C2002/438, Transcript of Proceedings [2002] AIRCTrans 209 (15 January 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

C2002/438

THIESS PROPRIETARY LIMITED

and

CONSTRUCTION, FORESTRY, MINING and
ENERGY UNION

Notification pursuant to Section 99 of the Act
of a dispute re non attendance of employee prior
to and after Christmas

BRISBANE

2.07 PM, WEDNESDAY, 2 JANUARY 2002

PN1

THE COMMISSIONER: Can I take appearances, please?

PN2

MR M. NASH: I appear for Thiess Proprietary Limited.

PN3

MR A. VICKERS: Commissioner, I appear for the CFMEU. With me I have MR TIM CONROY.

PN4

THE COMMISSIONER: Thank you, Mr Vickers. Now, Mr Nash, I understand that you've notified of this dispute.

PN5

MR NASH: That's correct.

PN6

THE COMMISSIONER: I'll hear from you. I was intending to take some submissions on the record and then it was the intention to move into a conference if that's the agreement of the parties. Would you wish to proceed that way, Mr - - -

PN7

MR NASH: Yes, I'm okay with that if Andrew and Tim are.

PN8

THE COMMISSIONER: All right. Well, thank you.

PN9

MR NASH: Commissioner, the issue in dispute: a gentleman, one of our crews, Mr McCormack, was rostered on for the - as part of his roster, to be at work on 24 December and then return on the 31st. Mr McCormack did not appear for work on the 24th and also did not appear for work on the 31st. Circumstances are that Mr McCormack asked for time off on the night of the 23rd - approached his co-ordinator, asked for time off on the 24th. The co-ordinator said he didn't think it would be appropriate and it was best to talk to his foreman, Mr Brian Clarke. Brian informed Dean that he was already short-handed and did need him to be there on the shift that day. Mr McCormack then did not appear the following day. There was no notification, no phone call, nothing.

PN10

THE COMMISSIONER: The following day being?

PN11

MR NASH: The 24th - - -

PN12

THE COMMISSIONER: Right.

PN13

MR NASH: - - - or the night - due to be at night shift on the 24th. Didn't turn up; didn't contact anybody from management in Thiess at the mine, at Newlands Mine. He was due back on the 31st and didn't appear. We had - on checking the message bank at the mine, there were two messages, one at 7.36 and one at 7.37, and on there, Dean said - well, the first one was, "I've stuffed up the dates. I've just realised I'm supposed to be at work. I'll be there first thing in the morning." On the second one, he left a phone number for our foreman to ring him which we asked our foreman to do.

PN14

The foreman rang Dean and Dean offered the excuse that he'd had some tyre problems on the 24th and could not get to work and also confirmed his excuse of - that he had not - or he'd made a mistake and hadn't realised that he should have been at work and in fact he wasn't; would be there the next day, neither of which sat particularly well with our management on site - and decided to terminate him yesterday. Since then, we've been told there are other issues surrounding Mr McCormack's actions and, in brief, Commissioner, that's actually where we're at at the moment.

PN15

The lodge is on strike at the moment for 24 hours and having another meeting at 4 o'clock. I'm informed that is to determine whether they're going to come back to work or not. I think further discussion is probably worthwhile, off the record. Thanks, Commissioner.

PN16

THE COMMISSIONER: Mr Vickers, would you like to respond?

PN17

MR VICKERS: Commissioner, basically, I think what Mr Nash has put to you is correct as far as the instructions - brief and limited instructions - that we've received down here. Mr McCormack did in fact approach the chain of command at the mine in respect of time off - or his shift off on 24 December. There is conflicting information that the company has and as I said, brief instructions that we have as to the reasons that Mr McCormack may have given and to whom he gave those reasons in support of the request. I have very limited instructions that he is suffering some personal domestic problems and I'm told that they were discussed during the course of a meeting yesterday when he was asked to justify his absences, both on the 24th and on the 31st.

PN18

There's no question or debate that he was absent from work on 24 December and he was absent from work on the first shift that he was rostered back, on the 31st. The reasons that we have in respect of that are, as I said, a request for time off on the 24th because of personal domestic problems and then, simply, a mistake about the first day that he was due to be rostered back. I should add, Commissioner, that Mr McCormack has been an employee at the Newlands Mine for some 12 months, approximately, but in that period of time and until very recently - the end of November, I think; and I don't have an exact date - he was in fact employed by Legra, L-e-g-r-a, a subcontractor to Thiess, effectively operating as a labour hire company on Thiess' behalf and there's a degree of history about that which I won't go into. It's not necessary.

PN19

But he is a relatively new, direct employee of Thiess, having only started with them, either late November or early December. I guess it's understandable, in those circumstances, a relatively new employee, less - or approximately a month of employment - has blown two shifts and the manager is more than a bit cranky about it. But my instructions are that, in all of the time that he worked at Newlands, effectively directly controlled by Thiess - as I said, they operated as a labour hire company - Legra operated as a labour hire company to Thiess - these were the first two days that he's had off in that period of time.

