C2004/1939, Transcript of Proceedings [2004] AIRCTrans 1775 (14 May 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 6942
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2004/1939

AUSTRALIAN LIQUOR, HOSPITALITY
AND MISCELLANEOUS WORKERS UNION

and

WATTYL AUSTRALIA PTY LIMITED

Notification pursuant to section 99 of the Act
of a dispute re the probable dismissal of an
employee on modified duties

MELBOURNE

10.39 AM, MONDAY, 3 MAY 2004

Continued from 24.2.04

PN25

MR T. BREHENY: I appear on behalf of the LHMU, and I have with me MR D. MAGUIRE.

PN26

MS P. NOWECKI: I seek leave this morning to appear on behalf of the company in relation to this matter.

PN27

THE COMMISSIONER: Thank you. Mr Breheny, do you have any objections to Ms Nowecki seeking leave?

PN28

MR BREHENY: No, Commissioner.

PN29

THE COMMISSIONER: Thank you. Leave is granted, Ms Nowecki. All right. Mr Breheny.

PN30

MR BREHENY: Commissioner, this matter has now been before the Commission since about 4 December last year. There has been several hearings in relation to Mr Maguire's ongoing employment. At the most recent hearing the union put to the company that there was a vacancy in the laboratory area, and the company were going to go away and assess that job in light of Mr Maguire's medical limitations and have some discussions with both Mr Maguire and the union about the potential for Mr Maguire fulfilling that role.

PN31

What I was going to do today, Commissioner, was probably just go through the whole process as a report back process of what has occurred in relation to this matter. And I will probably foreshadow it to say that the matter is still unresolved and the union is more than happy to try and resolve this matter through conciliation but, if that is unable, we did make the request at the last hearing that we would prefer for the matter to be arbitrated. I am just wondering if I proceed with the - - -

PN32

THE COMMISSIONER: Sure, yes.

PN33

MR BREHENY: Okay. Look, in relation to Mr Maguire, he has now been carrying out specific functions for the company for the past 21 months. That job is a result of a return to work program. That was devised for Mr Maguire in relation to a back injury that he suffered whilst employed by Wattyl Paints. It is agreed between the parties that Mr Maguire is unable to return to pre-existing duties because of his workplace injury. The union has always argued that we believe that someone who is doing a job for 21 months, that that job is permanent. That job currently consists of working in three different areas: two in different laboratories and one in a security function.

PN34

The company has indicated to us along the way that this work, although it has gone on for 21 months, is only temporary and was only as a result of a return to work program, and all along the way of making an assessment that there is no place for Mr Maguire to be employed at Wattyl Footscray. The union has, through negotiations, put up several options to the company about alternative work, and I will just go through those.

PN35

One was a job in a security function and the employer's response to that was that that work is not covered under the EBA, which is incorrect. There is clearly clauses in the EBA that refer to penalty rates for security employees. Those security employees that are currently employed at Wattyl Footscray are contractors. It is a function that was previously carried out by directly employed employees, and it is the view of the union that that should clearly be a potential. In recent times Mr Maguire has come back with modified doctors' certificates to say that he is capable of working in labelling area and, when the company investigated that area, they turned around and said that they are thinking about introducing new technology which means there will be less employees in that area.

PN36

There was another position that was then created in the warehousing function which was a controller position which the union contested that did carry out functions that were previously dealt with by the team leaders. The company indicated that they thought that was a staff position. There was agreement that there would be no - it is not a physically demanding job and we were also going to put Mr Maguire up for that job, but that job then disappeared overnight. Any other work that is in the warehousing area that we believe Mr Maguire would be capable of carrying out, there has been no further investigation to Mr Maguire's potential in working in the warehouse for probably some 12 months.

PN37

Then on the day of the last hearing there was a person that resigned from laboratory work so Mr Maguire, who currently works in two of the laboratories, we put our hand up for that position. The company indicated that they would do a site assessment, look at the physical requirements for that job, and assess that against Mr Maguire's capacity, and then report back as to whether or not they believe Mr Maguire could carry out those functions.

PN38

The company did a workplace assessment and there has been a document that was produced on March 1, 2003, that goes through a vast list of duties, the frequency that those duties may have to be undertaken. And we actually met with the company to discuss this document. The first thing that we would say about this document is, one, that the assessment was taken without the presence of Mr Maguire. He was not invited to be present at that assessment and, although the woman who makes the report, Holly Sutherland who is a rehabilitation consultant, in one of her summary information says that:

PN39

Mr Maguire was present for a brief time during the workplace assessment. However, he chose to leave...

