C2005/1551, Transcript of Proceedings [2005] AIRCTrans 518 (1 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10564

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2005/1551

s.127(2) - appln to stop or prevent industrial action

Bridgestone Australia Ltd
and
Liquor, Hospitality and Miscellaneous Union
(C2005/1551)
Bridgestone Australia Ltd Tyre Manufacturing and Development Division Certified Agreement 2003

ADELAIDE

3.19PM, THURSDAY, 17 FEBRUARY 2005

PN1

MR K ALLERY: Appearing with me is MS J DENLEY and MR J SIGNORIELLO.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Allery. We don't appear to have the union here at the present time. Can I take it that the union has notified - they have now arrived. We are waiting for you.

PN3

MR S. BLEWETT: I seek leave to appear on behalf of the LHMU. With me is MR C FIELD, and I apologise for our absence from the room, your Honour. There was one matter we needed to discuss which we were only just advised of.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Blewett. Mr Allery, what is the employer's position relative to Mr Blewett's request for leave to appear?

PN5

MR ALLERY: That is fine, sir.

PN6

THE SENIOR DEPUTY PRESIDENT: Very well, I grant that request Mr Blewett.

PN7

MR BLEWETT: Thank you, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: Mr Allery, I have the application in this matter. I also have a copy of the Bridgestone Australia Limited Tyre Manufacturing and Development Division Certified Agreement 2003. Beyond that, I am in your hands in relation to this matter.

PN9

MR ALLERY: Senior Deputy President, this application is made seeking an order from the Commission to stop industrial action that is currently occurring. There is some background to this industrial action. At 1 pm yesterday, the company made a decision to dismiss an employee. As a result of that decision, an appeal process that we have at the tyre plant was put into place and that process allows the shop steward to discuss the dismissal with the plant manager, being Mr Signoriello who is sitting here with me. The union requested 24 hours in which to do that and at that time, the person who was dismissed was placed on 24 hours' suspension.

PN10

Following that process the employees from the dismissed worker's work section held an unauthorised stop work meeting from 2 pm to 2.30 pm. The appeal process commenced some time after that with Mr Signoriello. However, at the meeting of the work section, the members directed the shop steward that they wanted a meeting of all production personnel from all work sections across the plant at 10 pm. So that meant that the afternoon shift who were concluding their shift at 10 o'clock were to attend, and that the night shift commencing their shift at 10 o'clock were to attend. This meeting also was not approved by the plant manager, and therefore also was unauthorised.

PN11

At approximately 11.10 pm last night the employees at that stop work meeting decided to withdraw their labour immediately for a period of 48 hours. I may point out, Senior Deputy President, that in our application at point 7 we did state that it commenced as of day shift as of today. That was incorrect. That should have read night shift as of the 16th. Also at point 9 again we said day shift rather than night shift on the 17th, rather than the 16th.

PN12

We say that union has not followed the dispute settlement procedure pursuant to clause 70 of the certified agreement. We say therefore that the withdrawal of the labour constitutes industrial action. We say the industrial action is not protected action within the meaning of the Act, firstly because there is no bargaining period that has been initiated. Secondly the nominal expiry date of the current agreement is 30 June 2006.

PN13

Senior Deputy President, we are not here today to discuss the merits of the dismissal of the employee yesterday, nor are we here to discuss any other resolutions that may have resulted from the union's stop work meeting last night and I am sure my colleagues will probably want to go into the merits of both of those issues. What we are here for today, sir, is to seek orders from the Commission that employees return to work immediately. As we said before we believe their action is unprotected action.

PN14

THE SENIOR DEPUTY PRESIDENT: Mr Allery, is it your understanding then that the employees would return to work at this stage, that is with the exception of an order being made, at the beginning of the night shift on 19 February?

PN15

MR ALLERY: That is the Sunday night, that's correct sir. Sorry, Sunday, the 20th, sir.

PN16

THE SENIOR DEPUTY PRESIDENT: The application has attached to it a draft order. Should I take it that that reflects the draft order that you are seeking in this regard?

PN17

MR ALLERY: That is correct, sir.

PN18

THE SENIOR DEPUTY PRESIDENT: Can I refer you particularly to paragraph 4 of that draft order and simply ask you to clarify for me what Bridgestone propose in terms of service of any such order should an order be issued? I ask that question because if employees are not at work, I am interested to know how it is that Bridgestone would then propose to ensure that this order was communicated to them in an appropriate manner?

PN19

MR ALLERY: Sir, unfortunately, we were put into a similar situation in May 2002, and in discussions at that time with the Commission it was decided that the supervisors who are currently on shift at the workplace would then ring every individual that belongs to their work section and advise them of the order, and that we had copies of that order placed at security, that they could pick up on their way through, also placed in their work areas and on the relevant notice boards.

PN20

THE SENIOR DEPUTY PRESIDENT: Where is that approach specified in the draft order?

PN21

MR ALLERY: It is not, sir.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Blewett?

PN23

MR BLEWETT: Thank you, your Honour. As Mr Allery foreshadowed, I did want to speak - - -

PN24

THE SENIOR DEPUTY PRESIDENT: Mr Blewett, I might need to get you to speak up a little. We have a new transcript recording system and you and I are both quietly spoken people, so I will need you to speak up a little so that we can be assured that your voice is recorded.

