C2005/2924, Transcript of Proceedings [2005] AIRCTrans 1131 (12 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11457-1

COMMISSIONER CARGILL

C2005/2924

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
VISY STEEL PRODUCTS PTY LTD
s.99 - Notification of an industrial dispute
(C2005/2924)

SYDNEY

10.18AM, WEDNESDAY, 04 MAY 2005

PN1

MR A NEILSON: I appear on behalf of the applicant, and with me is MR R DRURY.

PN2

MS K KNOWLES: I am from the Australian Industry Group. I appear on behalf of Visy Industrial Packaging trading as Visy Steel Products, and with me is
MS N SAVILLE, the HR manager, MS B DONNELLY, the business manager and MR M TURNER who is the regional manager here at the bar table.

PN3

THE COMMISSIONER: Thank you. Yes, Mr Neilson?

PN4

MR NEILSON: Thank you for listing the matter as quickly as the Commission did. The dispute between the parties is quite a difficult dispute to deal with by way of a section 99 notification but given the circumstances of the particular case we thought it appropriate that the Commission attempt to conciliate the dispute between the parties. As my friend referred to, the respondent company is known as Visy Steel Products Pty Ltd, and it operates its operations at and from Andrews Road in Penrith. Visy took over those operations on or about 11 April 2005 by way of purchase of the previous owner's business which was known as Dakota Holdings Pty Ltd. The previous owner had in force an agreement, a section 170LK agreement which approved by his Honour Senior Deputy President Cartwright on 9 March 2004. For the purposes of this dispute that agreement is not necessarily relevant but the Commission may find it appropriate at some time and the agreement code is AG20041993.

PN5

The dispute between the parties began last week on or around 16 April when an incident occurred between a Mr Ririnui who is a member of the union and a Ms Donnelly who I understand is the human resources manager of the respondent's operations. Mr Ririnui placed and obtained a union, signify union noticeboard for the purposes of placing union notices and superannuation notices. The noticeboard was provided by the Superannuation Trust of Australia for placement up and around various workplaces in accordance with the Metals Award which permits such an arrangement to take place. Mr Ririnui placed the noticeboard in the employees' meal area, the noticeboard was not fixed to the wall by a nail or anything that would damage the wall, it was sticky tape if you like that kept the noticeboard fixed to the wall. Mr Ririnui was approached by Ms Donnelly in relation to the placement of that particular noticeboard and Ms Donnelly tried to take forcibly the noticeboard down saying it wasn't appropriate that it be placed on the premises of the respondent's operations.

PN6

An argument ensued between Ms Donnelly and Mr Ririnui whereby Ms Donnelly attempted to take away from Mr Ririnui the noticeboard in a forcible manner and it wasn't an appropriate way for this type of situation to be dealt with. Mr Ririnui contacted the union office to seek some advice in relation to his rights with respect to the noticeboard. That advice was provided by an organiser of the union being Mr Noel Castles. While Mr Castles was on the phone to Mr Ririnui, Ms Donnelly continued to yell and tried to take the noticeboard away from Mr Ririnui. Mr Ririnui offered the telephone to Ms Donnelly to try and allow the organiser to speak to her to try and get some clarification about what she was doing. That was rejected by Ms Donnelly. The argument that continued on, and on my instructions Ms Donnelly then asserted that Mr Ririnui had been intimidating her and had assaulted her. That allegation is denied by the way, Commissioner.

PN7

Ms Donnelly then informed Mr Ririnui that his employment would be terminated immediately and he was to remove himself from the premises. Mr Ririnui was obviously shocked at the conduct of Ms Donnelly in these particular circumstances which, for a human resources professional, presumably is not conduct that should be encouraged. Mr Ririnui said to Ms Donnelly that I didn't assault you and denied the allegations. There was other employees who witnessed the alleged incident that backed Mr Ririnui's side of the story insofar as they would assert, and if need be, can provide evidence in further proceedings in relation to this matter that it was Ms Donnelly who was being the aggressor in the circumstances and it was Ms Donnelly who was trying to take away the union noticeboard forcibly from Mr Ririnui, a matter that we would say she didn't have any right to do. The next day - Mr Ririnui did not remove himself from the premises on that particular occasion because he was in shock and trying to seek some advice about his rights.

