C2002/3511, Transcript of Proceedings [2002] AIRCTrans 3457 (9 September 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 VT05433
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2002/3511

THE AUSTRALASIAN MEAT
INDUSTRY EMPLOYEES UNION

and

GEORGE WESTON FOODS

Application under section 170LW of the Act
for settlement of dispute re the termination
of employment of two employees

MELBOURNE

10.06 AM, THURSDAY, 22 AUGUST 2002

Continued from 18.7.02 before Cmr Roberts

PN78

THE COMMISSIONER: Are there changes to appearances in this matter?

PN79

MR G. McKEOWN: Yes, sir. I seek leave to appear on behalf of George Weston Foods.

PN80

THE COMMISSIONER: Yes, Mr McKeown. Has the company been represented by counsel previously in this matter?

PN81

MR McKEOWN: No, not that I am instructed.

PN82

THE COMMISSIONER: Yes. Mr Bird, any objection?

PN83

MR BIRD: No, sir.

PN84

THE COMMISSIONER: In that case leave is granted. I must say, I am in the hands of the parties, to some extent. This matter appears to have been before the Commission on a - well, the matter has been to the - before two other members of the Commission, Commissioner Roberts, it would appear, on 18 July and then 31 July for a conference and then it was before - no, it was before Commissioner Deegan on 31 July, the outcome of which he issued a recommendation. Is that the position as the parties understand it?

PN85

MR BIRD: Yes, sir. The matter has been around the Commission a fair bit. In fact, it started - the Commission hearing started on 2 July, in fact, when both of our members had been stood down without pay by Dons, told to go and pay for medical certificates and then report back to a meeting at Dons which would determine their future. So that is when the matter first came to the Commission. There was a recommendation, an information recommendation, out of that that the company accepted and that was they pay those two workers for the time that they were off and that they also pay for the medical certificates and that the company would sit down with the union to try and work out some way of dealing with these matters in the future.

PN86

While those negotiations were taking place, both Mr Bonello and Mrs Gligurovska were sacked. We then notified an unfair dismissal. It went to Commissioner Roberts on 18 July. We had previously been with Senior Deputy President Kaufman on 2 July and we were also there on 10 July, which was two days after they had been sacked. We notified Senior Deputy President Kaufman that they had been sacked but the unfair dismissal application went to Commissioner Roberts.

PN87

Now, Commissioner Roberts determined that he didn't want to hear it in case he upset Senior Deputy President Kaufman and suggested it go back to Senior Deputy President Kaufman because we were scheduled to appear before him again on 24 July. We went back to Senior Deputy President Kaufman on 24 July. He told us that he didn't want to hear it, that it ought to go back to Roberts. In the meantime Roberts had gone overseas and it was given to Commissioner Deegan to hear and she heard it on 31 July and she issued a certificate - she issued a recommendation following that hearing and the recommendation was that:

PN88

Following a conference of the parties held pursuant to section 170LW of the Workplace Relations Act 1996, it is recommended that the employer immediately reinstate to their former positions, without loss of continuity of service, the two employees, Jamie Bonello and Mara Gligurovska, whose employment was terminated in July of 2002.

PN89

Now, that was her recommendation. The company indicated that day that they were not in a position to say whether or not they were going to accept the recommendation or not. The hearing with Senior Deputy President Kaufman, those hearings were continuing because we were supposed to be talking to the company ways to try and avoid this sort of thing in the future and we had a further hearing with him on, I think, 6 August. At that stage the company hadn't made up its mind whether it was going to reinstate, pursuant to this recommendation.

PN90

They undertook that they were to have a meeting, in fact, that day to determine their position. That afternoon I received a phone call from Mr Derek Humphery-Smith from Landers and Rogers to tell me that the company hadn't made up its mind whether they were going to comply with the recommendation and that they were going to consider the matter. It was now in the hands of lawyers and they would let me know by the end of the week what their decision was.

PN91

On 9 August they faxed through a letter, which I can give to the Commission. I can also give to the Commission a copy of the recommendation that - - -

PN92

THE COMMISSIONER: The recommendation is on file.

