C2002/3678, Transcript of Proceedings [2002] AIRCTrans 3065 (8 August 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

C2002/3678

TRANSPORT WORKERS' UNION

and

MAINFREIGHT DISTRIBUTION PTY LIMITED

Notification pursuant to section 99 of the Act
of a dispute re an alleged discrimination against
a member with a disability - proposed change to
new shift

ADELAIDE

9.15 AM, THURSDAY, 25 JULY 2002

PN1

THE COMMISSIONER: Sorry for the short delay. I will take appearances, first of all in Melbourne.

PN2

MS PALLOT: I seek leave to appear for Mainfreight. I am a solicitor with Russell Kennedy.

PN3

THE COMMISSIONER: Ms Pallot, thank you. You have got with you?

PN4

MS PALLOT: I am appearing with CHRIS KUNTH, the International Operations Manager of Mainfreight Distribution.

PN5

THE COMMISSIONER: Thank you. In Adelaide we have got?

PN6

MR L. BELL: I appear on behalf of the Transport Workers' Union.

PN7

THE COMMISSIONER: With you is?

PN8

MR BELL: With me is Mr Robert Ferguson.

PN9

THE COMMISSIONER: Mr Ferguson, thank you. This is the union's notification so, Mr Bell, are you going to be speaking to it?

PN10

MR BELL: Yes, Commissioner. Commissioner, this matter is - may I just given you some background. KNS Freighters Proprietary Limited was purchased by Mainfreight Distribution Proprietary Limited in April 2000 and the enterprise agreement that was in place at the time was a KNS Express Working in Unity Agreement 1997 to 2000 and the code for that agreement is K0358. We have had a recent dispute with Mainfreight in relation to the enterprise agreement and that is C2002/2776 before Commissioner Lewin. We were in a position, as of last week, of almost finalising that dispute and we are still waiting for the final document to come through but in the meantime, through those discussions, there was an employee on a pm shift who resigned as a result of not being happy with the working conditions on that shift and Mr Ferguson was requested to attend to a meeting with the manager and was interviewed and told he would be put on the pm shift and that he would be required to start as of Tuesday.

PN11

THE COMMISSIONER: Two days ago?

PN12

MR BELL: That's correct. This was notified to the union on Friday last week, Friday 19th, of which one of our officials, Mr Ian Harris, attended the workplace to talk to Mr Ferguson and also the local delegate there, Mr Todd Sloan and the result of that was there was a disagreement with the union and the company in relation to the application of Mr Ferguson's requirement to go onto shift work which resulted in some industrial action taking place on Friday 19th. We have had discussions with the company. The branch secretary, Mr Gallacher, was involved in talking to the national operations manager, Mr Chris Dumphrey and during that conversation the discussions were somewhat heated.

PN13

Mr Gallacher was informing Mr Dumphrey of the reason why we believed Mr Ferguson should not go onto shift work and the comment was made to Mr Gallacher: I can hear the violins playing in the background. So as you can imagine, Commissioner, knowing Mr Gallacher, the reaction that took place from that time that was said to him escalated the dispute somewhat on the Friday. During the course of the conversation, Mr Dumphrey also advised Mr Gallacher that he was taping the conversation and this also escalated the aggression towards - between the parties.

PN14

Commissioner, Mr Ferguson has been an employee of KNS Freighters and now Mainfreight Distribution for some 16 years. He has been a loyal employee. He is a sufferer of diabetes and has a disability in the fact that he has no lower limbs on both of his legs. He has worked the am shift with both Mainfreight and KNS. He has worked, at one time, a pm shift with KNS but there was problems with his health and there was an arrangement made for him to work the am shift when it was KNS Freighters. Since Mainfreight has taken over, he has worked the am shift all of his time in the last 2 years at Mainfreight have been available. He does his work diligently. He has a good rapport with the local delivery drivers and the duties he does with the am shift has never been in question as far as his duties go.

PN15

We contend that due to the recent dispute, one of the employees that did leave recently had had enough of the way the company was treating the employees and therefore there was a vacancy there. There are several other employees on day shift, there are several employees who have health issues that prohibit them going onto the pm shift but there is also some employees there that do not have health issues that could go onto the pm shift. We believe that there is no reason or no logical reason for Mr Ferguson to go onto the pm shift. He does his job well on the am shift. The pm shift duties are slightly different and there are some serious issues that may relate to his ongoing health in respect of attending the - maintaining a pm shift lifestyle.

PN16

I am more than happy to discuss the matter further or take any further questions on the matter, Commissioner. At this stage we believe that we would seek the Commission to make some recommendations to the company that they allow Mr Ferguson to resume his normal duties on the am shift and that if the company is not prepared to do that, then we would seek other avenues through other jurisdictions in relation to the attitude that they are taking against our member.

PN17

I might add a bit more, Commissioner, speaking to Mr Ferguson this morning on the way in, he has a concern for his blood sugar levels of two days and if you wanted to question him or ask him for those concerns, it is apparent to me that the pm shift is affecting his blood sugar levels to a situation which would be critical and which could probably be of concern to me if I was the employer in relation to a WorkCover issue that may arise out of an illness that occurs from continuing on the pm shift.