PN25

MR BLEWETT: Thank you, your Honour. I will do my best. As Mr Allery foreshadowed, I do want to speak briefly about the context in which this action has arisen. I raised it very briefly with the applicant, just prior to you coming into the room, as to whether it might not be more appropriate, given the circumstances in which this arose, that I advise you of those matters in conference, or at least in a closed Commission.

PN26

There are matters that are particular to individuals and which are a little sensitive, and it may be more beneficial for the resolution of the action, of the resolution of this application, that those matters be aired in private. I understood that the representatives of Bridgestone thought that was a sensible course.

PN27

THE SENIOR DEPUTY PRESIDENT: Mr Allery, what is the employer's position on Mr Blewett's proposition, that in effect I would close the court?

PN28

MR ALLERY: Sir, we would say that we would only go into conference if you require to hear the details of all this. Further, that as I alluded to earlier, we have had no opportunity at all to discuss any of these issues as per the grievance procedure with the organiser through the union, and I think at the very least, that procedure within the agreement should be followed first without having to take you through all that detail as has been proposed.

PN29

THE SENIOR DEPUTY PRESIDENT: As I understand Mr Blewett's ancillary proposition, it is that I would close the court so that he might address me on what he understands to be the background to this matter. Does the employer have a view on that proposition?

PN30

MR ALLERY: Again, sir, I say that we would only go into that conference if
you - - -

PN31

THE SENIOR DEPUTY PRESIDENT: No, there might be some misunderstanding. I understood Mr Blewett proposed that a conference was an option. But he then proceeded to say or alternatively that only persons, in effect, who are actively involved in this matter would remain in the precinct of the court room and that could occur without going into conference. Let me make it absolutely clear that at this stage Mr Blewett has not convinced me that I ought to go into conference, but I am anxious to hear what it is that the union has to say relative to this particular application. I don't know at this stage what position the union is putting.

PN32

It may be they consent to the application, or it may be that they do not, but I am understanding Mr Blewett to be saying and in this regard he will correct me if I am wrong, that he wishes to outline some background to this matter and wants to have only people directly involved in the matter to be present whilst he does so and it is your view relative to that proposition that I am trying to clarify.

PN33

MR ALLERY: I think our view, sir, is that we don't want to get into that and get down to that detail. As said earlier, the person that was dismissed is currently on a suspension as part of our normal appeal process. Discussions haven't occurred yet with the shop steward subsequent to that, as this action has been taken and also that the grievance procedure where discussions are actually held with the organiser from the union also haven't occurred.

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Blewett, you are going to need to do more to persuade me about whichever course of action you want me to follow in terms of the conduct of this matter, about what you have done to date.

PN35

MR BLEWETT: Thank you, your Honour. It is our submission that there is one issue of jurisdictional content that you will need to consider. That is whether or not the action that has been outlined by Mr Allery is industrial action, and I say that bearing in mind paragraph (G)(1) of the definition of industrial action, which relates to matters regarding safety, and I will come to how that arises in a moment.

PN36

Independent of that, you will need to consider whether to exercise the discretion you have - sorry, in the event that you are satisfied of jurisdiction, you will need to consider whether to exercise the discretion you have to make the order that is sought, or to make an order under section 127. We say that in order to properly exercise that discretion, you will need to hear matters relating to the context in which this dispute arose, should we wish to put them, and we do wish to put them and it would be impossible for you to properly exercise your discretion without hearing those matters.

PN37

Those matters relate to two individuals in the workplace, which culminated in an altercation between them, the contents of which are in dispute. It also will necessitate us advising you about repeated grievances issued in respect of one of those individuals who is a supervisor. Now, we don't think that those are matters that are appropriate to be aired in public, given that neither of those two people are present here to put any version of events different to that which we will be putting to your Honour.

PN38

That is simply the reason we think it more appropriate that this court can be closed. As I say, I had understood that Bridgestone's position was that if those details were to be aired, then it would be more appropriate in a closed court room, and I simply can't see how we can be prevented from raising relevant matters going to this application.

PN39

THE SENIOR DEPUTY PRESIDENT: Very well. On that basis, I will ask that any person not directly associated with either the LHMU or Bridgestone Australia Limited leave the court until further notice.

PN40

MR FEWSTER: Mr President, pardon me for interrupting, my name is Fewster. I am from The Advertiser.

PN41

THE SENIOR DEPUTY PRESIDENT: Do you seek to appear, Mr Fewster, do you?

PN42

MR FEWSTER: No, sir, I just simply seek to ask whether there is any provisions under the Act for me to appeal your Honour's decision, as there are in other courts and jurisdictions?

PN43

THE SENIOR DEPUTY PRESIDENT: There are, and they are matters that you may wish to take on advice, Mr Fewster. Thank you.

PN44

MR FEWSTER: Thank you, sir.

PN45

MR BLEWETT: Thank you, your Honour. Your Honour, essentially what has led to the action that is currently occurring was an apparent altercation between a supervisor engaged by Bridgestone, a Mr Gemmett, and an employee under his supervision, a Mr Zuberov, and that altercation occurred on 3 February this year. Prior to that, there had been a number of concerns raised at a grievance level about the conduct of Mr Gemmett in respect of those under his supervision, concerns relating to his, what would seem to be an intimidatory and harassing manner in the supervision of the employees.

