C2003/2473, Transcript of Proceedings [2003] AIRCTrans 3176 (24 July 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2003/2473

ALSTOM POWER LTD

and

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Notification pursuant to Section 99 of the Act
of a dispute re alleged racial vilification at
the Playford B Power Station site

SYDNEY

3.39 PM, FRIDAY, 11 JULY 2003

Adjourned sine die

HEARING BY VIDEOCONFERENCE

PN1

THE SENIOR DEPUTY PRESIDENT: There are no appearances here in Sydney. I'll take appearances in Adelaide.

PN2

MR R. SMITH: Thank you, your Honour. I seek leave to appear for the company in this matter and with me I have MR J. BRUDERLIN who is Alstom Power's project manager for the Playford Power Station project at Port Augusta.

PN3

MR M. HARRISON: I appear with MR G. ROBERTS for the CFMEU.

PN4

MR J. GRESTY: If it please the Commission I appear on behalf of the Australian Manufacturing Workers Union and we seek leave to intervene in this matter.

PN5

THE SENIOR DEPUTY PRESIDENT: I am happy for you to all remain seated whilst you're making your submissions given that this is a videoconference hearing. Mr Smith, you sought leave to appear; what was the basis upon which leave was sought?

PN6

MR SMITH: I'm an industrial relations consultant.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN8

MR SMITH: ..... to NRG Flinders and Alstom Power who is involved in a contract to upgrade the Playford Power Station.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harrison, any difficulty with leave being granted to Mr Smith and leave to intervene being granted to Mr Gresty?

PN10

MR HARRISON: I have no objection because one of the employees is a member of his union and is involved with the incident that brought about the termination of the CFMEU member.

PN11

THE SENIOR DEPUTY PRESIDENT: All right. Leave is granted, Mr Gresty. All I know about this matter is that which is contained in the notification of a dispute under section 99. It was said to be a matter that required an urgent hearing. I assume, Mr Harrison, you've seen a copy of the notification of the dispute?

PN12

MR HARRISON: Yes, if it please the Commission.

PN13

THE SENIOR DEPUTY PRESIDENT: I have also received from you, Mr Harrison, just a short while ago by way of facsimile two pages; they appear to be an extract from a document Alstom Human Resources Policies and Procedures. The other one might be an extract from the EBA, I don't know.

PN14

MR HARRISON: Yes, it is, your Honour.

PN15

THE SENIOR DEPUTY PRESIDENT: No EBA was referred to in the notification so I didn't know which one was relevant. We'll start with you, Mr Smith.

PN16

MR SMITH: Thank you, your Honour. The EBA referred to is the South Australian Power Station Maintenance and Refurbishment Alstom Power Limited Enterprise Bargaining Agreement 2001 to 2004. Just a little bit of background on this matter, your Honour, is that Alstom Power is the head contractor for NRG Flinders in refurbishing all of the units in the Playford Power Station. The contract is due to go through to March 2004. At this point of time industrial action has been taken by members of the CFMEU which is clearly unprotected and in conflict with the disputes settlement procedures contained in the agreement which is at clause 18.

PN17

THE SENIOR DEPUTY PRESIDENT: When you say industrial action is being taken; it is being taken now?

PN18

MR SMITH: Exactly. Employees of Alstom who are members of the CFMEU along with their delegate Dale Fisher are currently on strike as indicated in the dispute notification and are not due to meet further until Monday and I'd like to go through and paint a thumbnail sketch to you how this all came about.

PN19

THE SENIOR DEPUTY PRESIDENT: All right. I did not read that in the notification. I read of one stopwork meeting and another that was foreshadowed and not only had there had been those meetings but you say that, additionally, there has been industrial action taken that continues as we speak?

PN20

MR SMITH: Correct, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: When did that start?

PN22

MR SMITH: Industrial action commenced on Thursday at 10.20.

PN23

THE SENIOR DEPUTY PRESIDENT: And there's been no resumption of work?

PN24

MR SMITH: No resumption of work by one section of the workforce.

PN25

THE SENIOR DEPUTY PRESIDENT: You continue now.

