C2005/4291, Transcript of Proceedings [2005] AIRCTrans 1763 (25 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12475-1

SENIOR DEPUTY PRESIDENT KAUFMAN

C2005/4291

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
CRYOVAC AUSTRALIA PTY LTD
s.127(2) - Appln to stop or prevent industrial action
(C2005/4291)

MELBOURNE

2.34PM, WEDNESDAY, 10 AUGUST 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

MR B TERZIC: I appear on behalf of the union applicant, the Automotive et cetera Union and with me at the bar table is MR J BELLERBY.

PN2

MR R BROWNING: I appear on behalf of Cryovac Australia and with me is MR M BEZZINA.

PN3

THE SENIOR DEPUTY PRESIDENT: And Mr Bezzina, you are appearing in Melbourne today for the company?

PN4

MR BEZZINA: Yes.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. Okay, Mr Terzic, what is it all about?

PN6

MR TERZIC: Your Honour, an encapsulation of the facts that led to this application are set out in the grounds of the application.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, I have briefly read those.

PN8

MR TERZIC: Yes, the application is directed at alleged industrial action that is occurring and is threatened to continue into the future.

PN9

THE SENIOR DEPUTY PRESIDENT: And what is the alleged industrial action?

PN10

MR TERZIC: It is a ban by the employer on two of their employees, Ajmer Baring and Stanislaw Jezierski, both of whom are sitting in the gallery behind me, attending for and performing work. And in relation to that, at this juncture I might seek leave if leave is required of the Commission to amend the application.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes what amendment do you seek to make?

PN12

MR TERZIC: Just in clause 5.1 of the proposed order.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes.

PN14

MR TERZIC: Just delete the definition of industrial action that therein appears and substitute as follows, and in inverted commas "Industrial Action" means a ban by the company on Ajmer Baring - - -

PN15

THE SENIOR DEPUTY PRESIDENT: Now, you had better spell that out.

PN16

MR TERZIC: A-j-m-e-r.

PN17

THE SENIOR DEPUTY PRESIDENT: A-j-m-e-r. Mr Browning, can you hear in Sydney?

PN18

MR BROWNING: Yes, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes. Good. Baring, spelled?

PN20

MR TERZIC: B-a-r-i-n-g.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes.

PN22

MR TERZIC: Or Stanislaw, S-t-a-n-i-s-l-a-w. Surname, J-e-z-i-e-r-s-k-i, or both of them performing work while in the employ of the company.

PN23

THE SENIOR DEPUTY PRESIDENT: Do you object to that amendment, Mr Browning?

PN24

MR BROWNING: No, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted.

PN26

MR TERZIC: Your Honour, the ban that leads to the allegation of industrial action was affected by a letter under the hand of Mr Browning dated 5 August 2005 sent to both of the union's members concerned, Mr Jezierski and Mr Baring. And at this juncture it might help the Commission if a copy of that letter was tendered into evidence of those letters.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes. Do you have that, Mr Browning, in Sydney. It's a letter under your name dated 5 August 2005.

PN28

MR TERZIC: If there is no objection to those letters being put into evidence they might be marked.

EXHIBIT #AMWU1 LETTERS SENT FROM MR BROWNING TO MR BARING AND MR JERZIERSKI

PN29

MR TERZIC: Your Honour, I might lead some - - -

PN30

THE SENIOR DEPUTY PRESIDENT: Well, these are letters terminating the employment of each of these gentlemen, are they?

PN31

MR TERZIC: Perhaps and perhaps not, your Honour. That's a question that I would submit is not easily answered. There is no unequivocal termination, rather the company appears or purports to do something else and that is, in simple terms, send the employees home on full pay for 14 days from the date of the letter and it also invites the employees or requires the employees to furnish reasons why termination should not be affected on the fluxion of that period.

PN32

THE SENIOR DEPUTY PRESIDENT: Is it part of your submission that a termination of employment is industrial action?

PN33

MR TERZIC: No, your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: So you want these people to be restored to work for two weeks and until either they provide reasons why they shouldn't be terminated or their employment is terminated.

PN35

MR TERZIC: Yes, your Honour. And we readily accept and understand that that would be all that the Commission is empowered to do under section 127. The Age case, I don't have the full citation for it and it is not necessarily relevant.

