C2005/2453, Transcript of Proceedings [2005] AIRCTrans 774 (30 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10987-1

COMMISSIONER GAY

C2005/2453

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
WORLD CLASS ACCIDENT REPAIRS (CHELTENHAM NORTH) PTY LTD
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/2453)

MELBOURNE

2.30PM, FRIDAY, 18 MARCH 2005

PN1

MS S SCHLESINGER: I appear for the Australia Manufacturers Workers' Union, together with our organiser, MR D NUNNS and MR G ORAM. Also in attendance today are our shop steward from the plant MR B SKEWES and the member who is the subject of the application and filing matters.

PN2

MR HUMPHREY-SMITH: Commissioner, I seek leave to appear for the respondent to this application, World Class Accident Repairs (Cheltenham North) Proprietary Limited.

PN3

THE COMMISSIONER: Yes, thank you. Do you say something about the application for leave?

PN4

MS SCHLESINGER: Yes. We don't think there has been any grounds made out for the appearance in terms of the issue in - - -

PN5

THE COMMISSIONER: Well, I will ask Mr Humphrey-Smith to make some out. Had you not objected, I wouldn't - I might say at the outset that I am conscious that the parties have been kept waiting, I regret the fact that there has been a delay in getting underway.

PN6

MS SCHLESINGER: Yes, Commissioner.

PN7

THE COMMISSIONER: So perhaps you can keep your powder dry. If you take the point, I will see what Mr Humphrey-Smith's reasons are.

PN8

MS SCHLESINGER: We object to his appearance today.

PN9

THE COMMISSIONER: Yes, very well. Off you go, Mr Humphrey-Smith.

PN10

MR HUMPHREY-SMITH: Thank you, Commissioner. The matter is complicated, I suppose that's the fundamental point I make in the sense that we wish to make an objection to the jurisdiction of the Commission under section 170LW. There is considerable disparity after having a chat with my friend, on the facts of the case and I think in hearing our submissions on this point as to the status of Ms Davis's employment with my client, it's clear that she is not a probationary employee. And much of the union's position that it has taken in its application, Commissioner, which I assume you have before you and the union has set out in some nine points concerning the employment status of an employee. I won't make those submissions now, Commissioner, but there are a number of submissions I wish to make about the jurisdiction of the Commission in the first ones.

PN11

THE COMMISSIONER: Yes. All right, thank you. Well, now, Ms Schlesinger, you might want to address the jurisdictional part of what Mr Humphrey-Smith says, I won't require you to address the point that he raises that the matter may have some complexity.

PN12

MS SCHLESINGER: Yes, Commissioner, the employee is an employee of the company and employment conditions are set out in the agreement called the World Class Accident Repairs (Cheltenham North) Proprietary Limited Workplace Agreement 2004-2005 and clearly within that there is a dispute resolution procedure and that sets out a number of steps for the parties to address any issues that might arise in the workplace, and an issue has arisen as to the employment status of Ms Davis and we have been unable to resolve that amongst ourselves. So in accordance with that dispute resolution procedure which is clearly set out there in the EBA, we bring the matter to the Commission.

PN13

THE COMMISSIONER: Yes, well you are really dealing at the moment with - Mr Humphrey-Smith says that World Class Accident Repairs - what he makes out by, I won't paraphrase the way he puts it, but he seeks leave to appear because he raised, particularly on the basis of the - well, he raised it on two grounds essentially, one that it was complex and I don't require to hear on that because I have already answered that one, but he does raise that there is a jurisdictional point he wants to put. And that is a sufficient basis for me to grant leave. I must say, I am inclined to grant leave.

PN14

MS SCHLESINGER: Yes. Well, if he has made his case to the Commission we won't pursue that any further. Commissioner, in discussion between the parties just prior to the commencement of this hearing, I think we are all fairly comfortable proceeding in conference.

PN15

THE COMMISSIONER: All right, thanks Ms Schlesinger. Leave is granted, Mr Humphrey-Smith.

PN16

MR HUMPHREY-SMITH: Thank you, Commissioner. I think, just respectfully for Ms Schlesinger, the discussions we had before coming in the room were more that I wished to make a jurisdictional objection. We are happy to confer but not within the confines of section 170LW of the Act. We are happy to have a conference with the union and whether that involves the Commission in some other form of its jurisdiction, we will leave that to the Commission's discretion.

PN17

THE COMMISSIONER: All right. Yes. Well, that's not quite as happy a circumstance as you might have thought, Ms Schlesinger, is it? But,
Ms Schlesinger, is your member still in employment?

