C2002/5961, Transcript of Proceedings [2003] AIRCTrans 281 (3 February 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER JONES

C2002/5961

TOMAGO ALUMINIUM COMPANY PTY LIMITED

and

AUSTRALIAN WORKERS UNION

Notification pursuant to section 99 of the Act
of a dispute re resolution process

SYDNEY

2.32PM, FRIDAY, 17 JANUARY 2003

Continued from 10.12.02 in Tomago

PN21

THE COMMISSIONER: May I have appearances, please?

PN22

MR M. SCHMIDT: If the Commission pleases, I appear with MS J. ROBINSON who is the Production Manager from Tomago cast house and the MS E. YOUMAN, who is the HR Officer in cast house. Also with me is MR T. SAUNDERS from Allens Arthur Robinson. Mr Saunders is here principally to observe but it's probably appropriate he seek leave to appear as well, if the Commission pleases.

PN23

MR T. SAUNDERS: Commissioner, if that's appropriate now, I'd seek leave to appear as a solicitor on behalf of the company today although as Mr Schmidt has said, he'll be doing most of the advocacy.

PN24

THE COMMISSIONER: Any objection?

PN25

MR McFARLANE: Well, I have a problem with that, Commissioner. When we left the company this morning, we were told that there would only be two appearances. Since then we've found out there's been three appearances and we turn up here and we've been told there's four appearances.

PN26

THE COMMISSIONER: Mr Schmidt?

PN27

MR SCHMIDT: I have no recollection of discussing how many appearances there were at all.

PN28

MR McFARLANE: If the Commission pleases, I spoke to Ben Wicks who is the new HR Manager and he said there would only be Michael Schmidt and Jenny Robinson. Since then, Eve Youman said she'd be there and then the solicitor they have here with them.

PN29

THE COMMISSIONER: What's your opposition on this, Mr Bryson?

PN30

MR P. BRYSON: I concur with Mr McFarlane. Sorry, Mr Commissioner, appearances you asked for.

PN31

THE COMMISSIONER: Yes, I've asked for appearances. I'm hearing an argument -

PN32

MR BRYSON: I have the same objection as Mr McFarlane, Commissioner, that we weren't informed of the solicitors appearance. At the moment we're very surprised we're in the Commission at all and I'll discuss that further with you later on but we've got a workshop which began today. They're a series of workshops which we're conducting under your instructions and the AWU is diligently following those procedures. However, it kicked off today and, as you know, this court hearing is about the industrial action that was taken on Wednesday, the 15th.

PN33

THE COMMISSIONER: Well, I've learnt from long experience, Mr Bryson, that although parties, and I'm not pointing necessarily at Tomago in this instance, but parties do notify a dispute and sometimes when I sit to hear the dispute, I wonder whether ..... notified many times because both parties at times don't want the full details to be disclosed so it's in code in some respects. So I understand what you're saying now that -

PN34

MR BRYSON: If it makes the procedure easier, we do make our objections lodged on transcript.

PN35

THE COMMISSIONER: Yes, I understand your objection.

PN36

MR BRYSON: We're not seeking the court's authority to remove the solicitor from the court.

PN37

THE COMMISSIONER: Yes. Mr Saunders, providing you don't speak at the bar table, I'm quite happy to let you sit there.

PN38

MR SAUNDERS: Thank you, Commissioner.

PN39

THE COMMISSIONER: Yes. Now, appearances from the other side.

PN40

MR BRYSON: Site Senior Delegate, co-delegate, I should say, MR H. McFARLANE and I'm the Site Senior Delegate for the Australian Branch - sorry, the Secretary of the AWU, Northern Newcastle Region Branch.

PN41

THE COMMISSIONER: Thank you, Mr Bryson. Mr Schmidt?

PN42

MR SCHMIDT: Thank you, Commissioner. Commissioner, we appeared before you on 10 December at Tomago on site. As a result of that hearing, we formulated a process which ended up in the recommendation. Do you need a copy of that provided to you or you've got that on file?

