C2004/5786, Transcript of Proceedings [2005] AIRCTrans 9 (4 January 2005)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 2683

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2004/5786

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

and

ELECTROLUX HOME PRODUCTS

Notification pursuant to section 99 of the Act
of an industrial dispute re alleged harassment
and bullying in the workplace

ADELAIDE

10.08 AM, THURSDAY, 23 DECEMBER 2004

PN1

MR J. GRESTY: I represent the Australian Manufacturing Workers' Union. With me this morning are delegates MR R. FORTE and MR C. KOSMANIS.

PN2

MR S. BAKEWELL: I seek leave to appear on behalf of Electrolux Home Products and with me is MS C. BAKER.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Bakewell. Mr Gresty, is there any objection to Mr Bakewell's application for leave?

PN4

MR GRESTY: No, sir.

PN5

THE SENIOR DEPUTY PRESIDENT: I grant that application, Mr Bakewell. Mr Gresty, I've listed this matter for a hearing this morning because the application was lodged pursuant to section 99 of the Act and it referenced the Metal, Engineering and Associated Industries Award of 1998. It didn't reference an agreement. I'm aware that there are numerous agreements, some of which have expired and some of which are the subject of new applications that apply to Electrolux, but I don't know which particular agreement might have application. In that situation I considered it most appropriate that the matter be listed for hearing.

PN6

MR GRESTY: Yes, thank you, you are correct. The Dudley Park plant does have its own agreement, the Dudley Park Packing Plant Agreement, I think is its title.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Well, as I said, I've listed it for hearing this morning, I'm not adverse to a break at some stage if the parties requested it into a conference, but we will start with your explanation of the matter in dispute.

PN8

MR GRESTY: Yes, thank you, Senior Deputy President. I would also like to record the appreciation of the speedily listing of this matter, it was helpful.

PN9

THE SENIOR DEPUTY PRESIDENT: Mr Gresty, amongst the myriad of disputes that I've had involving Electrolux this year there was one that related to an annual close down, or shut down. I'm guessing that shut down would be imminent if it has not already occurred - - -

PN10

MR GRESTY: I think - - -

PN11

THE SENIOR DEPUTY PRESIDENT: - - - I would hate to disrupt the shut down by virtue of the convening of a belated hearing. I was tempted however to do so late tomorrow, so we are probably lucky that it is this morning.

PN12

MR GRESTY: Commissioner, we also add to that danger. I should inform you that I'm also supposed to be taking our staff out for lunch, so I think we all live in dangerous times.

PN13

THE SENIOR DEPUTY PRESIDENT: Let us see whether that expedites a satisfactory conclusion of the matter.

PN14

MR GRESTY: We would also very much welcome that, sir. To give you some background, I would indicate that my note are somewhat haphazard as it has been rather a hectic couple of days to say the least. I will do my best to give an account of my understanding of what has happened and the series of events which has led us here today, sir.

PN15

As best I understand it, on Tuesday the 21st between 7 and 8 o'clock in the morning there was a discussion between two people, one being Steve Denton and the other one being a Mr John Thomas over the positioning, or the moving of a number of bins. I believe this discussion elevated itself and became somewhat heated and it is alleged that whilst Mr Denton was walking away, Mr Thomas placed his hand on Mr Denton's arm and I say no more about what may or may not have happened. I haven't had the opportunity to - - -

PN16

THE SENIOR DEPUTY PRESIDENT: Is one of these people a manager, or are both employees or - - -

PN17

MR GRESTY: That is correct. Mr John Thomas is the production manager.

PN18

MS BAKER: Yes.

PN19

MR GRESTY: Mr Steve Denton is a material handling person.

PN20

THE SENIOR DEPUTY PRESIDENT: And you say that Mr Denton put his hand on Mr Thomas?

PN21

MR GRESTY: No, no, the other way around, sir.

PN22

THE SENIOR DEPUTY PRESIDENT: I see.

PN23

MR GRESTY: Sorry, Mr Thomas put his hand on Mr Denton, it is alleged. Mr Denton then proceeded to inform his supervisor about the incident, alleging that he had been man-handled. Mr Denton's supervisor advised Mr Denton to contact our shop steward, Mr Reno Forte. This would have been at around about 8 or 8.30 of that day. Mr Forte then approached the HR person, a Mr Ken Connor and raised these issues.