PN18

MS SCHLESINGER: I believe that our member is still in employment.

PN19

THE COMMISSIONER: And it's Ms Davis, isn't it?

PN20

MS SCHLESINGER: Yes.

PN21

THE COMMISSIONER: So Ms Davis is not an ex-employee, she is an employee.

PN22

MS SCHLESINGER: We believe she is still a current employee.

PN23

THE COMMISSIONER: All right. Mr Humphrey-Smith, you are not content, is this right, to participate in a conciliation conference in the Commission if it is conducted pursuant to an application made under section 170LW.

PN24

MR HUMPHREY-SMITH: No, we are not, Commissioner. And that is on the basic ground that Ms Davis has been terminated.

PN25

THE COMMISSIONER: I see.

PN26

MR HUMPHREY-SMITH: And this should be an unfair dismissal application brought under, I would suggest, brought under section 170CE. We are happy to entertain the union's views in relation to that but we are not happy to entertain them in this arm of the Commission's jurisdiction.

PN27

THE COMMISSIONER: All right. Well, thanks Mr Humphrey-Smith. Ms Schlesinger, you can see, can't you, that it seems that Ms Davis has been - her employment no longer endures. I am trying to think of a passive phrase.

PN28

MS SCHLESINGER: Well, Commissioner, I think we will take evidence on that. If I could call Ms Davis as a witness to - I mean, that's one way to clarify that and I believe that relevant company representatives are here who are involved quite intimately in the matters that have led to the situation today. So I guess we will - that's one course of action that the parties can take. We will put everyone
- we will take evidence as to what is - - -

PN29

THE COMMISSIONER: Well, we will see. You see, I have got a reluctant party and they don't want to participate and say they want to be heard. Presumably if I press on, Mr Humphrey-Smith will say he will look to have his jurisdictional objection heard and I must say I would be inclined to hear it, in the same way as I would if it was pressed by you. If you said, no, there is an absence of jurisdiction, you would have to establish that and so it might be that I will need to hear evidence to establish that. But it seems to me that that would be evidence responsive to a case put by Mr Humphrey-Smith because you say, is this right Ms Schlesinger that Ms Davis has not been dismissed or terminated?

PN30

MS SCHLESINGER: Well, we say that the employee has worked at the company for a period of months but there has been a long association with the organisations associated with World Class Accident Repairs. When she was reappointed in or appointed in October last year there was a period, I guess it was a trial period or probation period but that concluded at the end of January 2005. And basically the company has put to her that she needs to be re-employed by a labour hire agency and that has arisen because of - the employee has had a good work record there. She sustained an injury recently, it seems that the company has been reluctant to accept that injury and as a result, that seems to have been what prompted the company to want to return her to some employment with an employment agency but she has been an employee of the company.

PN31

I am not aware that there has been any written notification to the member that her employment has been terminated. It would be accurate to say that the company has indicated that they would want her to be employed by labour hire company but it sort of just doesn't really quite make any sense, Commissioner. There is nothing written on the record terminating her employment. So basically, I guess what we say has generated the issue today is that it has been about sustaining an injury and I would just say the company not being happy with that.

PN32

THE COMMISSIONER: Yes. All right, Ms Schlesinger. I want to have a look at the agreement for a moment. All right. Well, Mr Humphrey-Smith, can you tell me what the status of what Ms Davis' employment is, please?

PN33

MR HUMPHREY-SMITH: Yes I can, Commissioner. On, and I think certainly the meeting is referred to in point three of the union's application which might be helpful, certainly our view of that meeting is somewhat different. With me today, Commissioner, is Mr Nat Fair who is the commercial manager of my client. He was in the meeting, he told Ms Davis that her employment was terminated and certainly there was no request that Ms Davis' employment be transferred to a labour hire company. The relevant company, just for your information Commissioner, is a company called Edge People Power, or Edge Personnel. Edge anyway, and we will refer to them throughout - - -

PN34

THE COMMISSIONER: What is relevant about them?

PN35

MR HUMPHREY-SMITH: What is relevant about them is that my client in having terminated Ms Davis' employment said to Ms Davis, but in the interests of looking after you, so out of fairness, we may be able to obtain further employment for you through Edge Personnel, remembering that Ms Davis came to my client as an Edge employee originally. So having worked in the operations originally with her employer being Edge, and then employed by World Class Accident Repairs and then just a comment made in the termination meeting saying, we may be able to obtain some other employment for you through Edge again.

PN36

THE COMMISSIONER: And when you say other employment, you mean other than with World Class Accident Repairs. Is that right? Not necessarily?

