C2002/2005, Transcript of Proceedings [2002] AIRCTrans 1804 (23 May 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 VT03881
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2002/2005

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

BENDIGO BRICK PTY LIMITED

Notification pursuant to section 99 of the
Act of a dispute re the company's failure
to comply with supply of clothing,
information and others

MELBOURNE

11.06 AM, THURSDAY, 9 MAY 2002

PN1

MR S. ROACH: I appear on behalf of the CFMEU in relation to this matter.

PN2

THE SENIOR DEPUTY PRESIDENT: You are being a very busy boy, Mr Roach.

PN3

MR ROACH: Busy day, your Honour.

PN4

MR V. HORSBURGH: I appear on behalf of Bendigo Brick, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Horsburgh. Yes, Mr Roach.

PN6

MR ROACH: Your Honour, earlier this year the company and the union came to an agreement, an enterprise agreement, one of the conditions of which had to do with the provision of clothing for employees. Notwithstanding that provision already existing to a certain extent within the award, the award that covers the workplace is the Clay and Ceramics Industry Brick and Terracotta Tile Manufacturer Victoria Award 2000. The name of the agreement that covers the employees at Bendigo Brick is the Bendigo Brick Enterprise Bargaining Agreement 2001. The clothing issue, which is only one that we notified the Commission about, the clothing issue is contained in clause 23 of the EBA.

PN7

It compliments the existing clothing provisions within the award. I am just looking for - I am sorry - - -

PN8

THE SENIOR DEPUTY PRESIDENT: When was that agreement certified?

PN9

MR ROACH: That was certified on 15 March this year.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes. I am sorry, I have a different version. Do you have a copy of that document?

PN11

MR ROACH: I do. Just for the record I will just read clause 23 and I will - sorry, I will give it to you:

PN12

Clothing will be assessed on a six month basis for replacement as required.

PN13

Your Honour, I attended the workplace, as I have done a number of times as Mr Horsburgh would be aware, and raised this issue a number of times both last year and this year, even before that EBA because there is a requirement in the award for clothing to be provided or protective clothing and given the nature of the work, you know, it is fairly important that we do have proper protective clothing and - or clothing in general. The company agrees that they provide shirts and trousers or overalls as well as safety footwear. Now I have raised the issue a number of times with management that I have seen workers in the workplace in less than adequate footwear.

PN14

There is a lot of moving machinery. You are talking about forklifts and you are talking about a general environment that could lead to serious injury in relation to inadequate supply of footwear and notwithstanding seeing a number of people walking around with some pretty tired looking boots, their toes sticking out of the end and so on, we raised it with the company. From time to time they do address individual issues but not in general. The company has since failed to also provide the shirts that they promised and the trousers that they promised and as late as last night I was informed by an employee that they were told, well, we just can't afford it.

PN15

This, in our view, is not acceptable because it was only agreed to recently that that sort of clothing would be provided and, you know, we feel compelled to bring the matter to the Commission because despite repeated requests for adequate issue of clothing it is just not done. The other matter concerns the EBA clause - and I am sorry, that is the only copy I had, your Honour - the EBA clause in relation to a profit sharing arrangement that the company had put into the agreement, it was certified in there. There is a provision under that profit-sharing clause that employees will be kept up to date on the movement of profit of the company to enable the employees to see as to whether they will receive a remunerative bonus in relation to the profit level of the company.

PN16

That has not been posted on a regular basis. I believe there has only been one month's notice posted and as a consequence workers are unaware as to whether they are receiving their correct entitlement as per that agreement. There is a further issue. I think in the dispute notification it might be called etcetera - sorry, and others, and that is in relation to an employee of the company who has been transferred to another company within the group of companies following his submission of a Workcover certificate and that particular employee indicates that he is not aware of his current standing within Bendigo Brick as an employee.

PN17

He also informs me that he has been told that he is not allowed to join a union, either at the new place of employment or Bendigo Brick.

PN18

THE SENIOR DEPUTY PRESIDENT: Where is the new place of employment?

PN19

MR ROACH: It is a company called Industrial Conveying Australia which Mr Horsburgh is also involved.

PN20

THE SENIOR DEPUTY PRESIDENT: In Bendigo, is it?

PN21

MR ROACH: Yes, yes, they are all - - -

PN22

THE SENIOR DEPUTY PRESIDENT: How far away from his current or his previous position of work?