PN93

MR BIRD: You have got that. Well, I can hand up a copy of the letter that Landers and Rogers sent to me on 9 August which - - -

PN94

THE COMMISSIONER: There don't appear to be any other exhibits on the file so it will be exhibit B1.

EXHIBIT #B1 LETTER FROM LANDER AND ROGERS TO UNION DATED 09/08/2002

PN95

MR BIRD: - - - which confirms that they act for George Weston Foods and advises that the George Weston Foods does not accept the recommendation made by Commissioner Deegan and that they don't accept it because they believe they had insufficient time with Commissioner Deegan to properly inform herself of all the issues which their client wished to raise regarding the dismissals of Mr Bonello and Ms Gligurovska. So that is where we got that notice.

PN96

The next step in this chronology is that there was a meeting of the workers at Dons. There were various meetings of the consultative committee out there where the question was being put to the company as to what they were going to do in relation to this recommendation and there was finally a meeting of the membership out at Don Smallgoods last week, I think. They unanimously resolved the company to abide by the recommendation and abide by the agreement that covers the union and its members and George Weston Foods in relation to Don Smallgoods, which we say this letter breaches, and to put those two workers back.

PN97

The company was put - that was put to the company. They came back to us the next day and told us that they were prepared to continue to pay Mr Bonello and Mrs Gligurovska up until tomorrow but they weren't prepared to put them back on. They wanted to go back to this Commission and have the case run with their lawyer. So we are here today. Yesterday I received a phone call from Mr Humphery-Smith to say that the company wished to use today simply as a programming of this matter and he also notified me that the company would be represented by lawyers.

PN98

I told him that we would oppose lawyers being present, given that we are here under the enterprise agreement and the whole point of the enterprise agreement is to run these things without lawyers present and that this had been going on so long and we had so many various hearing and conferences about it throughout the last couple of months that we believe that it should start today. However - - -

PN99

THE COMMISSIONER: So you don't persist with you - sorry, I should put it another way. Am I to take from that that you don't - that what I apprehended to be your position, that is that Commissioner Deegan's recommendation constituted settlement of the matter pursuant to the relevant clause - I think it is 7.2.7 - of the agreement, that that didn't - - -

PN100

MR BIRD: Well, that is our position.

PN101

THE COMMISSIONER: Yes.

PN102

MR BIRD: However, we though about it again after Mr Humphery-Smith had rung me and what we put back to him later in the morning was that, on the understanding that the company would continue to pay our members, we would allow - we would not oppose them being represented by counsel and we would not oppose today being used for programming, on the understanding that before any of that happened the union would submit to the Commission that we believe we have gone through the procedures in the agreement and we really don't need to go any further.

PN103

But if we lose on that we accept that the matter will go on next Thursday and Friday, as I understand, and that today we will program for that. But our immediate argument is, as I informed Mr Humphery-Smith yesterday, is that we have been down to the Commission under 7.2.7 in relation to this. The matter has been aired before Senior Deputy President Kaufman, even though he didn't want to hear it formally, the matter has, in fact, been aired in front of him.

PN104

THE COMMISSIONER: I will have to start taking that sort of approach myself.

PN105

MR BIRD: Then he has made an informal recommendation to the company, at least as far as Mr Bonello is concerned, in that he has told Mr Jefferies that his advise to Mr Jefferies, the last time we were before him which was 6 August, his advise to Mr Jefferies was to tell his boss that he ought to be putting Mr Bonello back to work. So we have had that. We have also had, as you have said, the recommendation from Commissioner Deegan which says the two employees should be immediately reinstated without loss of continuity of service.

PN106

Now, it is our belief that pursuant to clause 7.2.7 we have done what we are required to do. We have agreed with the company that in the event of any dispute concerning the termination of employees the matter will be taken to the Commission for determination. Now, we have done that. The union and the company agree that they will accept the jurisdiction and decision of the Commission as constituted, subject to the appeal rights under the Act, which I understand there are none.

PN107

We say that we have been to the Commission for determination. The determination is, and the decision is, that Commissioner Deegan has recommended that both our members be re-employed or re-instated. So we say we have, in fact, done as we are entitled to do under the agreement. The matter has been concluded in the Commission by the recommendation of Commissioner Deegan and the company ought to accept it. Their letter from Landers and Rogers says that they don't accept it because there was insufficient time for Commissioner Deegan to properly inform herself.