PN26

MR SMITH: The dispute took its rise, as a I said in the notification, when an incident happened between a Mr Bob Smith who is a storeman for Alstom at the Playford Power Station and a Mr Dion Coulthard who is a trades assistant for Alstom Power and that incident took place on the morning of 30 June which was a Monday. Mr Coulthard entered the storeroom that day to obtain materials for welders whereby an exchange of points of view was made by Mr Bob Smith to Mr Dion Coulthard. Further on that day at 5.50 pm a Mr Bob Worrall, another trades assistant, conveyed a message to Mr Dion Coulthard from Mr Bob Smith which can only be described as slanderous comments in racial terms. I'm not going to go into the merits of the matter at this point, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: Well, if you're not going to - - -

PN28

MR SMITH: I'm just giving you a background as to how the dispute came up.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN30

MR SMITH: Mr Coulthard then reported the incident with Mr Bob Smith to his shift supervisor Mr Phil Cleary who in turn referred the matter to the OH&S superintendent, a Mr Dale Graham, who then referred the matter to Mr John Bruderlin, the project manager, who is here today, at 5.50 pm on Monday, 30 June. Dale Graham was then instructed to interview Mr Coulthard and Mr Worrall, his supervisor, concerning this matter and at which statements were taken. The following morning on 1 July the project manager Mr John Bruderlin interviewed both of these employees together.

PN31

THE SENIOR DEPUTY PRESIDENT: Who? Mr Smith and Mr Coulthard?

PN32

MR SMITH: Mr Smith and Mr Coulthard, yes, together, with their supervisor and he then separately interviewed each employee. The CFMEU union delegate a Mr Darrell Fisher was also invited to participate at that meeting with Mr John Bruderlin regarding this incident in the store and what happened later. During the morning of 1 July - - -

PN33

THE SENIOR DEPUTY PRESIDENT: I don't know what the incident is yet, Mr Smith. Did they swear at each other or what are your instructions as to what was said on 30 June?

PN34

MR SMITH: My instructions basically is that an altercation took place engineered by Mr Smith regarding matters that were related to Mr Coulthard which were offsite matters and it was the message being conveyed to Mr Coulthard later in that day by this other trades assistant that was of the racial overtones to him and he was obviously being used as a messenger by Mr Smith. Now, that's what contained the issues.

PN35

THE SENIOR DEPUTY PRESIDENT: What are your instructions as to what was said? Use the words. What are your instructions as to what was said by which gentleman to the other?

PN36

MR SMITH: I'll just read the last paragraph of one of the statements.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes.

PN38

MR SMITH:

PN39

When I entered the store Bob told me that when he got home last night he unlocked his house and shed and then went to the shop. When he got home he said that there was a black fellow leaving his shed. Bob said that he stole smokes and for me to tell David Coulthard to tell his mates to stay away from his house and his shed.

PN40

Mr Coulthard is a man of Aboriginal descent from Port Augusta.

PN41

THE SENIOR DEPUTY PRESIDENT: Now, presumably, that's a statement of Mr Worrall that you just read from?

PN42

MR SMITH: That's correct.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN44

MR SMITH: For which Mr Coulthard is objecting very strongly to the racial overtones of discussing the colour of his skin and his background.

PN45

THE SENIOR DEPUTY PRESIDENT: Mr Worrall has said something to Mr Coulthard that you say is passing on a message from Mr Smith?

PN46

MR SMITH: That is correct.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN48

MR SMITH: Now, during the morning of 1 July after Mr Bruderlin conducted inquiries into the matter and speaking to both of the gentlemen concerned and the supervisor Mr Bob Smith's employment with the company was terminated because of this incident and he was given one week's pay in lieu of notice. The union delegate was present, that's Mr Fisher, and he didn't put forward a point of view and appeared to accept the company's position as to Mr Smith's termination. In other words, there was no opposition to the decision to terminate Mr Smith onsite.

PN49

The union organiser Mr Darrell Roberts who is here today rang Mr Bruderlin seeking information and clarification on the matter and he asked for copies of the statements which were then provided to him regarding the incident on the 30th and we complied with this request. On Friday 4 July , yes but you can have your say in a minute. I don't want to be interrupted. On Friday 4 July Darren Roberts rang Mr Bruderlin regarding Bob Smith's termination. They both agree, and they agreed that mediation between the two individuals should take place and that was agreed.

PN50

THE SENIOR DEPUTY PRESIDENT: Sorry, who was that again, who rang who on 4 July?

PN51

MR SMITH: Darren Roberts who is the organiser who is present here, Brad, Mr Bruderlin the Project Manager regarding Mr Smith's termination and they agreed that mediation between the two individuals should take place. Now that was agreed. It was also agreed for the mediation to take place on Wednesday, July 9. John Bruderlin arranged the mediation through the Centre Care organisation, which is I believe run by the Catholic Church and operates from Port Augusta specialising in these sorts of matters in the Port Augusta area.