PN23

MR ROACH: I don't believe it is far. I am not entirely sure of the - - -

PN24

MR HORSBURGH: If I may, your Honour, it is about seven kilometres.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN26

MR ROACH: The employee concerned has a claim for a back injury with Bendigo Brick and he is not aware of his current employee status and it is disturbing to us that it has been both directly and indirectly stated to him that if he involves himself with the union that he would be in strife and I raise that matter to see if we can resolve this issue without resorting to further action that is open to the union on this matter but I might say, your Honour, that it is fairly consistent with reports we have had from other employees from time to time at Bendigo Brick in relation to their union activities. That is pretty well a thumbnail sketch of the issues, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: All right. Thanks, Mr Roach. Mr Horsburgh, what do you have to say about all that?

PN28

MR HORSBURGH: If your Honour pleases, I think the first thing is it is regrettable that these issues have to be brought to the Commission's attention without adequate discussion at the plant.

PN29

THE SENIOR DEPUTY PRESIDENT: But do you say there has been no discussion?

PN30

MR HORSBURGH: There has been some discussion with the employees. I have had no communication with Mr Roach on these issues this year and it is always our policy to try and resolve these matters internally before coming to the Commission.

PN31

THE SENIOR DEPUTY PRESIDENT: Mr Roach says that he has made representations about the clothing and received representations about the clothing issue but those representations have not been fulfilled.

PN32

MR HORSBURGH: Okay. Well, I disagree, your Honour. If Mr Roach would like to provide some dates and times at which he has spoken to me I would be most interested.

PN33

THE SENIOR DEPUTY PRESIDENT: You say there has been no contact about it at all?

PN34

MR HORSBURGH: Not from Mr Roach to myself, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN36

MR ROACH: Your Honour, there is another plant manager - - -

PN37

THE SENIOR DEPUTY PRESIDENT: I will just finish talking to Mr Horsburgh first and what about the issue of the profit share?

PN38

MR HORSBURGH: In regards the profit share what we have undertaken to do is to keep the employees aware of the performance of the business. To date there is four graphs which indicate the performance by the company on a monthly basis that have been issued since November of last year.

PN39

THE SENIOR DEPUTY PRESIDENT: Sorry, four what?

PN40

MR HORSBURGH: What the graph indicates is the month and the month's profit or loss in that month. Where we stand at the moment, during the month of March there was a graph released which gave the company's position to the end of February and there was a graph released this week which gave the company's position to the end of March and it is anticipated that April's will be posted towards the end of May. Naturally it takes, you know, three to four weeks following month end to ascertain what the previous month's profit or loss position has been.

PN41

THE SENIOR DEPUTY PRESIDENT: Has anybody raised any issue with you about the posting of the company's profit situation?

PN42

MR HORSBURGH: Some weeks back the production manager indicated to me that the shop steward had requested the release of the figure and I explained to him what the timing was and that it was forthcoming within the next couple of weeks.

PN43

THE SENIOR DEPUTY PRESIDENT: Was anything else said about it?

PN44

MR HORSBURGH: No. I think - the graphs have been issued, the information has been put on the noticeboard, your Honour.

PN45

THE SENIOR DEPUTY PRESIDENT: Just going back to the clothing issue, has anybody other than Mr Roach raised with you the provision of clothing or protective footwear?

PN46

MR HORSBURGH: Yes, they have, your Honour. Some two weeks back we held a formal training session, two sessions in fact, one with the day shift and then one with the afternoon shift regarding violence in the workplace. At the end of both of those training sessions I held a question and answer session just on any issues that the employees wished to raise, general health of the business, etcetera, and the issue of clothing was raised. Some of the employees felt that the company had not adhered to its side of the bargain and had not issued adequate protective clothing following the enterprise agreement.

PN47

What I pointed out to them is that during the course of these negotiations it was repeated time and time again that the business was in a loss making position and nonetheless we agreed that we would provide clothing with effect from the new agreement but we were not in a position where we could afford to go out and simply kit everybody with clothing. Now that is, I think we need just to distinguish between protective clothing and clothing in general. The company's policy in protective clothing remains firm and we have always and continue to provide protective clothing as required.

