C2001/1846, Transcript of Proceedings [2001] AIRCTrans 870 (14 May 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 7041
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

C2001/1846

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

and

TOYOTA MOTOR CORPORATION AUSTRALIA
LIMITED

Notification pursuant to section 99
of the Act of a dispute re managements
interpretation of pattern of absence

MELBOURNE

2.00 PM, THURSDAY, 26 APRIL 2001

PN1

MR A. COLE: I appear for the Australian Manufacturing Workers Union with MR C. MARMARA.

PN2

MR B. PHAN: I appear for the Toyota Motor Corporation Australia with MR R. TALBOT.

PN3

THE COMMISSIONER: Thank you. Yes, Mr Cole.

PN4

MR COLE: Thank you, Commissioner. The matter comes before the Commission as a result of frustration in respect of the union and its members at Toyota over many years in matters related to absences or pattern of absences and what they actually mean in terms of the awards and the workplace agreements that apply. I would like to hand up a recent grievance that was given to management.

EXHIBIT #C1 GRIEVANCE

PN5

MR COLE: This grievance, Commissioner, as you can see was put in by the press shop shop steward and referred to previous discussions in respect to clarification of what is agreed to be a pattern of absence. The current workplace agreement, that is the 1999 Toyota Altona Workplace Agreement, whilst mentioning a pattern of absence doesn't really clarify specifically what is meant by the parties in respect to that particular issue. We even brought to their attention - the company's attention - the Second Tier Agreement which clearly spells out what constitutes a pattern of absence. It was signed off by the company and the unions as part of the Structural Efficiency Agreements prior to enterprise based agreements.

PN6

We now seek - this application seeks that the agreed terms outlining the pattern of absence in the above agreement be the guidelines for matters related to absences using the disciplinary process. The second page is a response to that and you will see in the second para that in management's response they say:

PN7

I understand that the Second Tier Agreement to which you refer stipulates a different definition to a pattern ...(reads)... inconsistency between the specified award and this agreement the latter shall prevail.

PN8

Now that is a very significant thing we argue, Commissioner. And the following paragraph there is:

PN9

There is no reference to second tier in relation to attendance. There is no bearing or relevance in these current cases within the press plant.

PN10

We argue that there is significant merit in respect to the matter before the Commission today and I will take you to the third page of the document. And that is an actual extract from the Second Tier Agreement, the Structural Efficiency Agreement, which outlines quite clearly what is defined as a pattern of absence for the purposes of the particular workplace. If we go to the actual workplace agreement, the 1999 Workplace Agreement - the current agreement - and we go to "Relationship to Other Awards" it says at - it is clause 2(b) and it says:

PN11

Toyota Motor Corporation Limited Enterprise Bargaining Agreement 1992.

PN12

And I would like to place before the Commission an extract from that, one page from that.

EXHIBIT #C2 EXTRACT FROM ENTERPRISE BARGAINING AGREEMENT

PN13

MR COLE: And clause 14 says:

PN14

The parties consider this agreement is a further development of the principles and objectives of the Structural ...(reads)... that this agreement should be read and applied in conjunction with the Structural Efficiency Agreement.

PN15

Now how the company can then put back to us in respect of our original grievance that the Structural Efficiency Second Tier Agreement doesn't apply is an absolute nonsense. The current Workplace Agreement quite clearly reflects back to the '92 agreement which quite clearly reflects back to this particular agreement. And we say as the basis of that, just as the very basis of that, that the Commission has got no position otherwise than to take note of what our position is in respect of this. Can I hand up a further - - -

PN16

THE COMMISSIONER: What do you say - just before you hand up anything - what do you say then in respect to the comments and quotes in the second paragraph of the reply from the company? Do you say that that is not referring to these issues or do you say it doesn't exist?

PN17

MR COLE: No, what I am saying is that management haven't done their homework and haven't gone back and looked at the previous enterprise agreements which are referred to in the current Workplace Agreement which specifically refers to the Structural Efficiency Agreements that have been entered into in the past.

PN18

THE COMMISSIONER: So you are saying that an inconsistency doesn't arise?

PN19

MR COLE: An inconsistency does arise - we say does arise in their position as against what the award and the enterprise agreements allow for.

PN20

THE COMMISSIONER: Yes. Sorry I stopped you.

PN21

MR COLE: That is all right, Commissioner. I give another document up, Commissioner because this matter is not - - -

EXHIBIT #C3 DOCUMENT

PN22

MR COLE: This matter is not a one off thing and there has been numerous applications before this Commission, and not as currently constituted, but many applications before the Commission of the company using certified absences for the purpose of disciplinary measures. We point out in C3 specifically in 170CK(2)(a):

PN23

Temporary absence from work because of illness or injury within the meaning of the regulations being grounds on which employment must not be terminated.

PN24

And we look at regulation 30C. It talks about 30C(1), temporary absence, paragraph 170CK(2)(A) of the Act:

PN25

An employee's absence from work because of illness or injury and temporary absence if:

PN26

(a) the employee provides a medical certificate or injury within.