PN37

MR HUMPHREY-SMITH: Well, that discussion hasn't gone any further because there has now been - there was a further meeting with the union on Tuesday of this week. Mr Orram who is here, the union organiser, met with Nat Fair and Allen Hickey who is also here with me today, the business manager of my client, and further discussion was had about that but there just can't be any possible conclusion drawn that she remains an employee. She was told, her employment is terminated and that's certainly one of the grounds if you wish to hear me, on the jurisdictional issues that I wish to raise. Commissioner, if it might assist, could I draw your attention to the dispute settlement procedure.

PN38

It is an unusual, I suppose it's hard to say to you, Commissioner, it's an unusual provision because we see many before the Commission. But certainly, subclause 18.3 and the relevant sentence being that:

PN39

If the matter is still not resolved it may be submitted to the AIRC in accordance with the Act.

PN40

Our position on that would be that the relevant way for it to be submitted in these circumstances is not under 170LW but under 170CE. It's not, if I can use the term, usual provision in the sense that it would be referred to the Commission for conciliation and/or arbitration or for resolution which we see more and more in agreements. It merely says that it may be submitted to the AIRC in accordance with the Act. And in the situation where an employee such as Ms Davis has had her employment terminated, putting to one side completely whether that termination has been harsh, unjust or unreasonable, it just isn't appropriate in my opinion that this matter be referred under 170LW.

PN41

THE COMMISSIONER: And in a nutshell, that's the jurisdictional objection, is that right?

MR HUMPHREY-SMITH: That's the jurisdictional objection but can I take it one step further as well to say that the submission by the union that Ms Davis' employment was probationary in nature, which is made out in the application at point 2, they refer to clause 15 under the agreement, Commissioner. Clause 15, if I can just refer you to that, states at 15.1:

PN42

All new employees will be employed on probation for a period of three months. At the end of or during this period WCAR -

PN43

Being my client -

PN44

- will decide whether to offer ongoing employment.

PN45

15.2 then goes on:

PN46

During the probationary period an employee can be dismissed on one's day's notice.

PN47

Commissioner, I don't think this is disputed by my friend and I assume my friend has a copy of Ms Davis' employment agreement which was provided to her by letter from my client and signed by Mr Fair on 6 October. And I will just read, Commissioner, if I may, I am happy to hand that up, the second paragraph which says:

PN48

It is with pleasure that I confirm your appointment to the position of customer service officer commencing on 6 October 2004 and concluding on 28 January 2005.

PN49

Now, we would say if this appointment was as a probationary employee, it would have referred to the three month period because my client would be certainly intending to comply with its own certified agreement. This is not a probationary appointment, this is a fixed term appointment which my client, for a variety of reasons, allowed Ms Davis to continue past the expiry date of this fixed term agreement. That again goes to my jurisdictional objection because very much the union's position is that she is a probationary employee. She is not and I am happy to hand this up as perhaps prima facie evidence, happy to call other evidence if we need to but I really think it's going to be unnecessary in the circumstances. My client's position, even if there was some doubt in Ms Davis' mind at the meeting last Thursday, my client is here saying, Ms Davis is terminated. That remains the prerogative of an employer. Obviously an employer willing to allow the consequences of that decision to be played out in this Commission but not under 170LW. We say the more appropriate provision being 170CE.

PN50

THE COMMISSIONER: And you will say, in such a proceeding that there is no jurisdiction?

PN51

MR HUMPHREY-SMITH: Sorry, in 170LW?

PN52

THE COMMISSIONER: No, the last one you mentioned was CE.

PN53

MR HUMPHREY-SMITH: No, we will not say that, Commissioner, and I wouldn't waste the Commission's time in doing so. Undoubtedly Ms Davis' employment has become ongoing once her employment was allowed to continue past the expiry date of her employment agreement.

PN54

THE COMMISSIONER: So is this the right characterisation of Ms Davis that she is a dismissed employee, so she is an ex-employee, who whatever other, and at some stage it would be useful to get the narrative, the chronology of
different - - -

PN55

MR HUMPHREY-SMITH: She is a dismissed ongoing employee as of last Thursday.

PN56

THE COMMISSIONER: I will finish what I was going to say, whatever guises or descriptions can be given in her previous employment, she had been something else, she had been sent along by a labour hire company so she is in that special state of employment.

PN57

MR HUMPHREY-SMITH: Yes.

PN58

THE COMMISSIONER: And then she was engaged, you say on a fixed term basis, and then the fixed term employment, that period concluded, the term of the fixed term of employment concluded and her employment endured so she kept on doing performing duties at the request of the employer.

