C2004/4904, Transcript of Proceedings [2004] AIRCTrans 2809 (21 July 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N2952

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOFFMAN

C2004/4904

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under Section 127(2) of the Act
by Sita Australia Pty Ltd for orders in respect
to the Sita Australia Pty Ltd Brisbane Drivers'
Enterprise Agreement 2002

BRISBANE

1.06 PM, MONDAY, 12 JULY 2004

PN1

MR A. HERBERT: I seek leave to appear on behalf of Sita Australia Pty Ltd who is the applicant.

PN2

MR D. PRIOR: Industrial Officer for the Transport Workers' Union of Australia, Queensland Branch. With me at the bar table I have the State Secretary, MR HUGHIE WILLIAMS, and PETER PAULOS, the appropriate TWU organiser.

PN3

THE COMMISSIONER: Yes. Thanks, Mr Prior. Any objection to - - -

PN4

MR PRIOR: No. No objection, Commissioner.

PN5

THE COMMISSIONER: Yes. Thank you. Yes, leave to appear is granted, Mr Herbert.

PN6

MR HERBERT: Thank you. Could you excuse me one moment, Commissioner?

PN7

THE COMMISSIONER: Certainly.

PN8

MR HERBERT: I'm sorry, Commissioner. We were in the middle of discussing the matter when you came in.

PN9

THE COMMISSIONER: That's okay.

PN10

MR HERBERT: I was getting some instructions. Commissioner, have you had the opportunity to read the material that's been filed in the Commission in support of this application?

PN11

THE COMMISSIONER: Yes. I have.

PN12

MR HERBERT: There should be three documents there. There should be an application for orders under Section 127, and there should be a copy of a draft order, and there should be - you should have an affidavit of Stephen Dadsen which has two annexures. That's the material upon which we rely. The affidavit of Mr Dadsen, I'm reminded, actually is not sworn. The logistics of the situation did not permit it. I'm in a position to call Mr Dadsen to have him depose to that affidavit, if that is required, and I can call him and have him swore up to that material now, Commissioner. And, subject to that, that will be the material upon which we rely.

PN13

We have not - in the time that's been available we have not had an opportunity to deal with that question of having that material sworn, and we also haven't received any notice that Mr Dadsen, whether he is or is not required for cross-examination, but we have him here, in any event, Commissioner, but it that's an acceptable course, then I'll call Mr Dadsen and get him to swear to that material, and then we intend to rest on that evidentiary material. We haven't received any material from the union. We're not sure whether they intend to call any evidence.

PN14

THE COMMISSIONER: Just before you do that, Mr Herbert, are you aware that there has been an application filed for the termination of employment of Mr Miller in accordance with the Section 170CE - - -

PN15

MR HERBERT: No. I wasn't aware.

PN16

THE COMMISSIONER: It only came to my attention, I've got to say, very recently. Apparently, while the file indicates that it was received on Friday - let me just check on that myself. Yes. Just confirming that when I allocated the unfairs this morning I certainly didn't recall, and it apparently wasn't before me. Even though it was filed apparently late Friday, it didn't get on to the weekly list of applications, so I haven't - hadn't become aware of it until just very recently, Mr Herbert. Sorry, Mr Prior, did you want to say something about that?

PN17

MR PRIOR: I just wanted to confirm that, Commissioner. Yes, I did file that late Friday.

PN18

THE COMMISSIONER: Yes. Thank you.

PN19

MR HERBERT: It's not been served on us. We haven't been told that it had even been filed. I asked the question half an hour ago and was told that, to the best of the company's knowledge, there was no application.

PN20

THE COMMISSIONER: Yes.

PN21

MR HERBERT: But that, in a sense, adds to the grounds upon which this application is brought and that it would, indeed, be unconscionable, one would have thought, if there is an application for a remedy in relation to unfair dismissal before the Commission and that the applicant is asking the Commission to invoke the powers of the Act against Sita and, at the same time, action is being taken by way of direct industrial action in order to compel the employer to do something other than might be its entitlements under that application. As it were, to go out on the grass and to approach the Commission for discretionary remedies at the same time is something the Commission usually sets its face against in relation to matters of this kind.