PN27

And it gives a number of instances. And we take you down further to:

PN28

(A) notify the employer of an absence of work and

PN29

(B) substantiate the reasons for the absence.

PN30

And point two of (B) complies with those terms. We say that the company are using pattern of absence for disciplinary grounds in respect of certified absences within the meaning of the Act and the regulations. And to support our position I will hand up a final document.

EXHIBIT #C4 STATEMENT

PN31

MR COLE: As you can see, Commissioner, this is a employee disciplinary matter that was heard by Commissioner Foggo in December of 1998 and the statement was made in respect to this particular matter. I take you to the bottom paragraph on the first page:

PN32

In relation to the use of certified absences being used to initiate the issue of warnings as part of the disciplinary ...(reads)... been unacceptable and agreement has been reached on appropriate disciplinary measures.

PN33

And following on on the next page:

PN34

Disciplinary procedures do not incorporate warnings for absence for which medical certificates are provided. However ...(reads)... is a situation which the company should investigate and if necessary act.

PN35

And it goes on to say if there are any further problems in respect of that matter. Quite clearly the Commission was saying that certified absences were not to be used in the disciplinary process. Now, we have had a situation where on a number of occasions when we have been talking to people from human resources, those that preceded the current people that are here today, in both the Commission and also in conciliation and arbitration in respect of 170CE matters. We have had the company put in a position saying to a conciliator or to a Commissioner now here is a pattern of absence that runs into a weekend.

PN36

Three times an employee - in one particular matter - three times an employee has had four days off and that has run into a weekend, that is a pattern of absence. We ask the question how can a person take four days and not run into a weekend. The mind boggles. And to say that that constitutes a pattern of absence in our understanding is completely unacceptable. The unions make no apology for the fact that we are prepared to discipline our people. We have said to our people on numerous occasions if you want to keep taking Mondays and Fridays off or the day before public holidays then get a doctor's certificate or sooner or later the company is going to do something about that and the union is not in a strong position to be able to defend you in respect of that.

PN37

But to use it in the way that the company is using it and as I understand from what I have been told by Mr Marmara, the site co-ordinator, we have different processes for patterns of absences in different workshops down at the Altona site. In one place it might be three occasions they determine to be a pattern of absence and a final warning given. And other times it might be five occasions and that is what brings us back to why it needs t be clearly spelled out what constitutes a pattern of absence.

PN38

And we say that the Structural Efficiency Agreement attached to the grievance and handed up in C1 is the vehicle to resolve this particular issue. And we believe that based on the documentation placed before the Commission today and subject to the company's response to our submissions the Commission has no position otherwise than to find in favour of the union in respect of this particular issue. If the Commission pleases.

PN39

THE COMMISSIONER: Mr Cole, you haven't given me as an exhibit or for my reference a copy of the WPA that you are relying on as defining a pattern of absence. Can you do that?

PN40

MR COLE: I haven't got the full document with me. I would be able to supply it.

PN41

THE COMMISSIONER: Yes. well, just tell me what that says then, can you do that?

PN42

MR COLE: The - were you talking about - - -

PN43

THE COMMISSIONER: What do you say that - - -

PN44

MR COLE: The second tier document.

PN45

THE COMMISSIONER: Yes.

PN46

MR COLE: That is the one that is attached on the third page of the grievance. That is unacceptable pattern of absence.

PN47

THE COMMISSIONER: But what does that really tell me though?

PN48

MR COLE: Well, down the bottom it says:

PN49

Unauthorised absence. For employees with more than three months service two occasions in five weeks, first warning. Three occasions in 10 weeks final warning. Five occasions in 30 weeks dismissal. five occasions in 21 weeks first warning.

PN50

One is an unauthorised absence, one is an unacceptable pattern of absence:

PN51

Five occasions in 21 weeks first warning. Six in 31 weeks final warning and 10 in 48 weeks is dismissal.

PN52

THE COMMISSIONER: Yes, that answers my question.,

PN53

MR COLE: Thank you. If the Commission please.

PN54

THE COMMISSIONER: Yes, Mr Phan.

PN55

MR PHAN: Thank you, Commissioner. If the Commission please, the union application today is about re-introducing an old agreement at two previous Toyota plants. And to address this issue my submission will consist of the following points:

PN56

(1) An overview of the company structure in the late eighties, the two Second Tiers Agreement. We have got two Second Tiers Agreement not one Second Tiers Agreement. One at Port Melbourne and one at Altona.

PN57

(2) Appendix A of the current Toyota Workplace Agreement 1999 including the section on attendance is the description of appurtenant absence, the process to address such unacceptable behaviour.

PN58

(3) The two cases that triggered this dispute in the press shop and

PN59

(4) Our position which can be summarised as the current Workplace Agreement 1999 can stand on its own merits without reference to any outside source for clarification or interpretation. and the Second Tiers Agreements have no place and are not relevant for the purposes of comparison.

