C2003/3984, Transcript of Proceedings [2003] AIRCTrans 3091 (17 July 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER REDMOND

C2003/3984

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

and

ELECTROLUX HOME PRODUCTS PTY LIMITED

Notification pursuant to Section 99 of the Act
of an industrial dispute

ORANGE

10.03 AM, FRIDAY, 4 JULY 2003

Adjourned sine die

PN1

THE COMMISSIONER: Appearances, please.

PN2

MR V. OVERTON: For the Australian Manufacturing Workers Union.

PN3

THE COMMISSIONER: Thank you, Mr Overton.

PN4

MR M. MADDEN: I appear for the New South Wales Branch, Australian Workers Union.

PN5

THE COMMISSIONER: Thank you, Mr Madden.

PN6

MR R. BARAGRY: I appear on behalf of the company Electrolux Home Products Pty Limited with me is MR G. COLLEY Personnel Manager.

PN7

THE COMMISSIONER: Thank you. Mr Overton, any objections to Mr Baragry and Mr Madden's appearance?

PN8

MR OVERTON: No objections, Commissioner.

PN9

THE COMMISSIONER: Leave is granted in both cases. Yes, Mr Overton?

PN10

MR OVERTON: Commissioner, I will be guided by you but I understand you have had a number of hearings involving Electrolux and the EBA negotiations that have been occurring since about January/February this year, so I won't go into the background of all that unless you wish me to do so.

PN11

THE COMMISSIONER: No, this is a new notification, Mr Overton. I simply would like to hear opening submissions from the parties and then I will determine how the matter should be dealt with.

PN12

MR OVERTON: Commissioner, our application involves two issues. The first one deals with company breaches of the Workplace Relations Act and in particular 170MU.

PN13

THE COMMISSIONER: Yes.

PN14

MR OVERTON: The second area involves around the right of entry for officials, of union officials, in particular to investigate claims that the company is indeed in breach of the Act.

PN15

Commissioner, on the second element, the right of entry, I have been conversing with my colleague Ian Morrison from city office and he has expressed to me that he would like to run a full case which might take some time - some legal argument involved, as I understand it, and we would seek from you that that particular element of the right of entry be deferred to be heard in Sydney to allow the appropriate time for that matter, and just concentrate today on the elements of the Workplace Relations Act and company breaches of that Act under 170MU.

PN16

THE COMMISSIONER: Yes. How do you say the company has breached that section of the Act?

PN17

MR OVERTON: Well, in short, Commissioner, the company has made threats through their management to employees, that if they partake in protective industrial action that they could lose their job - - -

PN18

THE COMMISSIONER: If they partake in what, did you say?

PN19

MR OVERTON: Protected industrial action, that they would lose their jobs or could lose their jobs. Intimidating workers won't stop them from partaking in that protected action by threatening them with their jobs if they did.

PN20

THE COMMISSIONER: I see.

PN21

MR OVERTON: Commissioner, on 21 May this year the company received by fax, protected action notices that goes to protected action will start on 27 May 2003 at 6 am. The nature of the intended action was rolling stoppages and selected bans in the main building. I think you are familiar with the site, are you, the main building being the main assembly area of the big fridges - and that such action will continue indefinitely.

PN22

On Tuesday, 27th, the officials went into the site, that being myself, Mick Madden and Ian Thompson, to facilitate the protected action in the site, and we deliberately went in there because we feared that members would be coming under some duress from the management. On that day, we, as you know over the years have enjoyed free access to the site to discuss issues with the members, but on that particular day the management revoked the right of entry of officials and the State Police Department was called in to the site by the management to remove myself, Mick Madden and Ian Thompson. Now this was an obvious ploy from the company to deny access to the members and what we felt was our right to be able to protect members from threats of management. Unfortunately our fears came to some fruition.

PN23

After we were removed from the site, the members stopped work to meet with us at the fence line, at the green gate, to discuss this unprecedented development that was imposed by the company. The members demanded that the officials be allowed back on to the site and, in fact, as to the custom and practice that has applied over the years and resolved to maintain their rolling stoppage at the fence line until the company agreed. About two and a half hours later, the company relented and agreed to allow the officials back on to the site and have access to the members.

PN24

The issues we wish to address, Commissioner, arise from that day on the 27th. As I stated, the members had protected action notices in and after the police were used to remove the officials from the site and the members were planning a stoppage or a meeting to discuss the whole thing, it came to our attention that line management were threatening workers with their jobs if they indeed partake in that rolling stoppage under protected action. In the main building there is a section called the door swingers. The supervisor responsible there is called Cheryl Seymour. Two members in that section were threatened with their jobs by Cheryl Seymour if they partook in protected action. Those members names are Luke O'Neill and Michael Fisher. Luke was told by Cheryl Seymour, the supervisor, that if he partook in the protected action he could lose his job. Michael was told by the same person, Cheryl Seymour, that she didn't know what would happen to his job if he went to the stoppage.