PN22

But in addition to that, Commissioner, there are in relation to this matter no - there is no basis, as I understand it, for suggesting that this action is protected in any way. The material suggests that the only basis put forward by the union for the taking of this industrial action, putting public health and public convenience at great risk, the only justification put forward is in support of a dismissed employee and that the - one would have to say as now appears to be the case, that that employee has access to the most elaborate set of legal remedies in relation to that termination that one could imagine.

PN23

The employee is taking advantage of that - those elaborate statutory remedies and, at the same time, the union is seeking to take direct - well, other members of the union are seeking to take direct industrial action in addition to the statutory remedies and, perhaps, with a view to preventing the Commission from hearing the matter by compelling the employer to surrender their position in relation to the issue and not allowing the employer a proper opportunity to put their case before the Commission and have it argued and have it determined as to whether, in fact, Mr Miller was unfairly dismissed or not.

PN24

The usual tests that apply in matters of this kind, Commissioner, of course, are whether the industrial action is, on its face, sufficiently unconscionable, having regard to modern industrial standards of behaviour, that the Commission ought to make an order which, in effect, makes that conduct unlawful. That's the commonality test and, in my submission, this is such a case. This is a case where the action itself is simply an intemperate response to a very ordinary termination of employment. Ordinary in the sense that it's a termination of employment of the kind that happens every day and without a proper examination by the union or the persons taking the industrial action of the true facts of the matter, and seeking to circumvent or by-pass the statutory remedies and the statutory defences which the employer has in relation to those matters.

PN25

For those reasons, Commissioner, unless there's something further that falls from the union in relation to this matter, this is the clearest case one could possibly imagine as to why the Commission ought to prevent action of this kind. Could I add to that, Commissioner, that this isn't the first time this has happened. It isn't the first time that this union has taken action of this kind in relation to this employer, and we've taken the liberty, Commissioner, of putting as an annexure to the affidavit of Mr Dadsen a statement made by yourself on 12 March.

PN26

I am instructed that the date at the top is 12 March 2003 but, in fact, it was '04, as it must be, because the date of the C number on that matter is C2004, but the date of your statement is "Brisbane, 12 March 2003". That date is actually - would appear to be incorrect. In the 2004 matter you couldn't really have made a statement in 2003 in relation to it. That's annexure B to the - the first page of annexure B to the affidavit and, as appears from the first line, the matter was before the Commission was a result of a Section 99 application by TWU on 9 March 2004.

PN27

On that occasion, Commissioner, you reminded the parties about the procedures to resolve problems under the certified agreement and urged the parties to ensure that the agreement be strictly adhered to in relation to the dispute resolution. The first that the employer found out that they were facing industrial action in relation to this matter was this morning when, in a sense, as the decision to take industrial action was being made. There was no attempt whatever to put the dismissal of Mr Miller in a dispute - in the dispute procedure, or to meet and discuss and to find out what the true facts of the matter were, or to see whether, in fact, Mr Miller, in the view of the union, may have been unfairly dealt with or not.

PN28

There was no attempt made to find out the material that the employer has. There had been a full investigation of the circumstances of Mr Miller's indiscretions prior to the termination of his employment. The company is in a position, and has the full evidence that they need against Mr Miller in relation to his serious misconduct. No attempt was made to find out what that material was. No attempt was made to discuss the matter with the company at any level or to invoke any part of the grievance procedures in relation to Mr Miller once the termination had occurred.

PN29

He was terminated on Friday. Industrial action commenced this morning without any intervening contact between the union and the company at all. This is yet another example, a couple of months after the last warning that the Commission as presently constituted gave to these parties, yet another example of intemperate industrial action and, as I have submitted earlier, it's not simply a matter of inconveniencing employer which, of itself, is bad enough, but the general public of Brisbane who, not being serviced by having their refuse collected, are being seriously inconvenienced, and many thousands of them, by the action that's taken.