PN8

At the conclusion of the shift on that particular day, the employees returned on 27 April and my understanding is that the employees took a vote that they would take industrial action over the intimidation that had occurred between both Ms Donnelly and Mr Ririnui. They were not satisfied with the way human resources had handled the particular matter on this particular occasion. It was one in a series of disputes between the employees and the company's management which had given rise to the employees feeling it necessary that they take industrial action. That industrial action was taken on the 27th as I have outlined. The next day the employees returned to work on 28 April and they also returned to work on 29 April - sorry, Commissioner, I am informed on the 28th they took industrial, on the 29th they were back at work. At the end of the shift on the 29th a number of casual employees were approached by Ms Donnelly and they were informed that there would be no more work available for them at this particular time and they were going to be stood down, if one could characterise it as that, as a result of that.

PN9

The employees felt that they were being intimidated because they had recently become members of the union and Ms Donnelly had on previous occasions indicated to them that she didn't like the union and that unions weren't going to do the right thing by Visy and she didn't want them in her particular workplace. The employees have, the permanent employees that is, have taken industrial action in support of the casuals on the basis that there is plenty of work, on their understanding, available for those casuals to perform. A permanent employee, on my instructions, has asserted that up until recently he was working regular overtime so it is not a case whereby production was winding down and there wasn't any work to satisfy these particular employees. One casual employee had worked in excess of 12 months so there is an issue there as to whether he has been unfairly dismissed in the circumstances of his particular situation. The other casuals had work there in excess of four to six months.

PN10

The issue in relation to the casuals was further raised in relation to a warning letter that was issued to Mr Peter Wilson on 26 April 2005. Mr Wilson is one of the casual employees engaged by Visy Industrial Packaging and it should be noted that the way the casual arrangements take place at this particular operation is akin to the way labour was assigned on the wharves in the 1920s and 1930s whereby the employees are required to turn up each day at the particular workplace and they are then informed as to whether or not there is work for them on that particular day. It is not a situation where by they are rostered on, on my instructions. It is not a situation whereby they are called in to work. It is a situation whereby they are required to come all the way to the workplace and then if they are lucky enough they will get some work for that particular day. The situation in relation to Mr Wilson and the warning letter that I have identified is in relation to Mr Wilson allegedly taking sick leave without following the proper notification arrangements.

PN11

Keeping in mind what I said about the employees being required to show up to the workplace to see as to whether or not they will be given work for that particular day, it is hard to understand how an employee can be given a warning for not showing up on a particular day when in our understanding of the way the operations work, they are not required by their employer to turn up on that particular day. Mr Wilson denies the warning that it's been issue to him, and I will provide the Commission with a copy of the letter in a moment, on the basis that he lives with a particular person who also works at Visy's operations, he informed that person on the day that he would be sick and wouldn't be able to go in to work. The employee who lives with him went to work and informed Ms Donnelly in the morning before the shift started that Mr Wilson wasn't going to be able to turn up today due to his sick leave. In our submission, that is sufficient notification for an employee to provide to a company and to be issued with a warning letter in relation to this matter is just unfair.

PN12

And it has given rise to the dispute that is currently in place between the parties whereby not only do we have the termination of Mr Ririnui in circumstances which are, in our submission, harsh and unjust, we also have casual employees being intimidated with warning letters and the threats that work will no longer be provided to them. And this type of conduct is not new for this particular company and its particular management. On our instructions, when the company was in the previous hands of Dakota Industries, a number of employees would often be informed that there was no work available for them on that particular day and they would be stood down and that was full time employees. And they were stood down in circumstances where they weren't provided with pay. They were stood down, which is stood down in circumstances which amount to a breach of both the award and the relevant agreement, whereby full time employees were told to go home and access your annual leave instead.