PN18

THE COMMISSIONER: The current situation then is Mr Ferguson has started the pm shift as at Tuesday this week.

PN19

MR BELL: That is correct, Commissioner.

PN20

THE COMMISSIONER: That shift is - what hours are we talking about?

PN21

MR BELL: We are working from 11 am - - -

PN22

MR FERGUSON: No, 12 until 8. 12 noon to 8 pm.

PN23

THE COMMISSIONER: 12 noon to 8 pm and the morning shift, your normal one - - -

PN24

MR FERGUSON: 6 o'clock to 2.30.

PN25

THE COMMISSIONER: 12 noon to 8 pm - 8 pm or 8.30?

PN26

MR FERGUSON: 8 pm.

PN27

THE COMMISSIONER: You say the duties in the afternoon shift are somewhat different, can you elaborate on that?

PN28

MR BELL: I think it is best of Bob responds to that.

PN29

THE COMMISSIONER: Sure. Mr Ferguson, how are the duties in the afternoon different?

PN30

MR FERGUSON: Well, they are not a great deal different. They are still loading and unloading but then you have got to tie the loads down, you have got to throw straps across, ropes across, pull the curtains shut, put the gates back in.

PN31

THE COMMISSIONER: Do you do all that on the morning shift as well?

PN32

MR FERGUSON: No.

PN33

THE COMMISSIONER: No. So there are some additional duties?

PN34

MR FERGUSON: Yes. On the am shift, when a semi comes in, we have got to pull the curtains off and pull the gates out but we can use the fork-lift to take the gates out in the morning, undoing the straps you just undo them on one side and pull them across the truck. There is no climbing or any real physical work involved in it.

PN35

THE COMMISSIONER: So there is more physical work involved in the afternoon shift?

PN36

MR FERGUSON: Yes.

PN37

MR BELL: The basis that Bob on the am shift, is basically situated on a fork-lift most of the day. He only has to get off on occasions. In this pm shift duties he would be required to get on and off the fork-lift quite a few more times than what happens now, which is a lot different to the situation that he works on the am shift.

PN38

THE COMMISSIONER: Okay. So you are saying that additional physical exertion of the afternoon shift that is the problem. It is not so much the hours span itself, it is - I mean - - -

PN39

MR FERGUSON: Well, it is still only 8 hours but I have got to my meals at regular times too. I have got two meals in the pm shift which I don't have in the am shift. I have got to have my lunch 12.30 to 1 and tea between 5 and 5.30. Well, John said that is no problem but that seems to be upsetting my system a bit and that has only been 2 days. When I got home from work my blood level sugars have been real low through the extra walking around and things.

PN40

THE COMMISSIONER: How many on the afternoon shift?

PN41

MR FERGUSON: Well, with me there is three and then there is John, the supervisor.

PN42

THE COMMISSIONER: On the morning shift?

PN43

MR FERGUSON: Four.

PN44

THE COMMISSIONER: So when you said there is some on the morning shift - Mr Bell, you said there were some there who can't move to the afternoon shift for various reasons - I mean, we are only talking about four workers here.

PN45

MR BELL: Well, my understanding there are at least three other employees who have a WorkCover injury which prohibits - which is something to do with their shoulders or the like, they - - -

PN46

THE COMMISSIONER: That prohibits them from doing the extra physical work in the afternoon.

PN47

MR BELL: Doing the extra physical work as well but there is, it has been indicated to me, another employee who has no injuries at all who is physically fit. The other thing that surprises me is there is an opportunity for the company to employ someone on the pm shift but that has not taken place. We are concerned for Mr Ferguson's health and for the motive behind selecting individuals to go on the pm shift.

PN48

THE COMMISSIONER: Let us hear from the company, Ms Pallot and I did not mention earlier but I presume you have no objection to Ms Pallot's appearance, Mr Bell?

PN49

MR BELL: No, Commissioner, given the company has a representative here.

PN50

THE COMMISSIONER: Over to you. Can you hear me, Ms Pallot?

PN51

MS PALLOT: Yes, I can. You can't hear me?

PN52

THE COMMISSIONER: I can hear you now, I couldn't hear you before so perhaps you had better start again.

PN53

MS PALLOT: Sorry, Commissioner. I do apologise, there is a bit of feedback from this end as well so I will take it a bit slower than I normally would.

PN54

THE COMMISSIONER: Could you hear what Mr Bell and Mr Ferguson had to say?

PN55

MS PALLOT: Yes, I did. Commissioner, I have been instructed that in relation to this matter and I go firstly to the industrial documents that cover the employment of the TWU workers at the site in South Australia. The Transport Workers Award 1998 covers the employees as does the expired EBA that Mr Bell was talking about. It expired in September 2000. Now, the parties have before Commissioner Lewin with regard to negotiations for a new EBA. I have been personally dealing with July Tissdale of the Federal TWU about this matter and we in fact have reached agreement and that has been communicated to the different branches of the TWU. Julie Tissdale has been on holidays until this week. She has that document on her desk. We have that confirmed. As far as we are concerned, that document is simply awaiting certificate.

