C2003/1551, Transcript of Proceedings [2003] AIRCTrans 1319 (11 April 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

C2003/1551

WILLIAM BROOKS & CO

and

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

Notification pursuant to section 99 of the Act
of a dispute re industrial action allegedly
offends the provisions of section 170MN

C2003/1562

Application under section 127(2) of the
Act by McPherson's Enterprises Pty Ltd
trading as William Brooks & Co for an order
to stop or prevent industrial action

SYDNEY

10.03 AM, TUESDAY, 25 MARCH 2003

Adjourned sine die

PN1

THE COMMISSIONER: Could I have the appearances please?

PN2

MR J. TAMPLIN: I appear for the Printing Industries Association, a member company of William Brooks & Co.

PN3

MR M. WEST: I appear for the AMWU.

PN4

THE COMMISSIONER: Thank you, gentlemen. Yes, Mr Tamplin?

PN5

MR TAMPLIN: Thank you, Commissioner. We put in two applications and the reason being we may have to discuss the joining of the matters later on. But if we go to the issues then perhaps it may make it more succinct to deal with the joinder. The issue has arisen because two employees in the company's view physically threatened other employees or their families.

PN6

THE COMMISSIONER: Sorry, physically threatened?

PN7

MR TAMPLIN: Physically threatened other employees or their families and were given warnings by the company. The company took the matter so seriously that it moved from a view of gross misconduct, because in its view these threats constituted an assault. It downgraded the gross misconduct to putting the employees on their last warning as to their future employment. The employees of the company met on Friday, the 21st of the 3rd, at 10 o'clock and said to the company you either withdraw those warnings in total or we will withdraw our labour indefinitely until you make up your mind to withdraw those warnings.

PN8

Now, what occurred they then walked on the 21st of the 3rd at approximately 11.20. The company was given a period of time between ten and 11.20 to make up its mind whether to withdraw the warnings or not. The company did not. The employees then proceeded to leave the site. On Monday, the 24th of the 3rd, there was a further meeting of the employees at 9.00 am and Mr West rang the company and asked if it was possible to settle the matter. The company advised that they would seek discussions with Mr West after he'd had the meeting with the employees. The ultimatum was not withdrawn. It was again stated to the company, withdraw the warnings immediately.

PN9

Now, at the same time, the company advised Mr West of this pending hearing regarding the section 99 application and given that the company was aware of the pending proceeding, advised Mr West that it would stand aside the two warnings for the period to this hearing today and return to the status quo in compliance with the disputes procedure and discuss the issue further at this hearing and the merits of those matters. On the basis of that the company asked the employees return to work as per the disputes procedure back to the status quo, that is both parties would withdraw from the issue to allow further discussions to prevail possibly under the chairmanship of this Commission.

PN10

Mr West then met again with the employees and advised that that was not acceptable, that the warnings would have to be withdrawn in total, that a second condition was then put on that the company would put in writing that it would follow the disputes procedure and that it would seek to cancel the hearing set for today. The company advised that that was unacceptable, that it was unfair on one side to be abiding by the disputes settlement procedure while the other one was not. The employees advised they would not be meeting again until 10.00 am Wednesday.

PN11

The cost to the company is in excess of $100,000 per day while these people are in dispute. Now, what I want to deal with now is the jurisdictional issues, whether we make application for 127 orders or not. There is still the, as we in our submission, the offence or the offending party of the action against 170MN of the Act. If I can take you to the agreement McPherson's Enterprise Pty Limited trading as William Brooks & Co Enterprise Agreement 2001, certified by this Commission and dated 22 January 2002. In clause 5 it states the period of operation being two and a half years from the 1st of the 1st, 2002, so the matter is on foot.

PN12

There is an agreement in place. As to it applying to the parties in clause 4, it sets out the company, McPherson's Enterprise Pty Limited and its site. It then sets out the employees of the company at that site and then it also sets out the AMWU. There is a disputes procedure in place, in clause 9, Avoidance of Industrial Disputes. In point 3:

PN13

If the matter is not resolved the parties will hold further discussions between the employees, their representatives and the state union officials.

PN14

That appears to have occurred. Continuing:

PN15

If the matter is still not resolved ...(reads)... a federal union official or nominee.

PN16

That appears to have occurred. Continuing:

PN17

The parties will at all times confer without delay.

PN18

That appears to be consistent. Then:

PN19

If the matter cannot be resolved it may be referred to the Commission for conciliation or arbitration.

PN20

That has happened. Then:

PN21

While the parties attempt to resolve the matter the status quo as it was immediately before the dispute arising will remain and work will continue as normal.

PN22

That hasn't happened. The company returned to the status quo and the union and the company's employees have not acted consistently with the terms of the disputes settlement procedure.

