C2005/7, Transcript of Proceedings [2005] AIRCTrans 424 (18 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10184

COMMISSIONER TOLLEY

C2005/7

s.99 - notification of an industrial dispute

Transport Workers' Union of Australia
and
Chalmers Industries Pty Ltd
(C2005/7)
Transport Workers Award 1998

MELBOURNE

10.57AM, MONDAY, 24 JANUARY 2005

PN1

MR A WOOD: I am representing the TWU in this case. With me is
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, and with me is MR C WEBSTER from the company.

PN3

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

PN4

MR WOOD: No objection.

PN5

THE COMMISSIONER: Yes, leave is granted Mr Burchardt.

PN6

MR BURCHARDT: Thank you, sir.

PN7

THE COMMISSIONER: Mr Wood.

PN8

MR WOOD: Commissioner, we seek assistance from the Commission in this case. Mr Amanatidis was injured back in 2002 and being a back injury there's no 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, had employed him in a clerical job in the office at Chalmers. Now, a 104 week period for the WorkCover claim had elapsed and we attended a meeting with Mr Webster at the yard and Mr Webster said that, look George, sorry, 104 weeks is up, basically that if you were to injure yourself again, we would have another claim. We can't take that chance and we're 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 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 Webster - we went through a few areas of trying to find ways to keep George in his job and one of the things that was suggested, we go to Maurice Blackburn try and find a way of going into some sort of contract where he wouldn't hit the company again, but we just couldn't 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 - - -

PN12

THE COMMISSIONER: Yes, thank you.

PN13

MR WOOD: - - - and the union assist with running the case and we figured if things had 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 shouldn't have been terminated, there is ways under the legislation, and I have got a hand up of that if you would like, Commissioner.

PN14

THE COMMISSIONER: Yes, thank you.

PN15

MR WOOD: The bits of the legislation.

PN16

THE COMMISSIONER: Do you have a copy for Mr Burchardt?

PN17

MR BURCHARDT: I am sorry sir?

PN18

THE COMMISSIONER: Do you have a copy for Mr Burchardt?

EXHIBIT #A1 LEGISLATION EXCERPT

PN19

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

PN20

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 is an argument in the 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. If you would like
to - - -

PN21

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

PN22

MR BURCHARDT: Can I have a moment just to have a look at it please, Commissioner?

PN23

THE COMMISSIONER: I ask that question Mr Wood because I've got some misgivings about dealing with WorkCare cases. I don't think I have the authority.

PN24

MR WOOD: No, no Commissioner - - -

PN25

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

PN26

MR WOOD: Yes, yes. That's not exactly where we're heading either.

PN27

THE COMMISSIONER: All right, well just give me a gentle hint, okay?

PN28

MR WOOD: Yes, yes.

PN29

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

PN30

THE COMMISSIONER: Yes, thank you.

PN31

MR WOOD: So Commissioner, where we are is, we're sort of in 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. We feel that as the company has stated to George, at the conciliation, that he was made redundant and we feel that they could have kept him in employment, that they should, in any case, have paid out the redundancy in accordance with the agreement.

PN32

THE COMMISSIONER: Anything else?

PN33

MR WOOD: I think that's about it Commissioner.

PN34

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

PN35

MR WOOD: Yes, and something I actually left out ,Commissioner, is the fact that the payment that was made to Mr Amanatidis was an amount of $9325, 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.

PN36

THE COMMISSIONER: Yes, thank you. Mr Burchardt.

PN37

MR BURCHARDT: Commissioner, there is a fair bit more to it than that outline. 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, for reasons that will become readily apparent, if you adopt this Commissioner, that it would be more appropriate to proceed by way of conference.

PN38

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

PN39

MR WOOD: Yes, no problems.

PN40

THE COMMISSIONER: Yes, the Commission is adjourned to a conference.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 LEGISLATION EXCERPT PN18