C2004/3158, Transcript of Proceedings [2004] AIRCTrans 1711 (7 May 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 10826
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT CARTWRIGHT

C2004/3158

THE AUSTRALIAN WORKERS' UNION

and

INDUSTRIAL GALVANIZERS CORPORATION
PTY LIMITED - PORT KEMBLA

Notification pursuant to section 99 of the Act
of an industrial dispute re company's drug and
alcohol policy clause 7 - random selection method

SYDNEY

10.11 AM, TUESDAY, 27 APRIL 2004

PN1

MR B. O'DONNELL: I appear for the Australian Industry Group and with me is MR G. TYLER, MR D. CUSICK, and MR G. CHOICE from Industrial Galvanizers.

PN2

THE SENIOR DEPUTY PRESIDENT: Good morning, gentlemen. While I coming up in the lift for our 10 o'clock matter my associate received a phone call from the AWU saying that they would not be able to attend this morning's hearing. While I don't have too much detail of that conversation because, as I say, it was immediately this matter was to be heard, I understand from what my associate said that whoever it was that called said they had only just noticed the list, and the request was made that the matter be brought on this afternoon.

PN3

Now, it is the union's application, and I'm a little puzzled therefore as to what we could do this morning, but out of courtesy, since you gentlemen have come all the way from Wollongong this morning, it seemed to me we should at least take the advantage of you being here to get some idea of what this is all about. Before I turn to you, Mr O'Donnell, I make two comments. First of all, that this application was lodged with the Commission on 20 April. At my request my associate rang Mr Hancock of the union who was the person nominated on the application, and also it must have been Mr Choice - - -

PN4

MR O'DONNELL: That is correct.

PN5

THE SENIOR DEPUTY PRESIDENT: - - - and it was as a result of that discussion with Mr Hancock that he suggested that either Tuesday or Thursday this week would be a good day to list the matter. Accordingly, we listed the matter for Tuesday. The listing was sent at 4.26 pm on Thursday - it would have been the 22nd of April - Thursday?

PN6

MR O'DONNELL: Yes, we would agree with that, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes.

PN8

MR O'DONNELL: It is about that time that the company - - -

PN9

THE SENIOR DEPUTY PRESIDENT: Thursday was the 22nd?

PN10

MR O'DONNELL: Yes, yes.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, so it was sent, and the Commission's records indicate that the fax was successfully dispatched. So on the face of it it would appear that the matter has been listed today at the request of Mr Hancock after discussion with my associate. That that listing has been properly effected with plenty of notice and that the phone call has only come at 10 o'clock this morning, so I find that rather perplexing. The second matter is that I've looked back on my notes.

PN12

My recollection is that it was late November that I issued a section 127 order in relation to Industrial action for a period of 3 months, if my recollection is correct. That order would have only expired a matter of weeks ago, but I note that on the union's application the union says that industrial action is threatened, so I can only assume therefore, gentlemen, that this is an extremely serious dispute. On that basis I've decided to, at least, hear what you have got to say this morning, noting what must obviously be the seriousness of the situation, so that the Commission can make decisions about - well, can be informed and therefore proceed in the most appropriate way.

PN13

MR O'DONNELL: Thank you, your Honour, I appreciate your comments.

PN14

THE SENIOR DEPUTY PRESIDENT: So Mr O'Donnell?

PN15

MR O'DONNELL: We would confirm that the details as far as the listing of this matter is, as we understand it as well, the number on the fax seems to us to be the right one and, presumably, it did go properly to the union. Our understanding of what this matter relates to is that it is a matter which has previously been before Mr Commissioner Redmond earlier and it was an issue about the application of the drug and alcohol policy which the company has in place, which has flowed from the enterprise agreement, and an agreement in that enterprise agreement for the establishment of and implementation of a drug and alcohol policy.

PN16

That drug and alcohol policy is in place. On the last occasion when there was random testing of a group of people to take place on 15 April, on my instructions there after six persons, there was a dispute and the union had an argument - or some union members had an argument whether there should be six people tested in accordance with 7.1, or do the words, "a minimum of six people will be tested" mean also that there should be more than six. The company's view is that that was a minimum, that it was there so that there wouldn't be singling out of people, or victimising someone that whenever there was random testing there would be a group of not less than six.