PN52

Mediation took place in the afternoon of July 9 with a further session on the following day, July 10. The mediation on both of those days was unsuccessful between the two individuals and on the 10th a further meeting was held with Mr Bob Smith and his delegate, Mr Daryl Fisher advising them of the outcome that the mediation was unsuccessful.

PN53

THE SENIOR DEPUTY PRESIDENT: Now, the mediation presumably was between Mr Smith and Mr Coulthard?

PN54

MR SMITH: That's right and it was chaired by Mr Ed Schuster.

PN55

THE SENIOR DEPUTY PRESIDENT: What was the aim of the mediation? What was it that the mediator was asked to try and attempt to achieve?

PN56

MR SMITH: Mr Bruderlin would - I asked him reply to that.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes.

PN58

MR BRUDERLIN: Your Honour, we are attempting to gain some reconciliation between the two parties in the hope that if reconciliation was achieved that we could reinstate Bob Smith to site and basically if reconciliation is not achieved I have made the decision that we did not intend to reinstate to that site.

PN59

THE SENIOR DEPUTY PRESIDENT: I understand, yes thanks. Back to you, Mr Smith.

PN60

MR SMITH: Yes, that would be right. Darren Roberts, the CFMEU organiser, was notified at the end of that meeting with Mr Smith and Mr Fisher at the end of the conversation at that meeting with employees and Mr Roberts was notified of the outcome. Mr Fisher came back and said that they are going to have a meeting of the employees, all right, and I presume it is a members of the CFMEUs union and it was being called and this was on. The first day, the 10th, yesterday, and was being called and he pre-empted industrial action was being contemplated, he pre-empted it. So, even before the meeting of the members took place the delegate was pre-empting industrial action. No dispute proceeded to follow.

PN61

THE SENIOR DEPUTY PRESIDENT: What was that last submission?

PN62

MR SMITH: What I was saying was Mr Fisher came back to see Mr Bruderlin - - -

PN63

THE SENIOR DEPUTY PRESIDENT: Yes, I got all of that and I got his pre-empting industrial action. I didn't get the next submission.

PN64

MR SMITH: There was no discussion or indication that they were going to follow into dispute settlement procedures in the matter. The meeting was called, he pre-empted industrial action and at 10.20 Alstom's CFMEU employees went on strike and they were able to rope in a subcontractor of Alstom's for a scaffold into supporting that strike over the termination of Mr Smith. What then transpired they all went home. All of the other contractors that were contracted to Alstom remained on site and were working, they were all metals contractors and the affected party, Mr Smith, appeared to be dumped onto the Metal Workers' Union delegate, a Mr Cory Harley who took him around the different sheds and we presume it was at the instigation of the CFMEU to try and rope in members of other unions to go out and take strike action.

PN65

Here is a situation where the CFMEU delegate, Mr Fisher, decides to go out on strike and take his mates with him, dumps the poor person that has been terminated on the AMWU delegate and then tries to get him to go around the sites trying to drag in other people who are not even involved in it. Now, thankfully the AMWU id follow dispute settlement procedures and discussions did take place between myself and Mr Gresty and the delegate that afternoon and no industrial action was taken in support of the CFMEUs actions on site.

PN66

Now that is basically where we are the moment, your Honour. What I do say here and I will say it for the record, I have been involved in this project for more than 12 months and the last paragraph in this dispute matter that relates to the dispute settlement procedures is contained in this agreement. We have had a number of disputes on that project relating to industrial claims of alleged safety issues which have resulted in people taking strike action to pursue a point of view. There have been no ..... dispute settlement procedure in any of these matters, your Honour, and this is just another one. Now, what concerns me here, your Honour, is the industry that we are dealing with is the power generation industry. We are not dealing with the commercial building industry with industrial practices that emanate out of the CBD of Melbourne or North Terrace here in Adelaide.

PN67

As a general rule up until this project we haven't had problems with dealing with the unions and dealing with the unions in foreign dispute settlement procedures. Every dispute that we have had up there at Port Augusta, your Honour, has been led by the CFMEU for which Mr Roberts is here. There has been an integral part in it with Mr Fisher which has brought about strike action being taken and serious disputes within the workforce happening because of people losing money on issues that should never have got outside the gate. That is a concerning matter to Alstom and to remedy the situation, your Honour, what Alstom is seeking from you here today is that directions be issued by you in accordance with section 111(1)(t) of the Act directing those employees, in particular the union organiser, Mr Darren Roberts, and the union delegate, Mr Fisher, Daryl Fisher, to cease the industrial action forthwith and return to work immediately.