PN56

THE COMMISSIONER: That is a replacement agreement?

PN57

MS PALLOT: That is correct, Commissioner.

PN58

THE COMMISSIONER: I mean, as at the moment, as at today, that replacement agreement does not apply.

PN59

MS PALLOT: That is correct, Commissioner.

PN60

THE COMMISSIONER: So you have got the Transport Workers Award 1988 or 1998 applies?

PN61

MS PALLOT: Correct. Working Unity Partnership Agreement 1997 to 2000.

PN62

THE COMMISSIONER: That still applies?

PN63

MS PALLOT: Correct.

PN64

THE COMMISSIONER: Okay.

PN65

MS PALLOT: First of all, Commissioner, I would like to point out some provisions of those documents. In accordance with clause 12 of the expired agreement, the parties commit to the adoption of flexible solutions that better meet our customer and operational expectations and needs. These needs can relate to resourcing, rostering, operational work processes. Particular attention will be focused on customer service issues such as ensuring the dispatch times are consistently met for all freight shipments.

PN66

I would also like to refer to clause 32 of the award which states that each employer shall fix a regular start time for each employee where an employee is required to vary or change their regular shift time or starting time, the employer shall give at least 7 days notice. Clause 34 of the award states that shift rosters shall specify the commencing and finishing time of ordinary hours of respective shifts and that 48 hours notice of any change of shift shall be given to an employee if they are required to change shifts.

PN67

I would like to say from the outset that Mr Ferguson was given 7 days written notice of the change of shift. In that respect the company has complied with the provisions of both the award and the expired agreement. Now, with regard to the depot in South Australia, as Mr Bell has referred to, they have both an am and pm shift. The shifts have staggered starts. The am shift starts on about 6 am and each of the employees working 8 hours up until about 2 pm. The pm shift is also a staggered start, commences at 12 noon and finishes - up until the workers have worked their 8 hour shift.

PN68

Trevor O'Neil was with the pm shift and he resigned. It is being said he resigned because he was unhappy. I have no instructions on that nor do I think it relates to any of this matter that is presently before you, Commissioner. What happened when the company received the resignation, it looked at both the shifts and decided what they would do. The depot and indeed the company as a whole has been losing money and having encountered financial difficulties in the preceding months. This is especially the case in South Australia, Commissioner, due to the problems that they are encountering with the automotive industry.

PN69

The company looked at the employees on both the am and pm shifts and decided that they would not or could not hire anybody and that instead they would simply change the workers around to best suit the needs of the business. The company looked at the people on the am shift which there are four, I am instructed, Commissioner. Of the four that were currently working on the am shift, two of those employees have had long term work difficulties and are unable to lift anything over 5 kilograms.

PN70

One of the other workers of the am shift has different and more specialised skills which include computing, unloading, turning out trucks and lifting so it was quite important that he stay on the am shifts because of his skills. It was decided that Mr Ferguson was the best candidate for moving to the pm shift. He had the skills, he had the experience and I would also like to say, Commissioner, there is no doubt that he is a good and diligent worker, there is no question about his work skills or his loyalty to the company.

PN71

The company looked at the situation and assessed it and decided Mr Ferguson was the best person to be moved to the pm shift, basically because of experience and skills. I am instructed, Commissioner, that the tasks and the duties that he is required to carry out are almost identical from the am shift to the pm shift. I am also instructed the company has spoken with Mr Ferguson and told him the company is willing to accommodate any of his needs and John, the supervisor, has spoken to you about that, I believe. The company has at all times been aware of this situation and has been willing to accommodate it.

PN72

The company has never been supplied with any medical information about Mr Ferguson which impacts on his ability to do the job. The company believes that he is able to do the job which is really only a change in hours but in any event, they are willing to accommodate any of his needs and that has been communicated to him. I would like to say, Commissioner, the company is being most tolerant about this issue and as Mr Bell has pointed out it came to a head last week. I am instructed that the union officials actually spoke to the company on Thursday. Written notice was given to Mr Ferguson on 16th, that he was due to start on the new pm shift on 23rd, which was Tuesday.

PN73

Now, what happened was the company spoke to the union about their concerns. The union said it is an occupational health and safety issue changing Mr Ferguson onto the pm shift. The company says that if that was their concern, then they would contact the occupational health and safety body and see what they could do about having the workplace assessed. The company in fact did speak to the OH&S people and they were informed that if similar duties and simply a change of shift, they would not come out to the workplace because they really only wanted to become involved if there was unsafe practices or unsafe workplace - - -

PN74

THE COMMISSIONER: When you are talking about the OH&S people, you are talking about the people from the relevant State Department?

PN75

MS PALLOT: I believe that is correct, Commissioner. It was certainly a person outside the company. As to the exact person the company spoke to, I don't have any instructions on that but it certainly was an independent body. Now, last Friday morning, at approximately 8 am, three union officials, including, I am instructed, Alex Gallacher, Bob Wyndham and Ian Harris blocked the driveway to both Mainfreight Distribution and Lep International with their cars.