PN24

I think then what happened, sir, is that the rumour mill started working well and a version of the story got around the factory and another delegate got involved and informed Reno that there was a call to hold a stop work meeting to get a report on the incident. Mr Forte contacted me and suggested that I should come down as there was a meeting being scheduled for 12 o'clock on Tuesday the 21st.

PN25

That meeting did take place at approximately 12 o'clock of that day and a number of heated discussions took place between the members of this union and other union members who were also present. The end result was that a proposition was put that we should approach the company and ask that the company remove from the site Mr John Thomas to enable a proper investigation of the incident to take place.

PN26

We approached a Ms Carmen Baker at some time around about 1 o'clock - 12.30 to 1 o'clock - indicating our position and seeking their response. The company's position was that they weren't prepared to ask Mr Thomas to leave the site. We reported back to the membership that that was the company's position and at around about 2 o'clock in that afternoon I believe the majority of employees left the site, including in those persons who left the site is a Mr Steve Denton, who after leaving the site, went to his doctor indicating to the doctor what had happened seeking a sick certificate. This certificate was granted and I believe a copy has been provided to the company, indicating that Mr Denton will be off work until Friday of this week.

PN27

A further meeting was called for 7 o'clock on the morning of Wednesday the 22nd, on where we reported back to the membership that the company's position had not changed from the previous day. I have to report to you, sir, that feelings were running particularly high and it wasn't - the matter wasn't helped by Mr Thomas walking by with what was alleged - there was a smirk on his face and waving to the meeting.

PN28

Around about 8.30 that morning we approached the company's office and were pleased to see Ms Baker coming in for work along with Mr Bob Johnston from the CEPU, we sought an audience with Ms Baker to try and persuade the company to remove Mr Thomas from the site, because feelings were getting particularly heated and his presence there was only adding to that feeling of anger.

PN29

Again, Ms Baker can confirm that that was not the company's position, they weren't going to remove Mr Thomas from the site. We then proposed: well, if you are not going to do that, could you not contain Mr Thomas's activities and location to the administration block so he is not physically seen by the membership, or put in the area. Again, the company said, no, they weren't prepared to do that.

PN30

Once again, we reported back to the membership and put a proposition to them that they should return to work so that at least an on-site investigation could be completed into the alleged incident. Again, this provoked heated discussion amongst the membership. It was - - -

PN31

THE SENIOR DEPUTY PRESIDENT: When you say "we" does that mean Mr Johnston too?

PN32

MR GRESTY: Yes, yes. Heated discussions took place and it all became a bit unruly. At this point - - -

PN33

THE SENIOR DEPUTY PRESIDENT: Now, can I stop you there, Mr Gresty. Should I understand then that the stop work meeting that occurred at 7 am on 22 December, continued whilst you and Mr Johnston spoke with Ms Baker?

PN34

MR GRESTY: That is correct.

PN35

THE SENIOR DEPUTY PRESIDENT: Or did employees return to work?

PN36

MR GRESTY: No, they didn't return to work.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you. Sorry for interrupting you.

PN38

MR GRESTY: That is okay, sir. At this point Mr Johnston formed the view that the meeting was becoming unmanageable and asked his members to move away from the large group and have a meeting of their own. We continued to debate the issues and again throughout all of these proceedings we went to great lengths to the point of driving the membership mad by repeatedly informing them that the actions they were taking was unprotected industrial action, thus, opening themselves up to all sorts of further actions down the path.

PN39

Again, we sought from the membership an undertaking that they would return to work to enable the on-site investigations to be undertaken. This was then put to a vote. The vote was unclear so we then undertook a division where people were split into two groups, those who voted for the return to work totalled to 115, those people who did not feel keen to return to work totalled 105.

PN40

We then again approached the company because of the split in the workforce and the very obvious anger, not only towards the company, but amongst groups the workers who had very fixed views on what people should be doing and saying. We said to the company that, we have a very deep concern - - -

PN41

THE SENIOR DEPUTY PRESIDENT: When you say "we" does that mean you and Mr Johnston again?

PN42

MR GRESTY: And the delegates also, sir.

PN43

THE SENIOR DEPUTY PRESIDENT: I see.