PN59

MR HUMPHREY-SMITH: That's right.

PN60

THE COMMISSIONER: And you say so she was then an ongoing employee.

PN61

MR HUMPHREY-SMITH: That's right.

PN62

THE COMMISSIONER: Yes. All right. And she was an ongoing employee until Mr Fair did what he did this meeting last week or this week.

PN63

MR HUMPHREY-SMITH: Exactly. And that obviously gives rise to a whole lot of other issues but again - - -

PN64

THE COMMISSIONER: And one of them is not one that would ground a CE jurisdictional objection if I understand you correctly.

PN65

MR HUMPHREY-SMITH: No, that's right. I agree, yes. We would not be taking a jurisdictional objection if this matter were brought under 170CE.

PN66

THE COMMISSIONER: All right.

PN67

MR HUMPHREY-SMITH: Thank you, Commissioner.

PN68

THE COMMISSIONER: Yes.

PN69

MS SCHLESINGER: Yes, Commissioner, we haven't brought the matter as an employee being a probational employee. We merely stated that she completed that probationary period and then became an ongoing employee but I think that that has been acknowledged by the company. The issue of a common law contract and how that sits with the EBA, there is certainly no provision in the EBA for a common law contract. But in any event, if the document that has been referred to by the company as being a relevant document, I would also draw their attention to clause 8 of that agreement that says at 8.1:

PN70

Your agreement may be terminated at any time with the provision of written notice as outlined in the Vehicle Industry Repair Services and Retail Award.

PN71

THE COMMISSIONER: What are you referring to there, Ms Schlesinger.

PN72

MS SCHLESINGER: This is a letter, I don't think that has been attached.

PN73

THE COMMISSIONER: No, I think Mr Humphrey-Smith offered it but he then went on and I didn't ever see it. It might be useful if you could tender that.

PN74

MR HUMPHREY-SMITH: Commissioner, it would be useful for you, I am happy to tender it.

PN75

THE COMMISSIONER: Well, I think it would be useful because it is being referred to now. All right, do you have a spare copy?

PN76

MR HUMPHREY-SMITH: I only have one copy I am sorry.

PN77

THE COMMISSIONER: Well, we will make copies of that.

PN78

MS SCHLESINGER: And I think I only have one copy as well.

PN79

MR HUMPHREY-SMITH: Commissioner, my friend has a clean copy, I think that would be more appropriate.

PN80

THE COMMISSIONER: Thanks. All right, I will take a moment to read this.

PN81

MR HUMPHREY-SMITH: Commissioner?

PN82

THE COMMISSIONER: Yes, Mr Humphrey-Smith.

PN83

MR HUMPHREY-SMITH: May I just make a comment before you become too engrossed in that document. The company's position is that that contract doesn't apply to her anymore anyway because it has expired, and so perhaps that eases some of my friend's concerns. We say that at the time of Ms Davis' termination she was employed pursuant to the certified agreement.

PN84

THE COMMISSIONER: Yes. And it seems that whatever these other things are that I am now starting to look at, Mr Humphrey-Smith, these would be subordinated to the terms of the agreement. Do you agree with that?

PN85

MR HUMPHREY-SMITH: I would agree with that, Commissioner.

PN86

THE COMMISSIONER: Thank you. Mr Humphrey-Smith, was there - and I must say I had intended to ask you this question and I haven't done it yet. Was there an instrument of termination? I know that Mr Fair said some things to her but was she given anything in writing to indicate that her employment had finished?

PN87

MR HUMPHREY-SMITH: She wasn't given anything in writing, Commissioner. The union quite rightly raised that, Commissioner, in the meeting of this Tuesday and my client agreed to provide that notice of termination in writing and prior to that notice being given, my client was served with this 170LW dispute and that has really been put on hold until I have received instructions this morning. I have indicated to my friend that my client is more than happy to provide that written notice of termination.

PN88

THE COMMISSIONER: And is your view that properly applied, 8.1 of this conditions of employment document, which I won't mark, I don't know whether it belongs to some of the original, I notice, but that written notice is required?

PN89

MR HUMPHREY-SMITH: Commissioner, I don't agree that written notice is required. Commissioner, the relevant award being the - it has been renamed from its 1983 version, the Vehicle Industry Repairs Services and Retail Award 2002. The relevant clause being subclause 6D(i) reads:

PN90

In order to terminate the employment of an employee, the employer shall give to the employee the following notice.