PN13

And often it would be a case whereby the employee wasn't told that their annual leave was going to be used to pay them, they didn't authorise that annual leave being used to pay them and it's a situation that obviously gave rise to a number of concerns because the previous management, who I understand was Ms Donnelly, has also carried over to Visy Steel Products. And she has continued this belligerent attitude which has resulted in the dispute taking place. What we would seek from the Commission today is that the Commission attempt to conciliate this particular matter. The union has attempted on a number of occasions to hold discussions with Ms Donnelly in relation to this particular matter. Those discussions only took place on my instructions, yesterday. They weren't able to resolve the particular dispute. The employees remain engaged in industrial action. That's obviously not a situation that they want to continue on with.

PN14

It's certainly a situation that the union would like to see resolved immediately. Just before I close my opening submissions, Commissioner, I will tender to the Commission two documents which form part of the dispute in relation to the termination of Mr Ririnui and Mr Wilson. The first document that I will provide the Commission, I don't know whether it might be appropriate to mark the documents?

EXHIBIT #AMWU1 EMPLOYMENT SEPARATION CERTIFICATE
EXHIBIT #AMWU2 WARNING LETTER TO MR WILSON

PN15

MR NEILSON: Thank you, Commissioner. The first, AMWU1, is an employment separation certificate provided for the purposes of Centrelink and you will see half way down the first column, there is a number of boxed in relation to the reasons given for termination. The reason given on this particular form is that Mr Ririnui's work performance was unsatisfactory. If the Commission turns over to the third page which is another employment separation certificate which was also issue for Mr Ririnui, the reason provided there is completely different. And the reason provided there is that Mr Ririnui had engaged in abusive and threatening behaviour which related to misconduct. At no stage has Mr Ririnui been provided with any letter of termination, the investigation that an employer would be required to undertake to ascertain the veracity of Ms Donnelly's allegations has not been undertaken. The way Mr Ririnui was terminated was highly unsatisfactory. Mr Ririnui was terminated without notice so the employer therefore faces a higher onus to meet its obligations with respect to justifying the dismissal.

PN16

We would submit, Commissioner, that the actions of the company could amount to a breach of 298K and whilst we are aware that the Commission isn't empowered to deal with these matters, we think it appropriate that we place on record our concerns and potential intention to prosecute the company pursuant to those provisions. And the prohibitive reasons that we will rely upon are detailed in section 298L of the Act being part (a), part (i), part (j) and part (k). So there are numerous provisions that we believe that the company has potentially breached. What we would be seeking today as a way forward is that Mr Ririnui should be immediately reinstated as a starting point, the employees will of course return to work provided that the casuals are provided with work which we understand is available. The warning letter that has been issued to Mr Wilson should be withdrawn unequivocally and pending that, the parties can discuss a future way forward with respect to resolving the numerous issues that are currently taking place out at the site so that both the union and the company can move forward from this mess. I will leave my submissions at that, Commissioner, unless you have any questions.

PN17

THE COMMISSIONER: No. Thank you, Mr Neilson. Ms Knowles?

PN18

MS KNOWLES: Yes. Thank you, Commissioner. I might perhaps firstly add to my friend's background that he has provided you with regards to Visy Steel Products. As he alluded to, Visy Steel Products purchased the Dakota Industries Penrith site on 11 April and so therefore we have only had that site for three weeks. There are some five permanent employees on that site, from time to time three casual employees and two managers. So we are talking about a fairly small site, Commissioner. When this particular business was purchased the general manager of Visy Sustainabilities went out to the site at Penrith and spoke to the employees about the sale, provided a two hour induction to the employees explaining the terms and conditions and the expectations of Visy as well as providing employees with a Visy Industries handbook around that time in an attempt or an endeavour to set up or commence a good working relationship with the employees.