PN60

Having said that, Commissioner, I would like to explain the following. I the late 1980's Toyota operated here in Australia as several companies under several different name. In Port Melbourne that was AMI Toyota or Australian Motor Industry Toyota. We manufacture the Corolla, the Corona and later the Camry passenger car at Port Melbourne. At Altona Toyota Manufacturing Australia produced the four cylinder engines and pressed panels for the Port Melbourne plant. In New South Wales we had Thiess Toyota, York Toyota and AMI Sales and Marketing Toyota. They were responsible for the sales and marketing of all Toyota products in Australia as well as responsible for the warehouses in Melbourne and Sydney, Townsville, Brisbane, Adelaide and Darwin.

PN61

In addition Toyota also had a truck assembly operation at Campbellfield in Victoria. As a result of the acquiring of the remaining 51 per cent of AMI share in 1987 and the joint venture between Toyota Motor Corporation Japan and General Motors America in 1988 TMA, Toyota Manufacturing Australia, and AMI Toyota manufacturing operation were united to form Toyota Motor Corporation Australia known as TMCA. The former GMH Dandenong plant was handed to Toyota and Toyota started to manufacture its corolla passenger car at that plant. In 1998 the three Toyota sales and marketing company were combined to form what we call Toyota Motor Sales Australia or TMSA. And in 1989 TMCA and TMSA were united.

PN62

THE COMMISSIONER: '89 or '99?

PN63

[2.19.]

PN64

MR PHAN: '89. Yes - were united under the name of TMCA the current Toyota Motor Corporation Australia now. Following an investment about half a billion dollars in 1993 Toyota Japan helped Toyota Australia to build a new Greenfield plant at the Altona site. And the production of the Corolla started in June 1994 and full production at the plant started in January 1995 after the transfer of the body operation, the plant operation and the assembly operation from Port Melbourne to the Altona plant. In 1987 as a result of the National Wage Case Decision AMI and TMA Toyota negotiated two Second Tiers Agreements with the union. These were separate agreements, not mirror agreements, nor were they intended to be applicable outside the operation to which they applied.

PN65

So in other words each Second Tier Agreement only applied to the local plant. There was no Second Tiers Agreement anywhere else at other Toyota site or companies. The first Second Tiers Agreement, the AMI Second Tiers Agreement, which apply only to the AMI Toyota Port Melbourne plant was not a certified agreement same as the TMA Second Tiers Agreement which was applied to the Toyota Altona plant only was also not a certified agreement. In both agreements there was a section on attendance. In the AMI agreement there was a section on absenteeism and in the TMA Second Tiers Agreement there was a section on attendance.

PN66

Both sections also covered disciplinary actions as described by the union on ..... absences and pattern of absence including disciplinary action, including termination of employment on certificated absence. In 1988 the Toyota Vehicle Industry Award 1988 and the Toyota Long Service Leave Award 1988 was consolidated and ratified. The following year, 1989, the Social Efficiency Agreement which was a current certified agreement was introduced. in 1992 the Toyota Australia Professional Engineers and Scientists Consent Award 1992 was certified. The same year the first Toyota Enterprise Bargaining Agreement was agreed and introduced.

PN67

Commissioner, I would like to stress very importantly here that the two Second Tiers Agreement were not certified agreements and they were intended to only be applied for the local plant. The - what I would like to submit to you here is a copy of our current agreement so I can easily refer to the relevant clauses.

EXHIBIT #T1 COPY AGREEMENT

PN68

MR PHAN: Commissioner, I would like first to refer you to page one and draw your attention to the last paragraph of clause two. The paragraph reads:

PN69

It is intended this agreement supersede all previous industrial agreements certified by the Australian ...(reads)... in a past agreement is not addressed in the workplace agreement they will continue to apply.

PN70

The same clause also say:

PN71

This agreement shall be read and interpreted wholly in conjunction with the awards and agreement as varied ...(reads)... specified award and this agreement the later shall prevail.

PN72

Point A and B of the same clause actually refer to the Toyota Industry Award 1988, the Toyota Australia Vehicle Industry Long Service Leave Award 1988, the Toyota Australia Professional Engineers and Scientists Consent Award 1992, the Toyota Motor Corporation Australia Limited Enterprise Bargaining Agreement 1992 and the Toyota Australia Workplace Agreement Altona 1995. Now, with the 1999 agreement or the agreement you have got in your hand there the agreement was developed through an agreed process which involved representatives from the union, including some of the people who are present today, and the company representative participating in working parties to identify, discuss and address all relevant issues to each party including attendance.

PN73

Now, I would like to refer you to appendix A of this agreement. Appendix A is on page 19. This appendix A here covers and addresses 40 aspects of employment being equal opportunity, occupational health and safety, attendance and work habits and performance standards. Now also in this appendix A there is a reference to the Toyota Teamwork Charter. What I would like to explain now is how this teamwork charter comes about. In 1989, Commissioner, when the Social Efficiency Agreement was introduced there was no common code of behaviour applicable consistently over all Toyota operation meaning Sydney and regions, the Dandenong plant, the Port Melbourne plant, the Altona plant, the warehouses and the Hino truck assembly at Campbellfield.

