C2001/4061, Transcript of Proceedings [2002] AIRCTrans 2418 (28 June 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 VT04645

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

C2001/4061

SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION

and

BIG W DISCOUNT DEPARTMENT STORES

Application under section 170LW of the Act
for settlement of dispute re the alleged
refusal of the Company to supply anti-fatigue
matting for employees at the Broadmeadows
and Forest Hill Stores

MELBOURNE

11.36 AM, WEDNESDAY, 21 NOVEMBER 2001

Continued from 15.11.01 (Not Transcribed)

PN1

THE COMMISSIONER: Mr Galbraith, what have you got to report to me?

PN2

MR M. GALBRAITH: With me is MR A. CURTAIN, Research Officer and MR J. CERITELLI, Occ Health and Safety Officer, and also the organisers involved, MS SHAW and MS VALLARO. Commissioner, today, I think the two main issues we want to look at are which stores we are going to inspect.

PN3

THE COMMISSIONER: Yes.

PN4

MR GALBRAITH: And who we are going to choose as an assessor. I think in choosing the stores it should be fairly simple. We may come to an impasse in choosing the assessors. I think there is an issue of bias that each side is concerned about but I hope that, with your guidance, we can choose someone suitable. Firstly, the stores, Commissioner, the company have suggested Endeavour Hills, Southland and Highpoint. I think their reason for choosing Southland was that that is where the training was rolled out.

PN5

THE COMMISSIONER: That is what, during the conference Ms Paul - and I will come to you, I haven't forgotten you there - that is what Ms Blackman suggested, yes.

PN6

MR GALBRAITH: That is right. We think that is a fair reason for choosing that store. However, we would like to include Forest Hill and Broadmeadows because they are the two stores where the members involved work. The company has chosen Endeavour Hills and Highpoint. I am unsure of why they have chosen those two stores.

PN7

THE COMMISSIONER: Yes. Well, I will hear from Ms Paul in due course. So, yes - - -

PN8

MR GALBRAITH: All right. Commissioner, on Friday the 16th Ms Lambert called Ms Paul and she recommended a private consultant by the name of Pauline Burke. Now, I have Ms Burke's credentials. She was two years with the Federated Clerks Union. Eight to 10 years with VECCI - - -

PN9

MS PAUL: Sir, may I - that was, sort of, discussed and dismissed as an idea and the union has actually come back with another option which we are now looking at. But if Ms Burke is back on the cards then - there is somebody else that Mr Ceritelli and I discussed yesterday.

PN10

MR GALBRAITH: All right, well, we do have someone else. Sorry, I didn't realise that she was off the agenda. Okay, we will strike her from the agenda.

PN11

THE COMMISSIONER: Don't sell your fellow down the river so quickly, Mr Ceritelli.

PN12

MR GALBRAITH: All right.

PN13

MS PAUL: You just come back to our side then.

PN14

THE COMMISSIONER: Just give him a tug.

PN15

MR GALBRAITH: That is what happens when I am away for a day. All right, the person that we - option number 2 - or option number 1 now, is a fellow called John Herring who is an independent consultant ergonomist and we believe he will be an appropriate person for this assessment. Thank you, Commissioner.

PN16

THE COMMISSIONER: Good, thanks, very much. Yes, Ms Paul?

PN17

MS PAUL: Sir, I have actually just provided to the union a copy of what I see as our proposal for a minute.

PN18

THE COMMISSIONER: Yes.

PN19

MS PAUL: And that may assist in furthering the explanation of - - -

PN20

THE COMMISSIONER: Yes, I have not received - - -

PN21

MS PAUL: No, sir.

PN22

THE COMMISSIONER: - - - any documents in this matter. I will just mark this R1 if you - - -

PN23

MS PAUL: Yes. Actually, sir, it is just more for your referral as I am, sort of, discussing it.

PN24

THE COMMISSIONER: Yes, yes.

EXHIBIT #R1 PROPOSAL FOR MINUTE

PN25

MS PAUL: I would like to pre-empt by saying we are not, in doing this process, acceding to the jurisdiction or any of those issues. It is - - -

PN26

THE COMMISSIONER: I totally understand that.

PN27

MS PAUL: It is part of that conciliation process.

PN28

THE COMMISSIONER: Yes, I totally understand that.