PN44

MR GRESTY: Again, we approached the company and suggested that given the recent turn of events and the very obvious level of anger that was being displayed which, by this stage, had actually increased, again we sought from the company an undertaking that they would either remove Mr Thomas from the site, or at least keep him in the office because we had concerns for his safety and, indeed, the very real possibility that it may insight further anger and it was even suggested there may be some form of violence as a result of Mr Thomas continuing to not only be around, but to be actively visible.

PN45

We eventually returned to that meeting and again informed the membership that the position was still the same. At this point, those people - there was 115 people return to work - and we still had approximately 100-plus milling around who were not prepared to return to work. We then put a further proposition to the remaining group that they return to work, again, to enable the on-site discussions to continue and hopefully be completed.

PN46

We had spoken to the company prior to this and they had given a rough assessment that they would have the investigations finished by approximately 11 o'clock, from memory, so we suggested to the membership - those people who were still milling around being vocal and dissatisfied that it would be our very strong, firm advice that they return to work immediately to enable the on-site investigations to be concluded and we would re-group at 12 o'clock to get a report back.

PN47

We met with the company representatives prior to 12 o'clock and sought their confirmation, had in fact the investigations on-site been concluded and they confirmed that they had. However, because of Mr Denton's unavailability the investigation obviously couldn't be concluded because the company had not had a chance to talk with Mr Denton, but they had certainly done what they said they were going to do and they assured us that they had completed the on-site investigation.

PN48

We met with approximately 120 members at lunch-time and reported back that, yes, the on-site investigation had been completed. No, we have not seen the company's - - -

PN49

THE SENIOR DEPUTY PRESIDENT: Can I interrupt you again?

PN50

MR GRESTY: Yes.

PN51

THE SENIOR DEPUTY PRESIDENT: Again, I apologise, but you have obviously been living with this whilst I have not been. Should I understand that the group of employees numbering approximately 105, who were not inclined to return to work, subsequently adopted or took up your recommendation and returned to work somewhere around 11 o'clock?

PN52

MR GRESTY: That is correct.

PN53

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN54

MR GRESTY: That was a secondary recommendation to the group that had not voted in favour of the initial recommendation.

PN55

THE SENIOR DEPUTY PRESIDENT: Then they stopped again at midday?

PN56

MR GRESTY: That is correct. We reported back to this smaller meeting which predominantly it would be in that rough figure of 105, it would now increase to approximately 120 that the investigation had been completed with exception of Mr Denton's contribution and, no, we didn't have a copy of what the investigation indicated and it was unlikely that we would. It was a company initiated investigation, albeit our steward was present at the - interviewed.

PN57

THE SENIOR DEPUTY PRESIDENT: Sorry, at the interview?

PN58

MR GRESTY: As the various people were being interviewed Mr Forte accompanied Mr Connor throughout those investigations. Again, much heated discussion took place. The end result was that we moved yet again that members return to work. This was hotly debated and a further resolution was moved that people would leave the site on the basis if Mr Thomas was still there. A vote was taken, 62 members voted to leave to site and 50 elected to stay.

PN59

At that point people who had elected to leave the site proceeded to do so. Those people who elected to stay also proceeded back on the job. I'm not totally sure whether the whole of the 62 actually left because we were then in the process of reporting back to the company representatives as to where we are. What we can say throughout all of this exercise, I think we have demonstrated a preparedness to approach it and deal with the issues in a mature manner. I'm not sure the company's attitude and activities throughout all of this in any way assisted the process.

PN60

We said from the outset it would have been far more sensible had they asked Mr Thomas to leave the site. Understandably, we didn't want to prejudice his position. There was no suggestion that Mr Thomas should be stood down. We merely suggested that he be asked to leave the site on pay bearing in mind that Mr Denton was also off site due to his illness. We also suggested to the company that acknowledging the level of anger and distrust and frustration existing out in the workplace, it would be highly questionable the quality of the evidence they would gain by the investigation while that current mood and circumstances remained.

PN61

So, sir, the whole of this exercise could have been handed in a far more sensible and meaningful manner had Mr Thomas been - if not removed from site, at least removed from an area where he was openly provoking people and adding more negativity to the situation than was required. So that was the situation as of - whatever time it was, 2 o'clock or something yesterday - when people left the site. I'm not sure of the exact timing but my understanding the people have returned to work at normal starting time this morning and they are still on the job.