PN74

In 1997 the industrial dispute occur as a result of the application of the company ..... to supervisors. And after industrial action was taken by supervisors the issue was referred to the Industrial Relations Commission. Following a hearing and an on site conference the Commission proposed and supported a process to establish a code of conduct which included acceptable and unacceptable behaviours in the workplace. the process was to set up a working party consisting of nine members, three from each union division, to formulate a document establish what is acceptable and what is unacceptable behaviours in the workplace.

PN75

Toyota supported the process by providing services of an external consultant to assist the working party. A draft document was completed but no agreement was reached among the union representatives due to the continuing issue between the vehicle division and the technical, engineering, clerical and supervisor division of the AMWU in relation to disciplinary actions. This issue was then again raised during the development, preparation and negotiation of the Toyota Workplace Agreement 1999. The result was that Toyota Teamwork Charter was finalised, agreed to and formed the common code of behaviour at all Toyota site now.

PN76

And this teamwork charter is described in this appendix A which I just mentioned. On the other hand clause 8.1 of this agreement under the heading of "Teamwork Charter" also states - and it is on page four:

PN77

The purpose of this teamwork charter is to ensure understanding, consistency and fairness in dealing with behavioral issues which will be applied to all.

PN78

It then continues:

PN79

Further, it is acknowledged -

PN80

On the next page, Commissioner:

PN81

- that all employees must understand the process by addressing their behaviour should it differ from the agreed ...(reads)... addressing issues of behaviour in the workplace of counselling and disciplinary procedure.

PN82

Now, on page 19 of the document the very first sentence in the introduction says:

PN83

All employees have the right of work environment where they understand what standard of behaviour are expected of them and the process which will be applied should they deviate.

PN84

This clearly demonstrates one more time that standard of behaviour are to be understood and observed by all and there is a process to be used when there is a deviation. Clause 2.3 of the same appendix A also explain and I refer you to page 21. In the right hand box of the table:

PN85

A pattern of absenteeism is defined as any sequence of absences which, when considered as a whole, are considered to be outside the legitimate use of the sick leave, carer's leave condition and can include a repeating sequence of absence over a period of time on the same day of the week.

PN86

dot point 2:

PN87

A sequence of absences frequently repeated over a period of time.

PN88

Dot point 3:

PN89

Repeated absence on the day before/after an RDO/public holiday/weekend/other periods of leave.

PN90

It also explained that in determining the consequences of any given behaviour the counselling and disciplining procedure must be adhered to. With regard to pattern of absence the - sorry. With the requirements for an absence I would like to refer you to appendix D on page 33. This appendix D explains the two requirements. One is notification and two is proof. It also says on the right hand of the table, described as a flow chart, when supervisor can authorise or can reject an application for sick leave. It also explained what is meant by unauthorised - unauthorised is unpaid and if it is acceptable proof and all that. So when it is a yes it means after that, when there is a no what is the consequence of that. And also explain here that refer to Teamwork Charter counselling and disciplinary procedure.

PN91

This appendix also explains for example proof requirement for sick leave as well as carer's leave. So to us this Workplace Agreement 1999 is a consent agreement that consolidates all previous agreements and provides the basis to address any issues in the workplace, in particular through the Teamwork Charter in appendix A and also appendix D in reference to sick leave and carer's leave going on. Now, to the company this is quite clear. The definition is clear, the requirements are clear, there is a process to address this issue of unacceptable behaviour. And the word - the key word here, Commissioner, is what is a legitimate use of sick leave.

PN92

The supervisor, according to this agreement, has the discretion to establish when there is a pattern of absence and in Commissioner Foggo's statement in the previous case mentioned by the union Commissioner Foggo stopped at - by saying that the company should inquire and act. She didn't say - she didn't have a meaning for what it means by act. However, the company and the union through the Workplace Agreement has taken a step further by establishing the Teamwork Charter with these appendices to explain when there is a pattern of absence and what process. And the process in this case here means the counselling and disciplinary procedure.

PN93

Now the union was claiming that people got final written warning for three days or for three incidents of absences attached with weekend. Now, I reject that. I have numerous examples here of people having more than that. We never issue someone a final written warning just for three incidents. The whole counselling and disciplinary procedure consists of many steps, verbal reminder, formal counselling, first written warning, final written warning. Before those steps are taken employees are first of all informally reminded and we usually use the word "friendly reminder".

PN94

So every time someone take a day off it is a requirement from this Workplace Agreement that the supervisor must talk to the person. The supervisor is responsible as per this agreement to talk about attendance, about the issues appropriate with attendance to employees daily, weekly and that is mentioned here in the WBA, in the Workplace Agreement. The supervisor, after many many reminders when that supervisor can establish that this person has developed a pattern of absence then the supervisor can make a judgment and decide what is the appropriate disciplinary action.

PN95

THE COMMISSIONER: Whether or not they have got medical certificates?

PN96

MR PHAN: That is correct. Because the meaning of legitimate use of sick leave - now, if someone like Commissioner Foggo explained before - and you have read her recommendation there - that even when someone is using - is having a certificated absence but if the person has a pattern of absence the company still has the right to inquire into that person's absence and act. The union on numerous occasions have agreed with the company on disciplinary action against those employees and the two cases - in the two cases that triggered this dispute here I can demonstrate to you that we only have this dispute - this program - when a supervisor here tried to introduce, tried to issue the final warning.