PN20

It also potentially explains - and I haven't had an opportunity to go into detail with Mr McCormack or the lodge officials about it - but it may well have been a change of roster which could lead to some justification for a genuine mistake being made; but I'm uncertain of that, Commissioner, at this stage. My concern, Commissioner, about this whole thing is that I'm instructed by the lodge officials that, during the course of yesterday when a meeting took place, following Mr McCormack's return to work and when - I should step back one step. The day before the 31st, when he became aware that he should have been at work and he made the early phone call - it was 7.30 in the morning when he made the phone calls - he was finally contact back by Mr Clarke, the supervisor, at about 1.30pm.

PN21

THE COMMISSIONER: What was his start time, Mr Vickers?

PN22

MR VICKERS: It would have - I'm assuming, probably 6 am, Commissioner, and I'll stand corrected on that. It's a fairly standard type work arrangement. Again, my brief instructions, Commissioner, are that, in the course of that conversation between Mr Clarke and Mr McCormack at around 1.30pm, Mr McCormack, our member, offered to go to the mine immediately and he was told Mr Clarke, "Don't worry about it. Come out tomorrow." During the course of "tomorrow" which was yesterday, he wasn't permitted to commence work. He was called to a meeting with Senior management representatives at the mine. He did take with him Mr Voysey, our lodge secretary.

PN23

During the course of that meeting, management advised that they found that Mr McCormack's behaviour was totally unacceptable. I'm instructed that he offered reasons for his absence on the 24th and offered reasons for his absence on the 31st. Management advised that that behaviour was unacceptable, that it displayed a lack of respect for Thiess management and a lack of respect for his workmates and as a consequence, management had no alternative but to discontinue his employment at that stage. At this stage, Commissioner, I haven't seen a dismissal or a termination notice. I don't know what grounds, specifically, management have relied upon.

PN24

All that I'm going from are some very brief notes that were faxed down to me about an hour and a half ago so I apologise for that. I am told, however, because I did manage to get a brief phone conversation in with Mr Voysey, our lodge secretary, that during the course of the meeting yesterday with management, the lodge asked that the matter be dealt with in accordance with the disputes procedure which is contained within the certified agreement which clearly spells out that it's a procedure which should be invoked either by management or the employees, depending on who has the problem. I'm paraphrasing it but it is quite clear in the - - -

PN25

THE COMMISSIONER: I've read it.

PN26

MR VICKERS: It quite specifically spells it out. But that hasn't been done. They proceeded to terminate the employee. My understanding from Mr Voysey is that he put a proposal to management that, at worst, Mr McCormack be stood aside on pay while the matter is processed in accordance with the procedure. Somebody has made a call that that was either inappropriate or that they just weren't going to do it. As a consequence, Mr - well, not as a consequence of that but the next stage was that management confirmed, verbally at least, that Mr McCormack was terminated.

PN27

That has led to a meeting of the lodge and the lodge taking industrial action and I am unaware but I accept what Mr Nash has put, that a further meeting is intended to take place at 4 o'clock this afternoon. I didn't have that conversation with Mr Voysey this morning. Commissioner, there is - - -

PN28

THE COMMISSIONER: Because I think that same disputes procedure, Mr Vickers, says that there will be no stoppage - - -

PN29

MR VICKERS: By either party, Commissioner.

PN30

THE COMMISSIONER: Yes.

PN31

MR VICKERS: That's right. That's right. But there was a proposition put to management, as I am instructed, that, at worst, Mr McCormack be stood aside on pay while the matter is progressed in accordance with that procedure. There could have been a State level conference, face to face or by phone. There could have been an application to the Commission. There is a real possibility - and I'm supposing - there is a real possibility that neither management nor Mr McCormack were aware of his potential rights under the terms of the industrial instruments that cover him in terms of an application for leave on the 24th if in fact it was pertaining to pressing domestic problems.

PN32

THE COMMISSIONER: What is that specific provision you're referring to, Mr Vickers?

PN33

MR VICKERS: That, you will find at clause 32 of the Award, Commissioner. You won't find it in the certified agreement. This is the certified agreement, obviously read in conjunction with the Award - - -

PN34

THE COMMISSIONER: Yes.

PN35

MR VICKERS: - - - and the certified agreement does not trade off the pressing domestic leave provision. It's in fact a provision which entitles employees to paid leave of absence of up to one day in circumstances where it's agreed, or in the event of a dispute, as determined by the Commission.

PN36

I haven't spoken to Mr McCormack at length in respect of what his problems are. I don't know whether there is a possibility that he would qualify for paid leave of absence under the terms of that provision without going into that detail. I respectfully suggest that there are probably not too many management people at Thiess at Newlands who would be aware of that award provision either, and as I said, we have a set of circumstances where I do know - no, no, I withdraw that. I suspect as well that Mr McCormack is probably unfamiliar with his rights under the terms of the Award for a number of reasons, not the least of which I don't think it is a practice at the mine for a copy of the award to be provided to all new employees, and secondly, as I have just earlier said in my submissions, Mr McCormack is an employee of Thiess at least of approximately four weeks standing.

