C2002/1323, Transcript of Proceedings [2002] AIRCTrans 1027 (2 April 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT02988
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2002/1323

MAYNE NICKLESS

and

TRANSPORT WORKERS UNION OF
AUSTRALIA

Notification pursuant to section 99 of the
Act of a dispute re firearms policy and
requalification at the Ringwood site

MELBOURNE

9.30 AM, THURSDAY, 14 MARCH 2002

PN1

MR B. IRONMONGER: I appear with MR R. BOEK and MR J. PASTORE from Mayne Group trading as Armaguard.

PN2

MR W. MADER: I appear for the Transport Workers Union of Australia. Appearing with me is MR M. FAWKNER.

PN3

THE COMMISSIONER: Yes. Mr Ironmonger.

PN4

MR IRONMONGER: Thank you, Commissioner. This is an application made pursuant to section 99 concerning an unprotected industrial action which took place last Friday at the Ringwood branch of Armaguard. Sir, the employees did return to work after start of shift on the Tuesday morning following discussions with management. So there was some further unprotected action taken on the Tuesday morning.

PN5

Sir, the company and the union terms of employment are governed by an enterprise agreement which was certified by his Honour Senior Deputy President Polites in December of 2000. There was considerable protected industrial action which took place prior to the certification of that agreement, and even his Honour spent two days in conference getting the parties to finally get to reach an agreement. That unprotected action was subject to a number of hearings before Commission Lewin. The company did experience some damage to its clients. But once the agreement was reached, sir, we felt that no industrial action would take place during the life of the agreement pursuant to the Act.

PN6

THE COMMISSIONER: Do you tender a copy of the certified agreement?

PN7

MR IRONMONGER: I am sorry, I don't think I have got a copy with me, but I can get the Commission a copy today if need be.

PN8

THE COMMISSIONER: Have you got a copy, Mr Mader, for the Commission?

PN9

MR MADER: Yes, Mr Commissioner, I have, if I can help.

PN10

THE COMMISSIONER: Thanks very much.

PN11

MR IRONMONGER: Commissioner, since the certified agreement has been in place there has been unprotected industrial action which has taken place on four occasions, I am instructed. The first one being 17 August 2001. The second being 21 September 2001, 24 September 2001 and 8 March this year. We believe this action is totally in defiance of the Workplace Relations Act pursuant to section 170NM. It is also causing the company considerable damage to its clients.

PN12

Sir, unless we can get a commitment from the union today that no further action will be taking place we no other problem - but to lodge an application pursuant to section 127 of the Act. I have taken the liberty of actually preparing such an application which I am prepared to submit to the Commission to, if the Commission so requires.

PN13

Now, sir, the matter which brought the unprotected industrial action last Friday was already subject to a hearing before Commissioner Lewin late last year, and it was concerning the firearms policy and the requalification. Now, Commissioner Lewin sent the parties off to have further discussions. Discussions were taking place. He also said to the parties: if you need more assistance, notify my office. That didn't happen, sir. That is a thumbnail sketch of where we are at, Commissioner. If the Commission pleases.

PN14

THE COMMISSIONER: Thank you. Yes, Mr Mader.

PN15

MR MADER: Yes, thank you, Commissioner. I am happy to say that there is no ongoing industrial action in relation to this firearm requalification issue. Unfortunately, what has occurred is that there have been considerable delays in our activity to reach an agreement on a policy that might address what happens if a person fails a component of the requalification test. And, Commissioner, if I might just say at that point that it is really a - pardon the pun - a sudden death situation if a person fails the requalification test.

PN16

There is no period of grace. The regulations are very strict in this, and so therefore a person can no longer have the authority to carry a firearm until a further requalification test is actually completed. Unfortunately, as I said, there have been considerable delays. We have been meeting on and off with the Company for some six months now. We have been trying to push for the talks to be concluded, and as late as yesterday, Commissioner, we received a new draft of the Company's suggestions towards this policy that we have, as yet, not been able to address.

PN17

The situation at Ringwood came about, unfortunately I believe, as a breakdown in communication, because we expected we had a situation with the Company that, until such time as we have reached an agreement on a policy that covers these circumstances of a person being unable to carry a firearm, that nobody would be adversely affected by way of being stood down without pay. Unfortunately in Ringwood, for reasons that I have not yet been able to ascertain, that did not occur. A person failed a requalification shooting examination and was then, I think somewhat immediately, told that he would no longer be paid.

PN18

Now, this person was a permanent employee on weekly hire, and this has caused considerable, I guess, concerns in the Ringwood depot that resulted in, I guess, a spontaneous cease-work as a protest. Now, I understand what the Company is saying about the unprotected industrial action, but they have not yet been able to clarify for the union as to what steps they took themselves to keep the situation on the rails. I am happy to say, Commissioner, that that issue has now been resolved, and I believe it will carry us forward during whatever time it takes us to reach agreement with the Company on a firearms requalification proposal.

PN19

If I might, Commissioner, I have a - I think it is probably an e-mail document from the Company, the Manager of the Ringwood branch of Maynes Armoured, that sets out, I think, a useful position that is acceptable to the union as to what might happen in the period before we can reach agreement, and if I might table that.

EXHIBIT #R1 E-MAIL FROM MAYNES ARMOURED, RINGWOOD, WITH POSITION ACCEPTABLE TO UNION

PN20

THE COMMISSIONER: Mr Ironmonger, have you got a copy?