PN97

The first written warning was issued before that. The union and the affected employee accepted that. The first written warning explicitly explained that you have got a pattern of absence. You have been issued with this warning because of that pattern of absence. The union and the employee did not reject that. They accept that but now after so many absences following that first written warning they say no, yo cannot issue the final warning. We are not saying that we are going to terminate that person's employment. We understand the provision of the Act, what the Act says and we understand the recommendation from Commissioner Foggo but we have the right to apply our disciplinary action procedure to correct that behaviour.

PN98

The union, when signing this document, agreed with us that they also accept that pattern of absence as described in this Teamwork Charter is not acceptable. Now, this Workplace Agreement will expire in February next year. It started in August 1999 so as you can see from August 1999 until now the union did not raise that issue. Eight months before the end of this agreement the union now say no, we don't accept that. What they want is they want to introduce new standard. They want to change the Workplace Agreement. They want to reintroduce an old 1975 agreement applicable only to two sites of Toyota here in Australia, to across the board all sites now.

PN99

Those two companies don't exist any more. There is no such AMI Toyota any more, there is no such TMA Toyota any more. We only have TMCA. They pull out an old document, read part of it. I would like to also highlight to you that how can they - they say in here they want to apply the Second Tiers Agreement. Where the Second Tiers Agreement say here that for an unacceptable pattern of absence there is an incident 10 occasions in 48 weeks result in dismissal. It also says here ..... . If we do this the union would say that you breached the Act because the Act precludes termination of employment under - for certificated absence. Does it mean that the union accept that even when someone provides a doctor's certificate with - that Toyota would terminate that person's employment. of course not. So they read and apply whatever part of this certified agreement to suit them.

[2.40pm]

PN100

So therefore in our opinion the Workplace Relation can stand on its own merits. It supersedes any previous agreements. It consolidates all previous agreements and it would form the code of behaviour - code of conduct - applicable to everyone at Toyota. We, as I say when I present to you the two cases that triggered this issue you will see that it is not like the union claim. One of these employees got more than 30 days of absence in the same pattern of weekend. And the person has used up all the sick leave entitlements and the union say now we reject your final written warning. Having said that I now would like to hand up those two cases to you.

EXHIBIT #T2 TWO CASES

PN101

THE COMMISSIONER: Mr Phan, I understand technically what you are putting to me but for the moment I don't express a view about that. The one thing that concerns me is if someone does have a regular pattern of absences and is genuinely ill and has a doctor's certificate for each occasion how can a supervisor make a subjective decision?

PN102

MR PHAN: This is what our supervisors have done. Now when the person - where we have an employee in a situation that you have just described what we have done is we have on numerous occasions asked our doctor, not the supervisor, but asked our doctor to contact the employee doctor to establish whether there are any mitigating circumstances or special circumstances. We have got an employee with over 60 days absence, used up all the sick leave, the person has been with us for many years but we did not terminate that person's employment because we realised that that person has a legitimate reason, an illness that justified the use of his sick leave entitlement, and when he doesn't have any - did not have any sick leave entitlement, even though he did not get paid but we did not terminate that person's employment.

PN103

So it is not - what the union wants to do is something they can rely on and just do like that. But what we say is that is not acceptable. We have to consider case by case. On numerous occasions when we appeared here in front of the Commission the Commission always tell us that you have to consider case by case. You have to look at the circumstances of each case. We are not going to ask our supervisor to blindly apply the discipline action.

PN104

THE COMMISSIONER: No, the basis of my question, and you have given me one option, is what more could that person do if it were genuine, that is all? And you are saying, well, one thing that the company doctor could contact his doctor.

PN105

MR PHAN: Yes. The other thing, Commissioner, is the provision of our Workplace Agreement does provide us an avenue to address ..... of areas in our Workplace Agreement where there are programs like the one we have today. And that avenue is for the union to raise those issues, or that issue with the company. We have a senior consultative group which consists of senior employee representatives and senior management. I am talking about directors, about some general managers addressing those issues. The union hasn't taken that step.

PN106

They, after lodging the grievance, and receive the manager's response, lodge an application here in the Commission. They didn't take that step. We are prepared to discuss with the union and report back to the Commission. That may be another avenue to address this issue. But we strongly reject the attempt of the union to reintroduce a non-certified agreement applicable to all - to two companies - Toyota companies, now to the whole company. Now, we don't accept that. Now, let me explain to you about these two cases. The first one is about - - -

PN107

THE COMMISSIONER: Well, just before you do - - -

PN108

MR COLE: I object to this because - - -

PN109

THE COMMISSIONER: Well, one moment, Mr Cole. Just before you do, Mr Phan, I would like to ask Mr Cole a question along those lines. Mr Cole, is this really a matter about applying entitlements or is it a matter about two cases?