PN37

Legra, his previous employer, is not a respondent to the award, and there is no certified agreement covering Legra at this immediate point in time. There is one in the process being negotiated, but it hasn't been finalised at this point in time. So there is a very real possibility, I suspect, and I can put it no stronger than that, Commissioner, that there is probably an absence of understanding of the employee's potential legal rights under the pressing domestic leave provisions of the award in any event.

PN38

Commissioner, they are matters which ought to be, and should have been, properly discussed in detail between the parties before the pre-emptive action of terminating Mr McCormack's action was taken. Thiess management should have permitted the terms of the certified agreement disputes procedure to have been followed. I can accept and understand, if it has been half as hot in Central Queensland, and it has probably been twice as hot as what it has been here, tempers a bit frayed, people a bit short on the ground at the mine, but that is no reason in reality at the end of the day for termination action to have been taken without this matter having been properly discussed.

PN39

I accept as well, Commissioner, that it is no reason for strike action to have been taken by my members. Two wrongs don't make a right. I accept that. I have been told that many, many times in this place by a whole raft of people, but I didn't get the opportunity, nor did anyone in my office; it was closed yesterday, to have advice sought or contact made. In respect of the issue, I find out about it at about 11 o'clock this morning when your associate rang me. And unfortunately, Commissioner, as I said I don't have a huge amount of detailed submissions and not in a position to put evidence before you. I think the matter may be able to be talked about between the parties with the Commission's assistance, but that's about all I have got to say at this point in time.

PN40

THE COMMISSIONER: Mr Vickers - but your understanding is that the stoppage that has occurred is related specifically to this matter?

PN41

MR VICKERS: Absolutely, and nothing else, Commissioner.

PN42

THE COMMISSIONER: Right.

PN43

MR VICKERS: That's the instructions I have. In fact, I had a copy of the three pages of notes that were faxed through to us. It was a copy of the resolution, and it is only very short. It says:

PN44

The lodge support Dean McCormack on being unfairly dismissed and we call upon Thiess to progress this issue through the disputes procedure as soon as possible. We also call upon Thiess to follow their own procedures as set out in the EBA.

PN45

And that was from a stop work meeting at 10 past 7 last night according to this note.

PN46

THE COMMISSIONER: So they went on strike at - - -

PN47

MR VICKERS: I guess the start of shift last night, Commissioner. But I don't know, to be honest.

PN48

THE COMMISSIONER: Mr Nash, did you want to respond to anything else on the record?

PN49

MR NASH: A couple of things I wouldn't mind responding to, thank you, Commissioner.

PN50

THE COMMISSIONER: I am assuming you are finished there, Mr Vickers?

PN51

MR VICKERS: I had, Commissioner.

PN52

THE COMMISSIONER: Thank you.

PN53

MR NASH: The issue of whether or not Dean McCormack could avail himself of pressing domestic leave under the Award - I would like to make something quite clear: at no time after discussion with my people - at no time did - on 23rd when Dean requested time off for 24th, at no time did he raise the added issue at home or any pressing domestic issue at home. This company is not totally heartless. If people are genuinely in that situation, then we will go out of our way to make sure people are fairly assisted, and fairly treated.

PN54

So I do agree that maybe not everybody would be aware of those provisions of the Award, but it is very difficult to do something or help people with particular issues if you have no knowledge of them, which we didn't. They were raised yesterday. I agree. But this was after we had been given excuses of blown tyres, leaking tyres, no other excuses were offered. So we can't help people if we are not aware of what their problems are. And particularly in terms of wanting the time off. That does not, in my view, correct or warrant someone just blowing a shift without any notice.

PN55

In terms of people being stood aside with pay; yes, someone did take the decision, Commissioner, it was myself. Under no circumstances are we going to tolerate people being stood aside on pay. We are not rewarding people for stuffing up, for want of a better description. Certainly if all parties were available yesterday, I don't think we would have changed our course of action. And to follow the disputes procedure you first must have a dispute. We took action in accordance with our rights to manage the mine.

PN56

We had no notice at that time. Prior to our first discussion with Dean, we had no notice that there was any pressing domestic leave. All we knew was the tyre problems and had stuffed up. Now, 46 other people managed to get to work that day. I think the action we took was right. Certainly open to conciliation as we are at any time. But you have first got to have a dispute to follow the disputes procedure, and I don't believe we had one. Thank you, Commissioner.

PN57

THE COMMISSIONER: We might go off the record there.

OFF THE RECORD [2.26pm]

RESUMED [3.25pm]

PN58

THE COMMISSIONER: The parties have had the ability to discuss the issues relating to the terminated member of the CFMEU, and they are to have a meeting with the appropriate personnel in Brisbane on Wednesday, 9 January 2002, and the Commission has then set a report back for Thursday, 10 January 2002 at 3 o'clock. I will expect that in the further processing of this matter that both sets of parties to this matter respect the disputes procedure. The union has undertaken to convey the outcome of today's discussions to their members at a 4 o'clock meeting, and my recommendation would be that again the disputes procedure be adhered to, and that no further industrial action be taken. This does not assist the cause of their member or the operations at the mine site.

ADJOURNED INDEFINITELY [3.27pm]