PN23

Section 170MN is quite specific. It says:

PN24

Industrial action ...(reads)... must not be taken until after the nominal expiry date of certain agreements and awards.

PN25

Then it says, in 170MN(1):

PN26

No industrial action during the term of the agreement ...(reads)... engaged in industrial action.

PN27

Then, in 170MN(2):

PN28

For the purposes of this subsection (1) ...(reads)... bound by the award or agreement.

PN29

Both those conditions are met and I would put that the industrial action is undeniable and it is in fact occurring.

PN30

It then comes down to whether that industrial action, even though it offends clause 170MN, is legitimate or illegitimate industrial action. We say, given the opportunity to come here and go over the issue and following the disputes settlement procedure, means that that industrial action is illegitimate as against a stop-work meeting of informing the employees of the outcomes of discussions with the employer.

PN31

Now, in the Coal and Allied case, where section 127 orders were sought, the decision went to a range of matters, in particular the effect of an order under section 127 and the requirements that have to be met to bring it into place. That was in print Q3148, the application of 127(2) to stop or prevent industrial action by Thiess Contractors Pty Limited, C No 40362 of 1997. Section 127 states:

PN32

Orders to stop or prevent industrial action: 127(1) -

PN33

and while this is a discretionary power which makes it clear:

PN34

The Commission may make orders ...(reads)... affected by the industrial action.

PN35

We say, as to point 1, there is an industrial dispute in place. There is industrial action in place. The company is making application, through its association and the company is an organisation of which a person referred to in paragraph (3) is a member. It is a party to the industrial dispute. Continuing:

PN36

The Commission must hear and determine an application for an order under this section as quickly as possible.

PN37

We say that the threshold points have been reached and made. We say that if it's not of the mind of the Commission to order a section 127 order then there may be power available under 111(1)(d):

PN38

- give a direction in the course of or for the purposes of the hearing or determination of the dispute.

PN39

We would seek that a direction be issued saying in general terms that the employees return to work as quickly as possible, and the merits of the issue be returned to the status quo and further discussions occur regarding the warnings placed on the employees. If the Commission is not minded to take that line then we would seek a recommendation in the strongest terms that the industrial action cease.

PN40

Now, we realise the gravity of section 127 orders. I'm not sure if my friends at the other end of the table do. We realise that the Commission would be hesitant to issue them but it is a legitimate and, we say, appropriate way to head. If this was an original dispute or if this was the first time we had been here it would, in our submission, be appropriate not to issue 127 orders or an order under 111(1)(d), but this group of employees has a history of disputation and breaching of agreement provisions of long standing. In essence it certainly appears to thumb its nose at any commitment it has given - that may be centred on the employees rather than the registered organisation that represents them.

PN41

As to the joinder of the issues, Commissioner, we seek the joining of the matters on the basis that it's costing the company in excess of $100,000 a day while this goes on. It jeopardises its contracts with Telstra. It jeopardises its contracts with other organisations as well. Without those contracts whether the employees are warned or not will become purely academic. There won't be a business. If the Commission pleases, for those reasons we seek a joinder of matters and the order or directions as outlined to you.

PN42

THE COMMISSIONER: Thank you, Mr Tamplin. Mr West?

PN43

MR WEST: Thank you, Commissioner. I will start by talking a little bit about the 127 orders. There certainly is a dispute out at William Brooks that has been going for some time. Over that time it has worsened, not got better.

PN44

I understand that to seek these kind of orders the company needs to come here saying that they have done everything right - I understand the expression is "with clean hands" - that they have been following the procedures and that employees or the union have not. That is not the case.

PN45

To put it in a nutshell, the problem facing the workers at William Brooks is that when these kind of issues arise it seems to me, and to the workers, that the company is either incapable or unwilling to deal with any issues of this nature that may arise fairly without being told to do so by this Commission.

PN46

Now, we've seen that this Commission can't make the company act fairly and the workers out there have a serious problem in that when the jobs of two of their number are threatened what are they going to do? They've gone to the company and said, "This isn't fair, it's not how you should be doing it, it's not how it is supposed to happen in the EBA", and the response is similar, I suppose, to what it is alleged that one of the workers, Rafael Xuereb, told his supervisor. The response that was given yesterday was, "Well, if you've got a problem take it to the Commission".

PN47

As I said, we know the Commission can't do anything in that regard so the problem remains. In other words, their jobs and their livelihoods are, if things were left as they were, entirely in the hands of the company.

PN48

I would like to run through a chronology of this dispute and I'll try to keep it as brief as I can, Commissioner. On 17 February an incident occurred between a worker at William Brooks, Rafael Xuereb - X-u-e-r-e-b - and a staff member who was not his direct supervisor but above him in the pecking order at the factory out there. Apparently our member had been given conflicting directions as to his work and there was a robust discussion between himself and the supervisor. Some untoward language might have been used. Our member says he wasn't offensive and there hasn't been a serious suggestion from the company that any threats or suchlike were made.