PN76

Lep International is a related company to Mainframe but it certainly has nothing to do with this dispute but three union officials proceeded to stand in the driveway with their cars making inappropriate rude gestures and calling Mainfreight management by inappropriate and offensive names. I am instructed the manager from the site there took photos of the car and the three union officials who were blocking the driveway. Now, Commissioner, we had no notice of this. There was nothing formal. There was no employees involved and in fact the employees continued to work on their shift throughout the time that the gateway was blocked.

PN77

The gateway was blocked for a number of hours and eventually Mainfreight decided to do something about it. Mainfreight called the police in to remove the officials from the front gate. The officials moved on whilst the police were there and then returned some time later. When they returned, they spoke to truck drives who were attempting to move their trucks onto the site and informed the truck drivers that it was a picket line and that there was occupational, health and safety issues on the site. We have spoken to the truck drivers, Commissioner, and they asked the union officials what these occupational health and safety issues were and the union officials replied that it was a safety issue so they were standing in front of the gate.

PN78

The truck drivers attempted to enter the premises. Now, that situation did defuse. I am instructed there were words between Mainfreight management and the union officials. Commissioner, that was not - I am instructed there was no employees involved in that. There was no official notice to the company. There was no reason to, firstly, block the driveway in the first place and secondly, interfere with anything to do with Lep International.

PN79

Commissioner, we would like to say the company has entered into negotiations for an EBA, that has been finalised. We have negotiated in good faith. There has been some problems between the company and the union. We thought we were past that. The company gave direct notice to the employee, in writing, in accordance with the award and the expired EBA. The company has dealt with the employee in good faith here.

PN80

The company has communicated to the employee that they will take his medical condition into account, he only has to communicate his difficulties to the supervisor or somebody from management. They are willing to accommodate him with regard to his duties so that he does the same duties as he carried out on the am shift. The company is most appalled at the behaviour by the union. The company is building bridges with the union but unfortunately the company has lost a lot of faith with the union over this whole issue to the extent that they had to bring the police in.

PN81

They are committed to conducting their business in the way that they have. There are also mechanisms, as you would be aware, Commissioner, under both the award and the expired EBA, for dispute resolution in a manner that does not involve the union standing at the gate of my client's premises engaging in offensive remarks and gestures. So the position of the company is, Commissioner, they are willing to accommodate any concerns the employee brings up. We have so far seen no medical evidence but we don't require medical evidence, we only have to speak to the employee on the basis that we can accommodate his needs.

PN82

THE COMMISSIONER: Have there been any meetings between the company and Mrs Ferguson and/or union in regard to what the problems are - the alleged problems are?

PN83

MS PALLOT: On instructions, Commissioner, there has been formal discussions on an ad hoc basis as problems have arisen and the supervisor on the shift has informed Mr Ferguson that any of his needs will be taken into account, as always has been when he has been working on the am shift. There is no difference to the way the company has treated him insofar as whether he is working on either of the shift.

PN84

THE COMMISSIONER: You say that the duties in the afternoon shift are pretty much identical to the morning shift. You have heard what Mr Ferguson said about that this morning.

PN85

MS PALLOT: I am instructed that on the am shift they are required to load and unload, as Mr Ferguson has said, the trucks with regard to freight and there is some strapping down that is done with regard to the freight whilst it is on the truck. Now, I am instructed Mr Ferguson has been informed that he is not required to get on top of the truck to strap anything down. I am also instructed that he didn't have to do that on the am shift. Now, I have spoken to the manager of the South Australian site, and he has informed me that for all intents and purposes, the duties are very similar but if Mr Ferguson has any concerns about any additional duties or anything that may change to the pm shift, then the company is certainly willing to take that into account and make concessions for that.

PN86

THE COMMISSIONER: Now, I heard Mr Ferguson or Mr Bell, I think, was saying in the morning shift, most of the time was spent with Mr Ferguson on the fork-lift and what, a fork-life, you are saying, Mr Ferguson, is not available on the afternoon shift?

PN87

MR FERGUSON: Yes, it is but it is - you are more off the fork than on it in the afternoon.

PN88

THE COMMISSIONER: The other thing, Ms Pallot, you said this other worker, this fourth worker, had certain skills that the other three workers, including Mr Ferguson, don't have. What were those skills again? You did mention them but what were they?

PN89

MS PALLOT: He has more skills of general tasks including using the computer which I understand tracks ingoing and outgoing freight. He also has skills with what is called: turning and up trucks. The other difficulty with that, Commissioner, is he - I am instructed that he has other skills. As I said before, Commissioner, the other two employees on that shift do have WorkCover issues which is not a problem but they cannot lift anything over 5 kilograms and given that - - -

PN90

THE COMMISSIONER: I am not concerned about those two workers but with the one that has got those other skills, what I guess I am getting to there is would it be much of a hassle to give Mr Ferguson those skills or is that sort of something that would take months or is it something that would take a comparatively short time? Mr Bell, do you want to make a comment on that?