PN36

THE SENIOR DEPUTY PRESIDENT: Print PR946290?

PN37

MR TERZIC: Yes, expressly at a Full Bench level, it stated that termination of employment is not industrial action.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. So you want them back for two weeks.

PN39

MR TERZIC: Essentially, yes.

PN40

THE SENIOR DEPUTY PRESIDENT: Are they unpaid at the moment?

PN41

MR TERZIC: Yes, your Honour.

PN42

THE SENIOR DEPUTY PRESIDENT: What will you achieve by having them back for two weeks?

PN43

MR TERZIC: Well, it is the view of the applicant union and of the two employees in question that they are better placed to negotiate and secure a favourable outcome into the future whilst their employment is on foot, while they are performing work. They have expressed an intention, a desire to the union that they want to go back to work and continue to work. They feel that the chances of securing ongoing employment - - -

PN44

THE SENIOR DEPUTY PRESIDENT: This is the company, with the respondent?

PN45

MR TERZIC: Yes, with the respondent company are lessened by them being at home detached and removed from the workplace.

PN46

THE SENIOR DEPUTY PRESIDENT: Well, you will need to explain that a little to me. Just give me a bit of the background would you, Mr Terzic? They have been on Workers Comp since 2002, is that right? 18 March and 17 October respectively.

PN47

MR TERZIC: Yes. I think the relevant dates are set out in the grounds when the injuries occurred to their - - -

PN48

THE SENIOR DEPUTY PRESIDENT: I was looking at the letters, they refer to the work related injuries.

PN49

MR TERZIC: Yes. Yes, I think it is set out there with - - -

PN50

THE SENIOR DEPUTY PRESIDENT: Everybody please make sure that mobile phones are switched off. Yes, go on.

PN51

MR TERZIC: And since then there has been a history of negotiations, consultations and agitation by the union to try and find a secure basis upon which these employees can carry on their work without any apprehension that the company might terminate them on the grounds that they have not been able to be restored to pre-injury duties. And it is the contention of at least one of the employees, and this might come out if he gives evidence which might be done viva voce if we get that far, that he now takes the view that he is capable of going back to his pre-injury duties, that is Mr Jezierski, and on that basis he would like to be at the company in the workplace where such an assertion perhaps could be borne out by him going to his old workplace.

PN52

THE SENIOR DEPUTY PRESIDENT: What has he been doing until now?

PN53

MR TERZIC: He has been doing, I understand, plate making duties as opposed to printing duties which were his - - -

PN54

THE SENIOR DEPUTY PRESIDENT: His pre-injury duties are printing duties, are they?

PN55

MR TERZIC: Operating a printing press as opposed to plate making now, I understand, is the brief answer to that question.

PN56

THE SENIOR DEPUTY PRESIDENT: And he was performing plate making duties until 5 August was he?

PN57

MR TERZIC: Yes. That's the instructions I have received.

PN58

THE SENIOR DEPUTY PRESIDENT: And on that date he was told to go home, was he? Given this letter and told to go home, was he? Given this letter and told to go home?

PN59

MR TERZIC: Essentially, yes, your Honour. There were other confounding factors in all this including an alleged overpayment which the company is now seeking to deal with by garnishing the wages of both of the two employees behind this application. But at this juncture, your Honour, before this case is fully agitated, before we go to the evidentiary stage of this case, the union takes the view, the applicant takes the view that this is a matter that may be settled through negotiations, consultation and conciliation. And it is our application at this point to have the matter dealt with by conciliation.

PN60

THE SENIOR DEPUTY PRESIDENT: That is my usual course and I think there is an obligation under section 127 in any event but I am just trying to understand the nature of the case. I think I have a pretty rough idea of how you would make your case.

PN61

MR TERZIC: I just might add that the authority that we would rest on for the jurisdictional basis of the application proceeding is the Australian Workers' Union and Skyway Executive Pty Ltd, a decision of Senior Deputy President Lacy of November 2003. And the print reference is PR940166.

PN62

THE SENIOR DEPUTY PRESIDENT: 940?

PN63

MR TERZIC: 166.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Browning, before we go into conference, do you want to say anything about the suitability of that course and about the background to this matter?