PN46

We say that what was being expressed was a concern about the safe working environment of those working under Mr Gemmett. A number of issues were raised about Mr Gemmett leading up to 3 February 2005. On that date there was a meeting between union delegates and management about the conduct of
Mr Gemmett. As a result of various representations put by the union regarding Mr Gemmett's behaviour, Mr Signoriello, the plant manager, undertook that the company would provide some training in respect of Mr Gemmett's interpersonal relationships or management style.

PN47

The union doesn't understand that any such training has been conducted to date in respect of Mr Gemmett. But also on 3 February was this apparent altercation between Mr Gemmett and Mr Zuberov. It appears that there are no witnesses to that altercation. Mr Gemmett alleges that he was assaulted by Mr Zuberov, Mr Zuberov denies the allegation.

PN48

After a period of time, I think between 8 February and yesterday, there was an investigation by the company involving the interview of Mr Zuberov and the interview of Mr Gemmett and yesterday - sorry, on 15 February, the company advised the union and Mr Zuberov of the particular allegations against Mr Zuberov and yesterday the union and Mr Zuberov were advised that Mr Zuberov was to be dismissed as a result of those allegations.

PN49

There was then, as Mr Allery outlined, the stop work meeting of the TBR section employees and a request for the general plant meeting at 10 pm. In addition, there was a discussion between Mr Signoriello and the shop steward for the relevant section, at which the shop steward understood Mr Signoriello to say that the dismissal decision stood, that is, that unlike what we have been told today about the 24 hour suspension period pending discussions, that Mr Zuberov was in fact dismissed.

PN50

That understanding was relayed to the workers and there was a request, as Mr Allery outlined, for the 10 pm two plant shift meeting. That request was denied, but the meeting went ahead at which a resolution was taken to stop work for 48 hours in respect of the treatment of the TBR section by Mr Gemmett. The wording of the resolution is that:

PN51

Members stop work for 48 hours in protest over the way that TBR is being treated by Mr Gemmett and the company have condoned that anyone can be dismissed on the allegations of a single person without any substantial evidence.

PN52

Your Honour, I started this by saying that there had been concerns about Mr Gemmett's management style, raising concerns about safety in the workplace for some time prior to 3 February 2005. What has happened as a result of the decisions of yesterday is that those concerns have crystallised in two ways. Sorry, that they have crystallised, because notwithstanding the undertaking of
3 February, Mr Gemmett's behaviour has not been ameliorated, and his behaviour has had one of two consequences in respect of Mr Zuberov.

PN53

Either his behaviour provoked some form of reaction by Mr Zuberov and that in itself raises situations about danger in the workplace, or secondly, that
Mr Gemmett has been able to engineer the dismissal of someone without cause, which would only go to reinforce Mr Gemmett's behaviour in respect of the workforce.

PN54

So it is because of the crystallisation of those earlier concerns that the action has taken place. But either way it will inevitably lead to a very explosive workforce when the workers return to work. I mean, either Mr Gemmett has forced someone out who didn't deserve to be out, or Mr Gemmett's behaviour has led to the consequence that people have been concerned about for quite some time before.

PN55

Neither way is that going to be a happy situation come the return to work. I have gone to that length because it seems to me that raises - there are two matters that flow from that. One is your Honour will need to concern yourself with whether or not the action that is taking place is in fact industrial action, or is action which is excluded from the definition of industrial action by virtue that the action is based on a reasonable concern by the employee about an imminent risk to his or her safety.

PN56

But secondly, it seems to me, that the problem at the heart of this action needs to be addressed, and with that in mind the union seeks that three matters need to be done, and then it will be prepared to make an undertaking. The first of those is that there needs to be an agreed process of training or mediation to deal with Mr Gemmett's management conduct, or interpersonal communication, vis a vis the workers under his supervision. Secondly, in the immediate environment of the workplace Mr Gemmett should not supervise in the TBR section.

PN57

Thirdly, and this probably results from the union's misunderstanding, there needs to be a process to ensure that Mr Zuberov is seen to be fairly treated. That is, that the foreshadowed consultation between the union and management occur before any final decision about Mr Zuberov is made. If those three matters can be addressed the union is prepared to make an undertaking that it will endeavour to have all industrial action ceased in respect of this dispute by 10 pm this evening.

PN58

Finally, your Honour, I haven't addressed your Honour on the terms of the order that is sought. It would be premature at this stage. I must say that until I walked in here I hadn't sighted a copy of the application or the order, and I may need some time to consider that, if we get to that point.

PN59

THE SENIOR DEPUTY PRESIDENT: Mr Blewett, your submissions raise a number of questions that you are going to need to help me with. First of all, you have foreshadowed an objection to the application on the basis of the jurisdiction.

PN60

MR BLEWETT: I have, your Honour, and I say that, I mean, my first position is we don't need to address that if the union's undertaking, based upon those three matters I addressed, is acceptable.