PN108

What actually happened was that we had five minutes with Commissioner Deegan. Well, we had the conference where all parties were present; that took some time. The Commissioner then wished to see the parties separately. We saw her for about five or 10 minutes. The company saw her privately for one hour. At the end of one hour, where presumably they could say whatever they wanted and give whatever explanation they could in relation to this, she issued her recommendation.

PN109

Now, I might say, they have also had 50 minutes privately with Senior Deputy President Kaufman. They have also had, following that, one, two, three other hearings with Senior Deputy President Kaufman during which time this issue was raised and they had all that time to put up their case. But at the end of that, on 6 August, the last words of Senior Deputy President Kaufman were, tell your boss to put Mr Bonello back on. Now, we believe they have had quite sufficient time to put their case.

PN110

They certainly had sufficient time to put it in front of Commissioner Deegan. Commissioner Deegan has made a recommendation. We say that constitutes the decision of the Commission. The decision of Commissioner Deegan was to make a recommendation that the two people go back. So it is our belief we don't have to go any further, that the decision has been made and the company ought to be carrying it out.

PN111

THE COMMISSIONER: Yes, thank you, Mr Bird. There is just one matter I will raise with you at this point, and it really is a matter of absolute formality. Commissioner Deegan, in her recommendation, refers to Mara Gligurovski, Landers and Rogers in their letter refer to Gligurovska, correspondence of the company to her refers to Gligurovski, the transcript before Commissioner Roberts refers to someone else again. It is just that formality I would like to try and sort out.

PN112

MR BIRD: Well, as I understand it, and I have an expert next to me - I certainly don't profess to be an expert myself - it should be Gligurovska with an A.

PN113

THE COMMISSIONER: As in the Lander and Rogers letter?

PN114

MR BIRD: Yes. The A signifies a female, the I signifies a male.

PN115

THE COMMISSIONER: Right, yes. Altona Meadows Family Medical Clinic don't know about that either. So congratulations to Lander and Rogers, they are the ones who got it right.

PN116

MR BIRD: Well, it is about the only thing they have got right so far, I would submit.

PN117

THE COMMISSIONER: Yes. Well, I will - I hear that submission. Mr McKeown.

PN118

MR McKEOWN: Thank you, sir.

PN119

THE COMMISSIONER: On that - I think on that fairly narrow; I am happy to hear you generally but I think we need to resolve this narrow point, too.

PN120

MR McKEOWN: Yes. Firstly, just to clarify some points which are not clear in this sense. There has been - and some of the confusion lies, I think, in terms of the proceedings that have gone on to date, is that what was indicated by Mr Bird - and again, he indicated this morning - he indicated that previously to Senior Deputy President Kaufman when the matter was before him on 12 July, and this - I will get the print number.

PN121

THE COMMISSIONER: I think it is the C number we need rather than the print number.

PN122

MR McKEOWN: The C number, sir, is 2002/3064 and it is at paragraph number 96 of the transcript in which Mr Bird indicated to Senior Deputy President they had been sacked:

PN123

They had received letters yesterday telling them that their employment with the company was no longer tenable and that they had been sacked for incapacity to perform the inherent requirements of your pre-injury position.

PN124

He was quoting directly from correspondence, I would suggest, as there is inverted commas:

PN125

Each of them got a letter in similar terms and, clearly, the union will be proceeding in relation to unfair dismissals.

PN126

Now, the problem with this matter, sir, is that - and like with many proceedings in the Commission - that often there will be discussions that go on the record, off the record. I understand from my instructions this morning that Mr Bird has been making comments in regard to the matter before Senior Deputy President Kaufman on 6 August. Those comments were not made, as I am instructed, on the record or on the transcript. As the Commission would very well know, often there are comments made in the form of off the record comments which don't necessarily, in any stretch of the imagination, constitute recommendations.

PN127

I am further instructed that, in particular as to the comment made by Mr Bird that Senior Deputy President Kaufman made regarding "tell your boss in regard to Mr Bonello", I am instructed that it wasn't made at all in those terms. But again, that rests with matters that are not on the transcript and come under the general aspect of trying to resolve matters.