PN43

THE COMMISSIONER: I've got it on file.

PN44

MR SCHMIDT: I'll just for a matter of course -

PN45

MR BRYSON: I've got a copy.

PN46

MR SCHMIDT: The parties have got one. Commissioner, we have initiated a process of education forums, forums to discuss a whole range of issues. Our first step in this process was to send this document out to all employees on site, actually by an email broadcast. So it has gone to all employees, it has gone out in paper format around the various business - as well. As Mr Bryson correctly said, we today initiated or we actually planned it last week to initiate the first session and a range of forums. This will occur over the next three weeks.

PN47

We put this together with Mr John Keen who you have met about this issue and I addressed the session this morning with the delegates. We're looking at this as a very positive process and driven centrally by HR to ensure the actual process takes place across the business unit. Further education processes are in the planning stages with John Keen and that will take place as soon as we can pull that altogether and present it to the various people.

PN48

If I can just primarily draw the Commission's attention to paragraph 6, the last paragraph in relation to industrial action. There's a primary aspect in relation to issues on the plant. The parties must follow the agreed disputes procedure in the Tomago Aluminium Enterprise Agreement with both parties actively attempting to resolve issues in a mature, constructive and timely manner. The Commission is available to assist the parties in this process and given that fact, along with this process being in place, no industrial action is to be taken.

PN49

Commissioner, we have had industrial action and I'll take you through a bit of the background first. This issue revolves around employee action to the company dealing with offensive and inappropriate material, particularly in the cast house in this instance. In particular we're dealing with a range of crews, A, B and C crew. D crew hasn't been affected at this stage. This material ranges from swimsuit, calendars, through to nudity, through to pornography. It can include calendars, posters and magazines. The material is primarily in the crib rooms or other work areas.

PN50

Managers or other staff have been removing this material for quite some time with minimal response. In the last week and a half, we've been inducting a large number of labour hired people to undertake excess strapping on ingots in the cast house. These persons have been inducted by Ms Eve Youman who is behind me on a continuous basis. These persons are shown in the crib rooms, work areas and the production humpies as part of the production process. It is in these areas the material has been displayed.

PN51

As Ms Youman has done many times in the past and other managers have done in the cast house, she removed the material and tore it up. This firstly resulted in the employees actually increasing the amount of material on display and secondly led to harassment complaints by the employees of Ms Youman's actions. Yesterday morning, a resolution was provided to management as follows and I can hand this out as an exhibit.

PN52

THE COMMISSIONER: I'll mark it as exhibit T1.

EXHIBIT #T1 RESOLUTION

PN53

THE COMMISSIONER: Do you have a copy of it, Mr Bryson?

PN54

MR BRYSON: I do, Commissioner, thank you.

PN55

MR SCHMIDT: If I could take the Commission through it. It's headed up 15 January which was Wednesday, Department Meeting B Crew Tool Room Shipping. Resolution:

PN56

The cast house operators have moved a resolution requiring that before Eve Youman enters any work station or crib room, she'll first ...(reads)... will not be in a position to be offended in the future.

PN57

That crew then sought a response from Tomago which was provided by Jenny Robinson, the Production Manager. It's headed up, the next page, 15 January '03, B Crew Tool Room Shipping:

PN58

In response to your resolution dated the 15th of the first, Eve Youman ...(reads)... is against anti-discrimination laws as any visitor or user of the area may construe it to be offensive.

PN59

Now, that crew was addressed by Ms Robinson and the Operations Leader, John Chomley at the end of their shift and this was put to them. The employees were also informed of Tomago's legal obligations under the Anti Discrimination Act and provided some slides as to what those provisions are. On the same night, Wednesday night, the oncoming crew at 7pm held a meeting for one and a half hours. This meeting was again addressed by the production leader and the operations leader.

