C2004/3292, Transcript of Proceedings [2004] AIRCTrans 1954 (27 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 7101

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2004/3292

CONSTRUCTION, FORESTRY,
MINING AND ENERGY UNION

and

PILKINGTON (AUSTRALIA)
OPERATIONS LIMITED

Notification pursuant to section 99 of the Act
of a dispute re alleged assault and harassment

MELBOURNE

10.58 AM, FRIDAY, 14 MAY 2004

PN1

MR G. SIVARAMAN: I seek leave to appear on behalf of the Union and I appear with MR D. LOWE.

PN2

MS P. NOWACKI: I seek leave to appear on behalf of Pilkingtons (Australia) Operations Limited together with MR G. SOUTHWARD from the company.

PN3

THE COMMISSIONER: Do each of you object to each other appearing?

PN4

MR SIVARAMAN: No.

PN5

MS NOWACKI: No.

PN6

THE COMMISSIONER: No, leave is granted in both instances, thanks. Yes, Mr Sivaraman?

PN7

MR SIVARAMAN: Thank you, Commissioner. Commissioner, this is a dispute that arose during a recent history of negotiation and enterprise agreement. That recent history involved a period of fairly intense bargaining, protection action being taken by parties and with the employees and Mr Jared Timou and Mr Greg Wheeler who are here today being quite closely involved in organising and maintaining action. Now the reason we are here is due to incidents that occurred in or about mid December last year and they were incidents where Mr Timou and Mr Wheeler allege that they are assaulted by an employee of Pilkingtons. The dispute has been raised because one crucial condition of employment is the safety and well being of the employees of the employer.

PN8

It is the ability to work free of harassment, violence or victimisation. It is the ability to engage in protected action fee of violence and a further condition of employment is - or a further matter pertaining to the relationship between employer and employees is the - are the practices that an employer has in place to respond to allegations of violence or assault within the work place and that involves proper education of employees and management on appropriate behaviour in the work place; it involves proper provision of policies regarding violence in the work place and how employees and employers are to respond; it involves appropriate means of reporting acts of violence; it involves proper investigation by a company and appropriate outcomes from those investigations that are communicated to all the parties concerned.

PN9

This dispute is about those conditions not being met or the standard of the company in relation to those conditions not being appropriate and not being suitable. Firstly the dispute about the actual incidents that occurred and the fact that the person perpetrating the acts of violence was a person in a supervisory position and an employee who should have know better essentially and also in some respects was a reflection of the company's attitude towards the actions of Mr Wheeler and Mr Timou.

PN10

Furthermore the dispute is about the way in which the company responded to the allegations that were raised. At the time Mr Timou was harshly reprimanded for attempting to raise his concerns and his complaints about the matter and only after significant effort by the union and Mr Timou and Mr Wheeler going to the extent of lodging complaints with the police was there any effort taken by the company to investigate the matter. There was no transparency in the process of the company. There was not enough involvement with the union.

PN11

There, to date, has not been any report or outcome provided to the union or to the employees about any investigation into the process. There appears to be or have been no action taken in response to what occurred and certainly in respect of Mr Miller. Now, the primary step we wish to take is to try and ascertain what the company has done and to ascertain what steps that they have taken as they have simply haven't communicated anything to the union nor to the employees.

PN12

The union has tried on a number of occasions to ascertain what the company has done and I can tender to the Commission a letter of Mr Lowe dated 6 May 2004 where he has written to the company and attempted to ascertain what has happened in relation to any investigation and what policies the company has in place and what guarantees they can give. If it is suitable, I will tender that.

EXHIBIT #CFMEU1 LETTER FROM MR LOWE DATED 06/05/2004 ADDRESSED TO THE COMPANY

PN13

MR SIVARAMAN: I am instructed by - I will just give the Commissioner a moment to read that.

PN14

THE COMMISSIONER: No, it is okay, thank you.

PN15

MR SIVARAMAN: I am instructed by Mr Lowe that he hasn't received a response to that letter and as a result I have prepared a summons which we will seek to be issued today which in essence seeks the same information that Mr Lowe has sought in his letter. The purpose of the summons is to try and actually ascertain what the company's position is in relation to this matter and what their responses have been. The outcome of receiving that information may be that it facilitates beneficial and progressive discussion and it may eventually result in a resolution of this dispute.

PN16

If it doesn't, we would seek for this hearing to be brought back before you, Commissioner, and we put the company on notice that if it doesn't resolve, we may seek instructions to seek an exceptional matters order in relation to this particular dispute. That is all, sir.