PN128

But coming back to the more principled point, sir, in regard to this whole issue and it would be my submission that in regard to the use of section 170LW is quite inappropriate in terms of what the union is seeking. The union is seeking to ventilate issues in dispute regarding the dismissals of two workers. They are on the record as saying that. They are on the record as saying what I just quoted you previously. And that is part of the - if I could put it, the confusion or the meandering way in which this matter has continued through the Commission.

PN129

In my submission, the company does not move from its position indicating that it wants this issue to be determined. It doesn't move from that position. But what it does say is, let us be honest about these applications. These are applications which are under 170CE.

PN130

THE COMMISSIONER: No, they are not.

PN131

MR McKEOWN: Well, if I - - -

PN132

THE COMMISSIONER: I mean, that, sort of - I just - I mean, the parties have signed up to an agreement. Now, are you saying that the agreement doesn't mean what it says?

PN133

MR McKEOWN:: No, if you read the agreement, sir - do you have a copy of the agreement?

PN134

THE COMMISSIONER: Yes, absolutely.

PN135

MR McKEOWN: All right. If you go to the clause in particular, if you go to clause 7.2.7 - - -

PN136

THE COMMISSIONER: Well, let us go to clause 2.8, 2.8.8, first of all. That seems to me to be the starting point.

PN137

MR McKEOWN: Yes.

PN138

THE COMMISSIONER: I mean, what I was concerned about is you are getting into an argument that the parties specifically agreed not to get into.

PN139

MR BIRD: That is right.

PN140

MR McKEOWN: No, Commissioner, it wasn't that at all. All I was going to is to indicate to the Commission that we do want the matter to proceed next week - - -

PN141

THE COMMISSIONER: Well, as I heard you say, it was - the matter should be done under 170CE.

PN142

MR McKEOWN: Yes, and - - -

PN143

THE COMMISSIONER: And doesn't clause 7.2.7 say, in simple words:

PN144

The company and the union agree they will accept the jurisdiction and the decision of the Commission as constituted -

PN145

etcetera, etcetera, under 7.2.7 which, in turn, refers back to 2.8.

PN146

MR McKEOWN: Yes. And Commissioner, in terms - I thank the Commissioner for drawing that to my attention and I can recognise the force in which the Commissioner makes that submission. However, it was, as I was about to embark upon, the reference to 7.2.7 and the reference to clause 2.9 because these - I am not - - -

PN147

THE COMMISSIONER: Well, I think that is the slip, isn't it, that is the slip?

PN148

MR McKEOWN: I am sorry?

PN149

THE COMMISSIONER: That is the slip, the 2.9.

PN150

MR McKEOWN: Yes, yes. Commissioner, but in terms of what we say in regard to the matter is that it is still, and is recognised by - I am not sure if the Commissioner is aware of a speech that was given by Munro J in terms of the extent of private arbitration powers, if I can put it that way, under section 170LW.

PN151

THE COMMISSIONER: No, I am not. Is it a written speech?

PN152

MR McKEOWN: Yes.

PN153

THE COMMISSIONER: You might be aware that I have been on leave but - - -

PN154

MR McKEOWN: No, I wasn't, Commissioner. It was a speech that was handed down on 12 July 2002. It was a speech that was delivered to the Higher Education Industrial Association. It was headed "The emerging significance of drafting of dispute resolution clauses". Now, his Honour in that particular speech goes in some detail as to - if it is of assistance I can hand up a copy.

PN155

THE COMMISSIONER: Yes.

PN156

MR McKEOWN: I don't have the benefit of copies for my friends at the other end of the table.

PN157

THE COMMISSIONER: Yes.

PN158

MR McKEOWN: Really, I draw attention to paragraph 39, in terms of his Honour refers to a decision of Senior Deputy President Lacy in which his Honour, and that is in MUA v Australian Plant Services, and his Honour noted there that:

PN159

An important limitation on the Commission's powers under 170LW is the kind of disputes that may be subject to resolution by the Commission. Parliament has authorised the Commission to exercise powers under an agreement to settle disputes over the application of the agreement and, accordingly, its powers are limited to disputes of that kind. Therefore, it is necessary for the Commission in each case, where it is asked to deal with a matter arising under the disputes settling procedure in the agreement, to ascertain the character of the dispute that is before it in order to determine whether the matter is a dispute over the application of the agreement.