PN62

People have been made aware that we have this hearing before the Commission seeking the Commission's assistance, because whilst the company may have concluded their investigations and I suspect I would have to signal it is most unusual company's investigating themselves find themselves guilty. We have also notified Workplace Services that we would seek their assistance to undertake an investigation of the incidents. We believe that WorkCover will become involved because the stress that Mr Denton is off on his - in our view, work related, and we also believe that the police may involve themselves as a result of Mr Denton informing the police of the alleged assault.

PN63

So whilst the company may - if it choose, it provide you the outcome of their investigation - I'm not sure that the Commission could overly put too much weight on it as it is only one party's view of how the incident unfolded. So currently we have at least three, possibility four other agencies who may be seeking to have an investigation carried out and the time of year being what it is I suspect work place services will not be in a position to carry out their investigation until early next year as may well be the situation with WorkCover. So we have at least two other reports on the incident which we may be seeking early next year, sir.

PN64

THE SENIOR DEPUTY PRESIDENT: Now, Mr Gresty, I understand from you that there is no dispute that the industrial action which h as occurred for the better part of 2 days, being 21 and 22 December is unprotected industrial action.

PN65

MR GRESTY: We are not disputing that.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes.

PN67

MR GRESTY: In fact we would place on record my every second sentence was reminding people of precisely that.

PN68

THE SENIOR DEPUTY PRESIDENT: And that Electrolux Cooking Plant, Dudley Park, certified agreement contains presumably a dispute resolution provision. I don't have that particular agreement in front of me.

PN69

MR GRESTY: Unfortunately neither do I, but you are correct, it does.

PN70

THE SENIOR DEPUTY PRESIDENT: Should I understand that what you are saying to me is that the actions that have been taken in this matter - leaving aside the question of the stoppage of work - were taken consistent with that dispute resolution provision?

PN71

MR GRESTY: No.

PN72

THE SENIOR DEPUTY PRESIDENT: I see. Where did the process that was followed deviate from the certified agreement dispute resolution provision?

PN73

MR GRESTY: Well, I suspect people left the site before we technically concluded the process and included in that process is the use of this Commission and we can only say that people were being provoked by the person in question remaining on the site and people's ability to reconcile that with the disputes procedure was not obtained. Had the company - and we met with the company on many, many times throughout the last couple of days - and we consistently asked that they do that so it diffuses the circumstances and a proper meaningful investigation and I would suspect a more rigorous adherence to the dispute procedure would have in fact carried out.

PN74

THE SENIOR DEPUTY PRESIDENT: Now, when is it that your members are due to close for that shut down?

PN75

MR GRESTY: Lunch time today, sir.

PN76

THE SENIOR DEPUTY PRESIDENT: What are you seeking from me, Mr Gresty?

PN77

MR GRESTY: Well, the problem that we have, sir, is that whilst the company may have concluded its negotiations - sorry, its investigations, we are not sure how long or what time spans are involved with respect to Workplace Services, possibility the Police Force and possibility WorkCover also are seeking to make those investigations. We simply ask that the company be mindful and goodness knows we have reminded them often enough that Mr Thomas' presence on that site is unduly and unnecessarily aggravating the situation. Now, I am not able to provide details so possibly it may be improper but we do have a number of other allegations with respect to Mr Thomas additional to this incident we talk about but I don't want to necessarily confuse the two issues.

PN78

So we are seeking some assistance from the Commission that if we can proceed with a further commitment and an ability to comply with the disputes procedure we would say that the company has got an obligation to, at least, consider more seriously than they have the fact that Mr Thomas' presence and continued presence and some of his actions are only adding to the circumstance they find themselves in and we believe it is either an ill-conceived notion or a deliberate act of provoking people to take industrial action. Of course, sir, they can proceed if they want to - seven notifications which I believe that they have and I think Ms Baker informed me late last night that it is the company's intention to take this organisation to the Federal Court seeking damages I presume as a result of the industrial action we undertake.

PN79

THE SENIOR DEPUTY PRESIDENT: Now, let me be clear about what it is you are putting to me. My question to you is what is it that you are seeking from the Commission? Now, it seemed to me that there were two components to your response Mr Gresty. The first was that you are seeking that Electrolux be mindful that Mr Thomas' presence on the site is inciting continuing concern.

PN80

MR GRESTY: That is correct.

PN81

THE SENIOR DEPUTY PRESIDENT: The second issue appears - if I have correctly understood it - to be a request that the Commission take whatever steps it can to persuade Electrolux to remove Mr Thomas from either the site or the vicinity of the manufacturing facility?