PN91

And in the circumstances of Ms Davis where it is less than one year, one week's notice is the requisite period of notice that my client needed to provide, in my submission. The contract which you are looking at at the moment, Commissioner, dated 6 October 2004, we say, loses any validity that it may have had as at the expiry date of that contract which was 28 January 2005. There isn't any provision in that document which suggests that the terms, for example, the terms and conditions of this contract would continue to apply if you were employed at any other position with my client. That provision is not there. And in those circumstances, it is my submission, Commissioner, that we need to refer to the relevant award and there is no requirement for written notice in the relevant award.

PN92

THE COMMISSIONER: Yes.

PN93

MS SCHLESINGER: Yes, Commissioner. It is my understanding that there was not notice given anyway. That if, in fact, that if you pick up what the company's representative is saying that it doesn't need to be written but it needs to be one week, it is my understanding that it was told to the member that she needed to transfer to the labour hire company. That was to be effective immediately.

PN94

THE COMMISSIONER: Yes. Mr Humphrey-Smith, was notice given or was it paid? What was she told and what happened? What was affected there?

PN95

MR HUMPHREY-SMITH: Commissioner, I am instructed that in the meeting it was explained to Ms Davis that she had already been paid in advance and she was in advance a week at the time of that meeting and that she would be entitled to keep that money. So that was the equivalent of payment in lieu of notice in those circumstances, Commissioner.

PN96

THE COMMISSIONER: All right. Thanks, Mr Humphrey-Smith.

PN97

MR HUMPHREY-SMITH: Thank you.

PN98

THE COMMISSIONER: Well, it is a very satisfactory state of affairs, isn't it? I don't know whether anyone thinks this is a very tidy package of arrangements.

PN99

MS SCHLESINGER: Commissioner, there has been no separation certificate or anything like that that has been provided to the employee and it was noted that that was going to be in train and then they have got landed on their desk a 170LW from ourselves. But that was only filed yesterday so if in fact the company was going to do what it was going to do, it certainly had Tuesday and Wednesday of this week to do that before the documentation arrived.

PN100

THE COMMISSIONER: Yes.

PN101

MR HUMPHREY-SMITH: Commissioner, just in relation to that point, I am instructed that the company was advised on Tuesday that they were going to take this action anyway. And I think in circumstances where the client would not be particularly familiar with a 170LW application, I think it is perfectly understandable that other arrangements may have been put on hold until they sought appropriate advice.

PN102

THE COMMISSIONER: Well, Mr Humphrey-Smith, it is said that there is a dispute and the subject of the dispute in the notification that I have here is the employment status of an employee. Now, it might be that there is no dispute. Properly understood, you may be successful in maintaining that the employment status of Ms Davis can in fact be clearly understood and it shouldn't be the subject in some literal sense of disputation in that the employment status, looking at the words themselves, and I think this would be about as artificial as I want to get this afternoon but it might be a convenient starting point I might say, because other than set out the union's view of the narrative, you will note that the subject of the dispute is given as, and I take it to mean, I would have to regard to everything in the notification I might say, but the bold and capital portion towards the bottom of the first page which says:

PN103

Concerning the employment status of an employee.

PN104

And it strikes me that the dispute in fact is about all the things that happened to Ms - it is likely that if I heard Ms Schlesinger expand on her summary of the union's objection, it is very much about Ms Davis as a person and I don't know, I assume that is Ms Davis there. I don't know, as you note the person I am looking at nods her head. So it's about her status but it seems to go to these other issues and that is how properly understood the agreement is applied in the workplace and whatever this other conditions of employment document is. So that there may be a dispute with employees not agitated in precise terms by this section 170LW which in fact is of a broader compass than what is this woman's status now. It might be that that can be established and, in fact, it might be thought you have probably been pretty satisfactory in doing that in the narrower sense.

PN105

But, of course, Ms Schlesinger as, in my understanding, an authorised officer of a registered organisation can stand and give notice of a dispute cast in different terms, pursuant to section 170LW because there is a certified agreement and it has, and I don't have any doubt that the people who made the agreement were sincere in making it and that they wanted disputes to be resolved in the workplace by these various steps which, of course, eventually lead to 80 Collins Street. And Ms Schlesinger also, of course, can give advice both written or in other forms of the existence of an industrial dispute in a more general sense under section 99 and it could be as to any issues that relate to this whole package of arrangements which the union and its members employed at World Class Accident Repairs have concerning them at the moment.

PN106

And indeed, it might be that having heard you I could form the view that there is, if Ms Schlesinger tells me there is, unhappiness and a dispute concern in the people to whom this agreement and possibly other of these written arrangements apply, as well as the award it seem. I would find ample scope for the Commission to endeavour in the first instance to deal with this matter by conciliation. What do you say about that?