PN160

Now, sir, what I say in regard to that is that the company does not move away from the fact that the matter should be determined, but it should be determined in accordance with the statutory - - -

PN161

THE COMMISSIONER: But doesn't the agreement say at 2.8.8 what it says and we, therefore, have a dispute about the application of the agreement? Because we particularly have it at two levels now, one about whether the agreement should apply, if you like.

PN162

MR McKEOWN: Well, sir, when you read that - - -

PN163

THE COMMISSIONER: The parties have agreed that - - -

PN164

MR McKEOWN: Yes.

PN165

THE COMMISSIONER: - - - a certain procedure shall occur should there be a dispute relating to termination of employment under the agreement.

PN166

MR McKEOWN: Yes, sir.

PN167

THE COMMISSIONER: Now, presumably, the company has terminated the person under the agreement.

PN168

MR McKEOWN: Sir, but if you read the clause that you are relying on, the clause states "determined in accordance with 7.2". Correct?

PN169

THE COMMISSIONER: Yes.

PN170

MR McKEOWN: So in accordance with 7.2, if you go to 7.2.7 it states quite clearly, and it very specific, and that is what Munro J said is when you look at these clauses you look at them specifically.

PN171

THE COMMISSIONER: Yes.

PN172

MR McKEOWN: It says:

PN173

The company and the union agree that in the event that any dispute concerning the termination of an employee under specific clause 2.9.

PN174

If you go to clause 2.9 the opening sentence says:

PN175

If an employee's performance or behaviour is unacceptable to the company the following procedure shall apply.

PN176

THE COMMISSIONER: Yes, I understand that.

PN177

MR McKEOWN: Now, the facts of this case, this - or these two applications, they don't involve performance or behaviour. The terminations of these two particular individuals, as advised in their letters of termination, dated - - -

PN178

THE COMMISSIONER: I understand what you are saying.

PN179

MR McKEOWN: Yes.

PN180

THE COMMISSIONER: But that implies that the reading of - that 2.8 should be read down. 2.8.8 - - -

PN181

MR McKEOWN: I am not suggesting that at all, sir.

PN182

THE COMMISSIONER: 2.8.8 says:

PN183

Any dispute relating to termination of employment shall be determined in accordance with clause 7.2.

PN184

MR McKEOWN: Yes.

PN185

THE COMMISSIONER: Clause 7.2.7 then says only certain sorts of dispute should be.

PN186

MR McKEOWN: Yes.

PN187

THE COMMISSIONER: That is what you are arguing.

PN188

MR McKEOWN: No.

PN189

THE COMMISSIONER: You are saying that I shouldn't give the general meaning to clause 2.8.8.

PN190

MR McKEOWN: Sir, the meaning of 2.8.8 is quite clear. It says "in accordance with 7.2".

PN191

THE COMMISSIONER: Yes.

PN192

MR McKEOWN: It is not open ended.

PN193

THE COMMISSIONER: Well, 7.2 - - -

PN194

MR McKEOWN: 7.2 contains within it the limitation I have referred to.

PN195

THE COMMISSIONER: I see what you are saying. I understand what you are saying.

PN196

MR McKEOWN: Yes.

PN197

THE COMMISSIONER: So they haven't been terminated because their performance is unacceptable.

PN198

MR McKEOWN: No.

PN199

THE COMMISSIONER: They have been terminated for some other reason.

PN200

MR McKEOWN: They have been terminated, in accordance with the advice in their letter of termination, because they are unable to fulfil the inherent requirements of the pre-injury position.

PN201

THE COMMISSIONER: Yes. Isn't that performance?

PN202

MR McKEOWN: No, it is not; it is not, sir. How is that performance?

PN203

THE COMMISSIONER: Well, because they are not performing at the level that the company requires.

PN204

MR McKEOWN: Well, with respect, sir, it goes to the issue of the medical capacity. A person might have an incapacity. It doesn't necessarily mean that they are then a non performer. If it were we would have numerous cases where individuals who worked - or hundreds of individuals who work every day with some form of medical incapacity; it is not said that they don't perform. So it is not a performance issue.

