C2001/6527, Transcript of Proceedings [2002] AIRCTrans 263 (23 January 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 VT02044

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

C2001/6527

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

KIRWAY CONSTRUCTIONS

Application under section 170LW of the Act
for settlement of a dispute re job stewards

MELBOURNE

10.06 AM, TUESDAY, 15 JANUARY 2002

Continued from 21.12.01

PN37

MS PEKAR: I appear for Master Builders, instead of Kim Attwood.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Pekar. This matter is listed for report. Who is going to do the report? Mr Wainwright?

PN39

MR WAINWRIGHT: Yes, your Honour, I can report on some matters. This is a report back from a section 170LW matter that the CFMEU lodged last year. It was first heard, I believe, on the 21 December at which time certain arrangements were made between the parties to overcome some of the short term difficulties in relation to the dismissal of the shop steward from Kirway Constructions, Mr Graham Harding. It came to the CFMEUs attention earlier this year that the arrangements that we believed had been put in place had not been followed through by the company in relation to payments for Mr Harding.

PN40

The gist of the arrangements that were made last year, certainly our understanding of them, was that whilst there was a dispute about the dismissal, Mr Harding would not be financially disadvantaged over the shut down. Initially, Mr Harding received only one weeks pay, and after this came to the attention of the union and the union initiated some discussions with Mr Clavarino and with the MBA, steps were made to fix this. Upon attending this morning, your Honour, the respondents have handed to me a pay slip that has got todays date on it, and I think payments were made into the bank yesterday in relation to that.

PN41

That would seem on first examination to have placed us back in the position we were in the first hearing, the agreement being that Mr Harding would be paid up until the 14 January, so up until yesterday all of those public holidays, productivity leave days and rostered days off. So without knowing whether or not Mr Harding has received these moneys and certainly I am in a position to contact Mr Harding today, although I have asked him to stay in Gippsland and not come down for this report back, your Honour, it would seem that we are at least back where we started.

PN42

I suppose where that places us in relation to the report back is in attempting to do something about the substantive issue, that being the dismissal of the shop steward by the company, we are certainly willing to - now that Mr Clavarino is present, willing to enter into discussions with the company to overcome that. In relation to our first hearing last year, your Honour, I believe it was a - it was decided at that hearing by way of precaution more than anything else the union and Mr Harding would lodge an unfair dismissal claim, so that if we got to the point in relation to the section 170LW that we weren't able to overcome the dispute, that at least Mr Harding would be able to follow through his complaint in relation to the unfair dismissal provisions in the Act.

PN43

That application has been lodged. It has been received by the respondent, and they have accordingly lodged back with us a form R21 responding to the unfair dismissal application. I believe that is my report, your Honour.

PN44

THE SENIOR DEPUTY PRESIDENT: Well, what are you saying should now happen? You need to check with Mr Harding just to confirm that he has received the money, or the moneys have actually been paid into a bank account, and secondly, although it had been agreed that the meeting would take place last week, I gather it hasn't taken place.

PN45

MR WAINWRIGHT: Well, it hasn't taken place because we have been attempting to deal with - - -

PN46

THE SENIOR DEPUTY PRESIDENT: Yes.

PN47

MR WAINWRIGHT: - - - where we thought we were. In relation to todays hearing, I am certainly willing to take it on face value that the company has fixed that problem. They have given me this pay slip. I have got no reason to believe they haven't paid their money to Mr Harding. So, I am certainly willing to move beyond that and say, all right, we are back where we were on 21 December, what we then have in front of us is the issue of you sacking the shop steward. We think it is unfair; you have obviously got a different point of view, so I am willing to get on and discuss that issue today.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes. Are you suggesting that should be with the Commission, or not with the Commission? Because I have got a - other matters on today.

PN49

MR WAINWRIGHT: Yes. Well, I believe it might be useful to have some short discussions with the Commission in conference, your Honour.

PN50

MS PEKAR: Yes, sir, Kim Attwood represented the company in the first instance, so unfortunately I haven't had the opportunity to actually be briefed as to the substantive issues. I am here, really, instead of Kim for the purposes of the report and to - to bring proof today, which we have, of the moneys being paid as per the original agreement on the 21st. We have no objections in entering into discussions, but we would have to take instructions first from Mr Clavarino here. So, if we could adjourn to do that I would appreciate that?

PN51

THE SENIOR DEPUTY PRESIDENT: Would you have your - a representative of the company present who can participate in those discussions, is that the situation is it?

PN52

MS PEKAR: Yes. As Mr Wainwright said, they have filed an unfair dismissal - - -

PN53

THE SENIOR DEPUTY PRESIDENT: Yes.

PN54

MS PEKAR: - - - suit and we have responded to that, and as far as I was aware we would wait for the appropriate date to go to the conciliation conference and deal with the matter then. But, as I indicated - - -

PN55

THE SENIOR DEPUTY PRESIDENT: I think the arrangement was that the - the unfair dismissal file would be lodged. That upon its lodgement it would be referred to me, and in my capacity as being responsible for allocation of U files these days I would retain that file pending the outcome of any discussions, but I - the file would not be processed until I was advised the applicant wished to proceed with that file. In other words, if the discussions weren't fruitful. So, I currently have that file with me - - -

PN56

MS PEKAR: Well, we have no objections, sir, in dealing with the matter today.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes. I have some difficulties, unfortunately taking part in a conference, even now; but what I could suggest to the parties is that they confer, or take the opportunity to confer today. The matter could be adjourned sine die, and subject to the outcome of their discussion - because they may not reach finality today - but, subject to the outcome of their discussion, the matter - the union can report back to me, or let me know what the outcome is and whether they wish to proceed with a further hearing, a further conciliation or the unfair dismissal matter, or all matters.

PN58

But, rather than fix it for another date at this stage, allow the parties to have their conference. It may be necessary just to list it again for report at some stage so that we can give any necessary directions if anything has to be processed. Is that suitable for the parties?

PN59

MR WAINWRIGHT: Yes, I am available for any discussions today, and if we can sort it out, well, that is our preferred position.

PN60

THE SENIOR DEPUTY PRESIDENT: Well, is that suitable to you - - -

PN61

MS PEKAR: Yes.

PN62

THE SENIOR DEPUTY PRESIDENT: Good, thank you, Ms Pekar. We will deal with it on that basis. The matter that is directly before me will be adjourned to a date to be fixed. The parties are to have discussions today, and in due course advise me - or at least the union is to advise me as to what it would seek to have happen with the matter immediately before me, and/or the unfair dismissal matter. If, as I indicated, it is necessary for the matters to proceed in any formal way, it probably would be advisable to have them listed again for mention so that attention can be given to any necessary directions that might need to be made or matters - administrative matters that have to be attended to to enable them to be processed.

PN63

Is there anything else for the record? If not, the matter will be adjourned on that basis, and as I indicated the unfair dismissal matter will be kept by me until - and not further processed until I receive advice from the union. The Commission is adjourned.

ADJOURNED INDEFINITELY [10.16am]