PN60

The employees were told an appropriate manner to deal with this issue was to raise it as a dispute. In the first instance, this was raised as a dispute and resolved at the local level. Basically, further issues were then raised. The employees were instructed to write up a dispute and this concerned further harassment and they went back to the crib room. However, at 8.40pm without any notice the crew took industrial action and walked off the site. So effectively the whole crew undertook no work for the duration of 12 hours. 1.5 hours was meetings and the further time was industrial action where they walked off the site. The impact of that is approximately 700 tons of metal remained untouched in the pot lines.

PN61

At a meeting yesterday morning at 11.30am, this issue of the offensive and inappropriate material was discussed in detail at a senior level with the cast house and HR staff and a draft procedure for dealing with these issues was provided to the union. It was made clear that they were quite happy to have further discussions on this draft and it was provided to the delegates at that stage and I'll provide the Commission with a copy.

PN62

THE COMMISSIONER: Exhibit T2.

EXHIBIT #T2 DRAFT PROCEDURE

PN63

THE COMMISSIONER: Yes?

PN64

MR SCHMIDT: If I can take the Commission through the first couple of paragraphs. As you know, it has Draft Only For Discussion across the front page. The purpose: To ensure that all employees work in an environment that is free from harassment by providing a process for the management of material suspected of being offensive. Principles: Tomago Aluminium is committed to providing a working environment free of harassment and discrimination.

PN65

Employees are not permitted to bring on site, including possession or send electronically, any material that could be considered offensive or disruptive. Offensive content includes but is not limited to obscene or harassing images, racial, ethnic, sexual or gender specific comments or images that could offend someone on the basis of a religious or political beliefs, gender, sexual orientation, national origin or age.

PN66

We then put in place a draft procedure which we discussed. Material found on site which is suspected of being offensive or disruptive will be removed by the owner, that's the person who put it up, from view and from the site. For performance management purposes or consideration by the site EO officer, a copy of the material may be made by management. When the owner of the material is identified, the material will be held by the human resources manager for a minimum period of 30 days.

PN67

Owners may retrieve the material from the human resources manager. The site EO officer will determine whether suspected material may be considered offensive or disruptive. Where material is termed to be considered to be offensive or disruptive, investigation and possible action may occur under the performance management system.

PN68

It goes into the accountabilities with the first part of the principle section of this procedure. We put this to the delegates yesterday morning at 11.30 and we had some discussion on it. We've sought further feed back from those persons on this draft procedure. I also note to the Commission that we have a fairly active equal opportunity committee on site made up of employee management representatives and we have an EO leader who is quite well versed and trained in this area. Unfortunately, he's on leave at the moment but it's quite a strong issue on site.

PN69

At the end of that meeting at 11.30, the union representatives indicated they needed a meeting with yesterday morning's C crew which was the day crew on yesterday. This was allowed only on the condition that they ensured the ingot chains would continue running during their meeting. A one hour meeting was held but the ingot chains did not run during the meeting so we had a further loss of production of probably two hours.

PN70

The union then sought a crisis meeting after their crew meeting with the company. Their principal claim was again that Eva Youman must not enter any work station or crib room without knocking or letting the employees know she was coming into that area. We find it quite unfair that this focus has been on one person whereas other persons in the management of that area have indeed been dealing with these issues in the same way.

PN71

The view was that this would resolve the issue and allow employees basically not to offend somebody but retain their material but again the focus on one person wouldn't satisfy our requirements under the act. It was made clear to the union representatives present that legally this could not be done. We explained the anti discrimination provisions and it would be a clear case of doing this of sexual discrimination purely by taking this action.

PN72

They continued to address this issue from a number of angles until it was made clear that the issue would not be further discussed and could not be in any way entertained. We also made clear to the crew that the claim of harassment by Ms Youman is a grievance procedure and if that was followed, we would investigate that as we do for any other harassment discrimination on site.