PN107

MR HUMPHREY-SMITH: Commissioner, I suppose I am forever conscious of the terms of section 170LW of the Act and I think it is relevant to refer to that in this submission being that the provision provides for the settling of disputes over the application of the agreement and I know there has been much interpretation of those provisions. I am also conscious, Commissioner, of a decision of yours which I draw your attention to, being the Ambulance Service Victoria Metropolitan Region Certified Agreement 1997.

PN108

THE COMMISSIONER: Well, there are plenty of those, you will have to be a lot more precise than that.

PN109

MR HUMPHREY-SMITH: I will have to be, Commissioner, and it is the one handed down on this jurisdictional issue on 17 July 2002 where you certainly, on my reading of the decision, Commissioner, looked at the dispute resolution provision in that relevant agreement which, might I add, is a significantly more elaborate provision that the one facing us here today. And particularly, it refers at clause F to - look, if the matter is not resolved it shall be referred to the Australian Industrial Relations Commission for the purposes of conciliation and arbitration. You then go on to look at the meaning of that within the factual circumstances before you but you also make some comment about the 170CE and how that might sit in a situation like that. Your eventual finding in the matter, which you may recall, was that it was open to the 170LW provision under the Act to hear that termination issue in relation to the circumstances of that particular agreement. I really urge you - - -

PN110

THE COMMISSIONER: That was because, was it not, that that was a - I don't know if it is the right one, there was a trainee ambulance officer who got himself into some strife and the union alleged that the performance management provision or something like that, a disciplinary procedure hadn't been given proper effect. And they said, that's what the dispute is about.

PN111

MR HUMPHREY-SMITH: It was the undisputed fact in that case was that
Mr Dent was a probationary employee and I think the position that the Ambulance Service took was, well, as a result of that that there would then be an exclusion under 170CE and I may have been reading a little between the lines but I think that it was undoubtedly your view that this employee needed to be assisted. And I suppose I draw a massive distinction in this case that we are being very open as an employer respondent to say, we are acknowledging that Ms Davis was an ongoing employee at the time she was terminated.

PN112

THE COMMISSIONER: Yes.

PN113

MR HUMPHREY-SMITH: And it seems entirely unnecessary to make use of this 170LW provision in circumstances where we are saying, it really is an unfair dismissal application. There is absolutely no evidence that other employees at the site are affected by this and this matter should be properly lodged before the Commission through the unfair dismissal procedures.

PN114

THE COMMISSIONER: All right. Well, you might win that submission,
Mr Humphrey-Smith, in which case the old rhetorical question, it will be a matter of whether you can handle the victory because it might be that I send you all away. There is no dispute here. It might be I think well, there is no work for the Commission to do, what there is is that Ms Davis can go upstairs and pay $50 or successfully argue that she is unable to make that payment and then I can go back to my rooms content that all is well because this ex-employee is taking the more specific legislative remedial course that is open to her, some phrase like that, yes?

PN115

MR HUMPHREY-SMITH: Yes.

PN116

THE COMMISSIONER: And so that is the end of the matter. I think, well, there we go, harmony is restored and there is no work for the Commission to do pursuant to this grievance procedure at World Class Accident Repairs and maybe, well that's right, maybe I will agree with you. It strikes me that there is some discombobulation at that end of the table and I don't close an eye on it, you can win at jurisdictional point. If it's right that Ms Davis has been dismissed, well, there will be a point at which Ms Schlesinger will make sure, and certainly it will be a point between the day she was put off, whenever that was, by Mr Fair and 14 and 21 days and someone will make an application upstairs but what happens if Ms Schlesinger stands up and tells me, and I am not inviting her to do so, you might think I am. I don't need to because they know. I am almost tempted to say, oh all right, well, I will adjourn. I will adjourn this, well, I won't adjourn, I will conclude the hearing and sail away. And if that means all is well at World Class Accident Repairs, well then all is well.

PN117

It strikes me that isn't right, I don't know. I mean, I can ask Ms Schlesinger to tell me what the employees think about this and are they upset, do they want to make other claims, can I take it that there is a likely or an impending industrial dispute?

PN118

MS SCHLESINGER: Commissioner, if I might address you on that.

PN119

THE COMMISSIONER: Yes. All right.

