C2005/6142, Transcript of Proceedings [2005] AIRCTrans 2623 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13747-1

COMMISSIONER BLAIR

C2005/6142

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
FRIDGERITE REFRIGERATION PTY LTD
s.127(2) - Appln to stop or prevent industrial action
(C2005/6142)

MELBOURNE

11.13AM, FRIDAY, 09 DECEMBER 2005

PN1

MS C CHEW: I appear for the Australian Manufacturing Workers Union, with me, the organiser on the site MR I THOMAS, the person who's involved,
MR B MOLLOY and the shop steward from the site MR C GILCHRIST.

PN2

MS K IRWIN: I appear for the Australian Industry Group and appearing with me this morning Commissioner is MR R PRUCKNER, the human resources manager from Fridgerite and MR B TWADELL, the safety and training manager.

PN3

THE COMMISSIONER: Thank you. Ms Chew.

PN4

MS CHEW: Thank you. Initially we'd just like to open by saying thanks for listing the matter so quickly, I think it was beyond both our expectations.
Ms Irwin and I have had a brief opportunity to have a talk about the facts as we see it from either side, be from my side or Ms Irwin, from the employer's side and we're content enough to have certain things on transcript and then adjourn into conference because there might be a potential for some agreement to be reached in relation to the circumstances of this application. Commissioner, I take it that you've got our application before you?

PN5

THE COMMISSIONER: Yes I have.

PN6

MS CHEW: That application sets out the grounds on which we say grounds for application for a section 127. You'll note that there's also a witness statement attached from Mr Molloy, setting out the details over the course of the last
six months roughly. There are also some letters here which serve to establish
Mr Molloy's argument, so if I could hand up some of those to you Commissioner. I also take it Commissioner you've had an opportunity to go through some of the contents of the witness statement.

PN7

THE COMMISSIONER: Yes.

PN8

MS CHEW: Okay. The first letter you'll see is from a medical practitioner,
Dr William and that was conducted on 6 November 2005, a medical examination was conducted on Mr Molloy. So number 1 essentially just goes through what his condition is and relevantly, what we say is points number 3 and 4. So points number 3 and 4 basically set out that in Dr Williams opinion Mr Molloy's able to return to work with some restrictions. Now the company's submissions have so far been that, well, they're not aware of - so points 3 and 4 essentially set out that
Mr Molloy's able to return to work with some restrictions. Now what the company has said is well, okay, we understand that those are some of the restrictions but we're not guided by what he is able to do, those are the things he's not able to do but we're not sure about what he's able to do.

PN9

Now by way of background Commissioner, the witness statement sets out that
Mr Molloy suffered a couple of WorkCover injuries in 2001 and for four years afterwards he's worked in two different roles, firstly as a forklift driver and secondly as a person who works on the copper cutting machine. He's worked on those two positions without exacerbating his injury and being able to keep his injuries under a stable condition. So there was never any question about his ability to do those jobs. So that's the first letter.

PN10

If I could take you to the second letter, it's a letter that's dated 17 August and this is a letter from a Ms Linda Fletcher, who I'm instructed is a WorkCover consultant engaged by the company and she works on a one day a week basis. In the second paragraph you'll note that the first sentence says:

PN11

During July 25 you attended the workplace on several occasions in a confused and delusional manner.

PN12

We dispute that. We concede that on one occasion Mr Molloy turned up to work, he wasn't working that day mind you, it was his day off. He turned up to work to drop something off at the workshop for his brother and he had taken a bit more medication than he needed to because the medication was wearing off, so he thought he'd take his next lot of medication a little bit sooner. So that caused a bit of drowsiness on his part on that day in question. So we dispute that he attended the work site on several occasions in a confused and delusional manner.

PN13

What it goes on to say in the fourth paragraph is that the company, Ms Fletcher has liased with Mr Molloy on numerous occasions and indeed we say that that happened. There were several meetings between the union and Ms Fletcher and the company to discuss Mr Molloy's situation. Then you'll see a whole lot of dot points after that which is what Ms Fletcher considers necessary and to the best of Mr Molloy's ability he's complied with all of those. He's gone and got a report on his current medical status, he has undertaken an MRI, there has been assessment of his physical capacity, there has been a review of his prescribed medication. That medication has changed and that there has been independent medical examination as undertaken by the insurer's doctors. So to the extent that he could have complied, he has.

PN14

On the fourth paragraph down outlines that the company is unable to return him to his pre-injury duties at the workplace. Mr Molloy was initially employed as a stainless steel polisher and that department has since closed. There is no such job available. Since that time indeed he has undertaken various duties. Now the rest of the correspondence is basically by way of background. There's a pin notice that was served on the company a week before all this started, basically alerting the company that there's need for heaters because the temperature at the worksite was approximately 12 degrees. So there's a pin notice consistent with
Mr Molloy's duties as an OHS rep.

PN15

There's also a letter from Fridgerite, from a Mr Burgess, talking about
Mr Twaddell's conduct at a meeting. So that just paints a picture as to the relationship between Mr Molloy and Mr Twaddell. Now my instructions are that Mr Twaddell has spoken to various employees at the work site, claiming that
Mr Molloy is not able to return to work and that his specialist has said that he's not able to return to work. What we want to do is to formally put on record that that is totally inaccurate, as the letter before you states. As we have indicated, we are happy to adjourn into conference. We obviously reserve our rights to argue a legal case if necessary. There are some proposals that we've flagged to the company that would satisfy the applicant in this matter, so we're happy to deal with that in conference.

PN16

THE COMMISSIONER: Thank you. Ms Irwin.

PN17

MS IRWIN: Thank you Commissioner. Again, just to confirm the submissions of Ms Chew, in the sense that we will be happy to proceed into conference to further discuss these issues. However, Commissioner before we do proceed to that, there are a couple of points that we feel it is important to dispute in terms of Ms Chew's submissions. In particular, Mr Molloy, who has been on restricted duties although on a full time basis for a period of four years due to a range of injuries including a back injury, appeared at the work site at approximately 4 o'clock on 1 July, as Ms Chew said to meet with his brother to fill in some paperwork.

PN18

At that time Mr Molloy was unable to complete that task and left the room. He was dazed and confused. Both Mr Twaddell and Mr Molloy's brother Mark went looking for him and found him in his - in an office slumped in a chair in a confused state and he was also emotionally distressed. Now there were other times when similar incidents occurred. In particular, on 7 July Mr Molloy again attended the work site in that dazed and confused state and again on 14 July and there were obviously concerns regarding his - it was believed that this was due largely to his medication or in fact over medicating due to the pain of his back injury.

PN19

Now the company did withdraw alternative duties on 4 July. Basically on the basis that it was believed that the alternative duties obviously were not allowing Mr Molloy to rehabilitate to at least his pre-injury status, if not his pre-injury position if that position was no longer available. Clearly, given his dazed and confused state on those number of occasions, it became quite obvious that after being on these restricted duties for a period of four years that it was not in fact working.

PN20

So there are obviously concerns regarding Mr Molloy's safety. The company want to ensure that they are in a position to ensure that Mr Molloy was not in fact further damaging or aggravating his injury and also not putting other colleagues at harm - in harm's way as well. We understand Commissioner that the work safe then subsequently terminated Mr Molloy's payments on the basis that - and that sorry is the insurer, QBE terminated those payments on the basis that they felt that the condition was no longer work related, and on that basis the usual WorkCover proceedings went through, including a conciliation that was attended by Linda Fletcher as well as by Mr Bruce Twaddell, as I understand it Commissioner.

PN21

At that conciliation it's important to note that Ms Fletcher did not say that
Mr Molloy would not return to employment, we strongly refute that statement that was made in Mr Molloy's statement. In addition, we would strongly refute that Mr Twaddell has been going to other of Mr Molloy's work colleagues in the workplace and informing them that Mr Molloy would not be returning to the workplace and we would also submit that is in fact incorrect and not true.

PN22

So, the company had a meeting approximately one month ago Commissioner, with Mr Malcolm Parry the shop steward as well, from the site to discuss
Mr Molloy's condition and concerns and as a result of that meeting, my instructions are that it was agreed that the parties would allow the WorkCover process to proceed, that an application had been made for the claim to go to medical panel as a result of the conciliation failing to resolve the issue, and to let the lawyers and the doctors sort that one out.

PN23

Now if it - as a result of that medical panel, if it was found that the WorkCover claim did stand then it would be dealt with appropriately as a WorkCover claim. If it was found that it was not longer considered to be a worker's compensation claim then appropriate steps would be taken to have Mr Molloy's capacity assessed, to determine whether or not the company was in fact able to provide suitable duties, considering what restrictions may or may not apply and to deal with it in that manner, should it get to that stage. So, if the Commission pleases we would be prepared to convene to conciliation, but there were those few points that we felt was important to put on the record.

PN24

THE COMMISSIONER: All right, thank you. The Commission will go into conference.

<NO FURTHER PROCEEDINGS RECORDED