PN205

THE COMMISSIONER: Well, that seems to me to be - well, okay, Mr McKeown, I am not going to get in an argument. What I am concerned about right now is that this is totally unfair to the other side, that we are now getting into a very complex legal argument and whether Mr Bird wants to proceed on that basis, I don't know, because - - -

PN206

MR McKEOWN: Well, Commissioner, can I say this, it is not meant in any way to be unfair to the union at all. All I am suggesting to this Commission is that if we still stay in these procedure, that at least can we set the parameters, fair parameters, to say that this is an unfair dismissal application.

PN207

THE COMMISSIONER: But the setting of the parameters is - unless you have got some agreement between you the setting of parameters starts to sound - - -

PN208

MR McKEOWN: Well, exactly, that is what I am suggesting.

PN209

THE COMMISSIONER: You have got an agreement?

PN210

MR McKEOWN: No, I am suggesting that is a way we can move forward.

PN211

THE COMMISSIONER: Because there is going to be a huge debate about what the - it seems to me that there is potential, because I have already opened up some of the debate, for a debate - and I certainly don't know whether Mr Bird feels that he is up to mounting a charge against what you are putting because what you are putting is novel, to say the least. The reason I say novel is because I have been through 170LW matters, arguably involving performance, but much more clearly than this, and so the point hasn't been taken.

PN212

But now we are getting down to a situation where you are saying that someone's incapacity to - I can't use that word to perform, can I - someone's incapacity to carry out the function that the employer assigns to them constitutes something that is not performance. On its face I understand the distinction you are making, but - - -

PN213

MR McKEOWN: If it is - - -

PN214

THE COMMISSIONER: - - - it is one I would want to see some authority about before we - - -

PN215

MR McKEOWN: If it assists the Commission, I am quite happy to have a short adjournment and seek instructions. I mean, can I put it in the alternative, that as I understood this morning was for directions in regard to progressing the matter. I am not saying that we don't progress the matter. Don't misunderstand at all, sir, what I am submitting.

PN216

THE COMMISSIONER: No, no, but I am - but see, consistent with all of that is that if there is going to be a debate about whether we are properly acting under 170LW or not then that is a debate that we will have to allow some time for because I think that is critical. Because, clearly, if we are proceeding under 170LW how we proceed is a matter, essentially, for the parties because it is a private arbitration.

PN217

MR McKEOWN: Yes.

PN218

THE COMMISSIONER: If we are not proceeding under 170LW I have nothing before me.

PN219

MR McKEOWN: Yes.

PN220

THE COMMISSIONER: I have absolutely nothing before me. It is a section 170LW application - - -

PN221

MR McKEOWN: And - - -

PN222

THE COMMISSIONER: - - - and if someone was trying to jump the 170CE queue I will do my best to assist them, but it still has got to be a 170CE application.

PN223

MR McKEOWN: Sir, it would not be the company's - and I don't want this misunderstood at all - it would not be the company's position at all, say, for example - let us take it to a nth degree, that if you were to find that you didn't have jurisdiction to proceed in regard to 170LW that it would not be the company's position if the union were to lodge what they have already indicated they have but they haven't - and this is part of the confusion. They keep on using terminology of unfair dismissal application.

PN224

THE COMMISSIONER: Well, that is what it is - - -

PN225

MR McKEOWN: Well, just - - -

PN226

THE COMMISSIONER: - - - by their lights. It may not be by your lights - - -

PN227

MR McKEOWN: All right, all right.

PN228

THE COMMISSIONER: - - - but by their lights that is exactly what it is.

PN229

MR BIRD: Keep going, mate.

PN230

MR McKEOWN: But in terms of the situation, there wouldn't be any objection in regard to out of time or anything like that, that is all I am putting. It is not - - -

PN231

THE COMMISSIONER: Well, it is clearly not out of time because they are clearly still employed.

PN232

MR McKEOWN: Yes. Well, they are not, as I understand it.

PN233

THE COMMISSIONER: Well, someone is getting paid I just heard.