PN110

MR COLE: This is the first time these matters have been raised with the union. We haven't seen these documents. I made the application on the basis of concern that was being expressed by, as I outlined earlier on, supervisors using unilateral ways of determining pattern of absences. There is no consistent pattern of absence been established. That is what the concern of the union is. We went back to that document because it is the only document that we can find in the history of Toyota which actually outlines it.

PN111

THE COMMISSIONER: But what about all these provisions in the appendices to the agreement? I mean that is fairly specific, isn't it?

PN112

MR COLE: Well, no, I don't - - -

PN113

THE COMMISSIONER: I am not expressing a view, I am just - - -

PN114

MR COLE: I don't believe - I don't think - I don't believe it is specific at all because at the end of the day determination of the pattern of absence is left to the supervisor to determine. There is no clear delineating way of saying that this person has got a pattern of absence and it is based on sickness, or he is just lazy, he is just not coming to work.

PN115

THE COMMISSIONER: Well, doesn't it then become a dispute and you go through the dispute handling process in respect of that individual?

PN116

MR COLE: Well, it can do. There is another member from Toyota that is here today who will no doubt stand up and talk about a member of 19 years, Mr John Lacey, who got terminated by the company for taking days off when it was quite clearly proven that he had doctor's certificates for all the period of time that he was off, and the company paid some significant amount to resolve that particular issue. If we go back for a second I think - what we need to do is to clarify the issue because it is before Mr Phan's time.

PN117

When this matter came before Commissioner Foggo in C No. 75960 of 1998, and myself as the advocate for the union, we put up ten cases, ten cases too of people who had been terminated and eight of people who had final warnings all based on certified doctors' certificates. Commissioner Foggo quite rightly in determining it told management to go back, and with Mr Marmara, the site co-ordinator, to go through and take off any warnings that had been given to people as a result of absenteeism with a doctor's certificate, as it was unlawful under the Act.

PN118

THE COMMISSIONER: My understanding of Mr Phan's submissions in respect to Commissioner Foggo's decision is he doesn't take issue with it.

PN119

MR COLE: Well, I think that he is reading into it something quite different from what Commissioner Foggo says. Now, if we go back to the second page we read the first sentence:

PN120

The disciplinary procedures do not incorporate warnings for absences for which medical certificates provided.

PN121

That is exactly what the Commission said. And as Mr Marmara, who is here with me today, can testify, two of those employees were put back on.

PN122

THE COMMISSIONER: You are not reading selectively are you? There is another sentence that follows that.

PN123

MR COLE: Yes, I am reading selectively because that - - -

PN124

THE COMMISSIONER: It says:

PN125

However, the company does have the right to question employees on absences even when they have a medical certificate.

PN126

MR COLE: And we have no argument and I agree with Mr Phan on the point that the union has accepted some of our people's behaviour at times and their patterns of absence have been unacceptable, and we haven't pursued those. We haven't pursued them through section 170CE or any other avenue. We haven't pursued them in respect of matters on the job.

PN127

THE COMMISSIONER: So it is your submission you don't take issue with the questioning of people who provide medical certificates; you take issue with the judgment of the supervisor?

PN128

MR COLE: That is exactly right, you have hit the nail right on the head, Commissioner. All we want is something that clearly explains to us in layman's term that we can give to all the people that are employed by Toyota something that describes what is a pattern of absence, not this supervisor saying three times in 12 months and out the gate and this supervisor saying eight times in 12 months. At least with that other document, which we say is still relevant, we say is still relevant it shows - - -

PN129

THE COMMISSIONER: Mr Phan puts to me that you can't do that because he says everything has to be treated on its individual merits and I have difficulty disagreeing with that.

PN130

MR COLE: Well, I am saying - - -

PN131

THE COMMISSIONER: You can't have something in black and white given to all supervisors that says this is it.

PN132

MR COLE: Well, I am putting the position to you, Commissioner, that if somebody has got a pattern of absence of four days off all with certified doctor's certificates the company can't sack them, that it is illegal under the Act.

PN133

THE COMMISSIONER: Well, I think Mr Phan agrees with you. See, what he is saying is - - -

PN134

MR COLE: But they are sacking people.

PN135

THE COMMISSIONER: That is not the instance he is quoting. He is quoting a much more extreme instance than that and I am putting to you - I am putting to both parties - perhaps we should be addressing the instances rather than the provisions.

PN136

MR COLE: It is very difficult where we have got different people making decisions. If it was us and - - -

PN137

THE COMMISSIONER: Yes, but if you think you have got a supervisor that has made a wrong decision shouldn't that be what we are talking about?

PN138

MR COLE: Yes, but if we do that I put to you, Commissioner, we will be here every second day. That has been one of the bugbears. That is why the very nature of this application - if we have a look at the application as is being made before the Commission it is our concern about management's interpretation of a pattern of absence. That is what the application is about because it has been interpreted different by different managers. And I don't think Mr Phan will give me any argument on that. Once upon a time when human resources held some sway at Toyota we could go down and speak with human resources and we could get a consistent way of addressing these issues, as we did in those matters that came out of the Foggo decision.

PN139

We sat down and they went through all of the files and what have you, pulled the warnings that had been put on there for certified absences, etcetera.