PN30

Commissioner, that, in a nutshell, in the submission that we made in support of the application. It only remains for the Commissioner to ask whether it's required that Mr Dadsen be asked to swear to the content of his witness statement or whether that's to be taken as - having the standing of sworn evidence in the proceedings at this stage.

PN31

THE COMMISSIONER: Yes, thank you. Yes, Mr Prior?

PN32

MR PRIOR: Thank you, Commissioner. I may just respond in part to what has just been put. I think the parties are completely at loggerheads over one aspect of what has just been said, which is simply and utterly what has happened since the last time we were before you. I'm looking at that order that was made on - Brisbane, 12 March 2003. We're well aware of the matters that led up to that. We're well aware that the Commission, in previous discussions in previous matters before yourself, has said the parties must follow the disputes settling procedures.

PN33

We say in terms of what has been said in terms of being intemperate behaviour that it's blatant failure to follow the disputes procedure by the company over the last week that led to the events that bring us here today. On 2 July there was an allegation made about the conduct of Jason Miller. He was interviewed on that day. He was interviewed again on 7 July. We understand that there was an opportunity for a TWU organiser to attend. Clearly, we say in relation to the disputes settlement procedure of the Sita Australia Proprietary Limited Brisbane Drivers' Enterprise Agreement 2002 the company have said, well, we made no opportunity or we made no effort to contact them.

PN34

That meeting was 7 July. On the morning on 9 July he was summarily terminated. Now, we would have thought, and we would have expected in the normal course of business, for that to be escalated to the level where the State Secretary would have an opportunity to speak to the company about what we've heard today for the very first time is that - the true facts about what the problem was with this person's conduct and/or performance. It's not the case that we've been in a position of failing to contact them. Matters have happened so quickly. The company have failed to escalate it to that level, and they've taken the decision over two days to go from a meeting with the member and the union, in the capacity of the organiser, to summary dismissal on the 9th.

PN35

Now, in relation to what was said about his rights, the employee - well, the former employee is well within his rights to preserve his rights by lodging an unfair dismissal application. That is what was done. Commissioner, there's frustration in the workplace purely over the fact that since we were last here, as we've had reminded, it's our view that certainly the union would not be put in a position of having a dispute unless we were following the disputes settlement procedure. In this matter that took place up until the point where the union organiser had an opportunity to meet with the company to find out what the allegations were that the company had put against this person.

PN36

However, within two days they've summarily terminated him. There was no opportunity for us to respond. There was no opportunity for us to find out, at the more senior level, what the allegations were and what the true facts, what other material the company had which they now indicate that they have in relation to those matters. And the last thing I would say on that issue would simply be, should the Commission be so minded to issue an order, we believe an order in the circumstances should be very brief because the parties are now in a bargaining period to reach further agreement, this agreement having expired on 30 June 2004.

PN37

THE COMMISSIONER: Yes. Thanks, Mr Prior. Yes, Mr Herbert?

PN38

MR HERBERT: Just briefly in response, Commissioner. The allegations against Mr Miller - I don't want to get into the nitty gritty of the case against Mr Miller. There will be another forum for that, and the union has chosen to commence proceedings in order to invoke the jurisdiction of the Commission under other provisions of the Act, but can I say very briefly because, no doubt, this matter is being - likely to be reported more widely, that the allegations against Mr Miller were contained in a letter dated 5 July that was faxed to Mr Williams. He had a copy of that letter on 5 July. That was four days before the termination occurred and two days before the final interview and - I'm sorry, I stand corrected.

PN39

On the 2nd - the allegations were in a letter dated 2 July, and that was on the same date as the first interview so that Mr Miller and Mr Williams had the - a letter containing the allegations, all of them, for one week before he was terminated. Now, if there was any serious difficulty about those allegations or there was some dispute between the union and the company in relation to whether those allegations should or should not have been made, whether the process being gone through, which was the internal disciplinary process which everyone is aware of, if that was being followed or not followed, the union had the capacity to put that matter in dispute.