PN120

MS SCHLESINGER: Kylie here, she is a motor mechanic by trade, she did her apprenticeship and she worked with the RACV for a period of some 14 odd years starting as an apprentice working her way through to a workshop supervisor. Now, World Class Accident Repairs, as I understand they are sort of part owned by the RACV and do RACV work and when she was taken on in this recent period it was at the invitation of the company. She has been with the labour hire company, she had another job offer at the time and quite specifically the company put to her, it would be a good option for you to come and work with us. So that she has done and that is part of the issue now, in fact if she is terminated she has really foregone another what probably would have been a good opportunity at that time.

PN121

THE COMMISSIONER: Well, you know what Mr Humphrey-Smith will say, he will say that will make an especially poignant submission upstairs, stolen away, she had another opportunity, she turned her back on them to take up the offer and she has played a straight bat, she has done her work, she has been a very good employee and look what has befallen her. That is what you will be arguing upstairs and you hope that it will stand you in good stead when this file turns into an orange file, when this is a 170CE file.

PN122

MS SCHLESINGER: Commissioner, I don't believe there has been any work performance issues and that the member has the support of her fellow work mates at World Class Accident Repairs and I can speak with the stewart but I should well imagine that that - - -

PN123

THE COMMISSIONER: How many employees are there at World Class Accident Repairs?

PN124

MS SCHLESINGER: Probably over 40 on the shop floor.

PN125

MR HUMPHREY-SMITH: I am instructed, Commissioner, on the site in total there is 75 approximately.

PN126

THE COMMISSIONER: Thank you. Now, Ms Schlesinger, how am I to
understand the nature of the dispute? You have heard the way I have put it to
Mr Humphrey-Smith and of course I have put it in the way that I had to tease him out or tease out some of the issues but what do you say? Do you say that the Commission should take, as to the dispute that exists in this case under section 170LW in your declaration, do you say that is of a narrow confine that is confined to Ms Davis or do you say it is of a different sort?

PN127

MS SCHLESINGER: Well, I think the application has been made in respect of Ms Davis. I think it has got the potential to cause unrest amongst the remaining employees that are there and as I have indicated, I haven't spoken to the shop steward and the organisers further on that particular issue. If it is a matter of re-construing the section 170LW I certainly can do that and I might be more specific in terms of what might have generated some of the issues about, I can refer to the employee training clause, I can look at the hours of work clause, I can look at the occupational health and safety clause within the EBA. And I can set out another 170LW, that is not a drama to do that.

PN128

But look, the matter we have raised is in respect of Ms Davis, I think it would be accurate to say that there would be concern amongst the employees that if the company can say to a good employee, you are going to the labour hire company now, that really is something that they would perhaps fear for as something that might happen to themselves. Commissioner, as we have indicated we would be happy to move into a conference and it is certainly our view that that should be done pursuant to the application for further - - -

PN129

THE COMMISSIONER: Yes. Well, I have got a reluctant debutante you see there, and I am not going to sucker someone into a proceeding because it might be that they withdraw and seek to have me stop.

PN130

MS SCHLESINGER: Perhaps the other alternative that we could think of is just have an adjournment and I don't know if there is anything we can do but - - -

PN131

THE COMMISSIONER: Just adjourn, just adjourn and gum shoe around.
All right.

PN132

MS SCHLESINGER: Well, look, sometimes that works.

PN133

THE COMMISSIONER: Well, it does, of course it does, Ms Schlesinger. Well, it works if people are prepared to make an effort to make it work but Ms Schlesinger, these workforce planning arrangements, have you turned your - I am sorry, Mr - - -

PN134

MR HUMPHREY-SMITH: That's all right.

PN135

THE COMMISSIONER: The transcript is going to give you a lot of staccato people that are up and down in it.

PN136

MS SCHLESINGER: Yes, I know.

PN137

THE COMMISSIONER: But that is how it has had to be today. Now, Ms Schlesinger, these workforce planning arrangements, you have referred to some other element of the agreement. Have these workforce planning arrangements formed part of this?

PN138

MS SCHLESINGER: Yes, to which document?

PN139

THE COMMISSIONER: That's clause 19.

PN140

MS SCHLESINGER: At clause 19?

PN141

THE COMMISSIONER: Has that got a role to play? What is that all about? Presumably it's got some work to do.

PN142

MS SCHLESINGER: That could be a relevant issue, Commissioner. I think evidence will reveal what was said and understood at the time, you know, whether it was a sacking, whether it was a transfer, whether it was called a redundancy, whether it was called a retrenchment.

PN143

THE COMMISSIONER: Yes. Mr Humphrey-Smith, was it a redundancy? What was it?

PN144

MR HUMPHREY-SMITH: Commissioner, in terms of the termination, Commissioner?