PN140

THE COMMISSIONER: Do you say that can't happen now?

PN141

MR COLE: Beg yours?

PN142

THE COMMISSIONER: Do you say that can't happen now?

PN143

MR COLE: Well, it is making it very difficult when we are getting a whole lot of different interpretations. At least then human resources understood, they are a small group. What you are talking about with supervision you are talking about hundreds of people. You are not talking about a handful of people.

PN144

THE COMMISSIONER: So what do you put to this Commission as the solution to the problem?

PN145

MR COLE: I am saying to the Commission we have put that there is in place - there was in place something which clearly defined what a pattern of absence was. What we would like to see come out of the Commission is something which clearly defines what a pattern of absence is.

PN146

THE COMMISSIONER: Well, you also agree with Mr Phan I hear in what you are saying that it was. It is not there now.

PN147

MR COLE: Well, I am not saying that. I am saying there is a basis for it. The two - the '92 agreements Mr Phan talks about, whilst they were separate agreements for two different companies both had exactly the same clause 14. That is one that I read out to you before. And both of those clause 14s refers to current STAs, second tier agreements. So, you know, to say, oh, yes, well, they were separate companies and what have you, but the documentation was exactly the same in both cases.

PN148

THE COMMISSIONER: How will they change a supervisor's decision?

PN149

MR COLE: Well, I think there needs to be something that is drafted up which clearly shows what leads to - what can lead to somebody being terminated as a result of a pattern of absence. Where somebody can say to them, look, you know you can only be off three times. But we are saying also that you have got to take into account individual cases because, you know, people can get spontaneous sicknesses.

PN150

THE COMMISSIONER: Well, if you have got an individual case that says 30 times what do you say about that?

PN151

MR COLE: 30 times. Oh, 30 times would suit me fine, I think we could deal with 30 times. The amount we have to deal with sometimes is - - -

PN152

THE COMMISSIONER: Do you have incidents you can put before me that are in the order of what you just suggested then?

PN153

MR COLE: Well, Commissioner, if you familiarise yourself with the files, C No. 75960, with all the documentation in the transcript, you will see exactly what we are talking about.

PN154

THE COMMISSIONER: Yes, but that is 1998.

PN155

MR COLE: Well, I don't think the Act has changed since then, Commissioner, or the principles.

PN156

THE COMMISSIONER: No, but the circumstances and the incidents might have changed since then. It is three years ago.

PN157

MR COLE: Well, certainly we are not getting as many people terminated as we used to, but the application of it, that is what our concern - it is the unclear application of it and that is why I specifically didn't come here before the Commission today saying this person or that person we want to try and address, okay. Let us try and get an agreement on what it means by the interpretation of a pattern of absence.

PN158

THE COMMISSIONER: Thank you. I interrupted you, I am sorry, Mr Phan, what were you about to say?

PN159

MR PHAN: Thank you, Commissioner. I suppose I have to say that your judgment that - we have a very prescriptive document saying that after three times, after four times with the same pattern, you will be issued with such-and-such .....

PN160

THE COMMISSIONER: That won't sort out the genuine from the non-genuine.

PN161

MR PHAN: That is right. I think that you are very correct by saying that because we then lose the merit of each case. That is why we have been saying that we look at it case by case. On the other hand, I would like to explain to the Commission that from late 1997 or early 1998, I was the one at Toyota who assist in the introduction of what we call the daily attendance meeting where all supervisors from the same department get together with the HR adviser, so the one from Human Resources, to look at absence of the days before and decide what is appropriate corrective action to correct that behaviour. It is not like the union was saying that the supervisor was left alone to make the decision.

PN162

THE COMMISSIONER: No, but that gets back to the point that I asked originally. What is the defence of the person who is being talked about?

PN163

MR PHAN: When the supervisor goes to the person, to the employee, and explain that, well, you have done this, this has ..... disciplinary action. We got - usually we always offer to the employee, do you wish to have your employee representative there? If the employee doesn't want to do that and say no, I disagree with your disciplinary action, the employee has got the grievance procedure to address that. That is why we have got in this - brought this agreement here everything we believe necessary to address on those issues.

PN164

We have got the disciplinary procedure, we have got the grievance procedure. We have the daily attendance meeting to look at all these cases, case by case, and decide what is appropriate action. If the employees or employee representative have a dispute with us, the grievance procedure will address that and - - -

PN165

THE COMMISSIONER: Mr Cole suggested the grievance procedure wouldn't deal with it because it happens too often; what do you say about that?

PN166

MR PHAN: Well, I have got here a book I took from one shop, the body shop, from afternoon shift. How many disciplinary action in here or pattern? Up to now how many of these were not issued? They were issued. The union agreed. Why the union agreed? Because the employee and the employee rep agreed that that pattern or that action is not acceptable, that behaviour is not acceptable. I have here from these leave card here, from the same group where these two cases happen, and the supervisor here to say that these people, if they have a pattern of absence, they were spoken to, they were reminded, and in some cases warning was issued, and people accept that. We haven't terminated any of these people.