PN49

On 18 February the company was advised that the union was disputing the disciplinary action that was planned against Mr Xuereb and, on 27 February, Mr Xuereb received a final written warning letter from the company, a letter that explicitly said, "This is your final warning, if you do anything else that's out of line you're going to be sacked".

PN50

On 7 March I wrote to the company advising that they had been advised there was a dispute about the warning, outlining the issues in the EBA which, as Mr Tamplin has outlined, contain a clause that says that everything shall revert to the status quo before the dispute arose. In response to that letter, Commissioner, I received nothing and neither did the chapel.

PN51

On 18 March there was an incident in the first-aid room on the afternoon shift where the second employee, a Simh Ngo, S-i-m-h N-g-o, was receiving first aid. A verbal altercation occurred between him and the supervisor after which the supervisor left the first-aid station saying words to the effect, "I'll remember what you've said here".

PN52

On 20 March Simh was accused of threatening this supervisor's family. The alleged threat occurred about 6.50 in the evening and at 10 o'clock or so that night Mr Simh was suspended without pay. There were a number of attempts to discuss this issue with the company on the evening involved. The next day the workers were advised that Simh Ngo would remain suspended without pay but would return to work that night on a final written warning. On the Friday I tried to have discussions with the company about this issue which was at least in the nature of an ultimatum, Commissioner, suggesting that they abide with the disputes procedure in the agreement and that the situation revert to the status quo while we discussed the outstanding issues. That was rejected and the workers walked.

PN53

In the meeting yesterday I put to the company again that the warnings to the two workers be disappeared and that we discuss the issues there and then. That was probably about this time yesterday morning. The best that the company could offer was that they would abide by the disputes settling procedure at that stage and by the status quo, even though the warnings were still there, seek a return to work and that the issue come here to be somehow resolved.

PN54

I will finish, Commissioner, with a couple of points about the agreement, how it is at William Brooks and the problems that the employees are facing. In clause 7.5 of the agreement it talks about a workplace that is free from racism and prejudice and so forth and how both parties want to achieve equality and respect for different people's views and so on. One of the problems in this dispute concerning Simh Ngo is that the comments he allegedly made to the supervisor, which both parties agree were entirely out of character. There were no witness to those comments. There would have been people working where Simh was working to witness the pressure at the time. There were no reports from the workers around of an altercation or a violent outburst.

PN55

When this was raised with the company, the company said, we will take the word of our supervisor over the word of the worker. There's no equality there. The dispute settling procedure in the agreement, Mr Tamplin made some points about it, does provide that if there is a dispute everything reverts to the status quo applying immediately before the dispute while the parties try to resolve the issue. Subclause (6) of that clause says that the parties will confer without delay.

PN56

Part of the dispute refers to Rafael Xuereb. If you just take the point of my letter to the company of 17 March which was sent one week after the company was advised by the delegates on the job, that we were disputing the warning and asking for a meeting to discuss the issue, there was no response. I do have a copy of the letter which I can table, Commissioner. I don't think there is any dispute that it was sent and received.

PN57

Clause 22 of the agreement deals with conduct and performance. Subclause (2) says that the parties will ensure that all people are treated with flexibility and fairness and that the principles of natural justice will be applied. That section also deals with warnings, counselling, verbal warnings, first written warning, second written warning, examination and with the counselling sessions that go with these warnings there is to be agreement between the people involved as to what action will be taken to fix the problem in the future.

PN58

None of this was followed by the company. A final written warning shouldn't be able to be issued when there is a procedure in place that provides for counselling and verbal warnings, the first written warning preceding that. If the threats allegedly made against the supervisors were of assault, they would be criminal matters, but of course there was nothing near the level of proof required to take those issues to the police. If the supervisor who allegedly had his family threatened at 10 to 7 on the evening of the 20th was so concerned, why is the worker who it is alleged made that threat left at his machine working until 10 o'clock that night?

PN59

We know, and the company knows, that there's no provision in the agreement or the award for a worker to be suspended without pay. Certainly the spirit of the agreement would be that if someone was judged to be a threat to themselves or to other people or the situation was just getting out of hand, by all means you might have to send one party or both parties to the dispute home, send them away, with pay, and then deal with the issue by following the procedures that are set down to deal with it. Again, this didn't happen.

PN60

We are at the point of finishing up, Commissioner, where the employees out at Chullora, firstly, have no confidence that the company can or will deal with these issues properly. The company has not dealt with them properly and even at this point, by refusing even to engage with us on the issues of fairness or natural justice or equality and referring that to yourself, they are still not doing it.

