C2005/3735, Transcript of Proceedings [2005] AIRCTrans 1544 (18 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12092-1

COMMISSIONER WHELAN

C2005/3735

NATIONAL UNION OF WORKERS
AND
LINFOX AUSTRALIA PTY LTD
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/3735)

MELBOURNE

10.13AM, MONDAY, 04 JULY 2005

PN1

MR A PORTELLI: I'm from the National Union of Workers and with me is
MR S CORNELL.

PN2

MR D NORTH: I'm from Linfox Australia and with me is MS C GILBERT.

PN3

THE COMMISSIONER: Thanks. Mr Portelli?

PN4

MR PORTELLI: We're here today in relation to a dispute relating to misapplication of company policy, specifically regarding the warning under clause 14 of the agreement. The warning was provided to Steve Cornell who is with me today, a union delegate, in relation to alleged intimidating behaviour towards both a supervisor and a number of work colleagues. In our view and after having met with work colleagues on site who were subject to the alleged intimidating behaviour, we say there was no evidence of any such behaviour towards work colleagues.

PN5

In relation to the allegation of intimidating behaviour towards the supervisor we're contesting that allegation. In our view there are a number of mitigating circumstances that need to be looked at also. Mr Cornell, as the company well knows, has poor hearing and often in circumstances where he's in enclosed spaces in a meeting with supervisors or managers, he'll raise his voice. This is something considered to be seen as intimidating, although the intent clearly isn't there.
Mr Cornell had made a complaint in relation to the supervisor's treatment of him in the past.

PN6

He's had issues with her in the past and even in the last two weeks has spoken to the human resources department about lodging a formal complaint in relation to the management's treatment of him at the site. Lastly, Mr Cornell has certainly been over the last six or eight months a vocal union delegate and we see this as possibly the reason why the warning may have come about. In fact, as recently as one week ago, the site manager on the site, Mr Tony Comino relayed his view to me that Mr Cornell isn't recognised as a union delegate. He hasn't said that he has been a union delegate.

PN7

We see these factors as being important when looking at the warning that was provided to Mr Cornell under clause 14 of the agreement. In spite of these facts, I've spoken to Mr Moore prior to the hearing and our view would be that sooner rather than later today, we'd like to have time to conference to see if there's an ability to resolve this matter, if not then to proceed as a hearing.

PN8

THE COMMISSIONER: Can I just ask a point of clarification. When you say that in conversation the site manager said that Mr Cornell was not recognised as a delegate what did you mean by that?

PN9

MR PORTELLI: Mr Comino provided me with his view that Mr Cornell is not recognised as a union delegate. I think that was more a kind of personal opinion than fact. Because under our agreement - - -

PN10

THE COMMISSIONER: I was just going to say that I thought that the agreement made specific provision for recognition of delegates.

PN11

MR PORTELLI: It does and therein lies our concern, your Honour. We have an enterprise agreement that provides for recognition of union delegates and that the site manager has made it very clear to me that in his view, he doesn't see
Mr Cornell fit for the role of union delegate. I don't think, in fairness to Mr Comino, that he was ever suggesting that Mr Cornell, for example, be denied training or other rights that he has, as a union delegate under the agreement. I think what he was providing me with was his personal view.

PN12

THE COMMISSIONER: His view that he didn't think he was appropriate.

PN13

MR PORTELLI: That's correct, which is obviously of concern to us when Mr Comino was individually providing Mr Cornell with a warning.

PN14

THE COMMISSIONER: Thanks Mr Portelli. Mr North?

PN15

MR NORTH: Thank you, Commissioner. I'd just like to say from the outset that we do not oppose going into conference this morning but in the event that we did seek process ..... hearing that there would say that the commission not have the power to be able to deal with this issue, given at clause 14 I suppose it's probably best to go to the dispute resolution procedure first to deal with matters of - concerning the proper interpretation of the application of this agreement clause 14 goes to employees union. There's no actual reference to a warning procedure and the likes. So whether or not that procedure has been appropriately applied ..... dealt with it because it existed in the - bound in agreement.

PN16

I'll just speak quickly to the comments made by Mr Portelli. In terms of
Mr Cornell not being recognised as a delegate on site. Whether or not that did occur it's certainly not a position the company has ever expressed and I think little weight can go to that. There is another delegate on site as well. I think by suggesting that Linfox is targeting union delegates, is I think quite ridiculous. Certainly the matter that we put involved what we say was intimidation by
Mr Cornell of his female supervisor and as such it needs to be dealt with equally as she felt intimidated by his behaviour. Certainly, Linfox as an organisation, cannot tolerate such behaviour and we would act justifiably given the circumstances. However, having said that, Commissioner, we're happy to proceed in conference to discuss the issues further. If you see fit, if it please the Commission.

PN17

THE COMMISSIONER: We'll go into conference at this stage and see if we can have some discussion about this.

NO FURTHER PROCEEDINGS RECORDED