PN73

At the 11.30 meeting or at the crisis meeting which was held at about 2.30pm, we discussed the site wide issue in terms of how it was dealt with in other areas. Yes, the material was being removed and destroyed site wise. There may be some differences in who done it or how it was done but essentially, it's not inconsistent across the site.

PN74

Two is the staff, other than Eve, were basically in the cast house doing the same approach, the same thing with the material. We actually agreed to reimburse the cost of the material that was destroyed to the employees. We indicated our obligations under the Anti Discrimination Act and this was a form of harassment clearly under the act and is illegal. We've undertaken training in the cast house, two lots of training. The first was probably a year and a half ago and the second lot was basically in December, all but one crew which is D crew which haven't been part of this process at all, have had a session with the Anti Discrimination Board officer coming to visit on site.

PN75

The impact of the meetings in production have been the 12 hour strike and close to 12 hours lost production lost through various meetings, a total of 24 hours. This basically resulted in a severe backlog. We're close to 2200 tons behind in metal production. Now, the problem is that you can't just stop a smelter, the metal keeps producing in the pot lines so we've an extra 2200 tons sitting in the lines. Some pots have missed two taps which is getting to a critical stage.

PN76

An increasing number are reaching quite a dangerous stage safety wise. Paul Bryson who works in the pot lines may be able to provide us with a bit more insight into the technical side but quite clearly there is a danger of what we call pot break outs where we have material like bath material that sits on top of the metal coming out of the pots and we have the risk of material break outs, I think, underneath the pots as well through some probes or something. That's a big safety risk.

PN77

At the 2.30 meeting, the C crew requested a meeting. We basically disagreed, finally agreed on the basis that the ingot chains would continue to run. They did oblige and let the chains run after that meeting so we do thank them for that. Commissioner, we have a very clear recommendation from yourself. We have a program in place. We've had this recommendation put out to all the employees and we've had industrial action for a 12 hour shift.

PN78

The disputes procedure was not followed and we're now basically in terms of looking at further meetings on site. We have a one hour meeting. We have basically two hours lost production in total to either side of that. That's about 160 tons. Some of these meetings have been going for 1.5 to 2 hours so it gets a lot higher than that. As I said, we have a total of 24 hours lost tapping and we've got as huge metal backlog. This need to be cleared very fast otherwise we're getting to a very dangerous stage. We cannot afford to continue in this current mode.

PN79

Any more industrial action potentially could occur through in tonight's B crew meeting which have sought a meeting when they return to night at about 7pm and even the actual meeting held would allay the production process quite a lot. Commissioner, what we are seeking is to lift the recommendation you issued on 13 December to a direction. Technically we're in a very precarious state and we cannot afford any further stoppages.

PN80

In that direction, we seek a number of points. No industrial action occur on site as per section 4 of the Workplace Relations Act, no stop work meetings without prior approval and arrangement with management. What we're saying is, we're not going to stop the meetings altogether but we do need to find a way that we can get coverage for at least some part of production to pull the metal through, particularly in the ingot chains.

PN81

So we're happy to work with the union but at the first instance, we cannot afford to stop the production processes. That the union channel their issues through the proper disputes process and if they feel that the issue is not being resolved to their satisfaction or is too slow, they've had the opportunity to come to the Commission themselves and I take note that this has not occurred in any stage in the last couple of years.

PN82

That the parties continue to work together in a positive manner through the program recently initiated and again which we cited this morning. Finally, that employees in the cast house, supported by liquid metals and transport employees, immediately initiate continuous operation to clear the metal backlog. This means that all cast products operations run across the change of shift and employees hand over on the job.

PN83

This must be supported by employees in transport and liquid metals to ensure the metal does flow through and as according to the of need obviously by the cast house how much metal they need. Commissioner this is essential, we have no choice in this, we need to have this happen immediately. We cannot go on without this, if we don't, this could lead to damage of the pot lines and higher safety risks. We are seeking that this direction now applies to all employees of Tomago but in particular, relevant to the cast house employees.