PN25

Commissioner, two witnesses are outside now if the Commission either wants the statements to be placed on record, or if you wish to go into conference off record to clarify it. As I stated earlier, the protected action as agreed for our members, they should have protected them from threats of their jobs from the management, under the Workplace Relations Act.

PN26

Commissioner, you would be aware that the Act has provisions that indeed protect workers from threats from management, who are engaging in protected action. Commissioner, I refer you to 170MU of that Act. 170MU 1(b) states:

PN27

Employer must not threaten to dismiss an employee, injure an employee in his or her employment or alter the position of the employee to the employee's prejudice...(reads)... has engaged in protected action.

PN28

Commissioner, Cheryl Seymour's statement to Luke was clearly a threat by Cheryl Seymour that if he engaged in protected action he could lose his job. Cheryl Seymour's statement to Michael was indeed a threat, that if he engaged in protected action his position or job could be altered.

PN29

On the following Monday, Monday, 2 June, Mick Madden and myself went to investigate these claims. We gave prior written notice to the company on Wednesday, 28th, that we were indeed coming to the site to investigate these matters. Again, we were denied access to the site and I think you might recall that members stopped work to let us back on to the site, the company relented and now they have reneged on it within days.

PN30

We were denied access to the members to investigate what we were told that they were being threatened right across the site, not just in one particular section, but right across the site, if they partook of protected action. We were again, as I said, denied access to the members and restricted to a bike shed where members were marched out individually, one on one, to be interviewed by the officials.

PN31

This was a deliberate intimidatory atmosphere that the company created to scare members off from making statements to the officials. We had two very brave members that did make statements to us and, we believe, that if the officials were allowed to conduct our investigation freely, that we would have found such duress by the management widespread across the site. But unfortunately because we were limited we were not able to do our full investigation.

PN32

When we put our findings of these two members to the management, in this case to Sean Hill who is Personnel Manager, the response we were given from the company was that, "The company was quite satisfied with the actions of Cheryl Seymour", and that would go to other statements that we received that Cheryl Seymour was not acting on her own but, in fact, acting under instructions from higher management. We couldn't qualify what higher management meant. It either meant the General Manager himself or the Superintendent or the Personnel Management, but because the company, by way of Sean Hill is saying that he was very satisfied with Cheryl Seymour's actions, confirmed in our mind that she wasn't acting on her own, that she was acting under instructions.

PN33

Commissioner, we understand that if we are going to pursue action against the company in respect of 170MU that would be in another jurisdiction. But we seek your assistance in trying to come to some conciliated outcome in respect of the management's actions for threatening workers for taking protected action. We want it to be stopped. We want some action taken against the management and we want to have an atmosphere on that site where workers are placed under duress, if the protected action notices go in they can freely take part in that protected action. Commissioner, I might leave my status there.

PN34

THE COMMISSIONER: Mr Madden?

PN35

MR MADDEN: Thank you, Commissioner. Going over what Mr Overton has gone over, just briefly to help the Commission. On the day in question 27 May, we entered the facility as we have in other EBA negotiations and we start to participate in what has been contested by our learned friend on the other side as to what is protected action, but given that's a part of a wider campaign, I won't go to that, but we do believe that we had protected action on that day and we believe that subsequently that hasn't been proven to be any different and the type as has been taken on that day was the same as the last EBA negotiations and that is that people in selected areas would leave and the people would determine that that is a more sensible way to negotiate industrial action or protected action, given that it limits the burden on employees and their families and given also that it limits the burden on the company.

PN36

The people and the unions there believe, and have always believed, EBA negotiations aren't about bringing a company to its knees, or bringing individuals to their knees, it is about negotiating in a sensible way to get a sensible outcome. But on that day, the 27th, when we started to participate in that protected action,the company asked us to leave. We asked the reason why, they actually said that we were applying duress to people to leave.

PN37

Now I would like to put it on record that when people arn't losing any money it doesn't take any duress to get anyone to leave, they quite freely want to leave. The only duress that was applied that day, and that being the reason we are here, was the person that was mentioned, Sean Hill, in applying duress to people not to go home in words that made it clear that their jobs would be in jeopardy if they did.

PN38

That was the first instance of any breach that we saw of 170MU, and we are here today to tell you that there were further breaches. We have got people who are willing to give evidence to that fact, and we believe it is widespread throughout the plant. But on this particular day the protected action was limited to the main building and the evidence that we have we would contain to just the main building. But because - and that is why there are two parts to the application. Because our right of entry is now limited and we are not arguing legally at this point that it is limited but it wasn't custom and practice limited or previously that we haven't been able to investigate it more completely.