PN68

THE SENIOR DEPUTY PRESIDENT: When have you been advised that the action is likely - well, have you received advice as to when the action will cease or is your current understanding that the continuation of the strike action will be the subject of consideration at a meeting on Monday?

PN69

MR SMITH: Right. The position that we were under as at yesterday afternoon when I wrote the dispute notification, your Honour, Mr Daryl Fisher said, and it was a throw away line, we won't be meeting until Monday and Alstom will be have to come to their senses, or something like that. So, the view we took is that they are having a further meeting on Monday obviously to decide whether they will continue with this industrial action which is not protected or they will return to work.

PN70

Now, what we are seeking is a direction from you in accordance with what I have quoted from the Act, that is that the industrial action being taken by the CFMEU obviously endorsed by Mr Roberts and Mr Fisher, cease immediately and that the employees return to work and that the union official and delegate follow dispute settlement procedures. Lastly, - - -

PN71

THE SENIOR DEPUTY PRESIDENT: How many employees on your instructions are - how many employees, members of the CFMEU, on your instructions are we talking about?

PN72

MR SMITH: There would be 20 to 30 people on site - - -

PN73

MR GRESTY: Yes.

PN74

THE SENIOR DEPUTY PRESIDENT: Were any number of those persons rostered to work this weekend?

PN75

MR GRESTY: Yes.

PN76

MR SMITH: They are basically riggers and scaffolders which do have an effect of the project and hold up other work.

PN77

THE SENIOR DEPUTY PRESIDENT: What are they basically? What sort of positions do they hold?

PN78

MR SMITH: Riggers and scaffolders.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Thanks. Mr Harrison?

PN80

MR SMITH: Thanks, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: Mr Harrison?

PN82

MR HARRISON: If it pleases the Commission, if this company has been wounded it's a self-inflicted wound in my respectful submission. We don't concede any of the purported tracks that Mr Smith has given. Incidentally, Bob Smith and Rob Smith are in no way related. I have written statements from Dion and from Bob Smith and others. As to the events, I haven't been able to ascertain because it's not in any of these documents save that it seems to be common ground that this man Bob Smith was summarily dismissed presumably under what is regarded as the Alstom Harrassment Procedures and we've taken the liberty of providing your Honour with a copy. Clause 6 of that starts:

PN83

Any employee who believes that they have been subject to action or words that may constitute as unwelcome, sexual, or other harrassment has a responsibility to act upon such harrassment as soon as practicable in the first instance.

PN84

Then the first dot says what they're going to do if they can, talk to one another. The second dot:

PN85

Where the harasser has been confronted and the unwelcome behaviour continues or the employee cannot confront their harasser the aggrieved employee should notify their manager in the first instance. If the manager is the harasser...

PN86

Of course it wouldn't apply here:

PN87

...or the employee does not feel comfortable they should speak with the Executive Manager Human Resources.

PN88

Here domes the natural justice part of it which had been totally denied to Bob Smith:

PN89

Human Resources Manager will discuss available options...

PN90

Presumably, to the one that is being harassed:

PN91

...including the lodging of all written complaints.

PN92

But now:

PN93

Once the written complaint is in...

PN94

Which is presumably this statement from Dion constitutes the written complaint:

PN95

...the Executive Manager Human Relations will immediately undertake a timely effective objective and confidential investigation.

PN96

That never took place. The man was summarily dismissed. I would have thought he had a walk-up start in any proceedings for reinstatement, but put that to one side for the moment. Perhaps, Robert, acting on his own experience shouldn't have agreed to a mediation or certainly shouldn't have agreed to one without at least knowing who the mediator is going to be because this mediator seems to be extremely ham-fisted, but put that to one side. The company, far from coming before you with clean hands, is in fact most ..... it's in clear breach of its own dispute resolution procedures in paragraph 18.

PN97

What should have occurred if they regarded this a serious matter is at least the matter come before this Commission as an enforcement or an exercise in following the complaints procedure as an industrial dispute. They've none of that. What the members were objecting to - and it's silly to say that a shop steward can take people out. A shop steward is elected by those people. He wouldn't last two minutes if he was suggesting things that they didn't want to do.