PN84

We are concerned with B crew coming back on shift tonight, they are seeking a crew meeting which will disrupt the process and there is the potential for further industrial action. Any assistance the Commission can provide to us in a form of this recommendation prepared this afternoon would be much appreciated. If the Commission pleases, thank you.

PN85

THE COMMISSIONER: Thank you, Mr Schmidt. Mr Bryson?

PN86

MR BRYSON: Thank you, Commissioner. If the Commission pleases, I'd like to first point out that the Australian Workers Union not only agree but they respect in every sense the end of discrimination and any harassment policy on site at Tomago. We also as a union, respect other people's rights and privileges and we take notice of differences in tolerances of reading material and displays around the site.

PN87

We also and it's been pointed out in several forums since Wednesday that we respect Eve Newman as she is someone's daughter and someone's wife and we most of us, have a daughter or wife and we respect them and we respect her equally. I take you back to the stoppage on Wednesday the 15th, that occurred at the beginning of night shift. That night shift had a crew delegate by the name of Martin Murphy, it was his first shift back from holidays, he was aware of the Commission's direction from the December hearing site however, the people, the members of his crew already had the taste of different instances regarding what is sometimes regarded as inappropriate material on site and it all generally involved Eve Newman.

PN88

The delegate was just back from holidays and the situation was already volatile due to the previous instances. With this problem the particular person, they called it a search and destroy campaign, they didn't think they were actually putting it and displaying it, this material, the material was very, well, it wasn't R rated, put it that way, it could be bought by any miner from any newsagent, in fact one of them was an advertisement from a Best and Less catalogue.

PN89

We do not agree to the way Eve had conducted herself regarding her views and on the inappropriate material and on her lack of investigation when she has discovered this in all the instances that she has uncovered, pardon the pun and we strongly oppose the wilful destruction of people's personal property by staff, as well as Eve Newman and we ask that the company discontinue this. We also point out to the Commission that there was no procedure to remove the material, there was a policy which was agreed and signed off by OH&S and the Plant Manager, that was the anti-harassment, anti-discrimination policy but there was no procedure for removing that material.

PN90

There was not even any unwritten procedure. There were instance occurred in the pot line from another lady who took objection to some reading material that certain operators had and certain material that was hung on notice boards. These were basically bikini-clad ladies and the particular magazine the guy was reading was a People or Picture magazine, in other words, it wasn't an R rated Playboy or Penthouse.

PN91

This procedure for removing the inappropriate material was produced on 16 January, that was a little bit late, so even though we respect that Eve was left to her own devices to remove this offending material, we blame the company and the company senior management for not producing a procedure for removing the material and make the site policy. We also object to Michael's suggestion that we should take into account the technical situation of the plant. As he has indicated, I am very much aware of the seriousness and the gravity of the situation of the pot lines and the lack of the metal flow through the cast house and out to the customers.

PN92

Apart from that, as Michael has indicated, we have got a strong need to reduce the metal pad in the pot lines, we are well aware of that, before the strike we were about 169 ladles behind, now we are 216 ladles behind, thereabouts. It doesn't matter, Commissioner, it doesn't really matter - - -

PN93

THE COMMISSIONER: Getting behind.

PN94

MR BRYSON: Yes, it doesn't matter whether we are behind, whether we are in front or whether we are equal, if we were equal the situation would have occurred, the situation would have led to the same unfortunate knee jerk reaction, that delegate was surprised, Martin Murphy was very surprised and disappointed in his crew that they took that action. I was definitely surprised and disappointed, I wasn't contacted, there was almost an immediate reaction, even though I think they went through the gates at 20 to 9 that night but it happened very quickly.

PN95

Even if I had been contact, I wouldn't have had time to get from the bay to the smelter. The organiser, John Keen wasn't contacted and had he been contacted, he was well away from home as it was and he wouldn't even have been able to make it. Unfortunately we have reprimanded the crew, we couldn't reprimand the crew delegate because he was aghast and surprised at what his crew members did.