PN65

MR BROWNING: Yes, your Honour. The company is perplexed as to why we are in the Australian Industrial Relations Commission on this particular matter. The company refutes that there is an industrial dispute. The company does not agree that it is refusing to provide work. The company has work for these two employees, the company has – the work that they were originally employed for, which was their original employment contracts. The two employees were injured in the workplace in 2002 and we are not refuting that. Since that time, the company has provided quite a number of return to work plans and provided make up duties to accommodate and to carry out those return to work plans with the objective of returning these two employees to the original contracted work pre-injury duties.

PN66

The two jobs that these employees have undertaken, and they are undertaking, make up work from other areas of the factory. They are not real jobs. So the company now is simply going through a proper and due process with these two employees which no doubt would include their representatives, which in this case are the AMWU, to provide us reasons why the company should provide ongoing employment to them. The company sat down with the union representatives on Monday and we believed that there was an agreement going forward that the proper process that the company had put in place was going to be carried through with the union. That is that between the union and the employee they would develop a case which would come back to the employer which we could consider in the circumstances of their injuries and their pre-injury duties.

PN67

Now, the Industrial Relations hearing that we are now sitting at, as precursed,
pre-judged, all of those proper due processes. The employees with their representatives from the union have up until 19 August to provide those responses to the employer. At this stage they haven't provided us any reasons other than what we have heard this morning as to why the employer should continue to employ these employees in make up work for a period longer than it already has, which has by far exceeded its legal obligation under the Workers Compensation Act.

PN68

THE SENIOR DEPUTY PRESIDENT: Mr Browning, as I understand it, all that the union is seeking from me is an order that they go back to work for the two weeks pending the provision of reasons as to why their employment shouldn't be terminated.

PN69

MR BROWNING: Well, in our negotiations on Monday we had an agreement that that would not occur so the union is in fact going back on an agreement that they struck with the company on Monday. Now there are good reasons for why the company would not want employees with pre-injury duties back at work in the interim period where it's really requiring them to substantiate a reason for continued work with the company in their pre-injury duties.

PN70

THE SENIOR DEPUTY PRESIDENT: And what are those reasons?

PN71

MR BROWNING: Well, it's very likely that the employees will re-injure themselves or injure themselves again in that interim period.

PN72

THE SENIOR DEPUTY PRESIDENT: How long have they been working on modified duties?

PN73

MR BROWNING: They have been involved in various return to work plans on modified duties since their injuries. The first time, 18 March 2002, and the second on 17 October 2002. What we are saying is that to bring them back into the workforce for the period between now and 19 August there is a very real opportunity or reason or – what is the word for it?

PN74

THE SENIOR DEPUTY PRESIDENT: Risk I think is the word you are looking for.

PN75

MR BROWNING: Risk is the word that I was using for, of further injury.

PN76

THE SENIOR DEPUTY PRESIDENT: Were they working until 5 August?

PN77

MR BROWNING: Yes, they were.

PN78

THE SENIOR DEPUTY PRESIDENT: And what were they doing as at 5 August?

PN79

MR BROWNING: On 5 August, Mr Baring who was a machine operator, was doing alternative duties entering shift performance data onto computers and generating reports. Now, that work, prior to him taking on that work, was work that was performed by the shift supervisors. Now, I am informed that Mr Baring's injury is susceptible to easy injury. On 5 May of this year, he was required to undertake SAP training which is training to do with the entering of data on computers. And during that SAP training which I think was over a period of one or two days, where he was simply required to sit and take notes, he aggravated his back. So the injury that Mr Baring has got and the injury that Mr Jezierski has got are injuries susceptible to easy injury.

PN80

THE SENIOR DEPUTY PRESIDENT: Are they both back injuries, are they?

PN81

MR BROWNING: Given that I am in Sydney today and wasn't expecting a hearing, I am not fully detailed in terms of Mr Jezierski's complaint but certainly Mr Baring's complaint is a back injury.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes. Are you happy to go into a conference?

PN83

MR BROWNING: Yes, your Honour.

PN84

THE SENIOR DEPUTY PRESIDENT: Mr Terzic, just before we go into conference, on what basis is it put that the resolution of this matter will be better facilitated if these people are back at work?

