C2002/990, Transcript of Proceedings [2002] AIRCTrans 758 (8 March 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

C2002/990

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

and

AUSTRALIAN CONFERENCE ASSOCIATION
TRADING AS SANITARIUM HEALTH FOODS

Notification pursuant to section 99 of the
Act of a dispute re harassment of members
in relation to proposed protected industrial
action

SYDNEY

11.02 AM, FRIDAY, 22 FEBRUARY 2002

PN1

THE COMMISSIONER: Can I have appearances, please?

PN2

MS M. BURGESS: Yes, Commissioner, I appear for the AMWU. With me I have at the bar table MR A. HARRIS of the AMWU and I also have the Senior Site Delegate from the Sanitarium site, MR J. DRAPER.

PN3

MR C. FISHER: If the Commission pleases, I appear on behalf of Sanitarium Health Foods and I have with me MR G. PIERSON.

PN4

THE COMMISSIONER: You're seeking leave to appear are you, Mr Fisher?

PN5

MR FISHER: Yes, I am, Commissioner.

PN6

THE COMMISSIONER: Have you got any objection to Mr Fisher being given leave - - -

PN7

MS BURGESS: Yes, I don't give consent for my colleague to appear today. I don't believe there are any exceptional circumstances under which he might want to appear. It's fairly straight forward. The issue we have before us today, we won't be entering into any legal jargon at all, Commissioner, so I see no need for a solicitor to attend at this point in time.

PN8

THE COMMISSIONER: Mr Fisher?

PN9

MR FISHER: Thank you, Commissioner. Commissioner, we do seek leave to appear under section 42(3)(b) and (c). My client met with the union last Friday and did indicate that they were being advised by my firm and that at the foreshadowed dispute notification today they would be represented. The union certainly did not indicate that they would object to my representation today and the company has prepared for the dispute notification on the basis that I would attend the proceeding.

PN10

The company does not engage employees who have experienced any Commission processes or Commission proceedings or in advocating matters before this tribunal. In addition, the company has indicated to the union that it holds the view that they lack the constitutional capacity to represent as members employees engaged by the company at the Berkeley Vale and Tuggerah site. In addition, there's a question over the dispute of the award application and these are in my submission technical matters of law. They do impact on the Commission's powers in relation to dealing with this dispute and I would submit that it would be of assistance to the Commission in dealing with the dispute to have legal representation on behalf of Sanitarium Health Foods.

PN11

THE COMMISSIONER: Mr Fisher, leaving aside the constitutional award type issues just for the moment, although I appreciate they may need to be pursued at a later date, should the matter proceed along the usual sort of lines in these matters where perhaps we might try and go into conference to see if something can be pursued, you wouldn't be objecting to that course of action?

PN12

MR FISHER: No, Commissioner.

PN13

THE COMMISSIONER: Ms Burgess, do you want to respond to what Mr Fisher put?

PN14

MS BURGESS: Yes, I do, Commissioner. I still contest that the company don't have adequate people that can deal with it. I note that sitting at the bar table with us we have Mr Pierson who I understand is a consultant in HR matters. We've also spoken to him on the site. He's well briefed on the matters. In addition to that, we also have Christine Eschew who is the HR site manager also in attendance who I'm sure would be more than capable of delivery the facts today.

PN15

THE COMMISSIONER: Well, what I'll do then is, Mr Fisher, I'll give you leave for the purposes of today. However, I might review that leave depending upon where the matter goes and as I have already indicated, if the matter proceeds into conference etcetera, I'd expect you not to take an unduly legalistic line in that regard, although obviously, as I say, the company has got whatever rights it wants in relation to such arguments should it go further.

PN16

MR FISHER: Yes, Commissioner.

PN17

THE COMMISSIONER: Thank you. So on that basis leave is granted for the purposes of today at least. Ms Burgess?

PN18

MS BURGESS: I just want to outline a brief overview of what has gone on prior to us coming here today, Commissioner. As you're aware, it's a section 99 dispute regarding harassment of AMWU members in relation to their union membership and their right to engage in protected industrial action in pursuit of their EBA with their employer. By way of history, Sanitarium is a food manufacturing firm that's located on the Central Coast and I'm aware that they have three sites there.

PN19

Traditionally the sites have not been unionised until approximately 18 months ago. The AMWU have a significant number of members on both the Berkeley Vale and the Tuggerah sites. On 5 December 2001, the AMWU served a notice on the company of an intention to bargain for an enterprise agreement. Despite a number of former requests, both from the officials and also from the delegates on site for the company to meet and confer, they didn't reply and simply ignored the request to meet, telling the delegates that they refused to recognise the AMWU.

PN20

I should note for your purposes, Commissioner, that we have since met with the company on the day of the industrial action for a brief discussion around the EBA issues. I've got some documents here that I'd like to pass up for your information. I also have a copy for my friend here. If I could just go to those documents, Commissioner, and just speak to them briefly. They're really provided for information more than anything. The first document is a copy of the initiation of a bargaining period which is fairly self explanatory and it goes for some five pages.

