true reflection of what has actually happened. There has been an unfortunate use of the word retrenchment. That is not the case with Mr Wiley. The procedure that we have gone down is one that is consistent with the occupational health and safety requirements, the legal requirements. It was also consistent with AGLs rehabilitation policy that has been in place since 1998 and everything that has been done has been consistent with both the policy and the Act.

PN34

There is also the question that was raised by Mr Riley about manning levels and the maintaining of manning levels. Well, whilst this is not a retrenchment as such there was an agreement in place that the manning levels and skills mix would be maintained at AGL electricity up until 30 June 2000. That date is clearly past. Additionally the communication that we sent to the union at the time of the making of the agreement has a paragraph at the end that says, and I will quote:

PN35

Contrary to the above this does not include the out-sourcing of the meter reading function or any change to the inspector manning levels as a consequence of ORG initiatives.

PN36

With regard, going more specifically to Mr Wiley's case the alternative duties that Mr Wiley was found were only put in place as a make-up job during the period from when we were first notified of the injury that he sustained at work prohibiting him from doing his normal duties for a period of time. It was made up work and it was mentioned to the union on several occasions, that that was made up work that could not continue and from a productivity point of view was clearly wasteful.

PN37

But more specifically the situation changed when we were notified by the treating doctor that Mr Wiley would never be able to return to the duties that he previously undertook and we have simply followed the processes that we are required to follow via the rehabilitation policy and the Act. In advising Bob of his termination we also introduced Bob to the work solutions group which is the Workcover or out-sourcing provider and to go down this path does not reduce Bob's income at all, certainly for the period of 12 months and until his worker's compensation claim is finalised. But as far as terminating Bob's services, yes, that is our intention to go down that path and we think it is quite reasonable, the question of a mediator at this - - -

PN38

THE COMMISSIONER: Just before you come into that, it is your termination to terminate his employment. What is his status now?

PN39

MR TREGLOWN: He is stood down on - well, he is on pay but at home.

PN40

THE COMMISSIONER: Yes. So with regard to your intention to terminate the employment what is the time frame within which you would intend to execute the - - -

PN41

MR TREGLOWN: We were looking to do that in December, Mr Commissioner.

PN42

THE COMMISSIONER: Yes, but you have not done it.

PN43

MR TREGLOWN: No, we have not because we simply followed the disputes procedure that - - -

PN44

THE COMMISSIONER: You followed the disputes settlement procedure which is sub-paragraph (c).

PN45

MR TREGLOWN: Yes, the status quo should remain but the reason behind not going down the path of a mediator was that we cannot have a mediator at this stage telling us what the rehabilitation policy is or what we are required to do under the Act. That is clear.

PN46

THE COMMISSIONER: Well, I do not think mediators tell people what to do.

PN47

MR TREGLOWN: No, I do not think - we could never agree with any divergence from either the policy or the Act anyhow.

PN48

THE COMMISSIONER: Well, I think that might be an assumption based on what the mediator might propose. It may be the case that, you know - - -

PN49

MR TREGLOWN: Well, if that is - and it would seem to be - - -

PN50

THE COMMISSIONER: - - - the process could generate options that you have not had brought to your attention or considered as yet in relation to the situation. The purpose of the mediation is not to make a judgment about whether or not the termination is permissible or not, but it is to attempt to establish a process whereby the parties might be able to explore options that are mutually acceptable to them.

PN51

MR TREGLOWN: Yes.

PN52

THE COMMISSIONER: So, you know, to case this as a sort of black and white scenario, either you are right or you are wrong, I think with respect misconceives what the purpose of mediation is and why it is a step that precedes the referral of the matter to the Commission because I think the scenario on reading step 5 of clause 8 is that mediation is really about the parties discussing it. It is not about the mediator providing solutions. It is rather about the mediator trying to establish a process whereby the parties can possibly reach a settlement of the dispute, which may involve Mr Wiley accepting that his employment will be terminated but the company accepting other things as well in the circumstances which would be totally hypothetical and speculative at this stage.

PN53

So I think that is the concept of mediation, and certainly the one that is prescribed in the definition of mediation that is published by the government body deals with this subject which is the national alternative dispute resolution advisory council and it is quite important to me because I have to give consideration to what I should do about this, if it is here under step 5 but step 4 has not taken place as the agreement prescribes and that is a legal obligation of the parties, step 4. It is not an optional aspect of the industrial relationships. It is a term of a legally binding agreement that has been certified by the Commission

PN54

MR TREGLOWN: With respect, Mr Commissioner, if the parties agree to jump that step that is fine, but also this occasion, this hearing is the first where we have been pressed to any extent to hold mediation. It has not raised its head at all.