PN40

is not a fair reflection on the fact that Mr Maguire basically barged into the assessment to find out why there was an assessment going on about his future employment without him being involved. The other thing that we would also say is this evaluation was undertaken and compared to a work at functional capacity evaluation that was taking place on 26 February 2003. We have asked continually at these hearings and with the company that a further work at functional capacity evaluation take place with Mr Maguire, and it is now some 15 months since that has occurred yet the company hasn't seen fit to do that.

PN41

The other thing that we find a bit bizarre is that the company, in having a look at that work site assessment dated 26 February, have overlooked a report from a Dr Ralph Poppenbeek who is also a workplace assessor, who did a report from the company, dated 15 July 2003. And just to quote a bit from Dr Poppenbeek's recommendations, it says:

PN42

I can find no particular fault with any of the duties I inspected. Indeed, Mr Maguire does enjoy the laboratory work quite a lot ...(reads)... and in this case Mr Maguire continue this work indefinitely.

PN43

Now, that report goes to those three jobs that make up the current situation that Mr Maguire is in at the moment. At the meeting that we discussed with the company, Commissioner, about the work site assessment, the company concedes - and they can correct me if I am wrong - that Mr Maguire can carry out somewhere between 70 and 75 per cent of the job description as per the work site assessment that they did. We discussed with the company that we felt that the other 25 per cent of those duties that are required, one, aren't functions that are required to be carried out on a daily or repetitious basis.

PN44

They are functions that clearly exceed the limit of weight that Mr Maguire has to life but, once again, what we are saying is that the frequency and the weights of that lifting, once again, should either be referred back to the workplace assessment or to his own medical practitioner to see if that would cause a re-injury.

PN45

Based on the fact that the company is conceding that Mr Maguire can carry out 75 per cent of the jobs, it was our view that someone who had been working for the company in excess of ten years, someone who clearly, through the eyes of Dr Ralph Poppenbeek, was a person that was enthusiastic in keeping his employment, a person that has indicated to the company that he has taken on night school to improve his skills in spray painting which is clearly a skill that would assist him in working in the laboratory, that Mr Maguire has shown nothing but enthusiasm about continuing in his employment with Wattyl.

PN46

At the meeting when clearly the company's intention was to give Mr Maguire notice of termination, we also put forward the following points of view and that is that there should be a re-assessment; that the document dated - or the assessment dated 26 February 2003 should be re-assessed. We indicated the fact that if he was capable of doing 75 per cent of the duties, what was the problem in having a three month trial with Mr Maguire working in that area to see if there could be either engineering in a physical sense around some of the tasks that Mr Maguire needed to carry out or, in fact, whether there should be a meeting with the group of employees that work in that area to say whether or not there people that were happy to take on board some of the jobs that may fall outside Mr Maguire's medical certification.

PN47

Commissioner, the company has indicated to us, although they haven't done it formally, that they are not going to be offering Mr Maguire the ongoing job. We feel bitterly disappointed that the company seemed to be putting up hurdles in relation to all the options that we have looked at for Mr Maguire. And even if we go back to the first hurdle where the company raised the issue of budgetary constraints, where they weren't employing new employees, where to put Mr Maguire on was going to affect their budget; in fact, there have been three chemists that have been employed in the laboratory area since this situation has taken place.

PN48

Two of those chemists are, in fact, working in or around the area. We are not saying that they are working in the job that we requested Mr Maguire be looked at for, but even today there is a casual employee that has started today in that position in that job. We believe that the budgetary scenario, clearly they have put on new employees, once again, is just another hurdle that the company is putting up.

PN49

As I said at the outset, Commissioner, we are happy to conciliate this matter. Looking at the dispute settlement procedure which I suppose Mr Maguire, the union and our members committed to at the outset of this albeit that the matter has now been going on for some six months, would be one of the points that is, if the matter is still unresolved the matter may be referred to the Australian Industrial Relations Commission for determination. What we would say, Commissioner, is if the matter is still unresolved that we would want it determined by the Commission.

PN50

THE COMMISSIONER: Thank you. Yes, Ms Nowecki.

PN51

MS NOWECKI: Thank you very much. Look, I think it is appropriate at this stage to reflect on what the company has actually done since they were last up at the Commission on 24 February. At that time they were asked to go away and look at what other positions this worker with his current restrictions could undertake. As has been indicated by Mr Breheny, a workplace assessment, an independent workplace assessment, was done as to other possible positions. And the particular position that was raised up at the Commission that the company should look into was one of the QC roles in the laboratory; the reason for this that up at the Commission in February it came to the company's attention that someone had actually resigned from that position.