PN91

MR BELL: Mr Ferguson informs me he already has those skills that are comparable to that other employee.

PN92

THE COMMISSIONER: Do you hear that, Mr Pallot?

PN93

MS PALLOT: I did, Commissioner. Could I just take a minute to take some instructions about that.

PN94

THE COMMISSIONER: Certainly, yes. You talk amongst yourselves here.

PN95

MR BELL: Commissioner, if I could just make a comment, the delegate was involved in discussions with the local manager, Mr Corey, I can't think how that is pronounced, and the instruction was handed to Bob on 16th. The delegate tried to follow the procedures as best he could on the site and Bob was involved with the discussion where the manager just said: You do it my way or you don't do it at all. That is the - - -

PN96

THE COMMISSIONER: So that is the informal discussion that has taken place.

PN97

MR BELL: You know, that is the attitude.

PN98

MS PALLOT: Commissioner, I am instructed that in addition to additional skills the other employee has he is also a team leader and has skills in leadership which are very important to the company and to that shift. The other issue is, Commissioner, the company does accommodate Mr Ferguson with regard to the work that he carries out on the am shift already and he also accommodates the other two employees on WorkCover on that shift and because of that, the fourth employee is needed to ensure that the whole shift runs smoothly. Now, if that employee was to be put on the pm shift, then it is going to be difficult for the company to accommodate the three employees who all have difficulties in carrying out some of the duties for medical reasons.

PN99

THE COMMISSIONER: I can understand the company's difficulty there. While you were talking amongst yourselves, I was just talking to Mr Bell and Mr Ferguson about a number of matters and one of those was the issue of the informal consultation that has taken place. Now, Mr Bell says that the only consultation that has taken place was someone from the company spoke to Mr Ferguson on about the 16th saying, look, it is going to happen.

PN100

Mr Ferguson said there were some problems with that and he was basically told: well, there is no option, this is the way we are going to do, you know, words to that effect. I mean, in other words, there has not really been, at this point, a serious meeting between the parties about the problems that Mr Ferguson sees with this role and on the other hand, what the company can do about it. It seems to me there has not really been what I would call a "gutsy" discussion about those issues. Would that be right? Would the company agree with that?

PN101

MS PALLOT: No, Commissioner, the company would not agree with that. The company would say it has discussed these issues on an informal basis with Mr Ferguson but it appears the parties disagree with the discussion that has taken place. I can't see why those discussions cannot still take place. As I said, Commissioner, there is a dispute resolution policy in both the award and the expired EBA and the company is certainly willing to accommodate Mr Ferguson's needs so I do not see why those discussions can't take place if the parties say that they haven't, which the company denies.

PN102

THE COMMISSIONER: Mr Bell, does the union and Mr Ferguson, do you have a list of things you would want changed if Mr Ferguson was to work the afternoon shift satisfactorily? Let me put this another way, would you be just entirely opposed to Mr Ferguson working the afternoon shift or is your view that, look, it will be okay if he does work the afternoon shift but as long as there are certain changes that take place? Do you know what I mean?

PN103

MR BELL: Yes. That is a difficult question to answer without examining the whole gambit of the duties involved properly and we did suggest that the occ health and safety people come along to the site and Mr Kunth has rightly informed me that they wouldn't come on site. I have not taken that any further to see if someone would come and have a look at that. It would also depend on Bob's attitude to that. As I indicated earlier, and I have a concern about that, especially for the company, is if his blood sugar levels have dropped in the last 2 days then that really needs to be investigated seriously because no matter what the company puts in place to manage that and as Bob said, the gentleman that has been on shift has been accommodating, there is no issue with the people he is working with, but there is a concern at the end of the day that his sugar levels are well below the required minimum level. No matter how hard he manages it, you know, there is an issue there at the end of the day that it is just probably not right for him to be on the afternoon shift, whether he wanted to go on or not.

PN104

THE COMMISSIONER: I mean, my point is this. If you could get to a situation where Bob was being asked to do in the afternoon shift was identical - let us say it was identical in every respect to what you did in the morning shift, you know, the amount of time you are on the fork-lift, let us just say it was identical, but the only change was the fact that it was being done in different hours of the day. If you get to that situation - I accept there might still be some problems with the change and change in routine, there might be problems with your blood sugar levels and whatever, I mean, that is where medical advice would have to come in. I mean, maybe those changes in your blood sugar levels might only be temporary.

PN105

You know, might be just for a week or two while your system gets us to having meals at different times or something, I don't know, but if we could get to that situation, where there was - basically the job in the afternoon was pretty much precisely the same as the job in the morning and the only difference was you were doing it in the afternoon instead of the morning and if we could have some medical advice somewhere that, look, any problem with your blood sugar levels might level out over the next week or so and don't worry, it will be all right - I mean, if we could get medical advice along those lines, there would not be a problem in working the afternoon shift?

PN106

MR FERGUSON: Probably not but it would just mean all the guys would be doing my work and I may as well not be there anyway.

PN107

THE COMMISSIONER: What do you mean by that?