PN85

MR TERZIC: Your Honour, the letters that have been sent to the two employees that is now marked as AMWU1 invites them or requires them to provide reasons why the company should not discontinue their employment. It is our view that if they are at their job, they are better placed to demonstrate to the company how they can perform other jobs.

PN86

THE SENIOR DEPUTY PRESIDENT: But that is what I don't follow. How are they better placed?

PN87

MR TERZIC: Well, for example, if Mr Jezierski can furnish the relevant medical clearance for him to return to his pre-injury duties he would be able to go back to his prior duties.

PN88

THE SENIOR DEPUTY PRESIDENT: But he can furnish that whether he is at work or not, can't he?

PN89

MR TERZIC: But he could then demonstrate how he could perform those duties.

PN90

THE SENIOR DEPUTY PRESIDENT: That's perhaps putting the cart before the horse. The first thing is to provide the medical clearance to the satisfaction of the company. Has he done that?

PN91

MR TERZIC: No. No, but the other thing that whilst they are at work they are better placed to confer with their colleagues, to size up the company, look for alternative avenues et cetera. This must be placed in the context, your Honour, of the employees in question being given the job of, or the requirement of finding alternative duties at the same time as being told to go home. So they are not physically located, they are not situated at the company's premises. They are unable to turn their mind or go around the employer's complex and look for other duties, to interact with fellow employees, to do a considerable range of things that might assist them in finding alternative work.

PN92

They would be better placed all around to be in the employ of the company and furthermore, there might be other legal complications as to what, when and how notice commenced. There is a requirement under the Act and instruments of the Commission that employees be given notice of termination, how this requirement deals with the notice that they might be entitled to receive if the company is purporting to terminate them, when and how that that notice commenced. And these are other issues that might be better dealt with if they are in the employ of the company and any question as to whether this is some attempt by the company to make payment in lieu of notice could be better resolved with those employees actually performing work up until 19 August.

PN93

So those are two reasons and this case, as your Honour might appreciate, is being carried out extemporaneously. In the evidentiary leg further reasons might become apparent, especially if the company leads evidences and management is cross-examined as to what management's representatives are looking for in the process alluded to in the letter. If your Honour pleases.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I think it's probably time we went into conference. Is that satisfactory to both of you?

PN95

MR BROWNING: Yes, your Honour.

PN96

MR TERZIC: Yes, your Honour.

PN97

THE SENIOR DEPUTY PRESIDENT: Yes. We will adjourn into conference now.

<SHORT ADJOURNMENT [2.58PM]
<RESUMED [3.49PM]

PN98

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Terzic?

PN99

MR TERZIC: Your Honour, I am happy to report that the parties have conferred and reached a settlement in this matter and the settlement will effectively mean that the application is no longer pressed.

PN100

THE SENIOR DEPUTY PRESIDENT: Fair enough. Is there something you want to put on the record or you are - - -

PN101

MR TERZIC: It is indeed, your Honour. I think that is a prudent thing to do and I will read out the settlement as discussed between the parties and it is as follows:

PN102

In good faith the company will arrange for its occupational therapist to work with the employee's treating medical practitioner and the union to identify tasks and roles the employees can perform. This information will be provided to the company and the company will attempt to match the identified tasks with existing positions. The employees will do this over the next nine days and the company will then respond as soon as practicable.

PN103

MR TERZIC: If your Honour pleases.

PN104

THE SENIOR DEPUTY PRESIDENT: Mr Browning, anything you want to say?

PN105

MR BROWNING: I would just like to say that this poses no obligation whatsoever on the company to provide jobs for these two employees going forward other than what it can identify through this particular process.

PN106

THE SENIOR DEPUTY PRESIDENT: Yes. That is clear from what Mr Terzic said. Yes. Well, very well, gentlemen, that is a sensible result. You withdraw the application, do you, Mr Terzic?

PN107

MR TERZIC: Yes, your Honour.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes. The application will be marked as withdrawn. I adjourn the Commission.

<ADJOURNED INDEFINITELY [3.51PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMWU1 LETTERS SENT FROM MR BROWNING TO MR BARING AND MR JERZIERSKI PN28