PN61

THE SENIOR DEPUTY PRESIDENT: That may be the case, Mr Blewett, but I am here to determine an application that has been made pursuant to section 127. You have raised a question as to the jurisdiction of the Commission to entertain the use of that particular section. Having raised the question, I would like you to clarify that issue and particularly I would like you to clarify my understanding of what it is that you are putting to me.

PN62

If I understand that correctly, it is that you are saying to me that, in effect, the continuation of Mr Gemmett's supervisory function in that work area represents a risk to the health and safety of other employees, such that they are entitled to stop work in accordance with the exception which is outlined in the definition of industrial action in section 4 of the Act.

PN63

MR BLEWETT: Yes.

PN64

THE SENIOR DEPUTY PRESIDENT: And I am just wanting to clarify at this stage that I have correctly understood what it is you are putting to me.

PN65

MR BLEWETT: That is it in a nutshell, your Honour, that on the union's case Mr Gemmett has a history of intimidatory behaviour. That has been raised with the company. The next step along the path is that as a result we say of that intimidatory behaviour, one of two things occurred. Either Mr Zuberov reacted badly to that, causing a danger to at least Mr Gemmett, or Mr Gemmett has engineered the dismissal of a worker and his engineering of that has been condoned by the employer, which will only give an imprimatur to Mr Gemmett's continued harassing and intimidatory behaviour. And it is the history coupled with the events leading up to the dismissal of Mr Zuberov that mean that the workers now are feared of their position in the workplace vis a vis Mr Gemmett, that is, if he is allowed to continue to harass and intimidate they have a fear for their safety, not necessarily a physical safety, but they are entitled to a safe workplace.

PN66

THE SENIOR DEPUTY PRESIDENT: Mr Blewett, the issue that I am wrestling with is the sequence of events in this case. If I understand you correctly, this particular issue arose on 3 February.

PN67

MR BLEWETT: Yes.

PN68

THE SENIOR DEPUTY PRESIDENT: But that there have been various previous concerns on the part of one or more employees about Mr Gemmett's behaviour as a supervisor. If I look at the certified agreement, that certified agreement contains at clause 70 a clause directed at the avoidance of industrial disputes. It sets out in some detail, I might say, a grievance management process. Further, the agreement at clause 44 sets out a process directed at ensuring plant safety. What can you tell me about the extent to which the provisions of either of those sections have been invoked relative to Mr Gemmett?

PN69

MR BLEWETT: On my instructions there are. Would you just pardon me?

PN70

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN71

MR BLEWETT: Your Honour, on my instructions, on six occasions over the last five years, grievances regarding Mr Gemmett's conduct towards employees have been raised at the level of clause 70 of the agreement, and at that - I can't tell you how far through that process those grievances went, but it was also under the auspices of clause 70 that the undertaking regarding further training of Mr Gemmett was made on 3 February 2005.

PN72

THE SENIOR DEPUTY PRESIDENT: But if those issues have not been resolved to the union's satisfaction, Mr Blewett, then clause 70.14 envisages that the parties shall jointly or individually refer the matter to the Commission for assistance in resolving the issue. Now, can you tell me that that has been done by the union in this particular instance?

PN73

MR BLEWETT: No, that hasn't been done.

PN74

THE SENIOR DEPUTY PRESIDENT: So should I understand, then that the union has, in effect, sanctioned employees continuing to work in a situation which you say could be seen to be unsafe, rather than referring the matter to the Commission?

PN75

MR BLEWETT: No, your Honour, because those matters all took place prior to the events of yesterday. The significance of yesterday is the dismissal of Mr Zuberov. I have tried to outline how that changes the concern, that essentially it gives an imprimatur to Mr Gemmett's conduct, and that takes it away from these concerns about the way he is treating a number of employees at a sort of manageable level to a much more heightened concern about how he will conduct himself with respect to employees as of yesterday.

PN76

THE SENIOR DEPUTY PRESIDENT: I understood from Mr Allery that the employer had agreed to the adoption of an appeal process. Does that reflect your union's understanding of this matter?

PN77

MR BLEWETT: As I said, your Honour, my instructions are that Mr Signoriello advised the shop steward in the conversation that Mr Allery referred to at about 2 pm or 2.30 pm, that the dismissal would stand. They are my instructions. Now, if there has been a misunderstanding between the parties, then that is something that needs to be addressed, but they are my instructions.

PN78

THE SENIOR DEPUTY PRESIDENT: I am sure that Mr Allery will correct me if I have misstated his position, but my understanding of the employer position, irrespective of the misunderstanding that may or may not have existed until the commencement of this hearing, is that the employer has now agreed to the adoption of an appeal process, presumably consistent with either a documented policy or a provision of the agreement, such that the decision to terminate Mr Zuberov's employment would be reviewed following consultation or exhortations from the union.

PN79

MR BLEWETT: Yes.

PN80

THE SENIOR DEPUTY PRESIDENT: Now, Mr Allery hasn't jumped up and said I have misinterpreted him, and on that basis, the question that I have for you is, does that change the proposal that you have put to the company by way of your submissions?

PN81

MR BLEWETT: If your Honour will recall, I put three matters that need to be addressed. The third of those was that there be a process by which the union could consult with the company about the decision regarding Mr Zuberov. So if we both agree that that is to occur, then that third matter need not be addressed as part of the union's position. I am not sure if I have helped your Honour.