PN98

They're response was not to the issue involved, it was to the way the man was treated. Summary dismissal, then they go to mediation, and it's only on the basis that if Dion withdraws his complaint that the man will be re-employed. It's not surprising that these men walked out. My friend would have you believe that the CFMEU up at Port Augusta has been dubbed cavalier in its approach to this agreement. Far from the truth.

PN99

Mr Roberts was up there some two or three weeks ago as were all the unions. They raised 19 issues from the membership under the dispute settlement agreement. They have yet to receive a reply on those 19. If they are hoping that this sort of tardiness will be repaid by overly patient people they're not in the same industrial relationships sphere as we are. They must act as a matter of expedition in dispute settlement procedures and when they get situation like they did under clause 6 of their complaints procedure they ought to follow it to the letter and that is what this industrial dispute is all about.

PN100

We would welcome any recommendation that the Commission would make. One would expect it to include a return to work on Monday. We would expect a recommendation that clause 18(e) should prevail; that is, we should go back to the position we enjoyed before the dismissal. 18(e) says:

PN101

While the parties attempt to resolve the matter the status quo appearing immediately prior to the matter coming into dispute will apply.

PN102

This man ought to be put back on staff until a proper exercise in natural justice has taken place via the Executive Manager of Human Resources, if the Court pleases.

PN103

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN104

MR HARRISON: That's the summation.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. I was making notes and not noticed that you sat down. Mr Gresty, is Mr Coulthard your member, is he?

PN106

MR GRESTY: That's correct.

PN107

THE SENIOR DEPUTY PRESIDENT: All right, I understand. What do you want to say?

PN108

MR GRESTY: I think it's been said by the other parties that we certainly do have a disputes resolution procedure in the agreement. I think in the benefit of hindsight it may have been highly preferable had all the parties actually followed it. There is certainly suggestion that that was not the case. My advice to my membership was that we had the disputes settling procedure. The details of the root cause of the situation were a little bit cloudy at that point in time.

PN109

My recommendation to my membership was, "No, we will stay on the job. We will attempt to work through the disputes procedure," as I was still of the view that it is binding on the parties to actually do so. I'm not quite sure where the company gained the unilateral advantage of summary dismissal by bypassing that particular clause in the agreement. So I think there will be a few people here that would support racial vilification by anybody to anybody. Equally, one would hope there would be nobody here who would support summary dismissal of an the employee without actually establishing by an authorative body that actually took place.

PN110

THE SENIOR DEPUTY PRESIDENT: Yes. It seems to me that, subject to hearing Mr Smith, that is most likely to be the issue that we need to talk about. I think it is unarguable that if the words alleged to have been used were said and if - his name I have forgotten - the conveyer of the words faithfully and accurately reported what it is said he was asked to as the carrier, if that is right. I don't think anyone would argue about the inappropriateness of all of that.

PN111

What, if anything, do you want to say about at least the issue of considering whether these circumstances justified the summary dismissal or, alternatively, whether the manner in which it was carried out was appropriate and perhaps we need to just go back a few steps and look at that again.

PN112

MR GRESTY: It is highly questionable whether the full procedure with respect to the disputes resolutions was followed. I must confess total ignorance to the application of the racial vilification bill and what onus and responsibility of that must fall on our people.

PN113

THE SENIOR DEPUTY PRESIDENT: Yes, that's another issue too, Mr Gresty. I do not know the details of any legislation that itself may somehow superimpose on the industrial issues here but, yes, that may or may not be of some significance.

PN114

MR GRESTY: As to management I mean they may be better informed. There may well be within that legislation a requirement that one has to deal with this.

PN115

THE SENIOR DEPUTY PRESIDENT: I just don't know. In any event Mr Smith hasn't relied upon that as the basis upon which took the action it did so I didn't think it was something I needed to consider further but, in any event, this might be a good time to come back to you, Mr Smith. What do you wish to say in reply?

PN116

MR SMITH: I certainly do wish to say a few things in reply, your Honour. First of all, Mr Bob Smith was never summarily dismissed. Mr Smith's employment was terminated and he was given a week's pay in lieu of notice. The events leading up to his termination and post the termination are covered by that week's pay in lieu of notice. The mediation was agreed to between Mr Roberts and Mr Bruderlin and all the other arguments are coming out of the woodwork because we're here today.