PN17

The company's view was there could be whatever number it wanted in excess of that, but the company agreed in the policy that it developed and had the support of the union and the employees to implement, that there would be a minimum of six. There is a process set out in 7.5 of that policy that one employee then draws the next one to be selected out of the hat. The first one selected then randomly draws the next person to be tested on that particular occasion. That is repeated until a minimum of six has been selected. The employees' and the union's argument was those two provisions mean that the company is not entitled to test more than six.

PN18

The company's intention on that day was to test 10, and there was refusal to be tested by the seventh person, and the process as set out in the policy were then implemented in the warning, and that person being sent home who refused to accept the test. My instructions are there was also, your Honour, an hour and a quarter stoppage of work, which at that time when that dispute developed about that, the company then in discussions, as I understand it, with Mr Hancock, agreed that they would not persist with the testing further on that day.

PN19

The company certainly is very unhappy with the behaviour having, as your Honour has rightly recalled, only just come out of a period when we saw it necessary to seek the support of the Commission in orders. The employees have engaged in industrial action that we say is illegal industrial action, and it really seems to us rather peculiar that the union would want to have their cake and eat it too, so to speak, that they purport to want to use the benefits of the Commission in notifying a dispute, presumably to have the Commission assist them with their argument about the interpretation of the policy, but at the same time, their own employees engaged in that industrial action in the lead-up to it.

PN20

Their own notification indicates that they are threatening further industrial action, which is what my instructions are, that they have threatened that: you haven't seen the end of this, and that they may well determine to take some further action. At this time there is no current industrial action being undertaken in respect of this or any other matter, but we are concerned that there is that threat there. We would have been seeking, or at least pressing with the union, to withdraw any threats of industrial action, or else we would have to consider whether or not we would seek to have further orders made by the Commission on the basis that there were grounds satisfied up to only a short time ago that there be orders for 3 months.

PN21

We were apprehensive at that time that we needed a longer period, and if there isn't that written advice to the Commission that the union and its members withdraw any - without any qualification withdraw any threat of industrial action, we would have to consider whether to make a further application under section 127 of the Act, and we think perhaps that the length of the orders would need to be for a longer duration on this occasion. That is about all - we know little more about what the union was intending to put to the Commission that what I have alluded to already, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: So Mr O'Donnell, you say that consistent with the application which refers to company's drug and alcohol policy clause 7.

PN23

MR O'DONNELL: Yes.

PN24

THE SENIOR DEPUTY PRESIDENT: That is a clause of an enterprise agreement?

PN25

MR O'DONNELL: The drug and alcohol policy is a policy developed and under agreement that was reached in the enterprise agreement for the implementation of a drug and alcohol policy. The company as a group across Australia has a consistent drug and alcohol policy and Port Kembla was one place where that policy was not applied until recently. That policy in the last enterprise agreement which was certified by the Commission - I think on 23 April 2002 by Commission Redmond - on 6 May 2002 certified and remains in force until 8 March 2005. That enterprise agreement included in the enterprise agreement, agreement that there would be a drug and alcohol policy developed which - and that was the same agreement which was applicable under the 2002.

PN26

It has taken a long time to negotiate and consult and develop this policy, but the policy has been developed. It has been implemented, there have been some issues about that. We have had a matter which was dealt with by Commissioner Redmond and there wasn't industrial action - it was during the period when the orders were in place in respect of the policy and there has been several rounds - I am instructed two rounds of random testing have taken place now since the full implementation of the policy. It was on the second occasion which has occurred after the expiry of the section 127 orders that the matters that were raised in the notification from the union have occurred.

PN27

So the policy itself is not a term of the enterprise agreement. It is the agreement - simply provided that the parties would develop and implement a drug and alcohol policy and that has been done. I might try to assist the Commission to find where the clause in respect of that the - I am instructed the agreement to implement a drug and alcohol policy was in the 2000 agreement which was approved by Munro J on 13 September 2000. In that agreement was provision about the development of - a detailed provision about development of a drug and alcohol policy.

PN28

There was an agreement then reached which followed some proceedings in the Commission - I understand before Commissioner Redmond in which the application of several previous enterprise agreements and the terms of those was the issue in terms of the application of the current agreement, and there is a sort of trail of agreements from 1995, '98, 2000 and 2002 that were debated and issues about various training arrangements that arose from '95 and '98, the drug and alcohol policy from 2000 and the agreement which was entered into in settlement of the matter before the Commission last year about July 2003, was that the parties reached an agreement signed off by the AWU and the company about the application of the terms of those earlier agreements in the current agreement - the continuing of those.