PN82

THE SENIOR DEPUTY PRESIDENT: You have assisted me. Thank you, Mr Blewett. Mr Allery, Mr Blewett put a proposition that the union would, in effect, give an undertaking to cease its industrial action by 10 pm tonight if those three preconditions were to be addressed, in the form in which he has outlined, that the third of those has been amended somewhat to reflect the advice that you have given me. What is Bridgestone's position relative to that proposal?

PN83

MR ALLERY: Sir, I think firstly in response to the three positions, the agreed process on the training and the mediation, there was a discussion between the parties on 3 February, and commencing late last year we instigated a training program for both managers and supervisors. It commenced last year, and actually was due to commence yesterday, but due to the loss of one of the trainers with the company that we engaged, it won't be commencing until the 23rd. This was outlined to the union on, not particularly the dates of changing, but it was outlined to the union on 3 February and they were satisfied with that at that time. There were no issues raised with that. In response to the other two, I think our response to - - -

PN84

THE SENIOR DEPUTY PRESIDENT: Before you leave that first one, my understanding of Mr Blewett's proposal was that the agreed process of training or mediation was specific to Mr Gemmett.

PN85

MR ALLERY: No, sir.

PN86

THE SENIOR DEPUTY PRESIDENT: You say no.

PN87

MR ALLERY: We have a training program in place that, as I said, commenced late last year, at which all supervisors were attending, and we explained that to the union at that time because they may not have been aware at that time that we had commenced that process and that Mr Gemmett was a part of that, and we told them that that process was recommencing. As I said, it was supposed to have commenced yesterday, but it will be next week, and we actually went into some of the details of some of the subjects or topics that were being covered in that training, and some of that is to do with communication skills and behaviours, and that they were satisfied with that at that point in time. Mr Signoriello was present at that as well.

PN88

In regards to point 2, about Mr Gemmett not supervising that particular work section, our answer to that is no, but I guess I struggle a little bit with it too because clearly the union are putting to you today that Mr Gemmett is clearly a concern on a safety basis, but they are quite happy to take him out of that section and put him into another section, as supervising. And in relation to grievances that were raised, Mr Blewett mentioned six of those.

PN89

So far this year, until this incident occurred, zero, and last year one grievance for the whole 12 months. That is the lowest grievances in any of the production areas for the whole of 2004. So if Mr Gemmett, from our viewpoint, is such a concern as has been raised, then I would have thought the number of grievances for the whole of last year would have been a lot higher than one. In fact, some other areas had as high as seven for the 12 months.

PN90

THE SENIOR DEPUTY PRESIDENT: The third issue related to the process of consultation between the union and Bridgestone relative to Mr Zuberov's termination of employment. Can you give me a little more detail about the appeal process, and the basis for that process?

PN91

MR ALLERY: Certainly, sir. It is an agreement that goes back a few years. The decision to terminate happens at a lower level than plant manager, and we make that decision. There was an agreement in place that the union can request up to 48 hours in which time they can seek further legal advice from their union office as to the issues surrounding that dismissal and also, as I said earlier, to appeal to the plant manager on the merits of the case.

PN92

That action that was requested by the union at 1 o'clock when we dismissed the employee yesterday. The shop steward actually invoked that agreement and requested 24 hours which was granted and I spoke to Mr Signoriello to let him know that they had invoked that and they wished to speak to him that afternoon. Unfortunately, he wasn't there at that stage, he was off site, but as soon as he was back and was available, the shop steward, along with the delegate for that work section, took up that opportunity and began that process.

PN93

THE SENIOR DEPUTY PRESIDENT: Is the process that you have outlined to me documented anywhere?

PN94

MR ALLERY: It is documented, sir. I don't have a copy of that with me today.

PN95

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Allery, this is your opportunity to respond to the issues raised by Mr Blewett. I have noted that Mr Blewett has in effect reserved his right to address me on the terms of order that are sought, but is there anything else you want to say to me about the propositions that Mr Blewett has put to me?

PN96

MR ALLERY: At this time, sir, I think I would like to ask Mr Signoriello to give some comments.

PN97

THE SENIOR DEPUTY PRESIDENT: I am not in the business of having numerous people from the company give comments. If you want to call Mr Signoriello, feel free to do so, but this is not a process that envisages that the employer will be represented by a multiplicity of personnel.

PN98

MR ALLERY: The only other comment, then, that I would like to make, sir, is in relation to what was said by Mr Blewett in relation to the jurisdiction matter, in particular (G)(1), and that does say that there has to be an imminent risk to their health and safety and we don't believe that there is an imminent risk to their health and safety.

PN99

THE SENIOR DEPUTY PRESIDENT: Is there anything further, Mr Allery?

PN100

MR ALLERY: That is all, thank you, sir.

PN101

THE SENIOR DEPUTY PRESIDENT: Mr Blewett, in the circumstances of this matter, I am not persuaded that section 127 is unable to be applied, if you will forgive my double negative. It appears to me that industrial action is happening, that it is in relation to work which is regulated by an award, or in this case a certified agreement and as such, the jurisdictional prerequisites necessary for the invocation of the discretion in section 127 have been met.