PN17

THE COMMISSIONER: Thank you. Yes, Ms Nowacki?

PN18

MS NOWACKI: Thank you, Commissioner. The company acknowledges that it is in receipt of that letter from Dick Lowe dated 6 May 2004 but the receipt of that letter was actually in response to Glen Southward, the human resources manager out in South Oakleigh calling Mr Dick Lowe from the union and asking him what he actually wanted in relation to the section 99 notification, and this was off the back of the fact that I am instructed that during the EBA negotiations back in January or February this year, Mr Glen Southward actually offered a copy of that report to Mr Lowe for him to have a look at to satisfy himself that the company had followed the recommendations that arose out of that report.

PN19

I mean Mr Lowe never followed up on that offer and never actually asked to come and have a look at the report. The assault arose out of the alleged incidents of assault that have already been mentioned by my learned friend. The company, as soon as they were aware that there was these alleged assaults in the work place, and the company had some issues in the way that they were notified of that assault by the two employees involved, but that aside, the company did undertake a thorough investigation in relation to the assaults and actually got a third party provider to come out, speak to all of the parties involved and to other witnesses and come up with an independent report in relation to what this independent assessor thought should be done in the circumstances.

PN20

The company followed those recommendations in relation to Mr Miller who was a supervisor who allegedly - who was involved in the assault. The union was notified at the time of what the company did do in relation to Mr Miller. Just for the Commission's benefit, Mr Miller underwent quite an extensive counselling service both in relation to alleged language that he did use at the time and also in relation to how he would handle this situation if he was faced with it in the future and that was quite an extensive counselling session that he underwent to the company's satisfaction.

PN21

This morning the union is requesting disclosure of this report in order to enhance and resolve this dispute. We are aware that under section 111(1)(f) of the Workplace Relations Act, the Commission does have a discretion to make such an order for production if it thinks it is appropriate. We would urge the Commission this morning not to exercise that discretion for the report to be produced on the grounds that the company has real concerns over the effect it will have on work place harmony.

PN22

A number of people have given statements of the workers. The company considers this to be an issue that was the subject of a report and they have now followed the recommendations and it wouldn't help the situation in the work place if what was said in those interviews if the report was rehashed up again. They have got a real concern for the fact of how the report may be used and the fact that it may affect some of the welfare of the employees on the shop floor.

PN23

The company is confident in its position that it has a proper induction process in place dealing with occupational health and safety and dealing with these sort of issues. It has a reporting mechanism in place if there are these issues and it does deal with any misuse in the workplace as it did with Mr Miller with an independent investigation followed up by counselling. So they would strongly object this morning to the report being produced however they will re-open the offer that if Mr Lowe wants to have a look at the report on a confidential basis purely for the purpose of satisfying himself, that the company has followed other recommendations and the finding that were made in the report.

PN24

They are happy for that to take place but would object to the report being disclosed generally for the potential affect it could have on the other workers in the work place and the fact that actually what has happened is now in the past. It has been dealt with appropriately and there is no point re-opening these issues for discussion and the potential affect that it could have on all involved.

PN25

THE COMMISSIONER: Okay, thank you. Mr Sivaraman, you say that the process that was entered into you say by the company was not a transparent process and you say that no report of the outcome was provided to the employees or to the union. Now, Ms Nowacki says that a copy of the report - sorry, Mr Lowe was offered to view the report and that offer hasn't been taken up. Ms Nowacki also says that this third party interviewed all the parties that were involved in, I would assume making the allegations and those at the receiving end of the allegations. Can you just from your perspective tell me whether in fact the offer was actually made to Mr Lowe that you are aware of and were the two employees in question, that is Mr Miller and Mr Timou, were in fact interviewed?

PN26

MR SIVARAMAN: In response to the first question, I am instructed that - - -

PN27

THE COMMISSIONER: Sorry, Mr Wheeler, not Mr Miller.

PN28

MR SIVARAMAN: - - - that Mr Lowe was not offered a copy of the report, he was told that there were mistakes that needed to be rectified and thus the report could not be shown to him. That was the instructions I have just obtained.

PN29

THE COMMISSIONER: Right.

PN30

MR SIVARAMAN: In terms of the second question, yes, there were statements obtained from Mr Wheeler and Mr Timou in relation to an investigation however beyond that, they were not told what the - what other statements would be obtained; what the company intended to do with the statement; any time frames in relation to outcomes and most significantly what the actual result of the investigation was.