PN55

THE COMMISSIONER: That is because I have raised it.

PN56

MR TREGLOWN: Sorry?

PN57

THE COMMISSIONER: Yes, that is because I have raised it.

PN58

MR TREGLOWN: Well, you know, I accept that and respect that. However, I do have to say that on this and other matters that will be discussed later on, the frustration level that has been exercised on the company is extreme and when we get into the other matters I will raise that as well but - - -

PN59

THE COMMISSIONER: Well, it may have been.

PN60

MR TREGLOWN: We are being frustrated in our endeavours to manage the business.

PN61

THE COMMISSIONER: Well, without questioning that, I mean accepting that for the purpose of discussion is wholly true, it may be that the mediation process could have addressed your frustrations.

PN62

MR TREGLOWN: Well, it is a one-sided coin, though, Mr Commissioner.

PN63

THE COMMISSIONER: Well, I would have thought the mediator would have been attempting to look at both sides.

PN64

MR TREGLOWN: Well, the process of using the mediator is a little bit one-sided because we have had issues with both the unions represented here today where that path has not been followed by them on these very issues that we are talking about.

PN65

THE COMMISSIONER: es, well, I am not suggesting that you are in the wrong or the unions are in the wrong. We are not making any judgments about this. I am really just inquiring into the administration of the dispute settlement procedure. You know, I do not think there is any need to be defensive about the situation - - -

PN66

MR TREGLOWN: Well, I am sorry, I am - - -

PN67

THE COMMISSIONER: - - - from the company's point of view.

PN68

MR TREGLOWN: - - - because this is - even getting it to this point has been delayed since December and now we are into February and we are still no closer to resolution.

PN69

THE COMMISSIONER: But I cannot take responsibility for that, Mr Treglown.

PN70

MR TREGLOWN: I am sorry?

PN71

THE COMMISSIONER: I cannot take responsibility for that.

PN72

MR TREGLOWN: I was not suggesting that you do. All I am saying is that - - -

PN73

THE COMMISSIONER: Yes, but what I am saying in your dialogue with me there is no need to be defensive. I am not being critical of the company. I am just investigating, you know, what should be done about the dispute now that it is referred to me and the point of departure of my investigation is clause 8 of the agreement that binds the parties. They are the ones who chose to introduce this step of mediation. You know, it is not something which the Commission has prescribed, recommended, thinks is a good idea, a bad idea. It is just a matter of fact that it is in the agreement and I am just interested to understand how it operates.

PN74

You are obviously not particularly enthusiastic about its prospects in this case and I hear what you say about that. But I am not being critical of you that this is your responsibility and you have not done what you should have done or anything of that nature. I mean, it is equally a matter for the other parties to the agreement as well. That is why I say, there is no need to be defensive. I am not looking at it, to use your terminology, as a one sided coin where the company carries all the responsibility.

PN75

After all, Mr Wiley is the person pursuing the grievance and he is being represented by other parties to the agreement too who, likewise, are bound by step 4. So, I do not know, I did hear from Mr Riley that there was apparently a suggestion of this kind at some point. Is that true?

PN76

MR RILEY: Suggestion of what?

PN77

THE COMMISSIONER: Of mediation.

PN78

MR TREGLOWN: Mr Riley is saying it now - - -

PN79

THE COMMISSIONER: No, he said that it had been made earlier. I think that is what you said.

PN80

MR RILEY: Commissioner, I can actually table whether it was sent off to AGL identifying clause 8 and that we were prepared to - is convened and resolved and mediated within seven days. We just quoted the dispute settlement procedure which I want to - - -

PN81

THE COMMISSIONER: What is the date of that letter/

PN82

MR RILEY: The eighth of the 12th.

PN83

THE COMMISSIONER: That is about the time when - you notified some time after that, do you?

PN84

MR RILEY: Yes.

PN85

MR RILEY: Commissioner, we are happy to go back to step 4 and use the mediator process.

PN86

THE COMMISSIONER: No, no, I just wanted to hear about the letter. Mr Treglown is having his go now and I cannot take over completely from him. Anyway, as I say, I am just interested to know what happened. I take it that the steps of the dispute settlement procedure have been followed and now I am informed that, well, no, they have not because step 4 has not been followed.

PN87

MR TREGLOWN: We have to accept that, yes.

PN88

THE COMMISSIONER: All right. Well, I do not know what that means at the moment. I just want to know what the situation is, that is all.