PN102

In arriving at that conclusion, I have had regard to the definition of industrial action in section 4 of the Act and I am not satisfied on the information provided to me that a stoppage of work of the Bridgestone personnel can be described as a stoppage based on a reasonable concern by all of those employees about an imminent risk to their health or safety.

PN103

I have also had regard to the information provided to me about the history of this matter. I have noted the provisions of clause 44 of the certified agreement and I have also noted the extensive grievance procedure which is incorporated in clause 70 of the certified agreement. I have had particular regard to the provisions of clause 70.16 which require that:

PN104

While the parties are attempting to resolve the matter, the parties will continue to work in accordance with the award and to their contract of employment, unless the employee has a reasonable concern about an imminent risk to their health and safety.

PN105

That clause continues to say:

PN106

Subject to relevant provisions of the Occupational Health and Safety law, even if the employee has a reasonable concern about an imminent risk to their health and safety, the employee must not unreasonably fail to comply with the direction by the company to perform other available work that is safe and appropriate for the employee to perform.

PN107

It seems to me that in the circumstances that have been outlined, I can only describe the action that is now occurring as industrial action. The question that then arises goes to the exercise of the discretion. I consider it appropriate that I do make an order in this circumstance. The reason or reasons why it is that I consider that to be appropriate reflect the provisions of the agreement which establish processes for the orderly and proper resolution of disputes without the need for the employer to be disadvantaged by an unauthorised stoppage of work, and without the need for employees to lose pay by virtue of their non-attendance for work.

PN108

It appears to me that those processes which operate in the fashion outlined in clause 70 of the agreement, together with the appeal process outlined by the employer, are designed to do a number of things. They are designed first of all to ensure that any decision to terminate the employment of the employee in question can be reviewed and will, on the basis of the advice provided to me by the employer, be reviewed through the appeal process, and that the union has the opportunity in accordance with the advice provided to me by Mr Allery, to request a delay so as to enable that process to occur in an inequitable fashion.

PN109

Furthermore, it seems to me that a failure to exercise the discretion in this instance has the potential to disadvantage and prejudice the position of the supervisor concerned without giving the matter the necessary hearing on the detailed merits. It may be that the supervisor is entirely at fault in this matter. It may be that he is not at fault at all, or it is also conceivable that there is some middle ground. I don't have that material before me, but it seems to me that the processes set out in the agreement, together with the processes set out in the Act that are available to that employee, if indeed that dismissal is confirmed, allow review of the circumstances of that dismissal.

PN110

Those processes mean that it is incumbent upon the employer to be absolutely sure of the position that it has adopted in a given matter, given the very real potential for that position to be questioned through an application made under section 170CE. The final issue that prompts me to exercise the discretion, is that it is absolutely clear to me that the Act envisages that a certified agreement will operate until at least its nominal expiry date in a fashion which abrogates the need for industrial action of this type and nature, and that it would be inappropriate to allow such action to continue or to be used as a bargaining element in order to achieve a given result, when alternative processes which are envisaged by the law exist.

PN111

On that basis I intend to issue an order. I think it appropriate to advise both parties that I have some particular reservations about the form of the order that is being sought in this instance and I want to outline those reservations. I will then adjourn the matter for a few minutes to allow the parties to ponder upon that and to return to address me in relation to those issues. I have reservations about the extent to which the proposed service of the order, given that employees are not at work, reflects a viable and practical approach so as to make any such order that I might issue sustainable.

PN112

Secondly, I have concerns over the extent to which the industrial action referenced in clause, or paragraph 3 of the draft order, should or should not contain an exclusion which is customary in a great many section 127 orders, where that exclusion exempts the industrial action which might be taken in circumstances where an individual employee considers there is an imminent risk to their health or safety.

PN113

The third issue that I invite the parties to comment on is whether or not any such order should include reference to the invocation of the appeal process that Mr Allery has outlined. There may be other components of the draft order about which either party want to address me. Those are the three issues that I particularly draw your attention to. On that basis I will adjourn the matter for say 10 minutes and allow the parties to ponder upon those issues.

<SHORT ADJOURNMENT [4.11PM]
<RESUMED [4.34PM]

PN114

THE SENIOR DEPUTY PRESIDENT: Mr Allery.

PN115

MR ALLERY: Thank you, Senior Deputy President. Sir, we have had a look at your proposals. In regards to number one, about the conveying of the order, we would like to have that extended within 4.2 that Bridgestone will contact all employees via telephone and that copies of those orders will be made available to them at security, in their respective work areas and on the notice boards. But we would also like, given that the shop steward or delegates aren't present here today as they would normally be, that the LHMU undertake to advise the shop steward and the delegates of the order, and that the LHMU put out one of their newsletters as well, because in the past we have had some people that have queried whether what we are telling them is factual, and if we have something from the LHMU to indicate that, then we can actually hand that to the employees as they arrive.

PN116

THE SENIOR DEPUTY PRESIDENT: Mr Allery, were I to issue an order in those terms, the effect of that order would be to make continuing industrial action in effect illegal. What you are proposing to me by way of a service provision is dependent upon telephone calls. It is dependent upon people first of all being at home so as to receive a phone call, and secondly, upon people crediting the caller with the authority to deliver that message. If I were to adopt the position that you are putting to me, it places a great deal of emphasis on that telephone mechanism, with all its inherent uncertainties. How many employees are there actually involved in the industrial action at the present time?