PN96

But I take exception to the technical situation of the plant being raised, we are well aware, I say it at every delegates' meeting, every mass meeting, every combo meeting of the union warning them that we are in a precarious situation and that we need to stay at work and work through this. I also bring up your instructions that any stop work meeting or any industrial action is unpaid. During the sessions of the workshops that we have initiated today there will be feed-back from the representatives or delegates at those workshops and the company has already agreed to pay those meetings which is basically a union company meeting because it's a union company effort to solve the situation.

PN97

I ask that the Commission would reject the company's request for a direction and that we work through the workshops as instructed by you from December and that we leave it as an instruction rather than an direction and that we work through it and that the education through different lecturers and visitors that we will have during these workshops will highlight to the work-force, mainly the AWU members, that all the time industrial action is unnecessary.

PN98

THE COMMISSIONER: Thank you. We will adjourn into conference.

OFF THE RECORD [3.00pm]

RESUMES [5.08pm]

PN99

THE COMMISSIONER: I'm about to issue a recommendation some of the contents of which the parties are already aware of. As the recommendation indicates, I've had the opportunity to speak to both parties collectively and individually, which has led to the recommendation. In the absence of time and being aware of shift arrangements, etcetera, I don't propose to read out the recommendation as such but copies will be made available to the parties through my associate and I'll ask the transcriber to include it in the transcript in full and we will leave it at that.

PN100

BACKGROUND TO THE RECOMMENDATION

PN101

(1) In this matter I have had the opportunity to speak to both groups, individually and collectively. I now feel I have a comprehensive background to the matters at issue and in order to assist the parties to achieve a resolution to their current problems, I make the recommendation found below. This recommendation is, however, really in the form of an addendum to that recommendation I made on 13 December 2002 [PR925797]

PN102

RECOMMENDATION

PN103

(2) A meeting of no more than 4 (four) members from each of the parties before me today to occur by no later than Monday, 20 January 2003. At this meeting the parties should immediately commence to discuss and implement a multi-pronged approach aimed at addressing and resolving the currently existing backlog of untapped metal. A program/timetable should be drawn up to determine how the backlog in production is to be redressed.

PN104

(3) By Friday, 24 January 2003 employees will be required to provide the company with clearly defined and specific issues of dispute which they feel remain outstanding and need to be addressed, the essence of which were indicated to the Commission when it previously sat on 10 December 2002. A copy of this should also be provided to the Commission.

PN105

(4) It is a further recommendation that once these issues are compiled and forwarded to the company and the Commission, that over the preceding next fortnight the relevant parties are to meet to discuss the issues raised, to determine what is required to resolve these outstanding disputations and a program of implementation.

PN106

(5) The parties are to report back to the Commission on 7 February 2003 or a date as near as possible, to provide a verbal report to the Commission of the timetable, its objectives, and to date the current outcomes which have arisen from any appropriate forum meetings on these particular issues.

PN107

(6) The Commission strongly further recommends that in the meantime, point 6 of its 13 December 2002 recommendation be strongly adhered to and with no provocative action or the like being undertaken by either party before the matter is next before the Commission. This includes matters which may arise following discussions surrounding point 2 indicated above. All meetings arranged within this framework should have as their major focus consideration by both parties as to there being no continuing production losses such as untapped metal, already indicated above in this point. In such cases where meetings are required it will be necessary for them to be informed to all parties in order to obtain prior agreement to them taking place.

PN108

(7) Should the above be not adhered to, the Commission will have to seriously consider the issuing of a direction outside of this recommendation.

PN109

This Commission now stands adjourned on this matter but is available if the parties require assistance in the intervening time. The Commission stands adjourned.

ADJOURNED INDEFINITELY [5.09pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #T1 RESOLUTION PN53
EXHIBIT #T2 DRAFT PROCEDURE PN63