PN21

The second document numbered two obviously, are copies of letters to the company. The one marked A is from 17 January. That was an attempt on my part to get the company to come to the table so we could further talk about the EBA claim that we'd served on them. We got no reply to that letter. Again on 13 February, this is a copy of a letter I sent to Ms Eschew saying that I would actually be on the site the following day. The company actually replied to that document and said that they would meet with us on certain grounds and that was that it be to consider a non union agreement. We didn't agree with that obviously but we met with them anyway just so we could perhaps further progress the situation.

PN22

THE COMMISSIONER: That was on the 14th was it, Ms Burgess.

PN23

MR FISHER: That was on the date of the action, yes. The next one is the notice of intended industrial action. You need to note as well, this was a second notice issued in regard to industrial action. The first notice was in relation to an overtime ban which was later withdrawn and this new notice issued so I've included just a copy of the notice that was effective at the time. There's a number of other documents there which I might leave as I walk you through where we're at.

PN24

So on 8 February we issued the intended industrial action notice which was to commence on 14 February at 3pm in the form of a stop work meeting. During the period between when we served the initiation of bargaining and the time that we actually took the industrial action, our members have been subject to varying forms of harassment, intimidation from the company relating both to their union membership and to the impending industrial action.

PN25

Members have been continually told by one of their managers that the AMWU will not be recognised by Sanitarium and that if they wanted to be members of the union that perhaps they should be working somewhere else besides Sanitarium. In confirmation of that, if you look to document number four, it's clearly a memo from Mr Jackson who I understand is one of the company's supervisors or managers to one of our delegates clearly saying that the company don't recognise the AMWU which it details in the second paragraph of that document.

PN26

Members have been subject to being taken into offices individually and pulled aside from their normal jobs by two of the management representatives and questioned as to their involvement in the upcoming protected action. I've actually spoken to about 10 or 12 of my members on the site and I'm firmly of the opinion that the majority of our members have found this behaviour to be both inappropriate and intimidating and offensive.

PN27

In addition to that, members have been subjected to the company handing out religious paraphernalia relating to the unions being a source of trouble for Adventists and that those who refused to join the unions will be marked men and that the unions are oppressive and I draw your attention to document number five which is a copy of that paraphernalia that our members have been subject to. We believe these were distributed by the company and left for members to read. We believe that they were also distributed by the supervisor.

PN28

These instances have continued over a period of time between December and February. The members have tried to ignore them and get on with the task at hand. However, the events are causing some undue and unnecessary stress to our members. The latest attempt by the company to intimidate members was on the day of the protected action. On the Thursday when our members arrived at work, they found the gates locked, a security crib shed being erected on the site and uniformed guards on duty in front of the factory and in fact, controlling the perimeter. A very daunting sight for our members indeed.

PN29

This sort of action can only be seen as a bullying and intimidating tactic. At no time have the AMWU members engaged in any illegal or disruptive behaviour, nor did they intend to. I'm advised this morning that two of our members have since the industrial action took place been advised that they're going to become redundant. We seek your assistance today, Commissioner, in the form of a recommendation to the company to immediately stop this harassment and intimidation shown to AMWU members and any potential AMWU members.

PN30

Clearly there are distinct remedies available to the AMWU under the freedom of association clauses, section 298 provisions or the 170MU provisions of the act. In layman's terms, the freedom of association provisions provide that employees are free to join associations of their choice or not and that employers are not to discriminate or victimise members of such organisations.

PN31

The 170MU provisions clearly provide that an employer must not dismiss or injure an employee wholly or partly because the employee is proposing in or has engaged in industrial activities. We recognise that these provisions are available but we come here today as our first port of call and hope that by way of sharing information through the conciliation process, that we're able to resolve the matter. I trust that a recommendation from the Commission will be forthcoming, that this behaviour will cease and that this matter will be finalised.

PN32

Alternatively, we may be seeking to pursue this matter in another forum. As previously stated, Commissioner, we are prepared to go off record and into conciliation to discuss the matter further.

PN33

THE COMMISSIONER: Thank you, Ms Burgess. Mr Fisher?

PN34

MR FISHER: Thank you, Commissioner. Commissioner, the Sanitarium Health Foods Company is an organisation owned by the Seventh Day Adventist Church which is a not for profit organisation. The company strongly rejects that employees have been subject to harassment either because they choose to belong to or not to belong to a union of their choice. The company operates a complex food processing business. The arrangements in the manufacturing environment differ between sections of the operation but in terms of overtime requirements, there are some parts of the operation where employees work a 12-hour shift roster which requires regularly rostered overtime which is a feature of their normal work.

PN35

In other parts of the facility, it is not uncommon for employees to be required to work overtime on a regular basis. The company once it received the notice of intention to put in place an overtime ban embarked on a process of identifying the availability of staff by a section of the manufacturing facility by a shift and by skill and competency set to ensure that they would have sufficient staff with the appropriate mix of skills to ensure continuity of operation and integrity of product in the event that some employees elected to participate in the proposed overtime ban.

