C2005/3026, Transcript of Proceedings [2005] AIRCTrans 1205 (26 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996

SENIOR DEPUTY PRESIDENT ACTON

C2005/3026

TRIMAS CORPORATION PTY LIMITED
AND
AFMEPKIU
s.99 - Notification of an industrial dispute
(C2005/3026)

MELBOURNE

10.42AM, TUESDAY 17 MAY 2005

PN1

MR D SULLIVAN: I appear on behalf of TriMas. With me is MR J GRAVES for the company.

PN2

MR I THOMAS: I appear on behalf of the AMWU. I have no one else with me.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Sullivan?

PN4

MR SULLIVAN: Thanks, your Honour. Your Honour, TriMas Corporation manufactures car and boat trailers. It has approximately 125 employees on that site. It is covered by an enterprise bargain, the Hayman Reece Enterprise Partnering Based Agreement 2003 which is underpinned by the Metal Industry Award. On 12 May, your Honour, a supervisor was trying to give notice to an employee regarding a performance issue, to say they were going to delay a review of a warning that was on his file. The employee became quite agitated and erupted and our belief is the employee had a medical fit. The union was then contacted and what happened was the organiser came on site. Didn't talk to the company. Called a meeting. And decided they were all going home.

PN5

They told the company the only way they could stop that was if they suspended the supervisor immediately, which the company wasn't going to concede to that without having any investigation as it only just happened. At that time all the employees basically walked off the site. Obviously in our view it is an illegal strike. It wasn't protected. The grievance procedure which the company has within the agreement wasn't followed at all and it is our belief that if it had have been followed it would have been resolved. As at today, the employees came back yesterday.

PN6

The company has already agreed to get external people in to help them assess the situation about what happened. They had a psychologist and other people to try and review the situations so that they give everybody a fair go and decide what to do, whether any remedial action had to be taken. The reason we are here today Commissioner, sorry, your Honour, is to try and avoid this type of situation again and have you explain in quite direct terms about the illegality of the action they took and to ask them to adhere to their agreement which they signed not that long ago and that it is a serious breach and that if it occurs again, that the Commission would respond accordingly to any action or sorry, any application that the company makes. That is the reason we are here, your Honour, for fear of future reactions based on the behaviours the union displayed last week.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Thomas?

PN8

MR THOMAS: First of all I would like to make it clear to you that I have, we have been trying to talk to the company over the last year and a half. We have had several instances of workcover where people have, the company has tried to change doctors return to work plans. We have tried to talk to the company. We have offered the union assistance with our occupational health and safety people. A lady by the name of Deborah Valance, who is a doctor, to come down and help sort this out. So I would say that we have been through the dispute settlement procedure several times.

PN9

We have had instances in the past where the two delegates who are actually, who are delegates for Hayman Reece, were verbally abused by a supervisor in front of witnesses and the investigation found that nothing had gone, that nothing had happened and that there was no disciplinary action needed to be taken. The members have lost faith in the, lost respect that the company's management of the workcover problems, which this is really what this all stems from because this person who had the, who collapsed, has a WorkCover problem and the company, he claims, has been harassing him about it. We have had, often this company, on several occasions, anything we can do to help will sort this out and people came to the end of their tether and decided that they weren't going to cop this abuse and the members decided that this was the best way to show the company that they were not going to accept the verbal abuse that the company keeps putting on them.

PN10

THE SENIOR DEPUTY PRESIDENT: Mr Sullivan, one of the things you said to me was that, you thought this person had had a fit and you called the organiser.

PN11

MR SULLIVAN: The company didn't. An employee called the organiser. The company called an ambulance.

PN12

THE SENIOR DEPUTY PRESIDENT: Right. I was hoping they would have.

PN13

MR SULLIVAN: Yes, your Honour. I would like to say what, sorry, one more item that did make the situation very inflamed on the day was, I wasn't there but I have had reported to me by the delegate who was stood right there, that when this gentleman, Mr ..... collapsed, the supervisor laughed and walked away and did not call an ambulance, that it was up to someone else to call an ambulance and it ended up with a lot of animosity there.

PN14

THE SENIOR DEPUTY PRESIDENT: Is there an agreement at this place?

PN15

MR SULLIVAN: An agreement? Yes, your Honour. An agreement as was- - -

PN16

THE SENIOR DEPUTY PRESIDENT: It is just not mentioned in the - - -

PN17

MR SULLIVAN: Application?

PN18

THE SENIOR DEPUTY PRESIDENT: No.

PN19

MR SULLIVAN: The agreement is the Hayman Reece Enterprise Partnering Based Agreement 2003.

PN20

THE SENIOR DEPUTY PRESIDENT: Can I have a look at that?

PN21

MR SULLIVAN: It certainly has a disputes procedure which says that one of the steps is coming to the Commission, your Honour, not taking things in your own hand and forgetting to go to all the steps. The disputes procedure is page 10, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: Page 10 is it?

PN23

MR SULLIVAN: Yes.

PN24

THE SENIOR DEPUTY PRESIDENT: When a matter is referred to the Commission under step 4, what is the Commission to do?

PN25

MR SULLIVAN: I wasn't involved in the putting up of this document, your Honour, but yes, it certainly doesn't - it remains pretty open, your Honour. At least it would be conciliation as we- - -

PN26

THE SENIOR DEPUTY PRESIDENT: Well, what are your instructions, Mr Sullivan? I am not really interested in what your personal view is. What does the company say is to happen? Why don't you ask them, they are here?

PN27

MR SULLIVAN: Why I am really here, your Honour, was to, really, we wanted it on the record that there was a unprotected action and we were asking that you would condemn the union taking unprotected action and that it is a serious breach and really to say that you would respond accordingly if there was another application, if it occurred again.

PN28

THE SENIOR DEPUTY PRESIDENT: Well, that is why I am asking you about what we are to do.

PN29

MR SULLIVAN: Can I have one moment, your Honour?

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. Certainly.

PN31

MR SULLIVAN: Your Honour, the company has instructed me that the role of the Commission should be conciliation.

PN32

THE SENIOR DEPUTY PRESIDENT: What do you say it is, Mr Thomas?

PN33

MR THOMAS: Commissioner, we believe that there is a process going on now that may resolve the issue. I can't guarantee it because it has got to resolve it for the members concerned. We are happy to follow that process at this stage until the conclusion.

PN34

THE SENIOR DEPUTY PRESIDENT: Were you involved in the negotiation of the enterprise agreement?

PN35

MR THOMAS: No.

PN36

THE SENIOR DEPUTY PRESIDENT: Do you have any instructions as to what clause step 4 in the dispute resolution procedure enables the Commission to do?

PN37

MR THOMAS: No, but I presume that there is no arbitration.

PN38

THE SENIOR DEPUTY PRESIDENT: Why do you presume that?

PN39

MR THOMAS: It doesn't say it. I thought that it had to say arbitration.

PN40

THE SENIOR DEPUTY PRESIDENT: Well, it is to be referred by either party to the Commission consistent with the Act. Section 170LW of the Act provides that procedures in a certified agreement for preventing and settling disputes may empower the Commission to do either of the following to settle disputes. Settle. Settle seems to be more than conciliation. All right. So, you reckon there is a procedure in place which might help?

PN41

MR THOMAS: Yes.

PN42

THE SENIOR DEPUTY PRESIDENT: All right. Well, I intend to adjourn this matter on the basis of reminding both parties that there is dispute resolution procedures in the agreement and in the award that should be followed. I will now adjourn.

<ADJOURNED INDEFINITELY [10.54AM]