PN167

So that is why you were right to say that we have to look at case by case. The dispute is on a case by case basis, not take a general view and apply a general rule to everyone. I don't think that can pass the test of fairness. We have been reminded by the Commission all the time we have to look at case by case and that is why we are very careful. Mr Cole just said that we don't have too many terminations now because we are very careful. We are very conscious that termination of employment is something very serious. We don't do that lightly. We don't just sack people like someone - or the other party claim. We are very careful.

PN168

Now, when I said before that these two cases that triggered this dispute here, and Mr Cole said that he was not aware of this. However, he tabled before this grievance. This grievance was the result of these two cases. When Mr Nick Felden, the ..... here, tried to issue the final warning to these two employees, that was when we had this grievance. That was when Mr ..... the manager here, tried to respond to that grievance. After that, according to our grievance procedure, the senior employee representative got involved. The manager and the senior employee representative tried to address this issue. The employee representative was aware of this situation, and if I can take you to one example you can see how bad it is. All the yellow ones show the days of absence and the sick leave or carer's leave. Now, this person here started - Mr - - -

PN169

THE COMMISSIONER: Sick leave for carer's leave?

PN170

MR PHAN: Or carer's leave, it is the same in our workplace agreement.

PN171

THE COMMISSIONER: Yes. But you are not saying these were all carer's leave absences?

PN172

MR PHAN: Most of them are sick leave. Mr Bartollo started on 14 October 1997, so on 14 October this year he would accrue new sick leave entitlement. Now, I just take the year 2000 and the year 2001, and as you can see there in January - I am not counting the days in 1999 - as you can see in January he have one day absent before a weekend, in February on the 11th another day. Now, from 23 and 24 January, he took the two sick days, and when I circle what that mean is he doesn't have any entitlement left. All the days all the way to September of that year, all the yellow - the days with the yellow - with the circle, they are all sick leave or carer's leave without pay.

PN173

So as you can see there, how many more patterns here? The 17 March, 10 April, 13 April which was the day before Good Friday, in June, in July another day, the day in August, the two days in August was before an RDO, rostered day off, 29 and 30 August was the day before an annual leave day. So all those days. How many more days? If you look at just the year between October 1999 to October 2000, this person has got about 30 days. There is more than three occasions that that person has an absence. That can be defined as a pattern by - and defined by the workplace agreement either as a weekend or a day attached to a holiday, an annual leave day or an RDO.

PN174

We did not take action straight away. He was reminded, spoken to, every time he took a day off by Mr Nick Felden, every time he came back in that pattern he was spoken to by the supervisor. It was only on 14 February he was given a first verbal reminder. After that, one, two three, four more incidents that he was given formal counselling because of pattern of absence. After the formal counselling, one, two, three, four, five, six, seven, eight - I guess after the formal counselling, one, two, three, four, five, six more incidents before he was given a first written warning. From the first written warning, one, two, three, four more incidents before the day on which Mr Felden issued him with a final warning. The first written warning was accepted. Now, when we issue the final written warning, the union rejected that.

PN175

So our concern is we tried to be fair, to be reasonable. Mr Cole said that, well, use human resources. Human resources is available. Our adviser, our human resources adviser, is attending those daily attendance meeting to support our supervisor to look into these issues. This was discussed with the local human resources adviser. When come to a decision to discipline - to issue a written warning to employees, it was not just the supervisor. The workplace agreement - this workplace agreement here, we ..... the manager to co-sign that agreement - that disciplinary action. So the manager need to be aware of the case and need to endorse the disciplinary action. So it is not correct to say that the supervisor on his or her own make the decision. It is in conjunction with other supervisor, with the human resources adviser and with local manager. And if the employee rep is in dispute with us, we are prepared to sit down and have a look, but we cannot have just a black and white rule that apply to everyone, I don't think that is correct, because we would lose the merit of each case. Thank you, Commissioner.

PN176

THE COMMISSIONER: Is there anything else you want to say, Mr Cole?

PN177

MR COLE: I think the arguments have been put fairly strongly by both sides, Commissioner. As I say, the reason that we are here is because of the historical nature of this issue and in a bid to get some sort of clarification once and for all. If the Commission please.

PN178

THE COMMISSIONER: Thank you.

PN179

Pursuant to section 111(1)(g)(iii), I have decided to refrain from further hearing this matter. In my view, on what is before me, there are adequate provisions and processes for addressing these matters both through the enterprise agreement terms and its appendices, together with the dispute resolution processes. In my view, these are matters for attention as specific incidences, and the company, per Mr Phan today, has made it clear that the company is prepared to give the union access to discuss the individual incidents, and I think that is the appropriate way that the matter should be dealt with. I intend to adjourn this matter sine die.

ADJOURNED INDEFINITELY [3.07pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 GRIEVANCE PN5
EXHIBIT #C2 EXTRACT FROM ENTERPRISE BARGAINING AGREEMENT PN13
EXHIBIT #C3 DOCUMENT PN22
EXHIBIT #C4 STATEMENT PN31
EXHIBIT #T1 COPY AGREEMENT PN68
EXHIBIT #T2 TWO CASES PN101