PN145

THE COMMISSIONER: Yes.

PN146

MR HUMPHREY-SMITH: It was a redundancy. And in those circumstances, the reason why I made that earlier submission about the offer that was made to contact each personnel was to potentially find, and as to what will lead from those enquiries but it was to potentially find Ms Davis suitable alternate employment which, if you look at the relevant provisions at clause 19 under the certified agreement, Commissioner, clause 19.1C is relevant to this. And that is why I must say my client is entirely disappointed with the course this has taken where the statements made by my client in the meeting were that they would make contact to assist Ms Davis, but Ms Davis has an entirely different version of those events.

PN147

THE COMMISSIONER: Yes.

PN148

MR HUMPHREY-SMITH: And the submission, Commissioner, I was going to make a moment ago was just that in simple terms, we say there is a dispute over the termination of Ms Davis' employment, a dispute over the termination which we would say should be an application of relief in respect of the termination. We are not questioning the termination and we have also suggested that there would not be a jurisdictional objection raised if we were going to be cued at a later time to say, well, actually she hasn't been terminated. We are not going to do that and I am happy to say that on transcript. It is not a dispute over the application of the agreement, it is a dispute over the termination and Ms Davis has appropriate remedies available to her under the Act.

PN149

THE COMMISSIONER: All right. And so it was a redundancy, so it's right to direct one's attention at clause 19 of the agreement, is that right?

PN150

MR HUMPHREY-SMITH: She was told there was no more work.

PN151

THE COMMISSIONER: All right. And does that in part involve the adoption of changed business practices?

PN152

MR HUMPHREY-SMITH: In the sense of clause 19.1, Commissioner, I haven't turned my mind to it and I wouldn't want to rush in that submission in terms of what that triggers. I think that we are at a certain point and I am happy to consider that if we have a short break if that is something you would like us to do.

PN153

THE COMMISSIONER: Yes. Well, I think you should because it strikes me that a great deal of what you have said is right, Mr Humphrey-Smith, but I am also concerned not to waste time now and sending Ms Schlesinger off to draw a different notification either under section 99, probably under both section 99 and under section 170LW as to how it is that these arrangements are applied in the workplace, that there is a grievance and it might be that it is agitated by all the employees. I don't know, but I will be told that and that if there is a changed business practice on the relevance of the redundancy provision - it's an interesting provision the way that is set out, I have not seen one like that. They may be about, I don't know but it's an interesting one. And, of course, it strikes me that there could be quite genuinely a disputation about the terms of that and how it is applied and the reasonableness of it applying to a certain person and so on.

PN154

So we will have a brief break now and I might say that what I would much prefer to do is conduct a conference of the parties which doesn't prejudice anyone's position and doesn't presuppose that I have made a finding that there is a dispute over the operation of the agreement agitated by whatever happened to Ms Davis last week but rather to try in a practical way, I am conscious of the time, here it is on Friday. I would like to hear what it is the union wants, whether there is some reasonable remedy that can be arranged rather than send Ms Schlesinger, she will probably spend the time of the adjournment anyway doing this, upstairs to make some other notification to the registrar or indeed to make them to me.

PN155

MR HUMPHREY-SMITH: Commissioner, form my client's perspective, we don't want Ms Schlesinger to do that either. We are more than happy to confer and pleased to hear your comments that it would not in any way compromise our rights in relation to that jurisdictional objection.

PN156

THE COMMISSIONER: Yes. All right.

PN157

MR HUMPHREY-SMITH: We are happy for you to participate, Commissioner.

PN158

THE COMMISSIONER: All right. Well, that being the case, now, Ms Schlesinger, I am conscious that Ms Davis - we might have well have been speaking in some strange tongue here but we are going to break, perhaps until half past and I want you to explain to Ms Davis some of the issues that have been let loose by Mr Humphrey-Smith and I want you to give some thought to what you know that I am going to be looking for and that is, in a practical sense, what can be done, what do you want and it may be easier to go and file upstairs and ask me to expedite it. I don't know. It might be then that the intermeshing of these, what other contracts there are of this sort and how it operates with the award and the certified agreement, you are going to have to have some body builders out there who have also got law degrees because we are asking a lot of people to understand what does constitute their employment arrangements and how they can give proper effect to their rights, their rights to grieve before something befalls them. These are all important issues, it strikes me.

PN159

Anyway, we will go into break now for ten minutes and Mr Humphrey-Smith, you can do your thing with your people and we will come back on and see if we can do some good. It may be that I will talk to the parties separately. Thank you.

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