PN234

MR McKEOWN: Yes. But if it might progress the matter, sir, I can get instructions. But can I ask this, in terms of when you have proceeded with arbitration under LW, are you able to indicate in terms of the parameters you set?

PN235

THE COMMISSIONER: Well, it is a much broader one that is contained in the agreement; is it hard, unjust or unreasonable. So it doesn't go to the specific details of 170CG.

PN236

MR McKEOWN: Yes.

PN237

THE COMMISSIONER: So we are back to where, if you like, back to where the jurisdiction was prior to the - - -

PN238

MR McKEOWN: Well, as I have indicated - - -

PN239

THE COMMISSIONER: - - - well, prior to the adoption - prior to the unfair dismissal jurisdiction, as such, coming to the Act.

PN240

MR McKEOWN: To the conventions.

PN241

THE COMMISSIONER: No, no, prior to that. When, you know, that very brief period of jurisdiction that the Commission had where disputes could be found.

PN242

MR McKEOWN: Yes.

PN243

THE COMMISSIONER: You might recall.

PN244

MR McKEOWN: Yes, I do. It might be - if it is convenient, I would seek a short adjournment just to get instructions because, as I have said, the company is anxious that this matter still proceed in terms of next week.

PN245

THE COMMISSIONER: Yes. Mr Bird, have you got a problem with that, the short adjournment, I mean?

PN246

MR BIRD: Well - - -

PN247

THE COMMISSIONER: I don't mean the general thrust of where we are going.

PN248

MR BIRD: Well, I would like to say a couple of things before we have the short adjournment, if I may. We have dealt with some crook employers over the years, and Dons up to this point hasn't been one of them, but even those crook employers haven't pulled this sort of a stunt very often. We are absolutely clear as to what we have been doing and the company ought to admit that that is the case. We have an agreement. We have a set of procedures at Dons for years and years and years and they have worked well over that period of time.

PN249

The old days, what we used to do at Dons and other places, but what we used to do at Dons, if they sacked anyone in the way that they have sacked these two there would have been a meeting, the workers would have gone home and they would have stayed home until they were reinstated. Now, to avoid that sort of thing, which the union wished to avoid and the company wished to avoid, we came to an agreement. And the agreement was that any of those dismissals would be taken here.

PN250

The company and the union would give the Commission the jurisdiction to hear the matter. The matter would be heard. We would put our case, the company would put their case. The Commission would make a decision and both sides would abide by it. And that has worked sensibly, it has worked well for very many years, more than 10 years at Dons. We have had these agreements for 10 years but we had that clause agreed to before that.

PN251

There has been no problem about the jurisdiction. There has been no problem about whether it is under the Act, it is under the - or wherever else it is. The situation has been clear. This is where you come to solve it. It is solved on the basis of whether or not the dismissal was harsh, unjust and unreasonable and that is the way it has always been. We have got the same clause in many other agreements. It works well in all those other agreements as well. Now, if what the company wants to do is to throw that out - and the reason they have decided they will have lawyers in instead of the extremely well-paid industrial officer that they have got at the end of the table who has been into about seven hearings so far in regard to this - if what they have now done to overcome the problem that they have got themselves into with this is to engage some bloke to come in here and try and find some typing error or some mistake that hasn't been found over the 10 years of this agreement, where clause 2.9 should say clause 2.8.8 or something of the sort, well, we have come to a pretty low level at Don Smallgoods.

PN252

The union is here in good faith to try and run this. I had a conversation with Mr Humphery-Smith yesterday where we agreed we would allow lawyers in. We have agreed the thing could be put on for two days. I let Mr Humphery-Smith know it is my belief the thing has already run its race, but if we weren't going to win that well, then, we were prepared to go on under our agreement, as we have done in the past, run the case and abide by any decision of the Commission.

PN253

Now, if they want to change the rules, well, we will have to look at that position and we may be forced to take other steps to determine this matter. But if the company is going to behave properly and allow this thing to go on in the way it is meant to go on under our agreement, well, we will cop that. If we can't win the argument about we think the thing has already been fixed, well, we will cop the hearing next week. But we are not going to cop it under a different set of conditions than the ones we have agreed to in this agreement.

PN254

THE COMMISSIONER: Yes, thanks. We will adjourn for 10 minutes.