PN82

MR GRESTY: That is also correct, sir.

PN83

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, what - given tat the application of this matter is made under section 99 of the Act - upon what foundation do you say that I could - if I could do either of those two things? The first one does not really impact on me, it is a question for Electrolux.

PN84

MR GRESTY: I understand that, sir.

PN85

THE SENIOR DEPUTY PRESIDENT: The second one does impact on me - and I must say I am wrestling a little with the fact that I have got a section 99 application - that the heart of this issue appears to be a certified agreement which I don't have before me and the status of which I am a little unclear about, I don't know, for instance, whether that certified agreement has achieved its nominal expiry date?

PN86

MR GRESTY: No, it hasn't.

PN87

THE SENIOR DEPUTY PRESIDENT: Or whether it remains current and I don't know without looking at that agreement what capacity it bestows, or does not bestow on the Commission. I do know that section 99 does not take me very far in terms of situation where a certified agreement has application.

PN88

MR GRESTY: Well, certainly the current enterprise agreement is current - it certainly hasn't expired. The exact details of the disputes resolution I believe is also found in the Metal Engineering and Associated Industries Award. The reason we proceeded on a section 099 was acting on the legal advice that I had which would get the matter before the Commission in a speedily manner, which it certainly did, because the circumstances which were facing us were serious, people were taking industrial action and indeed in contravention to your orders leading to the subsequent serious position which we have with the company taking us to the Federal Court, all of which could have been averted had the company given, in our view, a more serious consideration to remove one person from the site, who we note is conveniently absent from the site this morning, which would have alleviated the situation completely.

PN89

So a more cynical person may have formed the view tat the company has actually and actively provoking members to take action knowing full well that they can hind behind the 127 application and possibly not deal with the issues which brought about the industrial action. There would not have taken a great deal of effort on the company to simply ask Mr Thomas to stay in the administrative area, I'm sure they could find something useful and productive for him to do for the remainder of yesterday and certainly for this morning.

PN90

Had that of been done - and it is my intention to place Mr Thomas in a position that he may not necessarily be, but it was quite clear from a number of comments made by the shop floor that people feel intimidated and threatened by the remaining presence of Mr Thomas and we made that known to the company on every occasion we spoke to them and their response - well, they didn't share that view.

PN91

THE SENIOR DEPUTY PRESIDENT: Let me take you back to the issue of what jurisdictional capacity I have got to act at all in the matter.

PN92

MR GRESTY: We are simply seeking some advice, assistance from this Commission as to how we can deal with the matter early next year when investigations are taking place by other parties who - we may be faced with the same circumstance.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes, so what you are seeking there is that - leave aside the question of jurisdiction for a moment - which I have to come back to because without jurisdiction there is little foundation for whatever it is I might do. In effect you are wanting assistance to persuade Electrolux to remove Mr Thomas from the vicinity of the manufacturing facility, pending the outcome of both the Electrolux inquiry and any other inquiry that might be conducted by WorkCover, Workplace Service or the South Australian Police?

PN94

MR GRESTY: That is correct, sir.

PN95

THE SENIOR DEPUTY PRESIDENT: Now, it may be that Electrolux when I put that question to them, say: yes, we will agree to do that. But if Electrolux do not agree to do that then given that you have got a certified agreement, is there a provision of that certified agreement that you say that I can rely, whether it is part of the disputes resolution provision or any other part of that agreement to, first of all, engage in a conciliation process with Electrolux to that end and secondly, that would reinforce your proposition that Mr Thomas be removed from the vicinity of the manufacturing area?

PN96

MR GRESTY: I would have to seek advice on that, sir, I'm not able to find - I can find most other Electrolux agreements but this particular one escaped me.

PN97

THE SENIOR DEPUTY PRESIDENT: All right. Well, we may need to come back to that one shortly, yes, but thank you Mr Gresty.

PN98

MR GRESTY: Thank you, sir.

PN99

THE SENIOR DEPUTY PRESIDENT: Can I actually - having said: thank you, can I understand that notwithstanding the earlier involvement in this matter of the ETU or CEPU that you are just representing the AMWU members at this stage?

PN100

MR GRESTY: Yes, I am.

PN101

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Bakewell?

