C2002/1494, Transcript of Proceedings [2002] AIRCTrans 1173 (9 April 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT03130

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

C2002/1494

CONSTRUCTION, FORESTRY, MINING AND
ENERGY UNION

and

BORAL AUSTRALIA GYPSUM LTD

Notification pursuant to section 99
of the Act of a dispute concerning
the dismissal of an injured worker

MELBOURNE

1.37 PM, FRIDAY, 22 MARCH 2002

PN1

MR R. WAINWRIGHT: I appear for the Construction, Forestry, Mining and Energy Union and with me is MR C. FLANAGAN.

PN2

MR S. KOLLMORGEN: I seek leave to appear for the respondent, Boral Australian Gypsum Pty Limited as a solicitor and with me is MR J. BELL, the Manufacturing Manager, Victoria.

PN3

THE DEPUTY PRESIDENT: Thank you, Mr Kollmorgen. Any objections to the application for leave?

PN4

MR WAINWRIGHT: Yes, your Honour. Without wishing to be obstreperous, it is my view that as a dispute between the parties, this is best handled by the parties. I note that the Manufacturing Manager is present here today. The purpose of today's hearing is really to provide a forum for discussions and hopefully to work towards a solution. In a matter such as this, there are no special circumstances present and there is certainly no inability on the part of the company to represent themselves. We don't expect to be getting overly legal in any of our discussions. We are hoping to keep it very simple.

PN5

THE DEPUTY PRESIDENT: Mr Kollmorgen.

PN6

MR KOLLMORGEN: In response, I would say that there are some complex issues here which the company had to work through regarding the interaction of the Accident Compensation Act, the Workplace Relations Act, the certified agreement and the award and I note that my learned friend has a copy of the Workplace Relations Act with him so I presumably he does wish to make some legal submissions and I would also say that I don't see my role here as standing in the way of any negotiations. At the appropriate time I would be calling on members of the company to make their comments.

PN7

THE DEPUTY PRESIDENT: All right. Well at this stage I will grant leave. Should there be any difficulties Mr Wainwright is at liberty to make fresh applications. Well we can go one of two courses. We can start of with some interesting speeches from either side which I am sure will be very interesting or we can sit down and have a discussion and see where it leads us in terms of resolving the issues. Sorry, Mr Wainwright, yes.

PN8

MR WAINWRIGHT: Well, your Honour, what I was hoping to do was to outline on the record exactly why we have made this application and that wouldn't be interesting but it would be brief and I think then it might be useful for us to go into discussions off the record.

PN9

THE DEPUTY PRESIDENT: All right, well, unless there is any objection from the other side - - -

PN10

MR KOLLMORGEN: No objection.

PN11

THE DEPUTY PRESIDENT: - - - I will take that course of action perhaps emphasising the word "brief", Mr Wainwright.

PN12

MR WAINWRIGHT: Yes. Well, your Honour all I need to outline is that we have lodged our section 99 application on Monday. It relates to the dismissal of Mr Jansz from his employment. Mr Jansz has been on WorkCover since January 2001 when he slipped at work and injured his back. There has been no dispute about his injury being a work injury and the insurer accepted liability. Mr Jansz has entered into a dispute, as I understand it, pursuant to section 122 of the Accident Compensation Act which relates to return to work provisions and a genuine dispute certificate has been issued by the WorkCover Conciliation Service in relation to that.

PN13

Mr Jansz, with his doctor, approached the company about a different return to work plan. He had a meeting with a Kathy Chrisfield of the company on 8 March where he discussed that and then in the following week he contacted the company on each day to check how his return to work proposal was being considered. On the 15th he was called by John Bell and asked to come in - - -

PN14

THE DEPUTY PRESIDENT: Sorry, the 15th of?

PN15

MR WAINWRIGHT: On 15 March, your Honour, which as I understand is a week ago today. John Bell called him and asked him to come in to the Port Melbourne premises for a meeting about his return to work plan. When he did attend at Port Melbourne, he went into a meeting with John Bell and another man, Peter Davidson, and he was informed at that time that he was to be dismissed and he was given a letter which it might be opportune for me to hand up now, your Honour.

PN16

THE DEPUTY PRESIDENT: Do you want to tender that Mr Wainwright?

PN17

MR WAINWRIGHT: Yes, your Honour.

EXHIBIT #W1 LETTER

PN18

MR WAINWRIGHT: Your Honour, all I would like to add is that Mr Jansz then contacted the union. We have pursued this dispute in accordance with the dispute settlement procedure of the EBA. Having not succeeded in direct discussions between the organiser and the appropriate managers, we have notified the Commission for your assistance in overcoming the dispute.

PN19

THE DEPUTY PRESIDENT: Mr Kollmorgen, is there anything you want to say at this stage?

PN20

MR KOLLMORGEN: Yes, I think it would assist the process if I corrected a few of the comments that have been made about the process of the way the injury has been handled and the return to work plans that have failed - - -

PN21

THE DEPUTY PRESIDENT: All right. Just briefly, if you could.

PN22

MR KOLLMORGEN: Very briefly.

PN23

THE DEPUTY PRESIDENT: In a non, what is the word, non-inflammatory manner if possible.

PN24

MR KOLLMORGEN: I will make every attempt. There is - we have heard nothing today that suggests that this is anything other than an individual employment dispute. It doesn't appear to me to have any basis as a collective industrial dispute; solely a matter between Boral Plasterboard and Mr Jansz. It is not between Boral and its workforce generally.

PN25

THE DEPUTY PRESIDENT: And you appear for?

PN26

MR KOLLMORGEN: I appear Boral Plasterboard. I should make that clear. I appear for Boral Australian Gypsum Pty Limited which trades as Boral Plasterboard.

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

MR KOLLMORGEN: As you are no doubt aware, there are other sections of the Act and other divisions of this Commission that deal with individual termination of employment matters. The injury was incurred, as correctly stated, 15 months ago. A WorkCover claim was lodged which was accepted by the insurers. Since that time, which is 14 months ago, sorry, 15, Mr Jansz has been unable to perform his pre-injury duties. He has attended work on restricted duties for part of the time but he is quite restricted from performing duties.

PN29

There have been two attempted return to work plans, the latest of which was to have commenced on 3 January and despite the agreement about that plan, Mr Jansz actually failed to attend work and I am instructed made no attempt to contact Boral to explain his absence. Certainly there was no call to the company's people, Development Co-ordinator, Kathy Chrisfield, to inform it why Mr Jansz wasn't attending.

PN30

On 7 March, Mr Jansz informed Boral, after he had been requested to provide a medical certificate indicating his clearance to perform work, that - well he said that his doctor was unwilling to provide him with such a certificate and it became clear to Boral at that point that after 14 months there was not going to be a return to pre-injury work in any reasonable period and the company moved to terminate on the basis of the fact that there was medical evidence which supported the conclusion he wouldn't be able to return to his pre-injury duties, that his own doctors wouldn't certify a return to anything like pre-injury work, that the medical practitioners said that the work he could perform was subject to the same restrictions which had operated for many months and that there was no ability to return to work despite these two failed return to work plans.

PN31

So the company met with him and his union representative and made clear its decision to terminate based on all that information and in our respectful submission Boral, at all times, has complied with the Workplace Relations Act, the award, the certified agreement and the Accident Compensation Act and would like to state on the record that it is committed to ensuring that its workers are able to return to their pre-injury duties but at this point we have no objection to conducting some informal discussions.

PN32

THE DEPUTY PRESIDENT: All right, well, unless Mr Wainwright has anything additional he wants to say perhaps we should adjourn this matter into conference. We will adjourn this matter into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 LETTER PN18