C2002/6149, Transcript of Proceedings [2003] AIRCTrans 237 (28 January 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER REDMOND

No C2002/6149
No C2002/6160

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

and

TRISTAR STEERING AND SUSPENSION AUSTRALIA LIMITED

THE AUSTRALIAN WORKERS' UNION

and

TRISTAR STEERING AND SUSPENSION AUSTRALIA LIMITED

Application under section 170LW of the Act
for settlement of dispute (certification of
agreement) Tristar Steering and Suspension
Australia Limited Certified Agreement 2001
re threatened termination of an employee

SYDNEY

10.00 AM, FRIDAY, 10 JANUARY 2003

PN124

THE COMMISSIONER: Could I have appearances please.

PN125

MR W. BAKER: If it please the Commission I appear for The Australian Workers' Union and with me today is AWU delegate, MR D. FLETCHER.

PN126

MR A. NIELSON: If it please the Commission I appear for the AMWU and with me today I have MR A. JAYASINGHE the AMWU delegate for the site.

PN127

MR D. RUSSELL: If it please the Commission I appear on behalf of Tristar Steering and Suspension Australia Limited from the Australian Industry Group and with me I have MR A. MISRA.

PN128

THE COMMISSIONER: Gentlemen, last time this matter was before me on 23 December I made certain recommendations to the parties which the company accepted and didn't go ahead with the retrenchments of the people that were supposed to have been made redundant. The parties were to confer and report back to me today. Mr Baker, do you want to tell me what has happened.

PN129

MR BAKER: Yes, Commissioner. Following a hearing before yourself on the 23rd the instructions to the parties I believe was to meet on 8 January which did take place at the offices of the AMWU. The company was present along with David Russell from the Australian Industries Group, myself and Mr Martin Cartwright of the AMWU and the two members effected by this particular issue. At that meeting the company stated initially that they had arrived at a decision to terminate these two employees on the basis that they could not perform pre-injury duties and that the recent medical evidence obtained in relation to our member, Mr Massiah, he would be unlikely to perform his inherent duties in the future. So on that basis they reaffirmed their initial position. After some discussion the parties narrowed down four options for consideration in resolving the issue.

PN130

The four options we considered were firstly, number 1 was to continue in the original job for both employees. Two, was to find alternate duties within the factory. Three, was to look at the option of part time work and, four, was to consider the option of a financial settlement. We discussed those issues and the company responded accordingly. Point 1, in regard to the original job option, the company was not in a viable position to continue to have these two employees employed on their books for the reasons earlier stated. Point 2, the alternative duties, the company indicated they could not find alternative duties without impacting on other full time positions within the plant. Point 3, the part time job, the company indicated it was prepared to consider the option of part time work but needed time to examine the exact number of hours that could be offered and agreed to respond with their position today.

PN131

In terms of point 4, the financial settlement. The company indicated it was prepared to consider this option if there were no agreement on the other alternatives. So the parties concluded the meeting on that basis and agreed that further conciliation would be required this morning in order to hear from the company in respect to their position on the options 3 and 4. So it may be appropriate at some stage this morning for the matter to be dealt with via private conference under your chairmanship. But before we sort of venture down that road I would like to advise that the AWU is not in a position if that process is unsuccessful to continue with an arbitration hearing today. I don't know whether that was the Commissions intent.

PN132

THE COMMISSIONER: Well it was made clear, both unions told me on the 23rd that this matter was quite urgent and they really wanted me to arbitrate it that day.

PN133

MR BAKER: I appreciate that that may have been the case at the time but - - -

PN134

THE COMMISSIONER: So it is no longer urgent?

PN135

MR BAKER: Well, I am not saying it is urgent, of course it is urgent and the livelihoods of these workers are paramount in our opinion. But we are not in a position to proceed with an arbitration today due to the time of the year. The AWU has only got a skeleton staff on board and having returned from holidays earlier I have inherited this matter with very little background knowledge of the case. Our senior industrial officer, Mr Trapodi, who was due to run the case today is unavailable until next week due to an operation to remove his wisdom teeth. So therefore we are not in a position to proceed with an arbitration today and given the circumstances of the case an appropriate we believe should be agreed on to allow the parties to produce statements and exchange evidence prior to an arbitrated hearing.