PN102

MR BAKEWELL: Thank you, Senior Deputy President. Can I first of all open by way of a brief introduction and then put a proposition to you as to how we would like to proceed this morning and why. First of all by way of an introduction, effectively the matter before you comes down to an issue as to - for the company at least, whether or not faced with a proposition put to it by the delegates and the unions along the lines that Mr Thomas be removed from the site, whether or not faced with what was then current industrial action and the threat of further industrial action, it should have done so based on the material that it had before it.

PN103

So that is the situation that the company was faced with notwithstanding its view or the company's view at the time about how this matter ought to have been dealt with by way of the parties perhaps being here before industrial action occurred or indeed, should never have occurred, particularly in light of what is an existing section 127 order that your Honour issued in September of this year and as your Honour will recall, continues in force until the expiry of this agreement.

PN104

First of all for the record, the company would like to state that in respect to the conduct of both Mr Gresty and although Mr Johnston is not here today, the company is of the view that both union organisers representing their respective unions did all that they could on behalf of the union to deal with this matter in a proper process. So insofar as Mr Gresty made submissions from the bar table that the AMWU conducted itself in an appropriate way, we concur with that, he did and we welcome that change because it is a change from matters that were before you earlier this year.

PN105

What the company is concerned with, Senior Deputy President, is that despite the proper conduct, the sensible conduct and I would suggest the urging of union officials to members to conduct themselves in a way other than the taking of industrial action, nevertheless, that industrial action still occurred over the duration of 2 days and that is a concern for the company and as Mr Gresty has pointed out, it is the case at the moment that the company will be seeking redress for those matters in the Federal Court of Australia in respect to the breach of the order. It is not seeking any redress in respect to the organisation, being the AMWU, or its individual organiser, Mr Gresty, nor is it seeking any action against the ETU or Mr Johnston.

PN106

So against that background, Senior Deputy President, although this is a section 99 and you have addressed various issues of jurisdiction, the company has no complaint about being here today. Of course we think what has happened is somewhat disturbing and for the record, Senior Deputy President, the company wishes to place on the record its position and its rationale for why it conducted itself the way that it did for it is fearful that if it does not, both the delegates and Mr Gresty and to a lesser extent, this Commission, will take a view that if unchallenged that the company is conducting itself in some sort of recalcitrant, uncontrolled way and particularly that the actions of Mr Thomas have been in any way untoward.

PN107

Moreover, that the actions of the company in declining Mr Gresty's request that Mr Thomas be removed from site on pay were based on sensible and reasonable grounds. So it is on that basis, Senior Deputy President, that what we would like to do this morning briefly is actually call some witnesses for the record. First of all, so that the Commission might inform itself with the three witnesses we intend to call as to the general issues that are confronting the parties but more specifically, the particular issues that gave rise to this and at least for the company's benefit, we would be satisfied then that our position has been placed on the record. Having done that, we are also able to proffer our views as to how this matter might be progressed within a framework that the Commission would have some jurisdiction over.

PN108

THE SENIOR DEPUTY PRESIDENT: Mr Bakewell, in the absence of any clear understanding of my part of what jurisdiction the Commission has got, I would prefer you to address me first of all on that question which may in fact go to the second of the issues that you have foreshadowed first of all. I don't have a closed view to hearing evidence in the matter but absent jurisdiction I am not sure where that takes me. It may be there is jurisdiction but I am struggling with that at the present time.

PN109

MR BAKEWELL: Certainly. If I can take you to the issue of jurisdiction first of all. I would say in respect to the application as before you, there is no jurisdiction. I don't believe that under section 99 this matter could be progressed very far at all because it lacks the necessary qualities of an industrial dispute under section 99 for the Commission to deal with those, particularly given that orders, etcetera, are constrained by the Act in the extent of the allowable matters, etcetera. I wouldn't see that the Commission would be vested with jurisdiction under section 99 to finally conclude the matter and I emphasise "to finally conclude the matter", that is, the making of orders.

PN110

I would have thought that pursuant to the certified agreement, Senior Deputy President, there is scope for this Commission to conciliate because that agreement contains a dispute settlement procedure that allows either an employee or individual employees the ability to raise grievances with the company and that if those matters are not resolved that pursuant to the award that the parties or the union or the individual employee might refer those matters to the Commission in the first instance for conciliation. I think that agreement gets us that far. Beyond that - - -

PN111

THE SENIOR DEPUTY PRESIDENT: Can I interrupt you there? If I was to hear from Mr Gresty the request that the basis upon which the application is made be changed from reliance on section 99 to section 170LW in the context of that Electrolux Cooking Plant, Dudley Park agreement, then the Electrolux position is that the capacity exists for the Commission to conciliate the matter?