PN29

MS PAUL: In doing that we will be - I will need some time to check on the union's suggestion. We have also suggested to them two independent consultants, a Ms Anne Taylor and a Ms Muffy - and I have forgotten her surname, sir - which I am waiting for a response but I am assuming they are therefore saying no to those two. Okay, so, I am just checking on Mr - - -

PN30

THE COMMISSIONER: Herring.

PN31

MS PAUL: - - - Herring.

PN32

THE COMMISSIONER: Yes.

PN33

MS PAUL: Which I should be able to get back to Mr Ceritelli - - -

PN34

THE COMMISSIONER: All right.

PN35

MS PAUL: - - - or anyone else by this afternoon. Big W just want to double check on that aspect. We would have a problem with Forest Hill or Broadmeadows. Our understanding of why we would agree to a consultant is to actually look at the entire training or stores that have trained and how it is done.

PN36

THE COMMISSIONER: Yes.

PN37

MS PAUL: Now, the choice of Endeavour Hills, Southland and Highpoint are that, and again because of the role out of this training program, is that these are the stores in which they have occurred and hence we have actually stipulated how we can manage the process.

PN38

THE COMMISSIONER: Yes. Look, Ms Paul, can I make a suggestion to you.

PN39

MS PAUL: Sure.

PN40

THE COMMISSIONER: Can I suggest that in fact the parties consider looking at two stores which have had the training and one store which has not had the training. I think it is not unreasonable for the union to want to have at least one store considered where the training has not occurred. But, on the other hand, I understand the point that you made last week, and Ms Blackman made, that really the issue is where has all the training been given, and where it is operating, the way that the company actually believes it should be operating. But I think it would be not fair not to actually look at one of the stores where there has not been a training - - -

PN41

MS PAUL: I can take that back to Big W, sir, and take on board your comments.

PN42

THE COMMISSIONER: Yes, all right. And whether it is Endeavour Hills - whether it is Forest Hills or Broadmeadows, then is really just something - if that principle could be agreed to, really, I think the union should be able to nominate which of those two. If it is accepting, that the two of the three names put forward by the company are being accepted, I think if the union can say which of the two names it has put forward would be accepted, I think that would be fair and appropriate and give the independent expert the opportunity to see the whole picture. So, perhaps, if you could take that away.

PN43

MS PAUL: I will certainly take that away, sir.

PN44

THE COMMISSIONER: Yes, thanks.

PN45

MS PAUL: And take on board your suggestions. Point 4, sir, is you did raise part of the issue about dealing with Ms Martinez and Ms Hillal - - -

PN46

THE COMMISSIONER: Yes.

PN47

MS PAUL: - - - and not forgetting them as part of the process.

PN48

THE COMMISSIONER: Yes.

PN49

MS PAUL: Hence the words which we would be happy to put forward as being - and I must say this is not in agreement with the SDA, this is just our proposals - - -

PN50

THE COMMISSIONER: Yes.

PN51

MS PAUL: - - - with respect to making sure that their issues are dealt with in conjunction with protecting, obviously, our rights. I guess Big W does not want this to be used as a precedent and it is purely looking at it in this instance, but also within the confines of the managerial prerogative, availability of a position and medical certificate. I am not sure if Ms Hillal has actually provided something so that, in her instance, there may not be a need for a medical certificate. But it is just picking up your point, sir in dealing with that issue separately.

PN52

THE COMMISSIONER: Yes. That they not be lost in this process, yes.

PN53

MS PAUL: Yes, so, certainly, we have looked at a form of words.

PN54

THE COMMISSIONER: Yes.

PN55

MS PAUL: I guess, the way forward that I would be proposing is that we certainly get back to the union, if not today, by tomorrow, with respect to where we are going with the stores as well as to nominate the consultant concerned. And once we have reached agreement we will be able to - I don't think we are too far away, sir, it is just I need to confirm a few issues, so - - -

PN56

THE COMMISSIONER: No, I am very pleased, I might say, Mr Galbraith. You have made good progress and that is excellent.

PN57

MS PAUL: And then, sir, it is just more a case of working out so it doesn't disrupt the processes of a timing issue - - -

PN58

THE COMMISSIONER: Yes.

PN59

MS PAUL: - - - with the consultant going through them. I believe Mr Ceritelli is being chosen as the representative for the union to attend on the day and Ms Blackman will attend on behalf of Big W which will allow both parties, I believe, then to put forward their training material and comments to the consultant at that point in time.

PN60

THE COMMISSIONER: Yes.

PN61

MS PAUL: We would - - -

PN62

THE COMMISSIONER: So, the only two issues which need - which remain to be resolved then between the union and the company is whether, basically, Mr Herring or Ms Taylor is the independent expert.