PN29

I think it is not an entirely clean system and the objective will be for the next agreement to bundle all of the specific terms that are applicable into one document. The agreement does refer to those earlier agreements and calls up those agreements and that is where the drug and alcohol policy gets its application in the current agreement. It was given birth to some years earlier, your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: So do I understand you correctly to be saying that it was a clause of the 2000 enterprise agreement - - -

PN31

MR O'DONNELL: Yes.

PN32

THE SENIOR DEPUTY PRESIDENT: - - - that a drug and alcohol policy would be developed? That clause was not repeated in the 2002 agreement even at that stage, the drug and alcohol policy development was not complete, but nevertheless in 2003 there was a separate agreement, not in the enterprise agreement, but there was a separate private agreement between the company and the union to deal with some of these matters that had been dealt with in earlier enterprise agreements but which now do not appear in the current enterprise agreement?

PN33

MR O'DONNELL: It was probably more an agreement in settlement of an issue about the application of the current agreement, in a 170LW proceeding before Commissioner Redmond. The settlement of that between - amicably between the parties was that the provisions of clause 7 of the current agreement which calls up the earlier agreement, and it had some wording which wasn't absolutely clear that - in clause 7 of the current agreement, this agreement - - -

PN34

THE SENIOR DEPUTY PRESIDENT: When you say the current agreement - current enterprise agreement?

PN35

MR O'DONNELL: The current enterprise agreement, yes.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, go on.

PN37

MR O'DONNELL:

PN38

This agreement will continue to serve under a consultative process between employees and management and retain objectives from previously certified agreement.

PN39

And it goes on and refers to a number of things in respect of earlier agreements. That wording was a little unclear about the extent to which those earlier agreements continued to apply, but there were a lot of things in terms of training arrangements, the development of the drug and alcohol policy, rostered days off and the way that is programmed, that were not repeated. They were in place, they continued and the current agreement intention we say, and the union ended up agreement with us because it suited it them as much as it did us that a lot of arrangements had been in place for many years should continue to have application.

PN40

They agreed that those earlier agreements including the 2000 agreement continued to have application and there was a signed agreement that spelt that out.

PN41

THE SENIOR DEPUTY PRESIDENT: And that any - sorry, go on.

PN42

MR O'DONNELL: In which they said:

PN43

That the parties agree to existing objective conditions of the following certified agreement will remain in force and be respected by both parties except where specific mentions have been made in this document.

PN44

To the extent that it is overwritten.

PN45

Industrial Galvanizers certified agreement 2002, Industrial Galvanizers certified agreement 2000, Industrial Galvanised Port Kembla certified agreement 1998 and the '95 agreement and also the 1993 agreement.

PN46

So it has got a very long trail. That is unsatisfactory and the intention is at the expiry of this agreement to get all that tidied up, so that those relevant terms and conditions of those earlier agreements are all bundled together. But that history is only of any relevance today your Honour, to the extent that that where the drug and alcohol policy started, it is an agreed policy. The company is entitled to have one anyway. It has done it in a consultative way, it has implemented it, it has been implemented as agreed. The union does not disagree with that and in fact we had a letter from the union stating just that - that they support it.

PN47

THE SENIOR DEPUTY PRESIDENT: That they support the policy that has been developed?

PN48

MR O'DONNELL: I don't have copies of this letter from Dave Hancock. I have only got the one original. I only saw it this morning your Honour, saying we acknowledge receipt of an earlier letter from November about the drug and alcohol testing at Port Kembla - saying:

PN49

They have concern about the policy in its current form. We believe the policy whereby the employees are terminated for a second offence is harsh, particularly light of etcetera.

PN50

They say:

PN51

The union does not condone the use of drug and alcohol in the workplace and it is not against the company having a drug and alcohol policy

PN52

And just saying they would appreciate the opportunity to discuss the matter further. They actually point out that the company had tested every single person including Mr Choice on the first occasion that - after the implementation of the policy, and so they make some discussion about clauses, about the random selection and which is in part as I understand it, the issue which they had notified the matter your Honour this morning.

PN53

THE SENIOR DEPUTY PRESIDENT: Do I take it you are saying then that that correspondence doesn't disclose that the union has agreed with the policy?