PN255

MR McKEOWN: Yes, 10 minutes.

PN256

THE COMMISSIONER: Do you have any objection if I have my associate copy this paper to provide a copy to Mr Bird?

PN257

MR McKEOWN: No, certainly not. It is - - -

PN258

THE COMMISSIONER: Proceedings are adjourned for 10 minutes.

SHORT ADJOURNMENT [10.48am]

RESUMED [11.03am]

PN259

THE COMMISSIONER: Yes, Mr McKeown.

PN260

MR McKEOWN: Sir, I am indebted for that time. I am instructed by the company I am not to press the issues that I have raised. The company is anxious to maintain what it considers good relations with the union and I am instructed not to press the submissions I made in terms of the aspect of 170CE. Sir, do you wish me to address issues in regard to timetabling or witnesses or - - -

PN261

THE COMMISSIONER: Yes, I think we probably can press on with it.

PN262

MR McKEOWN: Or is it best - - -

PN263

THE COMMISSIONER: There is one matter I need to raise with you and I don't know what level to raise it, but it really is a matter for Commissioner Deegan, in a sense. It seems to be implicit in the company's position, going on the instructions, that some criticism of Commission Deegan, that she made the recommendation without properly taking account of what was before her or that what was before her wasn't sufficient and that she should not have made a recommendation, that is as I read exhibit B1. Commissioner Deegan is legally qualified as well, so - - -

PN264

MR McKEOWN: I am sorry?

PN265

THE COMMISSIONER: Commissioner Deegan is legally qualified as well as being - well, I don't think that really - a lot hinges on that but it seems to be saying that she ought not to have made the recommendation or that she made the recommendation without giving proper consideration. I would be surprised if Commissioner Deegan would do that.

PN266

MR McKEOWN: I can't comment, sir, on that.

PN267

THE COMMISSIONER: Yes. Well, it is a matter for her. I simply advise that I can see that I will have to draw it to her attention to take what steps she thinks is - - -

PN268

MR McKEOWN: Certainly, sir.

PN269

THE COMMISSIONER: But it would be wrong if I didn't draw it to your attention that I propose to do that.

PN270

MR McKEOWN: Thank you, sir.

PN271

THE COMMISSIONER: Back to how we are proceeding. Have you had any discussions with Mr Bird about - or had there been - is there any agreement - - -

PN272

MR McKEOWN: No.

PN273

THE COMMISSIONER: There is not. Would you be assisted by a further adjournment to see if you can get to some agreement about it or - - -

PN274

MR McKEOWN: I am quite happy even if we just go off the record, sir, and we can - - -

PN275

THE COMMISSIONER: We will go off the record, then, to talk about this and see if we can - - -

PN276

MR McKEOWN: Right.

OFF THE RECORD

PN277

THE COMMISSIONER: The proceedings are resumed on the record. As a result of the discussions the parties have agreed to the following course of action. That by close of business on Wednesday next, 28 August, they will exchange witness statements upon which they seek to rely and the parties rights are reserved to adduce further should that be necessary, that is evidence further to what is contained in the witness statements. They have also agreed that by the commencement of proceedings, which will be at 11 am or soon thereafter on Thursday, 29 August, they will provide the Commission with a statement of agreed facts.

PN278

Whether that is a chronology or something else is a matter for them. It may, in fact, be a combination of chronology and something else. The AMIEU has undertaken to advise the company's solicitor if they wish to bring any direct medical evidence about and beyond the medical reports that both parties have, in other words, if they propose to call either of the treating doctors. I should just correct that because I am not sure whether it isn't the same doctor - either of the people's treating doctor.

PN279

MR McKEOWN: They are two separate - - -

PN280

THE COMMISSIONER: Well, it doesn't - did I think that was the extent of the agreement about the procedure?

PN281

MR McKEOWN: Thank you, sir.

PN282

THE COMMISSIONER: The proceedings will now adjourn until 11am on Thursday, 29 August. Thank you.

ADJOURNED UNTIL THURSDAY, 29 AUGUST 2002 [11.32am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 LETTER FROM LANDER AND ROGERS TO UNION DATED 09/08/2002 PN95