PN108

MR FERGUSON: Any heavy work, any lifting and throwing straps and things, somebody else will be doing that well it might as well be somebody else doing it anyway, why should I be there.

PN109

THE COMMISSIONER: That is what happens in the morning at the moment anyway, isn't it?

PN110

MR FERGUSON: No, I do my share in the morning because there is no - it is different in the morning. I don't know, it is hard to explain.

PN111

THE COMMISSIONER: It seems to me that there may be - look, when people change shifts, there is always some upset to the system. I mean, your body takes a bit of adjusting to having to get up late or get up earlier, whatever the case might be, and you might have to just overcome - I mean, everyone has to live with that to some extent over a short period of time but hopefully everything sort of levels out. I mean, it is bit like when I have got an early morning hearing and I have got to get up early, I don't take kindly - you know what I mean. You level out over a period of time.

PN112

My point is this, if we could get to a situation where your job in the afternoon was pretty much, for all intents and purposes, it was the same as what you do in the morning and if there was some medical advice that said that it should be all right in the longer term, let us just sort of stick with it, would that be a satisfactory position for Mr Ferguson? I am putting that question.

PN113

MR BELL: I think what Bob was trying to say a minute ago was that if you change the duties so much on the pm shift that he is restricted to the fork-lift as he is on the morning shift, then there would be other people having to come in and back-fill some of those duties that they require him to do now on the pm shift which he says, well, why should he be there in the first place.

PN114

THE COMMISSIONER: Could I just ask the company - you heard that sort of discussion there - is it possible to get Mr Ferguson to a situation where basically what he does in the afternoon is almost identical - I mean not just natural duties but the way in which he does it, the amount of time he spends on the fork-lift and so on, I mean, is it the company's position that all you are asking Mr Ferguson to do is just to simply work in the afternoon instead of the morning and to all intents and purposes everything else is the same? Is that the company's

PN115

position?

PN116

MS PALLOT: Correct, Commissioner. There may be a slight variation in the period - he does one or the other but no, for all intents and purposes they are the same duties and we are happy to - - -

PN117

THE COMMISSIONER: Including the amount of time he is on the fork-lift and that sort of thing?

PN118

MS PALLOT: Commissioner, I am instructed it is roughly the same period of time. Now, if Mr Ferguson works, say, in the next week, he has concerns that - say for the next period of 1 week and says that he would prefer to do more time on one or the other, I mean I am of the opinion, Commissioner. that can be sorted out with the supervisor but for all intents and purposes they are the same duties.

PN119

THE COMMISSIONER: Now, Mr Ferguson, have you been to your doctor about your blood sugar levels over the last couple of days?

PN120

MR FERGUSON: Not just recently, no. I was more or less waiting to see how it was going to go. I only found out last night or the night before that it was different.

PN121

THE COMMISSIONER: Would it be possible here to have a meeting between the company and probably a couple of people from the company I would imagine, Mr Ferguson and the union and can we bring a medical practitioner - can we bring your local GP into it and say: Look, this is what is being proposed. We know Bob has got a problem. This is what his duties have been in the morning. This is what we are proposing in the afternoon. Bob has done it for a couple of days. The blood sugar levels have dropped. We are prepared to make whatever - the company say it is prepared to make whatever adjustments it needs to in the workplace to accommodate you.

PN122

Can you work this through in a meeting with a GP, you know, rather than calling in occ health and safety people? I mean, they may be of some assistance but it seems to me of more assistance here might be a doctor who knows something about the workplace and actually looks at the work and says, yes, that might be a problem. Is that a possibility? Have a round-table meeting - a serious round-table meeting between the two of you there, two people from the company and your GP and say, look, the company says this is what we want him to do.

PN123

We want him to change from morning to afternoon shift. It has already been implemented and you have had some low blood sugar levels. The company is saying we are prepared to do anything reasonable to help in this situation and to actually have that discussion with the GP to see what the GP comes up with. Is that possible?

PN124

MR FERGUSON: I can ring him and find out, I believe.

PN125

THE COMMISSIONER: I think most doctors would be prepared to accommodate that, I would have thought. I mean, there is always a problem, of course, with doctors operating just from their own clinics and never actually going out and seeing the workplace but if we could get this doctor out to actually see what you have got to do and that might be a way of working through. You see, the situation we have got at the moment is we have got the company saying, in effect, look, we need to make these changes because they don't see that they have got other options.

PN126

They are saying two of the other workers, long-term workers comp, can't lift more than 5 kilos. Can't touch them. The third one, they allege has got different skills. Now, there is a bit of argument about that, about computer skills and whatever but the company says, well, the other person is a team leader. All right, for whatever reason, they don't want the other person to shift. They want you to shift. Now, they realise that you do have a medical condition.

PN127

The company is saying, look, we are prepared to do, and I think I have heard them correctly, anything reasonable to adjust the workplace or adjust the work or whatever to suit that situation. That being the case, don't we need to explore that and say: Look, what can be done in this sense. We need to explore that further, you know. Now, in the meantime, I agree, Mr Bell, that we can't have Bob's blood level sugar going haywire over the next few days and I agree with that but you know that is where perhaps the doctor ought to be brought in to say: Look, we are making this adjustment, sugar levels are no good, we are a bit worried about his ongoing health, is there a problem, can you please, doctor, help us monitor this through. Do you know what I mean.