PN40

But until there is a termination of employment, there is no dispute between the company and that employee. There is simply an issue as to whether the employee has breached their obligations and an investigation was being undertaken in that regard. There is no grievance procedure for the - there is no warrant for the company to invoke a grievance procedure in relation to an internal investigation on a disciplinary matter. The dispute arises if the union contests whether the disciplinary procedures were being properly followed during the course of them or, at the end of the day, if they say that the result of the disciplinary procedure exercise was wrong or misplaced, was otherwise unfair.

PN41

It is possible to generate a dispute in relation to that matter, but the suggestion that the company should have invoked the disputes procedures because it was going through a disciplinary process with a single employee is quite wrong, and the company had no obligation to do that at all. In relation to the other matter that was raised by Mr Prior, and that is that the certified agreement in which the grievance procedure appears is presently out of its nominal term and that there is a bargaining period between the parties, that's - I can confirm that's correct.

PN42

The parties are - have been engaged in bargaining towards a replacement agreement, but that shouldn't have any bearing upon the matter that we have asked - or the order we've asked the Commission to make because any order the Commission makes by law cannot apply to protected industrial action and it couldn't be, in that sense, that any order that the Commission makes would apply to any - if it turned out that the bargaining went off the rails, for examples, and protected industrial action was commenced the order wouldn't apply. But in the event the Commission has any concerns about that, in the draft order that we've handed up, we wouldn't want the Commission to be seen to be travelling beyond its jurisdiction in relation to these matters.

PN43

The draft order that we've handed up contains an exemption - an exclusion in paragraph 4 in relation to two matters. It would be appropriate, if the Commission thought that the issue was one that needed to be addressed, to add a paragraph (c) to that exclusion so that the order will not apply to an action by an employee which is protected industrial action within the meaning of the Workplace Relations Act. That would meet all of Mr Prior's concerns about that possibility. That's a matter of law, in any event. The order can't apply for protected action, but if one wanted to see it written in the order, that is, in my submission, how and where one would do it.

PN44

But, otherwise, there has been no basis suggested by Mr Prior as to why the Commission ought not, in the circumstances of the matter of this kind, ensure that the refuse for the citizens of Brisbane is collected in a proper and orderly way because there has been nothing put forward to suggest the industrial action is otherwise action which is understandable or acceptable, or ought to be accepted by the Commission in the context of the certified agreement and the standards of industrial conduct and, for that reason, in my submission, there are - there has been nothing put forward by the union as to why the order that we seek, with the possible modification I've just suggested to paragraph 4 should not now be made. Are there any other matters, Commissioner?

PN45

THE COMMISSIONER: Just in terms of the duration of the order as sought, Mr Herbert, and in light of your comments about you being in negotiations and, as you know, the likely timing for at least that conciliation matter - the conciliation of the matter in terms of U2004/4789. Do you have any further submission on that?

PN46

MR HERBERT: Commissioner, the - one has to say, the length of time we sought is not disproportionate, particularly given the conduct of these parties in the past. If the - it would certainly be necessary, in my submission, to make a period which covered the time from now to the time when that matter that you now have that we don't have, the reinstatement matter, is to be conciliated so that appropriate action can't be forced on the employer between now and then, and that the conciliation will take its course. I am instructed - I should mention, I am instructed that the officers of Sita who instruct me here today are prepared to meet with Mr Williams this afternoon to put him even further in the picture in relation to this matter and discuss the question of Mr Miller's misconduct.

PN47

They're prepared to do that. But we have no way of knowing whether anything is going to come of that, which is why we press forward, in any event. I'm not too sure of the timing in relation to conciliation proceedings in that unfair dismissal - - -

PN48

THE COMMISSIONER: Normally, within 10 working days in this jurisdiction, Mr Herbert.