PN21

MR MADER: Commissioner, you can see it is from Rodney Thorneycroft at Armaguard, and it is addressed to Rod, Eric, Mike, Trevor and Paul. Commissioner, I understand that Mike is probably Mike Fawkner, Trevor is probably the delegate at Ringwood, and Paul is likewise a co-delegate at the Ringwood branch. And I might just go straight to the key points:

PN22

Until such time as the re-qual process is agreed or implemented as policy:

PN23

(1) Any permanent who fails to re-qual will be stood aside on full pay;

PN24

(2) Any casual who fails to re-qual will be stood aside and will suffer no financial detriment, eg if normal roster is three days per week, then will be paid as if did work those days.

PN25

The Manager may at his discretion have the employee attend work on alternative duties not requiring the use of a firearm.

PN26

And it is from Rob Boek, Commissioner, and I perhaps correct myself because I may have said it was from Rod Thorneycroft; it is from Rob Boek, Regional Manager, Victoria. Commissioner, I think that is probably useful and it will be something that the union will seek to comply with whilst we continue negotiations to try and complete a policy that addresses this somewhat complex issue of firearms requalification. If the Commissioner pleases.

PN27

THE COMMISSIONER: Thank you. Anything else, Mr Ironmonger?

PN28

MR IRONMONGER: Just in response, Commissioner, document R1, that commitment was given while the employees were not working, and that was meant to get them back to work. I also might add, Commissioner, that there is no commitment that we received that we wanted the union to tell us: they have an enterprise bargaining agreement in place; are they going to give a commitment there will be no more unprotected industrial action during the life of the agreement.

PN29

THE COMMISSIONER: They will be giving a commitment to abide by the Act because I will be making a direction - an order - and if they breach the commitment to abide by the Act and the direction of the order, they will be going up to the Federal Court, and then if you wish you can take them to the Supreme Court and take some money out of their pockets, and remind them the Federal Court won't take their houses from them, but the Supreme Court will because they don't care about you or me or anyone else. They only care the law, and the laws says: if you commit a tort - in other words if you take action which costs the employer money in breach of an agreement, they will send you to gaol or sell your house.

PN30

It is very simple. You make your own minds up about it. You have got an agreement, you abide by it. If you have got a problem with the agreement, you come down here and try and blame me or want me to sort it out. It is very simple. Mr Mader knows that, Mr Fawkner knows that. Very simple. If you do it again, you are gone. If you do it again, I will allow him on behalf of Maynes to hand up an application for orders from the Bar table. Do you all understand that? You blokes at the back are delegates at the back, aren't you? Do you understand what I am saying? Do you?

PN31

MR ..........: I don't understand you, your Honour. These people on my left here, they are breaking the rules every week.

PN32

THE COMMISSIONER: If they are breaking the rules every week, you tell the union official to notify the matter to the Commission. You don't take matters into your own hands. That is how people get into trouble. You have got an agreement, you abide by it. If you reckon they are doing the wrong thing, I don't care if you drive me made complaining about them. It doesn't worry me, I get paid to do that. I get paid to put up with that and sort it out. If you are going to take matters into your own hands, you will wear the result, and the result is not pleasant. And I can tell you now from my former past life, I was on the end of some of those actions for some years, it is very painful.

PN33

There is nothing like having the bailiff from the Supreme Court come to your home, and go into your house, and count everything in your house, and go through all your wife's belongings, personal and otherwise, to decide what is of value, and then putting a big list of those things outside the door with a poster, and putting the Court's seal on them. Try and explain that to your missus and kids. Try and explain to your wife and children why you can't spend 10 cents without the Court's permission. If you think you can get away with that, well good on you, because I never could. And that is the end result, if people keep taking action in their own hands, especially when you are breaching agreements.

PN34

If you have got a problem, you tell Mr Fawkner. Mr Fawkner knows I don't bite, okay? I am always available to assist parties. I think you are right, Mr Mader: irrespective of the circumstances that R1 was delivered in, it should go a long way to ease people's concerns.

PN35

MR MADER: Yes, thank you, Commissioner.

PN36

THE COMMISSIONER: There is no need for action that is outside the enterprise agreement or the Act. Pursuant to section 111(1)(t) and (e) of the Workplace Relations Act, the Commission orders that those persons covered by the Armaguard Road Crew Certified Agreement (Victoria) 2000 will abide by the terms of the agreement. In the event that the terms of the agreement are breached, pursuant to section 111E of the Act, each breach shall count as a cumulative day for action in respect to applications to the Federal Court and the Supreme Court.

PN37

In the event that the employees covered by the agreement have a genuine complaint or concern, they are to notify the union officials and the union official is to notify the Commission if it can't be resolved promptly at the work site with the employer. The employer is to act promptly on complaints to resolve issues so they don't get out of hand. I know it is very easy to say, I haven't got time to address something today or tomorrow when I will look at it next week. That doesn't sour things, it allows things to fester, and I am sure no one wants that to happen again. They are my orders. I will just repeat it. If you have got to come back here on this sort of business again for breaching agreements, watch out, because you will find out then I am not a nice bloke. The Commission is adjourned.

ADJOURNED INDEFINITELY [9.47am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 E-MAIL FROM MAYNES ARMOURED, RINGWOOD, WITH POSITION ACCEPTABLE TO UNION PN20