PN39

In lining up I just draw the Commission to section 170MU(3), the Commissioner would be well aware of, and that is:

PN40

In proceedings under section 170MF for an alleged contravention of subsection (1) of ...(reads)... was engaging or had engaged in protected action.

PN41

Commissioner we say the onus of proof is on the employer to prove today that that action was not, indeed, protected. They have sought 127 orders on several occasions and that hasn't been granted. We put to you that that action was protected and we can have witnesses give evidence to the fact that they did breach 170MU and threaten to dismiss these employees.

PN42

THE COMMISSIONER: Thank you, Mr Madden. Mr Overton has already indicated in his submissions to me that the unions are here today to seek a conciliated outcome to this issue. And he has already indicated that perhaps if the matter has to go on it may be in a different forum - that being in the Federal Court - for breaches of the award. I just note that for the record.

PN43

Mr Baragry, section 170MU is a very important part of the Act. I take Mr Madden's point - from my reading of it - that the onus of proof is on the employer. What have you got to say, Mr Baragry.

PN44

MR BARAGRY: Yes, Commissioner, but if I might say we are not in a prosecution here.

PN45

THE COMMISSIONER: That is true. I am talking about should you go to the court.

PN46

MR BARAGRY: I am quite aware of that, Commissioner, and the first thing I was about to say is that the company denies completely all these allegations. They are a fabrication. There were no threats to dismiss workers. Cheryl Seymour has been interviewed and statements taken from her. There were no such threats made. Employees may have been advised that they would use money for going on strike, which is the usual situation, but there were most certainly no threats that people would be dismissed. Not to the knowledge of the company in any way at all.

PN47

The company is quite aware of its obligations as regards protected action, Commissioner, and will always fulfil its legal obligations. There is just no doubt about that.

PN48

On the day in question - if could just say this to start off with. The company has had a custom for some years of making concessions to the unions without any complaints. It has worked well for many years. A concession as to right of entry whereby the unions would not have to give notice, as they are required to do under the Act, on the basis that they were free to interview individual workers during working time. Not just during meal breaks as the Act requires it.

PN49

That was in operation for some years. Worked successfully. There were no problems with it. However, on the day in question company officers were made aware that union officials were using this concession to find out the way in which the company was most susceptible to the rolling stoppages for which notice had been given to commence that day. The company, quite rightly in that circumstance, took the approach that it wasn't going to allow this concession of right of entry if the unions were going to be prowling around the factory looking for the place where they could hurt the company most. The union officials were quite rightly asked to leave. They hadn't given notice to come. They were there in accordance with the concessions given by the company and they refused to leave.

PN50

My instructions are that the company has actually made an offer to the unions to continue some form of concession to the unions as to not having to give notice, and not having to attend during meal times. There has been no response to that approach to the unions. We are still prepared to talk about that. However, there must be limitations on this. We can't have union officials wandering around all over the place looking to see where it would be best to pull out people on strike so that the company would lose as much money as possible. This company is performing a very important service, both for this district and for the country, in the work that it is carrying out in the face of extreme foreign opposition. To strike this sort of deliberate loss of production is just not helping the company in any way at all.

PN51

I am a little confused, Commissioner, as to what is being sought today. There seems to be some sort of partial suggestion that it be stood over to Sydney as to part of the hearing. The section of the Act that is referred to in the notice - the section 99 notice - seems to have been changed. I just don't know what we are facing at the present time. From my point of view this is a notification of an industrial dispute and we are here to see if we can settle that industrial dispute. The company is quite prepared to talk about this. I would suggest that rather than adjourning to Sydney for further vindictive giving of evidence would appear to advance the matter at all. We should sit around now, and have a conference, and talk about how things can be solved. That would be our position, Commissioner.

PN52

THE COMMISSIONER: I think that is what Mr Overton has asked for; that the matter go into conciliation at this stage. I think that is the appropriate way to handle this matter at this time. I propose to adjourn the proceedings to conciliation.

SHORT ADJOURNMENT [10.24am]

RESUMES [11.00am]

PN53

THE COMMISSIONER: We will go back on the record now. I have attempted to conciliate this matter with the parties. The matter, as indicated earlier, had two parts to it. I have been unable to resolve the right of entry problem at this stage, for which the unions have reserved their right. In respect of the first matter, the breaches that were indicated by the unions, the company has a statement which they wish to read onto the transcript.

PN54

MR BARAGRY: The company has directed that it agrees to the following statement being made on its behalf:

PN55

The company strongly denies that any harassment of employees has occurred with its knowledge, or has been authorised by it. The company confirms to the Commission that it will not condone unlawful harassment in its workplace. If any allegations of harassment are made to the company by an employee it will fully investigate such allegations under its harassment policy.

PN56

HIS HONOUR: That is the statement made. The unions have said that they are prepared to accept that statement. The Commission stands adjourned.

ADJOURNED ACCORDINGLY [11.02am]