PN136

None of the parties here today have exchanged any evidence in relation to this matter. Also given the case law in relation to this type of dispute and I make particular reference to examples, Federal Industrial Relations Commission examples of cases such as G and K O'Connor Pty Limited v A. Jones. It is matter number 301 through 1 of 2000. Marizoto v Qantas Australia, matter 1174 of '97 and the matter of Televski v Gilbertson - - -

PN137

THE COMMISSIONER: Were they C matters or U matters?

PN138

MR BAKER: I think that some of them were U numbers.

PN139

THE COMMISSIONER: Yes, all right.

PN140

MR BAKER: They were cases which were decided on the weight of evidence which on most occasions took three days of hearing and they very much focused on the type of work being performed by the injured workers. Also in view of that there may be other matters of discrimination to be considered here particularly in relation to an employees trade union affiliation and disabilities. Our member, Mr Massiah has a disability due to a workers compensation injury and is currently a union delegate. The recent anti discrimination case considered by the Administrative of Decisions Tribunal of New South Wales, Higgins v Cahill Australia Pty Limited demonstrated that the implications for companies who terminated injured workers could be quite severe.

PN141

So in view of this and in the event that a settlement by conciliation can't be really reached here today, the AWU will seek an adjournment of the arbitration hearing until a suitable date can be agreed between the parties. So in the interim if we are still in dispute, the AWU would also request that the terminations not proceed and that the company comply with its obligations in relation to clause 22.5 of the Tristar Steering and Suspension Australia Limited Certified Agreement 2001. In particular in relation to the status quo existing immediately prior to the matter giving rise to dispute. So at this stage it may appropriate, Commissioner, to go into private conference unless my colleagues have anything further to say on transcript.

PN142

THE COMMISSIONER: Yes, thank you, Mr Baker. Mr Nielson, did you want to add anything?

PN143

MR NIELSON: Commissioner, I should put on transcript that the AMWU is some way in a similar position to the AWU in that we wouldn't be able to put on an arbitration today. We do apologise, Commissioner, but we were hopeful of reaching a conciliated settlement today.

PN144

THE COMMISSIONER: Yes, thank you. Mr Russell, please?

PN145

MR RUSSELL: Thank you, Commissioner. I can confirm that we did meet on 8 January with the two unions and the two employees affected by the proposed terminations and the four options that Mr Baker outlined was a fairly accurate summation of where we are at. So we knocked out the first two and we are in the process of three and four. In terms of if the matter is unable to be settled through some sort of conciliation conference before you this morning, Commissioner, our view is this. I guess it's a question of what the Commission is to arbitrate. We have a preliminary jurisdictional point about arbitration. We are not sure that this matter falls within the application of the agreement that it is required to under section 170LW and we have argument to run on that if necessary.

PN146

If you are not persuaded by our submissions on that, we would argue that it is not on merit that it would not be a good idea to grant orders or arbitrate this matter given the fact the employees could make an application under part 6A of the Act for unfair or unlawful termination. So that would be our - - -

PN147

THE COMMISSIONER: So you have a jurisdictional argument if the matter is not settled?

PN148

MR RUSSELL: That's right.

PN149

THE COMMISSIONER: Which I would have to determine.

PN150

MR RUSSELL: That is right, Commissioner. We are prepared to run that argument this morning. It is a fairly simple argument and it rests on the facts of the matter which will become clear. So we would be in a position to run that this morning. But in terms of an arbitration as to the fairness or otherwise of the dismissals, proposed terminations, we would say that it would be inappropriate to arbitrate that firstly because there is no termination that has been effected yet. So effectively the Commission would be making a determination on an event that is yet to occur. Secondly, I think any determination that the Commission would make would prejudice both parties rights should an application be made for unfair or unlawful determination. So we say that it would be improper for the Commission to exercise an arbitral power under the dispute settlement procedure when those sorts of proceedings could be taken at a later time.

PN151

We have no objection to the conciliation conference. I think that would be a good way to start the morning to see if we can resolve it without having to go down these paths, if it pleases.

PN152

THE COMMISSIONER: Yes, thank you, Mr Russell. After hearing the submissions of both parties this morning I propose to avail myself of the offer by the parties to go into conciliation and I adjourn these proceedings to conciliation.

ADJOURNED INTO CONFERENCE