PN49

MR HERBERT: Then , Commission, can I submit that the period in relation to that order should be no less than 14 days to - and that - so that there is - and that the application in paragraph 6(b), we have asked for an order that the parties have liberty to apply for a variation of the order. We would expressly submit that if this - if an order is made and these proceedings are adjourned, then if, at the end of 14 days, the matter hasn't been conciliated away and there is a further threat of action, we may have to reinvigorate the proceedings in order to get the Commission to vary the term of the order, or perhaps make a fresh order based on the application then, but no less than 14 days if the matter is likely to be conciliated within 10 working days. That's the minimum, thank you, Commissioner.

PN50

THE COMMISSIONER: Yes. Thank you. Anything further, Mr Prior?

PN51

MR PRIOR: Just one thing that I need to put on the record in relation to this matter, Commissioner, which is to reiterate what we said in relation to the failure of the disputes procedure. The disputes procedure, as the parties are no doubt well aware, at point 8.1 states, I quote:

PN52

The majority of employees at the site will decide upon an employee representative to discuss grievances, issues, problems or other matters of concern as a group or individually on their behalf with their supervisor.

PN53

Surely being stood down on pay whilst you're being investigated legitimately constitutes a grievance or an issue or a problem, and we say that the matter went as far as being discussed with the union in the capacity of an organiser. We also say that, before we'd had an opportunity to assess the merit or otherwise of the allegations that were made in the letter of 2 July, another issue - another letter issued on 9 July, which was summary dismissal, and we still say, and we want it put on the record simply to reflect what brought about the frustration that led to the industrial action today is simply the fact that we've been told repeatedly that we must, in the circumstances, follow the disputes settlement procedure, and we take the view that we'd gone as far as discussing the matter with the TWU organiser appropriately. The company has taken the decision to summarily terminate. We were unaware of that and the matter escalated as it has in the circumstances, and we still say the appropriate course of action will be for the parties to have discussed it at the higher level before the company took the decision to terminate.

PN54

THE COMMISSIONER: Yes. Based on those submissions, the Commission urges the parties to confer immediately on the conclusion of these proceedings. The Commission has stated now, on a number of occasions, of the importance of following the disputes procedures in the agreement. The Commission is also concerned that the matter has led to industrial action, particularly while an application with respect to the termination of employment, has been filed in the Commission. The Commission, as currently constituted, will ensure that the matter is dealt with in conciliation as expeditiously as possible. The Commission, however, is required to take into account the fact that industrial action is happening, and has been since the start of shift this morning.

PN55

The work that is being carried out by the employees is covered by a certified agreement which has a nominal expiry date of 30 June but, in which case, would still have operation and the award underpinning that agreement is still applicable. The Commission will have a variation of the proposed order prepared and supplied to it immediately at the conclusion of this hearing and will contain the exclusions referred to by Mr Herbert in clause 4(c) which will make it clear that this order would not be applicable to what I would term the normal protected industrial action in accordance with the Act, providing appropriate notices of initiation of bargaining period and notice of industrial action are served in accordance with the requirements of the Act. Secondly, in terms of the duration of the order, that shall be up until 26 July 2004 or until further order of the Commission. As I say - - -

PN56

MR HERBERT: Commissioner - - -

PN57

THE COMMISSIONER: Sorry.

PN58

MR HERBERT: I'm sorry, Commissioner. There's one further correction. The telephone number in clause 5(b), or the fax number, I'm instructed there's a misprint. It should be 3890, not 3880. Could I ask, if the Commission of effecting some alterations to the order, that that be done too? It's only a small matter but it ought to be - - -

PN59

THE COMMISSIONER: Yes.

PN60

MR HERBERT: It ought to reflect correct numbers.

PN61

THE COMMISSIONER: Yes. That will be corrected as well. The order will issue. The parties are required to confer and if you would advise my associate of any outcome of those discussions. The Commission stands adjourned.

ADJOURNED INDEFINITELY [1.33pm]