PN63

MS PAUL: Well, Mr Ceritelli has dismissed one of the choices that we have provided.

PN64

MR GALBRAITH: Dismissed Ms Taylor.

PN65

MS PAUL: Ms Taylor, okay. So, it is - - -

PN66

THE COMMISSIONER: You have dismissed Ms Taylor, so it is - - -

PN67

MS PAUL: - - - Muffy - - -

PN68

MR GALBRAITH: Forsythe.

PN69

MS PAUL: Forsythe.

PN70

THE COMMISSIONER: So it is, Ms Forsythe?

PN71

MS PAUL: Ms Forsythe or Mr Herring.

PN72

THE COMMISSIONER: Yes.

PN73

MS PAUL: And we will then talk to Mr Ceritelli as well. What we may do is set up a time, sir, that - where Tricia and Joe can meet with the consultant an hour before or something. And I believe the arrangement is that the costs would be shared between the SDA and - - -

PN74

THE COMMISSIONER: Yes.

PN75

MS PAUL: - - - Big W with respect to that. So that is really our - - -

PN76

THE COMMISSIONER: That is very good.

PN77

MS PAUL: - - - proposals with respect - - -

PN78

THE COMMISSIONER: And the one other issue is just that both sides come to an agreement that - along the lines I have suggested that I urge upon both sides, which is that the three stores inspected, two be from the list of three names nominated by the company where the training is being delivered, and one be from the list of two names supplied by the union where training has not been delivered. So that there is a complete picture of the situation. A good cross section of what is going on in the company on this issue able to be considered by the working party. Ms Paul, nothing further from you?

PN79

MS PAUL: No, sir.

PN80

THE COMMISSIONER: And, Mr Galbraith, anything in response?

PN81

MR GALBRAITH: Commissioner, would it be appropriate to have a report back date set today?

PN82

THE COMMISSIONER: I am happy - unfortunately, I am about to go on leave. That is my concern about this matter, and so a report back date would have to be in the New Year and I am concerned this matter not be delayed by my being away. I would have imagined you would be able to move forward on this reasonably quickly. I could actually pass the matter on to - would you like me to pass the matter on to another Commissioner to deal with the report back or - I am in your hands, really.

PN83

MR GALBRAITH: Yes, well, how long - I think - - -

PN84

THE COMMISSIONER: I just don't want to - it is important that progress be made and it is important that your - - -

PN85

MR GALBRAITH: Yes, no, I understand that. That is my justification - - -

PN86

THE COMMISSIONER: Yes.

PN87

MR GALBRAITH: - - - for having a report back date. It is a kind of deadline that we both must meet. So I think maybe that would be appropriate.

PN88

MS PAUL: Sir, it may be wise to actually - we wouldn't have a problem with this going to another Commissioner, bearing in mind we are still within the conciliation phase.

PN89

THE COMMISSIONER: Yes.

PN90

MS PAUL: And it is not, in that sense, going any further than that. But I do need to highlight we are heading towards the busiest trading time.

PN91

THE COMMISSIONER: You are, indeed.

PN92

MS PAUL: So - and I am just conscious about the fact that - - -

PN93

THE COMMISSIONER: The busiest time of the year in the stores, yes.

PN94

MS PAUL: Whilst Big W is not wanting to progress this matter, the fixing of the times will have to be where it can be convenient so as not to inconvenience - - -

PN95

THE COMMISSIONER: Well, would you like me to - would you like to have my associate see if we can get another Commissioner to give you an early report back time?

PN96

MR GALBRAITH: I think that would be appropriate.

PN97

THE COMMISSIONER: Yes, all right, okay, fine. My associate will deal with it this afternoon, yes.

PN98

MR GALBRAITH: Commissioner, we realise it is the busy time and that is one of the reasons we want to jump now.

PN99

THE COMMISSIONER: Indeed, indeed, that is absolutely right.

PN100

MR GALBRAITH: And get that solved before the busy time really sets in.

PN101

THE COMMISSIONER: All right, well, I will see - I may see if Commissioner Eames could actually deal with this. But I will just make some enquiries and my associate will let you know this afternoon. Good, nothing further?

PN102

MR GALBRAITH: All right.

PN103

THE COMMISSIONER: I now adjourn these proceedings and I wish you both well in resolving the matter, thank you.

ADJOURNED INDEFINITELY [11.49am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 PROPOSAL FOR MINUTE PN25