PN19

We understand at that point in time that both Ms Saville, who is with me this morning, as well as another gentleman, Mr Barnes, received contact from the AMWU of their interest in attending the site to sign up membership. As you would no doubt be aware, Commissioner, this is not unusual for Visy Industries to have on any of their sites, one or more unions and in fact in the past have worked on a day to day basis quite amicably with the union movement. Broadly speaking, Commissioner, I think this section 99 application is a result of a series of fairly minor incidents that have occurred on this site, they don't appear to have escalated, are very quickly culminating in the employees taking industrial action. In this regard, Commissioner, I do want to draw your attention to some concerns that we have had about the jurisdiction of this Commission to hear this conciliation as well as the actions of the employees and the union in taking industrial action. It is our view, Commissioner, contrary to what my friend appeared to allude to that Visy is now bound by the enterprise agreement that Dakota had in line with section 170MB and I will just submit to you, Commissioner, a copy of that enterprise agreement.

PN20

THE COMMISSIONER: I have got one, thanks, Ms Knowles.

PN21

MS KNOWLES: Under that particular enterprise agreement the expiry date is in this agreement at 8 March 2007. So we do have a case, Commissioner, where industrial action has been taken during the life of an agreement that applies to the employees and the new employer which obviously does not fall within the provisions of 170ML and is a breach of 170MN that no industrial action occurred during the term of an agreement. At the same time, Commissioner, the company has not received any notice of industrial action within the clause 170MO. There in fact appear to be two incidents of industrial action, the first that occurred on Thursday the 29th which one of the employees notified the manager, Ms Donnelly, that the employees were taking strike action. Second of all, the employees are taking strike action across Monday the 2nd, Tuesday the 3rd, and given their presence here in the Commission are still undertaking strike action. I should also bring to your attention, Commissioner, that the second lot of industrial action was notified to the company by the AMSU organiser not the employees, a Mr Drury I understand his name to be.

PN22

At the same time, Commissioner, we also have concerns that there is a breach around the union official attending the site. There was no notice given to the company on any occasion throughout the last week of Mr Drury's attendance on the site as per section 285D(2), the requirements of 24 hours of notice of entry to the site. In fact, having had discussions with the company, Visy would have been quite happy if Mr Drury had simply phoned a couple of hours before, not necessarily hold to the 24 hour period, but merely give the company the courtesy that he is entering the site. Last week, Commissioner, we also believed that in part this action under section 199[sic] is an inappropriate use of this mechanism where a more appropriate use of dealing with an employee's dismissal or termination is under section 170CE and that that matter is best dealt with under using that arm of the legislation rather than a section 99. Lastly, Commissioner, with reference to the EBA, I would draw your attention to the dispute resolution procedures that appear to have not been acted upon or have only been acted on in part.

PN23

Under part 6 of the EBA, clause 29 and 30 indicates that before attempting conciliation with the Commission there is in fact a process of mediation under this enterprise agreement where both parties will agree to an independent or mutually agreeable mediator and if mediation is not successful then a dispute can be lodged with the Commission, with the Commission exercising its power of conciliation in relation to the dispute. Further down, Commissioner, under clause 30 there is also a provision indicating the parties will not take legal action to enforce any provision of the agreement or the Act while this mediation is occurring and will not do so for seven days until after the mediation. It is our submission, Commissioner, that mediation has not been undertaken. In fact, the only person that to date has dealt with this issue from Visy's management point of view is the business manager, Ms Donnelly, for the record she is the business manager rather than the HR manager. The matter could have been escalated when Mr Drury spoke to the HR unit of Visy Industrial Packaging or Visy Steel Products who is with me this morning, being Ms Saville.