PN89

MR TREGLOWN: Well, I do not know to what ends that will help us because the facts are that Mr Wiley has a medical condition that has been confirmed as a work related injury that has him that he cannot continue in the employment of the company - - -

PN90

THE COMMISSIONER: Well, that is obviously the most substantial issue before us.

PN91

MR TREGLOWN: I would have thought so and I am at a loss to see how appropriate rehabilitation can work if we maintain him in the employ of AGL. We have tried to find alternative work for him and there is none.

PN92

THE COMMISSIONER: Well, I am not sure that that is actually before me at the present time, that proposal, that he should remain in your employment, is that right? You are not seeking a determination of any kind that he has to stay in the employment of AGL?

PN93

MR RILEY: What we are seeking is that he be put back to work in the office and doing his clerical stuff and we go into negotiations to resolve the issue.

PN94

THE COMMISSIONER: Yes, but - - -

PN95

MR RILEY: Obviously we have - - -

PN96

THE COMMISSIONER: - - - you are not seeking any step either - or certainly not seeking any step here today or before the Commission - - -

PN97

MR RILEY: What - - -

PN98

THE COMMISSIONER: Just a moment, Mr Riley, to the effect that the Commission would produce anything by way of recommendation, statement, decision, direction, determination or order which would have the effect of requiring the company to continue to employ Mr Wiley indefinitely?

PN99

MR RILEY: No, what we are seeking - - -

PN100

THE COMMISSIONER: All right, yes, I want to be clear on that. That is what - do not worry about what you are seeking at the moment. I am still hearing Mr Treglown. I just wanted to be clear that that is not on the table today, because we can eliminate that as an issue.

PN101

MR TREGLOWN: Yes. Well, I would be very interested to know what the union's desires here are because we do not have an alternative position for Mr Wiley. Mr Wiley, by the presentation of medical certificates and dialogue from the treating doctor has no prospect of returning to work. We have the option of having him places with work solutions which would embark then on a suitable program to get back to constructive, productive work of which we do not have any to offer him and we cannot have him with work solutions as an employee of AGLs.

PN102

THE COMMISSIONER: Well, what I am concerned about at the moment is that the dispute settlement procedure, as far as possible, is followed by the parties unless there is very good reason for it not to be. I do not have before me at the present time a proposition that Mr Wiley remain in the employment of the company indefinitely. What I therefore have before me is an issue as to whether or not he should be at home stood down on full pay or whether he should attend the work place and do some tasks which are assigned to him, I presume associated with data entry. That is as far as the issue before me is concerned goes. I am inclined not even to engage with that for this reason, and that is, if you think about that issue carefully you have got to ask yourself, well, why should that not be dealt with by mediation if that is what the parties have agreed upon.

PN103

MR RILEY: Well, that really is cutting to the chase, is it not, that that would resolve the issue but we do not have that work available.

PN104

THE COMMISSIONER: But there is no tasks that you could allocate to him at all?

PN105

MR RILEY: No.

PN106

THE COMMISSIONER: Well, you see, I find that a little bit difficult to cope with, that there is absolutely nothing that is being performed by any employees of the company at the present time that Mr Wiley could not be assigned to.

PN107

MR RILEY: Well, our rehabilitation coordinator canvassed every manager in the organisation here in Melbourne to see if there was a position available to Bob, given the restrictions that he has, and - - -

PN108

THE COMMISSIONER: The context might be a bit different though, with all due respect, Mr Treglown. If you are asking a provider to make certain decisions about the fitness for a particular position, you look at the job description, etcetera, etcetera, etcetera, yes. He may not particularly at the present time be in any situation to address the duty statement in full or even substantially. However, that is not what I think is being proposed. What I think is being proposed is that what he should do is do whatever tasks he can perform physically and he is competent to perform that might be assigned to him as a - what you referred to earlier as a sort of a made up work regime and the idea that in an organisation like AGL, there is not a tail on every - you know, every job has a head and a tail, so to speak.

PN109

That is to say, every duty statement has got a head and a tail and I do not mean it in the terms of the coin. I mean in the sense that there is usually a very substantial component of the job and there are trailing elements of the job which are well below the primary competencies required for the performance of the job. So you have the first order competencies which are the core competencies for a particular job. There are a whole lot of tasks that people perform from time to time. I mean, I put staples in documents around here, but I do not get paid for that.

PN110

So every job in an organisation usually has a head and a tail. There are leading and trailing competencies and, you know, it is very common in a light duties regime for the trailing competencies for some jobs to be aggregated and assigned from some employees to others. And you have obviously done that with Mr Wiley in the past. If it was a made up work regime, that is exactly what I am describing. You see, the difficulty I have is that in an organisation the size of AGL that, you know, some tasks could not be assigned to him for performance. They certainly would not be the tasks that would meet the substance of a job specification and they may not - you know, he may not be able to fill the position on an on-going basis. The proposition is not that he fill a position that exists.