PN128

MR BELL: I think if we couldn't resolve the issue with the doctor as well in relation to the duties and if the duties are far more varied than what the company is saying, then possibly the Commission could have a look at these duties between am and pm as well.

PN129

THE COMMISSIONER: Yes.

PN130

MR BELL: I just want to make one comment, Commissioner, that Bob has a rapport with the dispatch drivers or delivery drivers in the morning shift and they have a good working relationship and a very productive relationship so I think, you know, in relation to managing the business, I understand the predicament the company is in but they are now taking the least effective person, I suppose, which will probably upset their productivity in the mornings and their deliveries may suffer on that so if there is any way of accommodating Bob remaining on the am shift it would be better for all people all round, for the productivity of the company and for Bob's health.

PN131

I mean, that is one of the aspects that needs to be looked at. We are not just being pig-headed in relation to trying to protect our member's wishes to stay on am shift, there are some genuine concerns about occ health and safety and medical reasons for Bob but also there are some productivity issues there the company may want to look at and say: well, this is probably not the right thing to do but it is probably the only thing we can do at this stage. It may well be detrimental to their business.

PN132

THE COMMISSIONER: Does the company hear that? I mean, the union is saying, in effect, from a productivity point of view, they can't understand why the company is doing this because they think there has got to be a better way and, you know, the company has not - you are making the wrong management decision, that is basically what the union is saying.

PN133

MS PALLOT: Commissioner, obviously we have explored all options and unfortunately, as you have pointed out, there is only four guys on the am shift. The other thing is, Commissioner, I have just spoken to the national operations manager and if it were the case down the track business improved and the company was in a position to say hire five to 10 more people, then certainly the company would look at accommodating Mr Ferguson's request to go back on the am shift. Unfortunately, the company's hands are tied at the moment. It is based on a business decision by the operational requirements of the whole company. It is not just based on friendships or people getting along together on shifts, as you can probably understand.

PN134

THE COMMISSIONER: You see the difficulty, Mr Bell, is I hear what you say but the Commission is certainly not in the position of telling the company how to run its business. I mean, if they have looked at all this and they say: No, this is the way to go. I mean, if that is management decision, I mean that is the management decision.

PN135

MR BELL: I understand that and it is heartening to here what the company has just said in relation to the ongoing future.

PN136

THE COMMISSIONER: Yes. I think we can almost take that as a commitment basically from the company. I mean, it may be that there is an opportunity for someone to be employed down the track in which case Mr Ferguson would move back to the morning shift and we will see how things go. I am looking at the time and I know I have got to vacate this room very shortly but it seems to me this - can I get the company's view on this - the possibility of having a meeting between, I would suggest probably Mr Bell and Mr Ferguson or some one from the union and Mr Ferguson, two people from the company and Mr Ferguson's GP, have a meeting.

PN137

I would suggest organise it in the workplace and I know GPs are a bit funny sometimes about where they want to go and so on but in my view it would better to actually have a meeting out at the workplace to show the general practitioner, this is the workplace, this is what has got to be done, this is the way things - to have a meeting like that and then say to the doctor: Look, these have been the duties in the morning, it has worked reasonably well.

PN138

This is what we want done in the afternoon. We are prepared to do anything necessary to accommodate it. Bob has been working several days. He has had problems with his blood sugar levels. We need your opinion. Is there a danger in continuing to do this or is this problem with blood sugar levels only going to be a temporary thing. What can we do to alleviate this health problem. Can that meeting be held, let us say, in the next - well, as soon as possible. What does the company say to that?

PN139

MS PALLOT: Commissioner, there is absolutely no problem with that at all. We are also prepared to accommodate - if a GP wants to come out and have a look at the workplace and then perhaps write a letter if he can't attend the meeting, we are prepared to accommodate any of that and we are prepared to be involved in those discussions but I have to say there is one proviso and that is the union official attending that meeting or involved in these discussions is Mr Bell and that none of the union officials who attended the workplace and blocked the gate with their cars are involved in any of these meetings or these negotiations. The company is most appalled by their behaviour and upset by what has happened and whilst they are more than happy to accommodate Mr Bell and the union and Mr Ferguson, they have difficulties with those union members at the moment.

PN140

THE COMMISSIONER: Mr Bell, do you have coverage of this matter now - the carriage of the matter?

PN141

MR BELL: Yes, I will be able to attend the meetings. I will still be answerable to the secretary of the branch.

PN142

THE COMMISSIONER: I understand that but if you have carriage of the matter then it is likely - look, this meeting should not be a cast of thousands. I am talking about you and Mr Ferguson, a couple of people from the company and Mr Ferguson's GP. Now, the other thing - so I think we can probably accommodate what the company is talking about. The other thing I would say here, a meeting with the doctor, being doctors and diaries and all the rest of it, is going to take a few days, might even take a week to get him out there, I don't know.