PN117

MR ALLERY: Approximately 450. The only thing I would add to that, sir, as I mentioned earlier, that we had this similar situation in May 2002, and we adopted that practice and that practice did work very, very well. The only difference there was that we had the shop steward and some of those delegates present in court here then. We don't have that today and that is, I guess, the request of getting the LHMU to advise the shop steward and the delegates of what that order is and perhaps of doing a notice to allay any fears by any of those people that may have any doubts.

PN118

THE SENIOR DEPUTY PRESIDENT: How would you propose the union deliver the notice to its members?

PN119

MR ALLERY: What we are suggesting, sir, is that that can be delivered to our plant at security, whilst we are handing out the order, that that notice will also be given out at that time.

PN120

THE SENIOR DEPUTY PRESIDENT: Yes, but the handing out of the order and of any notice from the union is predicated on people first of all receiving a phone call and, secondly, in effect believing it. It is that issue that is causing me some concern in this matter.

PN121

MR ALLERY: I understand that, sir. All I can do to allay your fears in regard to that is past experience and, as I said, that issue that happened in 2002, that process seemed to work very well then, and I can't see why it wouldn't work now.

PN122

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN123

MR ALLERY: In regards to your second point, sir, in regards to the health and safety issue, we would have no objection to the words from paragraph 2 of clause 70.16 of the certified agreement being inserted into that order. In regard to point three, of having some reference within that order to the appeal process, we have no objection to some inclusion as well.

PN124

THE SENIOR DEPUTY PRESIDENT: Notwithstanding that I suggested that, the issue that causes me some concern in that regard is whether or not such a reference is within the scope of the order that might be issued. I shall ponder on that, Mr Allery. In the event that I did not include that in any order, can I make it absolutely clear to you that I would expect Bridgestone to honour the undertaking that it has given in that regard.

PN125

Let me take that a step further. I consider that it would be appropriate for Bridgestone to consider, in the course of any appeal process, the various factors that the Commission is obligated to take into account in considering any application that might be made pursuant to section 170CE of the Act, consequent upon the termination of the employee in question. Those factors are set out in sections 170CA(2) in terms of the requirement for a fair go all round, but more particularly they are detailed in section 170CG(3).

PN126

Bridgestone would be well advised to ensure that if it concludes the appeal into this matter with a decision to sustain the termination of this employee's employment, that it does so on the basis of some measure of confidence that those factors can be addressed in a fashion which would not undo or bring about the undoing of that termination of employment. Thank you.

PN127

MR ALLERY: I give that undertaking, sir.

PN128

THE SENIOR DEPUTY PRESIDENT: Mr Blewett.

PN129

MR BLEWETT: Thank you, your Honour. Can I come to the terms of the order before I come to the terms of the service?

PN130

THE SENIOR DEPUTY PRESIDENT: You certainly can.

PN131

MR BLEWETT: Our principal concern is in the definition of industrial action. We say the only matter that has been put to you today is the matter of a 48 hour cessation of work in respect of a particular issue that arose in the workplace. We say that properly the order should be confined to that action, whereas we say that paragraph 3.3 is obviously much, much broader and, on its face is a cessation of any action, any industrial action over a period of 12 months, if one looks at the terms of the order.

PN132

What we propose, your Honour, is that clause 3.3 be amended such that it reads -

PN133

for the purposes of this order, the expression industrial action mean -

PN134

And then the amendment would read:

PN135

- the 48 hour cessation of work commenced at 10 pm on Wednesday 16 February 2005 and due to cease on Sunday 20 February 2005 at 10 pm, concerning the supervision in the Truck and Bus Radial Tyre Building Section and the termination of employment of an employee.

PN136

I put that to your Honour on two bases. The first is that that is the industrial action that is said to be occurring. There is no suggestion that any other industrial action is threatening, probable or occurring. Secondly, the general principle that these orders should be no wider than that necessary to deal with the application that is before you. That is our principal submission about the content of industrial action.

PN137

In the event that your Honour is not persuaded by that submission, can I point to three particular matters of concern with regard to clause 3.3 as currently drafted? The first is the use of the expression "includes" at the end of the first sort of introductory line of 3.3. That effectively makes the definition open ended. The second is the failure in clause 3.3.2 as currently drafted to confine the industrial action to Bridgestone Australia Limited Tyre Manufacturing and Development Division - sorry, Bridgestone Australia Limited Tyre Manufacturing and Development.

PN138

THE SENIOR DEPUTY PRESIDENT: You are going to need to speak up for me, Mr Blewett. I don't know about our court reporter, but I am having some difficulty hearing you.

PN139

MR BLEWETT: I was saying the concern about clause 3.3.2 is the failure to confine it to the particular location, Bridgestone Australia Limited Tyre Marketing and Development Division, or as it is confined in 3.3.1 by reference to work in accordance to the terms of Bridgestone Australia, et cetera, award and agreement. Our concern there is that vis a vis the union and its officers at least, 3.3.2 appears to be completely open ended. Thirdly - - -

PN140

THE SENIOR DEPUTY PRESIDENT: Would that problem not be overcome by modifying the parties bound provision, Mr Blewett, so as to incorporate specific - to modify 2.2 so that that provision applied only to the LHMU, its officials and delegates, but to then add a 2.3, which would make the order binding on employees of Bridgestone Australia Limited in its tyre manufacturing development division at 3 Frost Road, Salisbury, South Australia, employed under the terms of the Bridgestone Australia Limited Tyre Manufacturing Development Division Certified Agreement 2003?