PN36

The company does not make payroll deductions to the union and the company is unaware of what employees are members of the union or not, although certainly some members of the union are known to the company. The process was merely designed to ensure that the company was in a position to ensure adequate staffing of its operation so the continuity of production can be maintained.

PN37

Now, on my instructions no overtime ban actually occurred although there was no formal withdrawal of the notice to take protected action of that form. The company did receive a second notification of an intention to take protected action in the form of a stop work meeting but that notice was not issued to the company until after the procedure to ensure availability of staff had been concluded. So certainly in our submission there could be nothing in the process for identifying whether staff were available which could go to the actual industrial action which was taken by employees who are members of the union.

PN38

In our submission, it is quite appropriate for a company to be able to organise their staffing requirements to ensure the protection of their operation. As I said, the company does hold the view that the union lacks constitutional capacity to cover the work. In the event that is so, they also lack the ability to initiate protected action on behalf of employees. We question whether the notification of intention to put an overtime ban on was properly instituted by the union because we understand that one of the purposes of the stop work meeting which was the subject of the second notification was in fact to take a vote of employee members to see whether they wished to engage in overtime bans in the future.

PN39

The company is aware of the freedom of association provisions and treats most seriously any allegation in relation to harassment of an employee whether they elect to choose to become a member of the union or whether they elect to choose not to become a member of the union. In the event that any allegation of harassment is particularised with sufficient certainty to allow the company to properly investigate it, they will do so and subject to the outcome of that investigation take whatever action is appropriate.

PN40

The company has informed the union that they have made a decision to pursue a certified agreement which they would see ultimately being certified by this Commission under the provision of section 170LK. In saying that, the company has made a decision that it is their preference to bargain directly with employees. For that purpose, they have set up a consultative committee where employees have been identified, having nominated and then voted on to participate in a consultative forum designed to formulate a proposed agreement to apply to the site.

PN41

The company has discussed with the union their understanding of the provisions of section 170LK(5) which enable a member if they request a union to do so to meet and confer with an employer in relation to a proposed agreement. Despite the company's view that the union lacks constitutional capacity, they have indicated that if the union puts forward a proposal to them in relation to how that meet and confer process may be undertaken, that the company would consider it. To date we've received no such proposal from the union.

PN42

In terms of the recommendation that is sought by the union, we would submit that there is no specific or certain indication of any harassment. It would be premature and inappropriate of the Commission to issue a recommendation of that kind. Certainly the company is on public record in relation to their view of harassment. That view extends beyond freedom of association, to harassment for any particular purpose and the company would at this stage not object to move into private conference to explore the issues further.

PN43

THE COMMISSIONER: Mr Fisher, have you got any instructions on document five as to whether in fact this has been given to people?

PN44

MR FISHER: Commissioner, I've not seen the document and my instructing officer has not seen it either. We can take further instructions and respond to it. I'm unaware at the stage of the origin of it. It seems to be part of a larger document. I note that the complete document is not produced. It's talking in terms of page 116 and 117. I'm unable to identify from the face of the page that I have the document to which it belongs but I can certainly seek instructions in relation to it.

PN45

THE COMMISSIONER: Thank you. Ms Burgess, did you want to briefly put anything further on the record before we go into conference?

PN46

MS BURGESS: Yes, if I could just respond on a couple of issues and then perhaps go off into conference, Commissioner. I notice that Mr Fisher was very clear in raising the issues about the constitutional coverage and such. The issue that we're here about today, while we're happy to talk about the issue of the award coverage, is the issue of harassment. That's what the issue is about. That's what we want to talk about. What I have in front of me, whilst I don't intend at this point to hand them up as evidence, Commissioner, 12 signed and sworn statements from people on that site that go to the types of harassment that I've talked about here this morning, in particular to those that relate to the proposed industrial action that was about to take place.

PN47

Also I'd like to reiterate for the record, that at no time during the course of the management talking to our members individually were they ever told that the purpose of that discussion solely revolved around identifying how much labour was going to be available at that time. That was not conveyed to them and I think if we have to offer those statements at some other time, they will clearly show that.

PN48

Just for your interest, Commissioner, in relation to the issue about constitutional coverage, in those lists of documents that I've given you, in the back there is on the last page which is page numbered six is a respondency list from the Federal Food Preservers Award 2000 and if you look down to the New South Wales and ACT provisions, the third listing is for the Australian Conference Association which I think my colleague has already alluded to is undoubtedly Sanitarium.

PN49

In additional to the constitutional coverage, the company certainly have notified us during the brief discussion we had on the site that they don't believe we do have constitutional coverage. They've certainly never made any formal objection to that until today and I note that there's no application to this Commission to have that matter heard.

PN50

In relation to document number five and the company alleging that they had no access to that document, I understand from discussions with the delegate that Christian Esuble the HR Manager on the site was actually aware of that. My delegates raised it with her. Now, I'm not sure that it was passed on but the company, certainly people at a HR level knew that that document was out and about and that we objected to the contents of it. That's all I have at the moment, Commissioner.

PN51

THE COMMISSIONER: In that case, we'll go off the record into conference.

NO FURTHER PROCEEDINGS RECORDED [11.24am]