PN24

Perhaps in brief, Commissioner, I will deal with the incidents in question. But the first incident I do want to deal with is any issue concerning Tuesday 26 April which Mr Neilson has brought to your attention via a warning letter which being AMWU2. And this is with reference to a number of issues that have occurred on the site on and around Thursday 21 April and Friday 22 April, this being that out of five permanent employees over two days we had two issues with employees about notification of sick leave being a basic term and conditions of both the EBA and the relevant award that employees notify the company when they are on sick leave. And on Friday the 22nd another two incidences where employees left the workplace at 11 am rather than completing their entire shift. This issue was dealt with on Tuesday 26 April after the Anzac day long weekend where there was another discussion with the employees about their expected behaviour, including issues of sick leave. And walking out is probably the best way to describe the second series of incidents.

PN25

And then thirdly, Ms Donnelly brought up the issue of Visy not tolerating any violent or aggressive behaviour, yelling, swearing on the site. There appears to have been a couple of incidents prior to the Tuesday the 26th where employees had displayed aggressive behaviour. In this regard, Commissioner, these are fairly simple terms and conditions and rights and responsibilities that the employees undertake when working either for Dakota or Visy, but given Visy has only had three weeks on the site they have endeavoured to ensure the employees understand their rights and responsibilities, and at the same time have sought to enforce where employees have not undertaken their rights and responsibilities as per their contract of employment and the enterprise agreement and other industrial instruments. With regards to the noticeboard incident, Commissioner, from the company's point of view the issue of the noticeboard was - the company does not have any problems with the noticeboard being there and in fact Visy generally have noticeboards across all of their sites.

PN26

What Ms Donnelly did take exception to, however, is the lack of consultation on the location or the fact the sharing of the noticeboard with other unions. Instead this particular noticeboard was put up unilaterally by a line of the employees. Unfortunately though, this incident seems to have escalated perhaps off the back of the other warning letters and the other issues that are going on about the site and perhaps the tumultuous changes the employees have undertaken in the last three weeks. With reference to the employee's termination, Commissioner, once again we believe that that issue was best dealt with as an application to deal with the termination under section 170CE so I do not intend to go into too much detail on that issue, only to indicate though that on the following day, or on that day being Tuesday the 26th the employee was asked to leave the site and stood down. A meeting was held on the following day where the employee was offered to provide a response to what had occurred. That employee actually refused a response and would only speak through the union organiser, Mr Drury.

PN27

And as a result, given the company had already previously warned the employees that they would not tolerate violent behaviour of the employees, was terminated. We say this is a valid and fair termination given the incident and the prior warning and the opportunity to respond. Lastly, Commissioner, I will deal with the issue my friend raised about the casuals. Visy having since taken over the site in the last three weeks, this is the first time the company has not had rosters available for the casuals, that being I understand to be three casuals on the site. The casuals Visy intend to use and I am instructed, as flexible sources of labour. To retain the three casuals on a regular shift pattern or in fact any shifts, the company requires the product being the drums on this site, to be sold 1,970 drums to be sold per week. Without that amount of turnover of product the company does not have the capacity or the work for casual employees. To add understanding on this issue, Commissioner, this site is only now turning over 619 drums per week and the order for this coming week is only 882 drums, well short of the 1,970 drums required for the company to put on casual employees to take up the extra workload.

PN28

My instructions, Commissioner, is that Ms Donnelly informed the casual employees on Friday the 29th about this issue, that there was not enough work in the following week, explained to employees and showed the rosters about the downturn in business and that the company will call the employees in when extra work was available. This is not a termination of these employees, it is merely using a casual labour force as for what it was intended and that is a flexible labour force if and when the drums reach a capacity to undertake extra labour from the casuals. In this regard, I do want to stress that it is not as though the casuals are no longer required but when work is available the casual employees will receive phone calls to be able to be put back on the roster process. Commissioner, that is about the level of detail I wish to go into on those issues. I am of the point of view and the company has instructed me that they understand that over the last couple of weeks there has been a fairly tumultuous time with Visy purchasing the company and coming in.