PN143

Can I suggest that in the meantime, the union gives a list of things that it believes is the minimum things - a list of things as a minimum that would need to change for Mr Ferguson to feel more comfortable about the afternoon shift, if I can put it that way. Now, I know what you are saying - your position, Mr Ferguson is, ideally you don't want to work the afternoon shift at all, I understand that is your position. What I am saying is on the assumption you might have to work the afternoon shift could you and Mr Bell work out a list of: Well, these are the things that will need to change, all right. Can that list be given to the company and the company respond to that. Now, this is all happening over the next 24 hours this would happen and that is while you are trying to work through something with the GP.

PN144

MR BELL: If I could just suggest I will try and make myself available to the work site this afternoon when Bob starts or tomorrow afternoon, if that is okay with the company.

PN145

MS PALLOT: That is fine.

PN146

THE COMMISSIONER: I would say, can we do it today? Look, within 24 hours.

PN147

MR BELL: I should be able to do it today.

PN148

THE COMMISSIONER: I am suggest, Mr Bell, I am suggesting that happen ASAP, right. You and Bob work through what - if Bob is to work the afternoon shift and I know that is not your favoured position but if he is to work the afternoon shift, what is the minimum - the minimum requirements would be this, whatever it is going to be. You known, don't want him climbing over the top of things but that is your minimum requirement. Discuss that with the company. Then the company would respond to that.

PN149

The company would respond to that list and say whether or not you can accommodate. That would happen immediately. In the meantime, you are trying to make this arrangement for the doctor to come out to the workplace and have a meeting with all concerned. It may well be by the time the doctor gets out there, you might actually be able to sort out a lot of these things but I honestly believe when you get matters like this and it is matters involving people's health, the best thing is to get a doctor out there, in the workplace, seeing exactly what you are doing and having an input.

PN150

I know that some doctors, I don't know what your doctor is like, some doctors are bit funny with these things and they don't like getting too involved with that sort of thing but others are very, very helpful. Hopefully, your doctor is one who might be very, very helpful. I mean, the important thing is we don't want you keeling over in the next week with some problem with your blood sugar levels and that has obviously got to be the company's top priority as well. If there is, I mean even a remote possibility of that, well then that is an occupational health issue the company has got to take responsibility for. I would suggest those two things, that list, as soon as you can be done, tomorrow, whenever.

PN151

MR BELL: If I can get out there by 2.30 this afternoon.

PN152

THE COMMISSIONER: Yes, have that meeting with the company and then in the meantime you are also making - you are on the phone today to the doctor saying; Look, this is what the Commission is on about and is it possible to have a meeting along these lines. What I will do, because I know it is all a bit up in the air at the moment and as I say, I have got to vacate this room for another member of the Commission in a moment, what I will do is I will put down, in writing, in a better and clearer form of what I have just said and I will get that faxed out to you in the next hour. Is that okay for the company? In other words, I will put my brief statement and recommendations, I will get them faxed out to you in the next hour and you know, just to sort of put better words around than what we have been able to discuss this morning but if we can do that and just see where that leads us.

PN153

MS PALLOT: Commissioner, say they are happy with that position.

PN154

THE COMMISSIONER: Okay. I suggest, rather than set a formal date for a report back to the Commission, can I ask the union to let me know the position, just keep me informed of the position and let me know, at least within a week, a telephone call might be fine to say it is all okay, on track or you want to come back. Liberty is granted, of course, to the parties to come back here if need be but try these two meetings first of all and I would say let us go gently and just work our way through this and we might be able to come to some sort of resolution. Nothing further from the company?

PN155

MS PALLOT: Except, Commissioner, I would like you to comment, if you would, that Mr Bell from the union is to be involved in this process.

PN156

THE COMMISSIONER: I would do that and I would indicate both parties are to desist from any action that might aggravate the situation and look, I understand there have been some problems down there from the union. The union says it was aggravated to some extent by comments that might have been made about violins in the background and all this sort of stuff, right. Now, let us just put that to one side at the moment and - the most important thing here is number one, Mr Ferguson's health.

PN157

Number two, getting the job done and frankly, it is those two are integrally linked but really it is probably in that order, Mr Ferguson's health and getting the job done properly. They are the only two things that count. Let us just desist from any other action that might aggravate the situation. Let us focus on Mr Ferguson and the job and see if we can get that sorted out and that would certainly be part of my recommendation.

PN158

MR BELL: There has been no other action since Friday, since the notification.

PN159

THE COMMISSIONER: It seems to me what happened Friday was probably a knee-jerk response. I mean, these things happen. I can understand how the company gets pretty uptight about that but let us hope that was a knee-jerk response and isn't going to occur again. I will make some comments along those lines in my statement.

PN160

MS PALLOT: Thank you, Commissioner.

PN161

THE COMMISSIONER: I will get that out to the parties in the next hour and, as I say, liberty to either party to apply to bring it on on short notice but hopefully we will be able to work our way forward in the next week. I think that is it and we will adjourn.

ADJOURNED INDEFINITELY [10.15am]