PN48

Mr Roach referred in particular to boots. I would just like to point out that in this year so far which is 10 months the company has spent just under $3000 on protective boots alone and we have never hesitated, despite the financial position of the business, to provide adequate clothing - sorry, adequate footwear and we also introduced during, towards the end of last year a fairly rigorous program on the introduction of hearing equipment and safety glasses and have also spent considerable sums on those items plus additional signage in the plant, introduction of pedestrian walkways, high profile/high colour shirts for forklift drivers, etcetera.

PN49

So we believe we are doing the right thing there and are firmly committed to employee safety in this regard. Now getting back to the clothing issue, as I say it was our intention to phase this in and this was made clear to the employees because of the financial position of the company. I think the clause of six monthly review to some extent was to try and delay the initial cost impost and if one looks at - one could argue that the six months applies from 10 December when the previous agreement expired or it applies from 15 March when the new one became effective, but nonetheless we, in February, obtained prices on items of clothing and received high visibility shirts for all employees in the month of March and all of these have been issued and to date we have spent just over $3000 on these high visibility shirts.

PN50

What was communicated to the employees that we would provide the shirts in March which we did. We then said we would supply long trousers or shorts as required in June and then there would be a further supply of shorts in the month of August/September. So really over that six month period all employees would be adequately kitted out and then six months later we would again review the situation.

PN51

THE SENIOR DEPUTY PRESIDENT: When was this said - when did you tell the employees this?

PN52

MR HORSBURGH: This was communicated to the production manager in the month of March. It was explained to the employees on numerous occasions during the EBA negotiation process that the clothing would be phased in over a period of time due to the company's financial position.

PN53

THE SENIOR DEPUTY PRESIDENT: All right. Well, what about the issue of transfer?

PN54

MR HORSBURGH: The issue of transfer, your Honour, concerns an immature employee whose father also works at Bendigo Brick in a supervisory capacity and I think due to his, in my view, his immature approach to his work responsibilities really got himself into a position where it was very uncomfortable for him in terms of his relationships with his supervisors, managers and co-workers at Bendigo Brick.

PN55

THE SENIOR DEPUTY PRESIDENT: How did you know that?

PN56

MR HORSBURGH: Through communication with his father, with the production manager at Bendigo Brick and with the owner of the two businesses, Mr Don Erskine, because as a result of this the said employee's father spoke to Mr Erskine and Mr Erskine then said, okay, well, why don't we offer him a fresh opportunity in a new environment where he can learn different skills at Industrial Conveying. His position is clearly not tenable at Bendigo Brick.

PN57

THE SENIOR DEPUTY PRESIDENT: His father suggested that, did you say?

PN58

MR HORSBURGH: Mr Erskine suggested this to his father and then to Daniel himself in discussion and that was the intent behind it, was to take him out of the environment in which he was not performing and had numerous problems with supervisors and managers and put him in an environment where he could have a fresh start and fresh opportunities and consequently he was transferred to Industrial Conveying.

PN59

THE SENIOR DEPUTY PRESIDENT: Was he consulted about that himself?

PN60

MR HORSBURGH: Yes, he was and he came across of his own free will. He then became an Industrial Conveying employee. He was issued with the Industrial Conveying employee handbook which he read and signed as having read and understood and acknowledged. He was put through a full program of - that new employees go through on safety etcetera and he has had a lot of back problems which was a Workcover problem that originated at Bendigo Brick and consequently has had a lot of time off but unfortunately he has also had some incidents with co-workers at Industrial Conveying.

PN61

He has also had unauthorised absence from work. He has disobeyed instructions contravening his light duties and as a result of this disciplinary action was initiated to try and make him aware of his non-compliance and to enable him to take corrective action. He refused to attend the hearing and stormed off - - -

PN62

THE SENIOR DEPUTY PRESIDENT: Which hearing?

PN63

MR HORSBURGH: The disciplinary inquiry into his behaviour.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes.

PN65

MR HORSBURGH: Left the premises stating that he wasn't prepared to attend any discussions unless he had a solicitor present. I believe - well, at some stage he then contacted Mr Roach. I am not sure what the discussions were regarding that. I am aware that he then at some stage tried to join the Metal Workers Union at Industrial Conveying and was advised by the shop steward that - and simultaneously wanted the shop steward to represent him. I think the shop steward had concerns that there was a conflict of interest because he was already representing one of his members in the bullying, intimidation issue against this employee.