PN31

THE COMMISSIONER: Right, so they are not aware of - if Mr Wheeler and Mr Timou weren't aware of the outcomes of that report, was the union made aware of the outcomes of that report?

PN32

MR SIVARAMAN: No, I am instructed was not.

PN33

MS NOWACKI: I am instructed in relation to these issues that the union actually agreed to enter into a third party actually making the investigation. In the instructions provided to Maurice J Kerrigan and Associates who undertook the investigation whether it was on the basis of both the union and the company making the request. I have just been informed by Glen Southward that it was Michael Gleeson during the EBA negotiations that offered Dick Lowe the opportunity to have a look at that report and Glen Southward was actually present when that offer was made and I am told that on a number of occasions the results of the investigation have been discussed during the EBA negotiations with Dick Lowe and the action that the company has taken and the fact that Mr Miller has received counselling - professional counselling over the incident.

PN34

THE COMMISSIONER: The union says they weren't aware, neither was Mr Wheeler or Mr Timou aware of the outcome of the report going through counselling.

PN35

MS NOWACKI: I have just received instructions that they have been told that Mr Miller - the outcome of the investigation was that Mr Miller has received professional counselling over the incident.

PN36

THE COMMISSIONER: Has anyone ever seen - I am sure you all would have seen the Simpsons and that particular episode where they are all talking to the dog and all the dog can hear is "blah, blah, blah, blah sit down. Blah, blah, blah, blah dog" and it seems to be that both parties are blah, blah, blahing and no-one is picking up what the blahs blahs actually mean. So what I would like the parties to do is this.

PN37

I would like Mr Lowe, Mr Sivaraman, yourself, Ms Nowacki and Mr Southward to actually get into a room somewhere go through the report collectively on a confidential basis and if there are any issues that arise from that, then come back here and we will see what we can do. But I think that is the very first step is to go through that report on a confidential basis and just get an understanding collectively as to what happened, what occurred, what investigation took place, who was spoken to and what the outcomes were and how the company went about implementing those outcomes.

PN38

Then if you have got a problem, I think come back and we will see what we can do about it. I think that that is the very first step that needs to occur. Okay?

PN39

MS NOWACKI: Thank you, Commissioner.

PN40

MR SIVARAMAN: Commissioner, can I just - - -

PN41

THE COMMISSIONER: Sure.

PN42

MR SIVARAMAN: - - - comment in relation to that. I think it is easy to see what the underlying problem is here. I mean we are both blah blahing but you can see it is about dissemination of the information and certain people not receiving that information. At the end of the day there are two very important things. One that Mr Wheeler and Mr Timou feel satisfied about the way in which the company has investigated and come to a conclusion on this process.

PN43

If only myself and Mr Lowe are able to look at that report and unless we have an agreement that we can communicate to Mr Timou and Mr Wheeler about the content of that report, I don't think that this dispute can be resolved, because I don't think that the very essence of the dispute will be met. The second point is this, as you would have been in that letter and as I forecast was in our summons, there is also a concern here about the future and about what happens if something like this happens again.

PN44

And what Mr Timou and Mr Wheeler want to see and what the union want to see are all the company policies in relation to incidents of assault or fighting in the work place so that they know and they can be aware of what is meant to happen and whether the company did what - it is a simple request. My instructions are it hasn't been met in the past and we would seek for that information to also be provided to us.

PN45

THE COMMISSIONER: Well, I don't have a problem with the company making available their policies because I would think employees would need to be aware of the policies anyway as to if they have allegation how they actually make that allegation and how it is progressed. So I don't think that would be an issue and that can be done in the conference between the four of you. Mr Lowe is a very confident officer of the union. Mr Lowe in going through that report and looking at how that report was conducted and put together and the outcomes of that report, if he is not satisfied with that, then you can bring it back here.

PN46

It doesn't need the involvement as I see from Mr Wheeler or Mr Timou. Mr Lowe can report either from the union's perspective representing those two gentlemen that they were happy or satisfied with the way in which the report was done or they are not. And if they are not, come back and we will see what we can do about it. Okay.

PN47

MR SIVARAMAN: If the Commission pleases.

PN48

THE COMMISSIONER: All right, I will leave it up to the parties to organise an appropriate time and date not too far down the track obviously and if there is an issue then I expect the parties to have the matter re-listed by the Commission. Okay. The Commission will stand adjourned.

ADJOURNED INDEFINITELY [11.20am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 LETTER FROM MR LOWE DATED 06/05/2004 ADDRESSED TO THE COMPANY PN13