PN141

MR BLEWETT: No, with respect, your Honour, because it still - 3.3.2 would still be breached by the union if it encouraged someone outside Bridgestone to perform work in a manner different from that in which it is customarily performed, as it is currently expressed.

PN142

THE SENIOR DEPUTY PRESIDENT: I understand that, but are you putting to me that is a possibility?

PN143

MR BLEWETT: Well, no.

PN144

THE SENIOR DEPUTY PRESIDENT: You see if it is not a possibility, I am not quite sure why we should get to be overly concerned about it. I just need your assistance in that regard.

PN145

MR BLEWETT: I don't know whether it is a possibility. But as this order is currently worded it would preclude that from occurring, whatever the circumstances.

PN146

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN147

MR BLEWETT: Thirdly, about clause 3.3, we seek that the wording of - the concluding wording of clause 70.16 of the enterprise agreement be included, such that it reads immediately after paragraph 3.3.2:

PN148

But shall not include action undertaken by an employee with a reasonable concern about an imminent risk to their health and safety.

PN149

Your Honour, turning then to the term and date of effect of the order and I have just skipped service for the moment, in the event that you accept the submission that industrial action in this case should be confined to the 48 work cessation, then we have no concern with the order remaining in force for a period of 12 months. If on the other hand you are not persuaded by that submission such that any industrial action is encompassed by this order, then we say that the term of the order should be confined to a period reasonably proximate to the 48 hour cessation, again for the basis that outlined earlier, that there is no other industrial action suggested before you, and these orders should not be wider than necessary to remedy the action complained of.

PN150

In terms of service, your Honour, we can't see that it would be appropriate for the Commission to order, or to include in an order, an employer to advise its employees of the content of an order over the telephone. It is, I would have thought, only likely to be productive of further confusion in the workplace, and it will then be impossible to ascertain whether or not the order has been properly served, in the event that there is some concern about the order not being complied with.

PN151

THE SENIOR DEPUTY PRESIDENT: How do you say to me then that the order should be served, if one is to be issued?

PN152

MR BLEWETT: Your Honour, all I can say is that serving the order upon the union is appropriate. The union will comply with the order and the union will do that which it can to ensure compliance with the order. And I say that because, I mean, I can see that there will be real difficulties in having this order implemented, which is why we sought to make undertakings. But I don't want to see, or the union doesn't want to see itself caught because of imperfections of service. But if the union is served, it will do that which it can to ensure compliance by itself and its members. The offer for undertakings as opposed to going down this track remains open, if the company is concerned about - - -

PN153

THE SENIOR DEPUTY PRESIDENT: I am sorry, I am not able to hear you again.

PN154

MR BLEWETT: The offer for undertakings remains open if the company is concerned about actually getting people back to work. Thank you, your Honour.

PN155

THE SENIOR DEPUTY PRESIDENT: Mr Allery, do Mr Blewett's submissions occasion you the need to comment further?

PN156

MR ALLERY: No, thank you, sir.

PN157

THE SENIOR DEPUTY PRESIDENT: I am going to take the propositions put to me by both parties away to ponder upon them for a few minutes. I would ask the parties to remain in the near vicinity of the court room, and I would hope to be back with you within the next 15 minutes or so. I will adjourn the matter on that basis.

<SHORT ADJOURNMENT [4.53PM]
<RESUMED [5.36PM]

PN158

THE SENIOR DEPUTY PRESIDENT: I have determined a form of order in this matter. I apologise to the parties that it has taken me a little longer than I thought it would. I will ask my associate to provide that order to the parties, and will not read it out in full. In doing so, I would draw the parties' attention particularly to paragraphs 5, 6 and 7 of the order that is to be handed to the parties. The 7 relates to the service of the order, and the decision that I have arrived at in that regard does not provide for telephone advice to employees.

PN159

It is appropriate, because of the fact that I have detailed earlier in these proceedings the fundamental reasons why I decided that the jurisdiction existed for this section 127 order, and that that discretion that is then available to the Commission should be exercised, that I also advise that I have required in terms of the service of that order, that service of the order be effected personally or by courier on employees to be covered by it.

PN160

I have arrived at that decision because of my concern over the inherent uncertainty in the proposed telephone advisory function, in terms of the extent to which that telephone advice may not reach all employees and the extent to which the content of the telephone advice may vary or be open to conjecture or misunderstanding. On that basis, I will adjourn these proceedings.

PN161

I will comment to the extent that I don't intend to issue further reasons for the order that I have issued this afternoon unless the parties, or either of the parties seek that those reasons be provided in accordance with the Commission's rules. Any such request will result in the issuance of more comprehensive reasons which will broadly reflect those that I have outlined to the parties today. I will adjourn the matter on that basis.

<ADJOURNED INDEFINITELY [5.39PM]