PN54

MR O'DONNELL: It acknowledges that there is a policy in place and it says:

PN55

You state in your letter the Drug and Alcohol Policy has been agreed to by the AWU at all sites across New South Wales.

PN56

And then they say:

PN57

We might point out that the AWU has no members at any other site.

PN58

And they simply say they have concerns about it in its present form. So the union itself says that they are not happy but the majority of employees have all had the opportunity to have input and are agreed to the policy as it has been circulated to them. Would that be too strong do you think, Graham?

PN59

MR CHOICE: We have been trying since 2000 to have a policy and have been frustrated every time. So in December - sorry, I convened a site meeting of all employees on site and went through the policy word by word and handed each employee a copy of the policy. And that was on 17 December and informed them that on 12 January that we would be having a vote to determine acceptance or rejection of the policy and that we would consider any submissions from them in the interim on the policy.

PN60

We received two submissions from employees and subsequently changed the policy to that extent and they were good submissions and one that immediately springs to mind was that we had no sunset clause on positive tests so that if an employee tested positive and subsequently was able to come back with a negative and come back to work, that positive test would remain on his record in perpetuity. And it was suggested by the employees that they would like to see a 12 months sunset on that which I considered was reasonable and accepted that and consequently that is now in the policy.

PN61

On the 12 January we had a vote and the majority of the employees accepted the policy at that date. I considered therefore that I was quite at liberty considering the amount of consultation that had gone on over a long period of time, I considered that the policy should be accepted in that form at that stage.

PN62

THE SENIOR DEPUTY PRESIDENT: And accordingly the company has applied that policy, is that what you are saying?

PN63

MR CHOICE: Yes, we have a round of random testing in early February in which everybody on the site was tested so that everybody would get used to the concept and I considered that that is only fair that first round you should do everybody. Subsequent to that, the union lodged a notification to the Commission in relation to the fact that they disagreed with the fact that there are provisions in there for the second - for the employees who test positive for a second occasion to be terminated.

PN64

We appeared before Commissioner Redmond over that issue and Commissioner Redmond found in our favour on that issue. We then subsequently held a second round of tests on 15 April and at that stage after six had been tested, the union instructed all employees not to partake thereafter. The seventh employee as Mr. O'Donnell has said refused so we took that to the - in the same category as a positive and sent him home.

PN65

At that stage the employees stopped work so in an effort to resolve the issues, I called off testing for the day after one of the previous positive employees that had been tested positive was re-tested as per the policy and sent the testing people home. I do consider the fact the issue, this - where they are objecting to the wording of the random testing. I fail to see where it is an issue as I mentioned to your assistant last week.

PN66

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Choice.

PN67

MR CHOICE: I don't think there is any more that we can really - - -

PN68

THE SENIOR DEPUTY PRESIDENT: Yes, that is useful background. Well, Mr O'Donnell, having explained the background to this from your point of view, so what do you say should now occur? From one point of view I suppose it could be argued that this matter has been properly listed, there has been the opportunity for the AWU to be heard, what do you say?

PN69

MR O'DONNELL: We would say, your Honour, that the matter should not be further listed and that in the event the union did seek to have the matter further listed, that they should provide to you in some detail written submissions to what we have put on the record today if that is their choice and if they put that in writing and they still press that there is some matter that legitimately they seek to have the Commission deal with, well that should happen at that later time.

PN70

But not unless they actually provide you with written submissions and we don't think that it is reasonable in all the circumstances both from our point of view that we see not only a lack of merit but a lack of genuineness in what they are seeking to come to the Commission with against a background of threatened industrial action as well, that they have to provide some response. Firstly as to why they - and it has to be more than "we just got the notification" because quite clearly they didn't just get the notification.

PN71

It was sent out on 22 April, not just this morning. And so without some better explanation about why they did not attend and without some response which they can obtain the transcript which will probably be available in the next few weeks on the internet and they can have a look at that and they can provide you with a written submission or they can put in an order for the transcript of what has been said this morning and I would have thought that the Commission should not be prepared to re-list this matter and further bring the company representatives up from Port Kembla to attend the Commission unless there seems to be some merit to that.

PN72

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr O'Donnell. In the light of what has been said, I will adjourn the matter. Any action on any subsequent listing will be a function of whatever representations the parties make. The Commission will adjourn.

ADJOURNED INDEFINITELY [10.41am]