PN111

MR TREGLOWN: Well, with respect, Mr Commissioner, that is an unacceptable proposition to AGL given that that is a leap back into the past with an organisation that used to be run by the State government that was so feather bedded that we had dozens of these positions.

PN112

THE COMMISSIONER: Yes, save me the rhetoric, Mr Treglown, with all due respect. I am not interested in the history of the privatisation of the assets of the State of Victoria and the ideology and politics of it all. It is completely irrelevant. The issue here is about Mr Wiley, and the issue is whether or not in your organisation regardless of, you know, its provenance as to whether or not it would be possible for you to find some tasks for him to perform. This is a very simple question. We do not need to embark into sort of arguments about privatisation and organisational culture to deal with that and to be honest with you, the idea that it is unacceptable is just out of the question, whether it is acceptable to you or not. If I decide that I will issue a direction that that be investigated, you would be legally obliged to comply with it. So a submission that it is unacceptable is not particularly persuasive.

PN113

MR TREGLOWN: Well, we currently have five people on light duties now. If there was a direction given that we had to find Bob some alternative work, despite the fact that we do not believe that we have any, well, that certainly flies in the face of obligations that companies have under the Act and certainly contrary to the rehabilitation policy that we have in place and have had in place for some time.

PN114

THE COMMISSIONER: Well, I would be interested to hear your submissions in support of that proposition as to where the conflict with the legislation actually is. Can you point to the section of the Act?

PN115

MR TREGLOWN: No, we are consistent with it.

PN116

THE COMMISSIONER: You know, a moment ago you just said that it would be in conflict with your responsibilities under the legislation.

PN117

MR TREGLOWN: Well, it does not allow us - if we go down the path that has been suggested, at least somewhat suggested, it does not allow us to bring to finality any workers's compensation should the individual wish to stay at work in whatever capacity.

PN118

THE COMMISSIONER: Yes, all right. Look, I think my inclination is to direct that you follow the dispute settlement procedure. I think you need a mediator to deal with this matter for the time being, and that you do so within a reasonable time. But I must say, Mr Treglown, you know, it seems a massive over-elaboration of a relatively simple issue. Here you have an employee who is stood down, who is being paid by the company, who is prepared to undertake some tasks which might be assigned to that employee and what I am suggesting is that you take reasonable steps, not to inquire into whether or not there is a position available in the employment of the company that he is fully competent to do and medically fit to do, but rather whether or not a schedule of tasks could not be assigned to him while this dispute is being resolved in the manner that is prescribed by clause 8. That is a pretty simple sort of proposition, that you take reasonable steps to see whether or not that could be done and you do so in consultation with Mr Wiley's representatives under the dispute settlement procedure of the agreement. I just fail to see these momentous consequences that are raised in relation to taking that course of action.

PN119

MR TREGLOWN: We will of course accept that direction but our stand is one of principle really here in that the alternative offered to Mr Wiley to join the work solutions group is one that genuinely rehabilitates an individual who has suffered an injury. What - - -

PN120

THE COMMISSIONER: Well, he may well take it up on terms that are discussed between you and his representatives during the mediation process. I am not suggesting he should not. In the meantime, however, what I am addressing is simply the objections that you have raised to the practicality of having a look at some tasks for him to perform.

[11.31am]

PN121

To be honest, I am astonished. You may not find them. You may. All that is proposed here is that you have a look, and you do so in consultation with his representatives. Now, we are not talking about signing the Magna Carta or anything like that. So I think I am going to leave it at that. I will direct that the parties complete step 4 of the dispute settlement procedure of the agreement prior to the matter being dealt with by the Commission if necessary, and my suggestion is that, before the process of mediation is actually joined, that the company investigate the possibility or providing some tasks to Mr Wiley which he might perform whilst the dispute is being resolved.

PN122

The matter will come to a conclusion in the near future, either as the result of an agreement arising from the mediation or, alternatively, as a result of a determination made by the Commission under step 5 of the agreement. But since the mediation procedure has been proposed by one of the parties, and in particular on behalf of the person making out the grievance, and that mediation has not taken place, the logical thing for the Commission to do is to uphold the integrity of the terms of the agreement. So that is the result of this matter, I will terminate the proceedings in this matter. Thank you.

ADJOURNED INDEFINITELY [11.34am]