PN66

So I think - there was no effort by the company to stop him from joining any union. I mean it is freedom of association, they are free to join whichever union they wish and it is not a situation that we intervened in. That is - - -

PN67

THE SENIOR DEPUTY PRESIDENT: Is the majority of the workforce unionised?

PN68

MR HORSBURGH: Pardon?

PN69

THE SENIOR DEPUTY PRESIDENT: Is the majority of the workforce unionised?

PN70

MR HORSBURGH: Yes, your Honour, it is, yes.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes, sorry. Is there anything else?

PN72

MR HORSBURGH: Well, as a result of all this, yes, it was extremely difficult to try and resolve the disciplinary issues because of his lack of co-operation so what we then did is we, although the company disciplinary procedure doesn't allow for it, what we did is we allowed and requested that his father from Bendigo Brick actually attend the disciplinary hearing on his behalf to represent him and we just felt that that would ensure that he had the fairest representation possible. He was very happy with that because his father is a long-standing employee of Bendigo Brick and has been there for many years.

PN73

THE SENIOR DEPUTY PRESIDENT: What was the outcome of the disciplinary hearing?

PN74

MR HORSBURGH: The outcome of the disciplinary hearing is that he was issued with a final written warning. At that stage he already had received a first written warning and a final written warning for previous transgressions. This latest warning was as a result of his refusal to attend the previous hearing.

PN75

THE SENIOR DEPUTY PRESIDENT: How long ago was he transferred to the other employer?

PN76

MR HORSBURGH: I believe it would have been in January of this year, your Honour.

PN77

MR ROACH: It might assist your Honour, it was in fact February, just after a meeting I had with him.

PN78

MR HORSBURGH: February, right.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes, anything else?

PN80

MR HORSBURGH: The only other thing I would wish to raise with the employee, Daniel MacLeod, with his Workcover claim is that we have been in touch with the insurer. We have instituted a return to work program and we have also had discussions with his doctor.

PN81

THE SENIOR DEPUTY PRESIDENT: The injury has been accepted, has it?

PN82

MR HORSBURGH: His injury has been accepted. It occurred whilst stacking bricks at Bendigo Brick during November of last year.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Horsburgh.

PN84

MR HORSBURGH: Thank you.

PN85

THE SENIOR DEPUTY PRESIDENT: Mr Roach, I am planning to or proposing to adjourn this matter into conference. Is there anything else you want to say on the record before I do that?

PN86

MR ROACH: Just in relation to Daniel, your Honour, he wasn't a union member and he came to us for help because he hurt his back and he was scared to be seen talking about the premises so I arranged to meet him at the Captain Cook Hotel at Bendigo. There was what we call a company stooge in the place who reported, I believe reported back to management that he was meeting with me and a couple of other people and I didn't even know he had been transferred until some time well after it. He had requested to join a union. I gave him the material to do that.

PN87

THE SENIOR DEPUTY PRESIDENT: It sounds like his father had full knowledge and awareness of what was going on?

PN88

MR ROACH: It would be very interesting to have a conversation with his father about this, your Honour, but I am - - -

PN89

THE SENIOR DEPUTY PRESIDENT: Is his father one of your members?

PN90

MR ROACH: His father is not. He is in fact a supervisor who is - well, I think he is on the staff of the company. His protections are somewhat limited hence my lack of desire to really directly involve him. I wanted to try and resolve this here because I - if pushed we will take the matter and utilise the powers we have under the Act. It would be better I think for all concerned if we could resolve it here today in conference and I agree that that would be the better way to go. It is not the first complaint I have had about people being threatened over the union activities at Bendigo Brick.

PN91

THE SENIOR DEPUTY PRESIDENT: But it is a unionised workforce as I understand.

PN92

MR ROACH: Partially, partially, your Honour.

PN93

THE SENIOR DEPUTY PRESIDENT: How many employees are there?

PN94

MR ROACH: About - it has fluctuated. It was about 76 when I went in initially. We only had seven members out of 76 in May last year and I believe we are up to around 40 but the overall workforce has declined to about 60, 65 maybe.

PN95

MR HORSBURGH: It has been at a level of 63 for over a year and the union membership is currently just under 50 per cent.

PN96

MR ROACH: That is the union membership that Mr Horsburgh knows of. They are the ones on payroll deduction, your Honour. But, look, regardless of that I felt - - -

PN97

THE SENIOR DEPUTY PRESIDENT: But you have still got about 80 per cent membership.