PN52

What the company did was they did an independent assessment which resulted in the report of 1 March 2004 which looked at this role and what this role would entail. The company acknowledges that at the outset Mr Maguire was not invited to attend for this assessment. The reason for that is the company viewed it as an independent assessment where they were getting a third party provider into have a look at this role, and they saw no need for Mr Maguire to be present.

PN53

It was also not a role that he had undertaken before so he probably wouldn't have been able to assist with what the role entailed. However, when it did come to the company's attention that Mr Maguire was unhappy about the fact that he was not invited to attend to the assessment, he was brought out of his work area and asked to come along. He did stay there for a short period of time, and then at his own option left that assessment.

PN54

So what the company did, once they received the assessment of 1 March, they then compared this assessment to what the actual breakdown of all the aspects of the role in the QC laboratory entailed. They looked at what aspects of this role Mr Maguire would be able to perform; which aspects of the role he would be able to do but with modifications; and the consequences of making this modification on the company. And then they came up with any other additional comments did they have in relation to this role.

PN55

The 75 per cent ability to do this role is taking into account that the company is making - already making considerable concessions in order to get the role up to the 75 per cent mark. There are some aspects of the role that he is clearly unable to perform because they are over the weight limited he is able to lift which in the last medical assessment given was at 5 kilograms. Others the company has determined that they can modify so that he can lift, and others he is just unable to do.

PN56

And at some other aspects of this the company has said that, well, he can't do it but it is done so irregularly that the company will be able to compensate for that. So it is important that everyone understands in reaching that 75 per cent ability to do the role, it is already taking into account the fact that the company is making considerable concessions to reach that 75 per cent. So it is the company's view that that role in the QC laboratory after being before the Commission in February, they have gone away and done their assessment with that. They have discussed it with both Mr Maguire and the union, and their view is that that is not a viable role for Mr Maguire to perform.

PN57

In relation to the role that he is currently performing, it has always been and it is still the company's position that that is purely a return to work role. It is obviously a luxury item for that department to have at the moment being funded by another cost centre within the business and it is not an ongoing role in the future. So the company is in the position today where we are before the Commission again in relation to this. I guess the company will be requesting that the Commission can make some form of recommendation this morning that the union withdraw the fact that they have a dispute on foot so that the company can go ahead with any measures it may need to take in relation to the termination of the employment.

PN58

THE COMMISSIONER: What about the proposal put by Mr Breheny that Mr Maguire undergo a three month trial or three month assessment in the laboratory area?

PN59

MS NOWECKI: Certainly. Look, I would have to seek some specific instructions in relation to that but it is my understanding tha the assessment that has been carried out is such a thorough assessment but, I mean, that is something that I can seek further instructions on.

PN60

THE COMMISSIONER: But that assessment is without Mr Maguire, is that right?

PN61

MS NOWECKI: Certainly. The reason why Mr Maguire, initially, wasn't invited to that assessment was it was a role that he hadn't performed before that they were doing the assessment on and it was an independent assessment so, I guess, in order for that to be effective it was just an independent person coming in and looking at that role and then it was compared back to the medical evidence as to what Mr Maguire was or was not able to perform.

PN62

THE COMMISSIONER: I have got to say it makes sense to the Commission, though, that if a person is to be assessed on whether or not they are able to carry out the duties of a position, then the person themselves must be involved in that assessment. I find it very difficult to understand how you can make an assessment without the person whom you are supposed to be assessing in terms of capabilities is not involved. You have your theory but you don't have your practical.

PN63

MS NOWECKI: Absolutely.

PN64

THE COMMISSIONER: That is the difficulty that I must say I have.

PN65

MS NOWECKI: And I understand that concern, Commissioner. I guess what the company's position is, it was an independent assessment they got which, if you like, is the theory. That theory was then discussed in a practical sense with both the union and Mr Maguire to look and see if there are any other practical ways around dealing with the assessment.

PN66

THE COMMISSIONER: Who did the independent assessment?

PN67

MS NOWECKI: I can provide the Commission with a copy of it; it was Workstreams.

PN68

THE COMMISSIONER: Right. Does the union have any difficulty with Workstreams? Do you know of Workstreams?

PN69

MR BREHENY: Yes, Commissioner.

PN70

THE COMMISSIONER: And are they, as far as the union is concerned, an independent, viable assessor?