PN61

Our people out there don't want to be not working. They don't want their two colleagues to be in the situation that they are in and they want to resolve the issues quickly and properly - if I can use that word. Our experience has been that that has not been possible to date without the workers taking the action that they have taken.

PN62

In our view, Commissioner, the way to deal with this dispute is for both parties to discuss the issues and seek some resolution to those and then there is no dispute. Now, that in fact is what was put to the company yesterday. It wasn't in the form of an ultimatum. It was, "Let's fix it and then there is no need to go to the Commission". I'll leave it there, thank you, Commissioner.

PN63

THE COMMISSIONER: Mr West, just before you sit down I have a couple of questions. Have you got anything you want to say about Mr Tamplin's application to join the two matters?

PN64

MR WEST: I have no real problem with that, Commissioner.

PN65

THE COMMISSIONER: Right. The other question is: in relation to the whole thing, why didn't the union or the employees seek to bring the matter to the Commission last Friday?

PN66

MR WEST: Our experience, has been, Commissioner, that the company will not move, and has not moved, on these issues or issues like this of its own accord, whether out at Chullora or in here. The workers believe that the question of the warnings is so serious that the jobs of these people are hanging by a thread and that in the process of us seeking some relief from the company and that not happening these workers would be - or could be and probably would be - terminated in that time.

PN67

THE COMMISSIONER: Is that all, Mr West?

PN68

MR WEST: Yes, thank you, Commissioner.

PN69

THE COMMISSIONER: Mr Tamplin, did you want to respond?

PN70

MR TAMPLIN: Yes, thank you, Commissioner. I think my friend has made it clear that the industrial action is in place, which finalises the requirements of the application.

PN71

Can I take the Commission to clause 22 of the agreement, which was referred to by my friend, in particular subclause (7) which states:

PN72

If any warning is disputed the company will allow at least 24 hours to pass before each successive warning.

PN73

and there have not been successive warnings. Then:

PN74

Except for issues amounting to gross misconduct ...(reads)... AIR Commission when appropriate.

PN75

Then subclause (8):

PN76

In the case of serious and wilful misconduct an employee's employment may be terminated without notice.

PN77

If I can just go back to the disputes procedure, clause 9 - and again we affirm this is binding on all three parties who are before you - the heading is:

PN78

In the Event of a Dispute Arising in the Workplace: The procedure to be followed to resolve the matter will be as follows -

PN79

Then I go to the last paragraph:

PN80

While the parties attempt to resolve the matter -

PN81

which is what was occurring:

PN82

the status quo as it was immediately before the dispute arising will remain and work will continue as normal.

PN83

My friend accuses the company of failing to follow the disputes settlement procedure. What they do to enforce the disputes settlement procedure is go on strike and not follow it themselves even though the avenue to come to this Commission is available to both parties at any time through that disputes procedure.

PN84

The issue is: Are the employees taking industrial action? Yes. Is there an enterprise agreement in place? Yes. Does their action offend 170MN? Yes. Are they bound by the terms of an agreement? Yes.

PN85

In relation to the employees and the warnings, my friend raises the point that there were no witnesses and I can assure you that was the only reason they weren't dismissed for gross misconduct. The threats and the victims of the threats took the issue very seriously and had the imminent apprehension that harm could follow. Regulation 30C(a) of the Act makes it clear when it says, under 30C(a)(i):

PN86

Serious Misconduct: Serious misconduct includes ...(reads)... health or safety of a person.

PN87

It also then lists, in 30C(a)(ii), examples of serious misconduct. In subregulation (1):

PN88

Conduct that is serious misconduct ...(reads)... (a)(iii) assault.

PN89

We say that the union can't have it both ways. It can't stand here in due solemnity and say, "We are the wronged party, because the company didn't follow the disputes procedure, so we won't follow it and we're going to take industrial action". The provisions of the Act and of the agreement make it clear that the availability of this Commission is open at any time. Instead of that they have not only treated the role of this Commission with what appears to be impunity but they treat the role and the application of the disputes settlement procedure with contempt. For those reasons, Commissioner, we seek the orders as sought.

PN90

THE COMMISSIONER: Mr Tamplin, there are two things. one, there is really no objection to a joinder of the two matters so I'll formally join the two matters.

PN91

MR TAMPLIN: Thank you, Commissioner.

PN92

THE COMMISSIONER: Is there any objection to going into conference briefly to see if there's a way forward, but if not, I take it your point that you're pressing for the orders? Have you any difficulty with going into conference?

PN93

MR TAMPLIN: No, I have no objection to that and it may be the appropriate way because, as I said in my opening submissions, I'm not sure that the employees understand the gravity of what we're seeking.

PN94

THE COMMISSIONER: Mr West, is there any difficulty going into conference for your part?

PN95

MR WEST: No, Commissioner.

PN96

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

NO FURTHER PROCEEDINGS RECORDED [10.53am]