PN98

MR ROACH: Look, actually I wouldn't say that much. I thought it was around 40.

PN99

THE SENIOR DEPUTY PRESIDENT: Well, if you have got 40 out of 63 - - -

PN100

MR ROACH: Yes, but that was - there is a pretty high turnover at this place, your Honour. That was when I looked when we were doing the EBA. It may well be a bit lower now. I obviously haven't checked my own records so if there has been a departure of that number of people then it is suffice to say that some of ours would be amongst that. So I would play it safe and say about 35 probably. But Danny wanted to join for his own protection. I gave him the paperwork. I thought it was all processed and obviously I have been tied up with other things over the last couple of months.

PN101

It wasn't until recently that I heard what had happened to him and I hadn't had the opportunity to get directly involved. There have been some discussions with some people at Bendigo Brick who I wish to refrain from disclosing at this time and what was conveyed to me was that Danny had been told that they are going to get rid of him. I have spoken to Danny and he told me that he was told by workers who seemed to be close to management at Industrial Conveying that he will be gone very shortly and before the matter ends up being a major confrontation, both legal and industrial, I want to see if we can resolve the issue with the company, if necessary in conference.

PN102

I don't believe Danny has done anything wrong, your Honour. There is no necessity for the type of behaviour towards him.

PN103

THE SENIOR DEPUTY PRESIDENT: There is some suggestion that he has been bullying other workers.

PN104

MR ROACH: I don't believe that. I think that that is a nonsense. I know Danny; he is 19 years old. I mean he is not - he has got a crook back. You know, there is days where he can barely bend, you know. I doubt very much whether he is in any position to bully anyone and my advice to him - he was even questioning whether he should put a Workcover claim in and my advice to him was that he has got a long time to go before he is underground and that at some stage in his adult life he is going to need help and if he doesn't put the claim in then, you know, he could be in big trouble. He didn't want - - -

PN105

THE SENIOR DEPUTY PRESIDENT: But he has put the claim in and the injury has been accepted as a work injury.

PN106

MR ROACH: Yes. I mean he didn't want to do it because he didn't want to upset the company. That is the sort of kid he is and I just think it is entirely improper for the suggestions that have been made here today to be made and I, like I said I want it resolved, notwithstanding our other powers but if need be I will be talking to our senior officials about utilising any and all powers under the Act in relation to this matter to resolve it satisfactorily.

PN107

THE SENIOR DEPUTY PRESIDENT: All right. Well, are you - - -

PN108

MR ROACH: if the Commission - - -

PN109

THE SENIOR DEPUTY PRESIDENT: Are you prepared to enter into conference now about the matter?

PN110

MR ROACH: Yes, your Honour.

PN111

THE SENIOR DEPUTY PRESIDENT: Mr Horsburgh, do you have any objection to adjourning this matter into conference?

PN112

MR HORSBURGH: No, your Honour, but I would just like to raise or comment on one issue and that is Mr Roach's insinuation about reference to employees at Bendigo Brick being in strife if they join the union. That is clearly not the company's policy. There is freedom of association. The employees are free to join any institution of their choice and I would request that Mr Roach provide some documented evidence in this regard, provide some dates, times and people, because it is not the first time that he has made these allegations and they have never been substantiated with any facts. Thank you, your Honour.

[11.35am]

PN113

THE SENIOR DEPUTY PRESIDENT: Well, perhaps we can progress that matter some further way in conference. Anything else you want to say for the record now?

PN114

MR HORSBURGH: No, thank you.

PN115

THE SENIOR DEPUTY PRESIDENT: No.

PN116

MR HORSBURGH: Thank you, your Honour.

PN117

THE SENIOR DEPUTY PRESIDENT: Mr Roach?

PN118

MR ROACH: No.

PN119

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn this matter into conference. Could I just clarify, the people in the back are people from the workforce or associated at all with this matter?

PN120

MR ROACH: No, no.

PN121

MR ..........: We are from Victoria University, industrial relations students, and so we are observing as interested - - -

PN122

THE SENIOR DEPUTY PRESIDENT: All right. I will just go off the record.

PN123

OFF THE RECORD

PN124

THE SENIOR DEPUTY PRESIDENT: This matter will now adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED