C2005/8, Transcript of Proceedings [2005] AIRCTrans 373 (16 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10185

COMMISSIONER TOLLEY

C2005/8

s.170LW - application for settlement of dispute (certification of agreement)

Transport Workers' Union of Australia
and
Chalmers Industries Pty Ltd
(C2005/8)
Chalmers Enterprise Agreement (Victoria) 2002

MELBOURNE

10.57AM, MONDAY, 24 JANUARY 2005

PN1

MR A WOOD: I appear on behalf of the TWU together with
MR G AMANATIDIS who is the aggrieved employee, and the yard delegate from Chalmers, MR E BURNS.

PN2

MR P BURCHARDT: I seek leave to appear on behalf of the company together with MR WEBSTER from the company.

PN3

THE COMMISSIONER: Yes. Thank you. What do you say about leave
Mr Wood?

PN4

MR WOOD: No objection, your Honour.

PN5

THE COMMISSIONER: Leave is granted, Mr Burchardt.

PN6

MR BURCHARDT: Thank you, sir.

PN7

THE COMMISSIONER: Mr Wood?

PN8

MR WOOD: Commissioner, we seek to get some assistance from the Commission in this case. Mr Amanatidis was injured back in 2002 and being a back injury it is his far expectation that he will ever be able to get back into driving trucks again, but the company had employed him since a short time after the injury, they employed him in a clerical job in the office at Chalmers. Now 104 week period for the WorkCover claim had elapsed and we attended a meeting with Mr Webster at the yard and Mr Webster said, well George sorry, 104 weeks is up, basically if you were to injure yourself again we would have another claim, we cannot take that chance and we are going to have to terminate you.

PN9

At the end of that meeting Mr Webster said, look George we may be able to come up - because you have been with the company with for 15 and a half years we may be able to come up with some sort of payment. At this meeting I said to George, look go and talk to Mr - we went through a few areas of trying to find ways to keep George in his job. And one thing that was suggested we go to
Maurice Blackburn and try to find a way of going into some sort of contract where we would not hit the company again but we just could not do that without going outside the WorkCover guidelines. So basically we said to George well you work it out with Mr Webster, and also Commissioner, there was a conciliation hearing scheduled for not long after that meeting.

PN10

THE COMMISSIONER: Who with?

PN11

MR WOOD: It was with the WorkCover conciliation union assist with running the case and we figured, well if things have been unfairly done it should get sorted out in the conciliation. Now, at the conciliation Patricia Woods who was representing George, apparently said to Mr Webster that George should not have been terminated. There is ways under the legislation, and I have got a hand up of that if you like Commissioner, of the bits of the legislation.

PN12

THE COMMISSIONER: Yes. Thank you. Have you got a copy for
Mr Burchardt?

PN13

MR WOOD: I am sorry sir?

PN14

THE COMMISSIONER: Are you going to give a copy to Mr Burchardt.

EXHIBIT #A1 LEGISLATION EXCERPT

PN15

MR WOOD: Commissioner, this goes through a system where on a fact basis
and these are marked as 1 - if you go through them there is 1, 2, 3, 4, 4.1, 4.2 and 5 which indicate the fact that Mr Amanatidis could have been actually - if he worked up to a minium of 15 hours a week that he could have claimed for an extended period of WorkCover and in which case the company could have got him employed. But George informs me that at the meeting this was put up but
Mr Webster at the meeting said no he was made redundant, that actually
Mr Amanatidis was made redundant because there is now a couple of girls doing his job. There was a new program come into place and now the girls are doing his job so all of a sudden, Commissioner, it was a redundancy and nothing to do with the WorkCover.

PN16

We also have and Mr Webster may have received this, is a result of the request for conciliation where the conciliator said he was satisfied that there was an arguable case in support of the denial or the liability to make or continue weekly payments and he is satisfied that there is a genuine dispute with respect to the liability to make or continue to make weekly payments.

PN17

THE COMMISSIONER: Mr Burchardt, do you want to address me about that document, before Mr Wood goes any further?

PN18

MR BURCHARDT: Not at the moment, could I just have a look at it please, Commissioner.

PN19

THE COMMISSIONER: I ask that question Mr Wood because I have got some misgivings about dealing with Workcare claims. I do not think I have got the authority.

PN20

MR WOOD: No, no, Commissioner.

PN21

THE COMMISSIONER: In fact I am sure I haven't.

PN22

MR WOOD: That is not exactly where we are heading either.

PN23

THE COMMISSIONER: All right. Then just give me a gentle hint, okay.

PN24

MR BURCHARDT: Commissioner, I have no objection to this being received at this stage.

PN25

THE COMMISSIONER: Yes. Thank you.

PN26

MR WOOD: Yes, so Commissioner, where we are is we sort of have a situation, the redundancies agreement in the Chalmers agreement allows for three weeks for each completed year of service and it goes to a maximum payment of 75 weeks and we feel that as the company has stated to George at the conciliation that he was made redundant and feel that they could have kept him in employment that they should in case have paid out the redundancy in accordance with the agreement.

PN27

THE COMMISSIONER: Anything else?

PN28

MR WOOD: That is about it Commissioner.

PN29

THE COMMISSIONER: So what you are saying to me is you want the redundancy claim - the redundancy provisions contained in the Chalmers agreement to be followed.

PN30

MR WOOD: Yes. And there is something I actually left out, Commissioner, is the fact that the payment that was made to Mr Amanatidis was an amount of $9,325 which is shown on the separation certificate as a redundancy payment and the redundancy payment paid in accordance with the agreement would have been $28,700.

PN31

THE COMMISSIONER: Yes. Thank you. Mr Burchardt.

PN32

MR BURCHARDT: Commissioner, there is a fair bit more to it than outlined and I don't say that as a matter of criticism but there is quite a lot more that ought to be put before you. And it would be my submission that for reasons that will become really apparent if you adopt their submission that it would be more appropriate to proceed by way of conference.

PN33

THE COMMISSIONER: What do you say about a conference, Mr Wood?

PN34

MR WOOD: Yes, no problem.

PN35

THE COMMISSIONER: Yes. The Commission will adjourn into conference.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 LEGISLATION EXCERPT PN14