PN71

MR BREHENY: Yes. We have got no problems with that, Commissioner. I would just like to correct something that is being not portrayed and - Mr Maguire has had six previous assessments. Of those six previous assessments he has attended all of those assessments. Mr Poppenbeek, which the company seemed to be disregarding his confidential medical report that went to Cambridge Intergrated Services, who is the company's insurers, and this is his document, says:

PN72

As requested, I travelled to West Footscray at the company's main plant, was met by Mr Peter Muschialli, WorkCover Administrator. After discussing the details with Mr Muschialli he took me to Mr Maguire's present work area and Mr Maguire took me on a tour of all the relevant areas. All parties were helpful and co-operative.

PN73

They are the sort of assessments that the union supports, Commissioner.

PN74

THE COMMISSIONER: So Dr Popovic's report went to Cambridge Insurance. I mean, that would be for, I would think, a continuation of a return to work program, is that right?

PN75

MR BREHENY: Yes, Commissioner.

PN76

THE COMMISSIONER: Right. And we still currently have this outstanding issue of whether or not Mr Maguire is capable - and the company says they have taken into consideration Mr Maguire's restrictions and even taking that into account they believe that, at best, it would be 75 per cent of the work that would be required could be able to be performed by Mr Maguire. What the Commission is inclined to do is this, and this is the last: the Commission would recommend that Mr Maguire be put on a three-month assessment. That assessment would be performed by the independent assessment company - sorry, what is their name?

PN77

MS NOWECKI: Workstreams.

PN78

THE COMMISSIONER: Workstreams, with Mr Maguire's full co-operation and involvement in that assessment. If at the end of that three-month period the assessment says that Mr Maguire is not able to carry out more than 75 per cent of the functions in the laboratory, then that assessment must be accepted by the union as being final and the matter will not be brought back to the Commission.

PN79

If the assessment says that Mr Maguire can perform in excess of 75 per cent of the work requirements in the laboratory, then it is the Commission's view that the company should accept that as being an independent assessment and Mr Maguire should be offered ongoing employment in the laboratory. The three months will commence from Monday, 10 May, in order for the assessment process to be worked out and commenced properly with Mr Maguire's co-operation. Is there any comment on that? Mr Breheny?

PN80

MR BREHENY: Commissioner, the only other thing I would just see as a logical part of the process would be also that if this assessment is done, that Mr Maguire is then able to refer that back to his doctor because, look, there is just some contradictions in the work site assessment as to Mr Maguire's capacity.

PN81

THE COMMISSIONER: Well, it may be appropriate that the independent assessor, before actually commencing the assessment, talked to Dr Popovic and see whether or not appropriate parameters, given Dr Popovic's independent report to Cambridge Insurance, that reasonable parameters are put in place for the assessment to be carried out properly. That way there would be no need to go back to Dr Popovic because he has been involved in the parameters. Okay?

PN82

MR BREHENY: Yes, Commissioner.

PN83

THE COMMISSIONER: Yes, Ms Nowecki?

PN84

MS NOWECKI: Commissioner, if I could just make a point in relation to Dr Poppenbeek's report?

PN85

THE COMMISSIONER: Poppenbeek, is it?

PN86

MS NOWECKI: Yes, Poppenbeek.

PN87

THE COMMISSIONER: Sorry, I am calling him Popovic.

PN88

MS NOWECKI: No, it is Poppenbeek, I think, unless anyone wants to correct me.

PN89

THE COMMISSIONER: Is it? Popovic was a clown, wasn't he, in the Russian - sorry.

PN90

MS NOWECKI: The company certainly hasn't ignored Dr Poppenbeek's report at all, but Dr Poppenbeek's report was purely in relation to the role that Mr Maguire is currently performing. They acknowledge that that report says he is keen to continue doing that role but as the company has indicated earlier that is only a return to work role and that is not an ongoing full-time permanent position.

PN91

THE COMMISSIONER: But did you hear what the Commission said to Mr Breheny from the union? That the independent assessor talk to Dr Poppenbeek and make sure that they both agree on the parameters in which the assessment will be carried out. That way there is no ongoing requirement to go back to Dr Poppenbeek because he has been involved in developing the parameters for the assessment. I think that is fair. And as I have said, if Dr Poppenbeek can't meet 75 per cent of the work requirement within those parameters and that independent assessment, he has got to accept that. If he meets in excess of that 75 per cent my view is he should be offered employment - ongoing employment in the laboratory area. Okay?

PN92

MS NOWECKI: I mean, is it possible, Commissioner, for the matter to be adjourned for 10 to 15 minutes for the company just to have a discussion in relation to that recommendation?

PN93

THE COMMISSIONER: No. No, no. It is a recommendation. It will be issued, okay? And I expect that to be adhered to by both parties. The Commission will stand adjourned.

ADJOURNED INDEFINITELY [11.04am]