PN117

Now, when the CFMEU delegate Mr Fisher decided to take about 31 people out the gate knowing that there are 439 employees working on this project at the moment the majority of those employees are covered by the Metal Industry Award so it's only a handful of people. The tactic that's been applied up there previously, that's applied in the past, is use the industrial muscle, don't bother following disputes settlement procedures.

PN118

Here we have here today the same unions suggesting that we don't follow disputes settlement procedures. In fact, we have followed disputes settlement procedures in dealing with this matter and in dealing with the delegate and in dealing with the supervisor and in dealing with the two employees. This business about the mediator now being raised after the event is a very spurious type argument. Why wasn't it discussed earlier in the piece because the CFMEU believed that whatever happened to Mr Bob Smith when he was terminated industrial muscle will win the day and he'll be back on the job. Now, in this particular case we were very mindful of the racial side to this matter and we didn't want to turn around and fix up an industrial situation through the use of industrial action and create another matter that could fall into some other legislation.

PN119

What should be happening and the reason why we're here today, your Honour, is to achieve directions from you to ensure that the employees do go back to work and in future follow disputes settlement procedures but failing that we might be back here seeking orders because this industrial action is unprotected and, secondly, if the employees do resume work I am quite happy to arrange with the company to meet with both the unions and Mr Harrison, if he chooses to be there, to deal with any issues raised concerned with pursuing this matter.

PN120

Normally when people get terminated, generally an unfair dismissal application is filed in the Commission over the act and things proceed down that way. That's an avenue that Mr Harrison can take up if he so desires but the reason why we're here - - -

PN121

THE SENIOR DEPUTY PRESIDENT: You have notified the dispute, Mr Smith, and have asked for certain directions to issue.

PN122

MR SMITH: That's right.

PN123

THE SENIOR DEPUTY PRESIDENT: That those directions issue and in fact that the directions contain those two elements I don't think Mr Harrison has a difficulty with and I didn't hear Mr Gresty oppose them but there's some additional directions that Mr Harrison seeks as well. When any party brings in a section 99 one issue that may arise when they seek directions is that everything they want they do not get and there might be some additional directions that are sought. I must say you have not persuaded me to issue only the directions you seek.

PN124

MR SMITH: The reason why we're here today, first off, is to get a resumption of work by those people on strike.

PN125

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that.

PN126

MR SMITH: And the company has no problems in dealing with Mr Harrison on those issues he has raised here today.

PN127

THE SENIOR DEPUTY PRESIDENT: We've got the immediate issue about the circumstances in which this employee was dismissed and the manner in which he was dismissed and the submission that it did not occur either by way of the complaint reporting procedure contained within the Policies and Procedure Manual or consistent with the Dispute Resolution Procedure contained in the Enterprise Bargaining Agreement and so far I am persuaded that's probably right on what I've heard.

PN128

MR SMITH: That matter has only been raised officially by the union here today.

PN129

THE SENIOR DEPUTY PRESIDENT: They are perfectly entitled to though, Mr Smith. Why wouldn't they raise those as discretionary considerations as to whether I should entertain directions issuing which directions are just confined to those you seek?

PN130

MR SMITH: Well, if you feel that that's going to assist the parties to resolve the matter of getting back to work I have no objections to that because my primary position coming here is to get a resumption of work and to stop this illegal industrial action taking place. How it is then - - -

PN131

THE SENIOR DEPUTY PRESIDENT: Why don't you - I'm sorry, continue.

PN132

MR SMITH: How it is then handled between the parties to attempt resolution there's a number of avenues to go down; either to file an unfair dismissal application, having further discussions with people from the company on the matter. I have no instructions not to oppose or obstruct that. So I don't see any problems with the union wishing to discuss these matters further with the company providing that they get back to work and abide by the directions that I am seeking from you here today, that they get back to work and in future follow the dispute settlement procedures as contained in the agreement.

PN133

THE SENIOR DEPUTY PRESIDENT: All right. Why don't you Mr Smith and Mr Bruderlin leave the court room, pull the door to behind you, and I'll have a discussion with Mr Harrison and Mr Gresty and those instructing them in your absence. I should have said this, Mr Harrison, before they went out but obviously now we will go off transcript.

OFF THE RECORD [4.20pm]Y

RESUMES [5.05pm]

PN134

THE SENIOR DEPUTY PRESIDENT: This matter is now

PN135

adjourned to a date to be fixed. The Commission now adjourns.

ADJOURNED INDEFINITELY [5.06pm]