PN29

But there does not appear to have been any major managerial changes on this site and in fact the company have put in place a fairly rigorous induction process to ensure things, for want of a better phrase, started off on the right foot with the employees. And then when certain incidents occurred, such as sick leave and employees walking off the job then Visy has sought to enforce its rights and responsibilities in line with these terms and conditions. If there are no more questions, Commissioner, I do have some concerns about the jurisdiction of this matter given the appropriateness of dealing with an unfair dismissal claim through section 99 as well as the somewhat three breaches of the legislation with regards to the industrial action and a breach of the EBA with concern to how disputes should be resolved under this industrial instrument. If you don't have any questions for me, Commissioner, I will leave my submissions there.

PN30

THE COMMISSIONER: Ms Knowles, leaving your concerns about the jurisdiction to one side, is there any difficulty in going into conference to discuss some of the issues?

PN31

MS KNOWLES: My instructions are that the company is open to going into conference, Commissioner, to deal with the detail of the issues.

PN32

THE COMMISSIONER: Thank you. Mr Neilson, is there anything you want to put on the record? I realise that probably you don't agree necessarily with what Ms Knowles has put but is there anything you wish to place on the record?

PN33

MR NEILSON: I will probably just place on the record that we don't agree with Ms Knowles' submissions as to jurisdiction. The union is not a party to the Dakota Holdings Enterprise Agreement and the union is entitled to notify pursuant to the Act which we have done. So we would invite the Commission to go into conference and hopefully we can resolve the issues. I won't place on record the various objections to the submissions of Ms Knowles, save for, we don't agree with her characterisation of the dispute involving Mr Ririnui, and also the sick leave issue as well, Commissioner.

PN34

THE COMMISSIONER: All right. In that case, we will go off the record and into conference.

OFF THE RECORD

PN35

THE COMMISSIONER: There has been some conferences with the parties together and separately off the record and I believe that Ms Knowles, you are going to put a couple of undertakings on the record. Is that the case?

PN36

MS KNOWLES: Yes, Commissioner. On behalf of Visy Steel Products, I am able to give an undertaking with regards to Mr Wilson's warning letter that that warning letter will be withdrawn on a no admission basis. Second of all, Commissioner, the capacity to resolve this issue, second of all provide an undertaking that when there is an upturn or an increase in business appropriate to take on additional labour that the casual employees in question in this dispute are first contacted and offered roles suitable to their level of experience and qualifications. And we do hope on behalf of Visy that that resolved the matter, Commissioner. Thank you.

PN37

THE COMMISSIONER: Right. Thank you. Mr Neilson, was there anything you wanted to put on the record in response?

PN38

MR NEILSON: No, just the undertakings, Commissioner.

PN39

THE COMMISSIONER: Right. Just on a practical notice, I know this was mentioned before, there was some other letters to be made available to the three casuals and as I understand the situation is that Mr Wilson's will be available from 6.30 am tomorrow morning at the site.

PN40

MS KNOWLES: At the Penrith site, Commissioner.

PN41

THE COMMISSIONER: At the Penrith site, so you can pick that up from that time on. The other two will be posted in the post tomorrow so you should probably get it probably by the end of the week or Monday. Presumably if there is any difficulty with that and you need them earlier there could be some arrangement made. And the other issue I just wanted to raise in relation to the conciliation of Mr Ririnui's application under section 170CE if that comes around that there is an issue about, or the possibility of an expedited conciliation. As I understand it, Ms Knowles, you will perhaps contact Mr Neilson at some stage or other in the next several days to indicate what the company's view is about that and then depending upon what the view is, that can be dealt with then.

PN42

MS KNOWLES: Yes, that is the case, Commissioner.

PN43

THE COMMISSIONER: Right. Thank you. Nothing else? Nothing out of those issues? Well, thank you all for attending today and participating in the conciliation as well. Thank you. The matter is now adjourned generally.

<ADJOURNED INDEFINITELY [1.27PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMWU1 EMPLOYMENT SEPARATION CERTIFICATE PN14
EXHIBIT #AMWU2 WARNING LETTER TO MR WILSON PN14