PN112

MR BAKEWELL: That is correct.

PN113

THE SENIOR DEPUTY PRESIDENT: I see. Yes?

PN114

MR BAKEWELL: And so far as there is an ability to take that matter any further, ie, make orders, we don't think there is a capacity, Senior Deputy President because we are not of the view that orders would be available within the confines of section 170LW, having regard to the content of the agreement. That is our position for the moment. No doubt Mr Gresty might under advice has an alternative view but we at least concede that conciliation would be vested with this Commission.

PN115

THE SENIOR DEPUTY PRESIDENT: Right, I might just ask you to pause there for a moment, thank you, Mr Bakewell. Mr Gresty, what I am going to propose is - what I am going to do is to adjourn the matter for 5 minutes or so. In that time, my Associate will provide you with a copy of that Electrolux Cooking Plant, Dudley Park agreement so that you can peruse that agreement. When I reconvene the hearing, the question that I will have of you is first of all, whether you agree that section 99 does not - or that this section 99 application in its current form does not provide the capacity or the jurisdiction for the Commission to progress this particular matter.

PN116

Secondly, whether the AMWU seek to change the foundation upon which the application is made so as to rely on section 170LW and the particular dispute resolution provisions contained in that agreement. That way, at least you can make an informed decision about that particular issue. If when you have had the chance to look at the agreement over the next few minutes you seek a further brief adjournment to obtain legal advice then you can advise my Associate of that and I will allow another brief adjournment. Do you have a problem with that approach?

PN117

MR GRESTY: No, we thank you for that opportunity, sir.

PN118

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter on that basis.

SHORT ADJOURNMENT [10.54am]

RESUMED [11.15am]

PN119

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Gresty?

PN120

MR GRESTY: Yes, thank you, your Honour. We have taken the opportunity to peruse the current enterprise agreement and we note that clause 12, the dispute settling procedure, does allow the parties to indeed seek assistance from the Commission so accordingly and with your permission, sir, we would seek to change our application on the section 99 and have the matter proceed under section 170LW, if the Commission pleases.

PN121

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Bakewell, does the employer have any objection to that request?

PN122

MR BAKEWELL: We don't have any objection.

PN123

THE SENIOR DEPUTY PRESIDENT: Very well, I grant that application, Mr Gresty.

PN124

MR GRESTY: Thank you, sir.

PN125

THE SENIOR DEPUTY PRESIDENT: Mr Gresty, before I go back to Mr Bakewell, can I take it you have got a copy of that agreement now?

PN126

MR GRESTY: Yes, I have, thank you, sir.

PN127

THE SENIOR DEPUTY PRESIDENT: In the context of clause 6 of that agreement and clause 9 of that agreement and the recently passed amendments to the Workplace Relations Act relative to the validation of certified agreements, what do you say to me that clause 12.3 enables the Commission to do?

PN128

MR GRESTY: I believe, sir, that the Commission does have the jurisdiction to certainly in the first instance assist the parties via conciliation with matters dealing with the EBA.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes, and do you say that the capacity to conciliate goes beyond that? That is, if conciliation does not resolve the issue, then what do you say to me about the power of the Commission to arbitrate the matter?

PN130

MR GRESTY: Well, we believe that the Commission certainly has the power to arbitrate with respect to the interpretation and the application of the agreement.

PN131

THE SENIOR DEPUTY PRESIDENT: And is this issue relative to the interpretation, the application or a process of implementation of a term of this agreement?

PN132

MR GRESTY: Well, we would take your attention to clause 12(2), sir. The employees would have the ability to remove themselves from the site if they felt there was an imminent risk to their health and safety, yes.

PN133

THE SENIOR DEPUTY PRESIDENT: I see, so what you are saying there is that the capacity exists to arbitrate the matter because of concern that employees have about presumably the risk to their health and safety occasioned by Mr Thomas' present, is that what you are saying to me?

PN134

MR GRESTY: That is what I am saying, yes.

PN135

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Gresty. Now, Mr Bakewell?

PN136

MR BAKEWELL: Yes, your Honour?

PN137

THE SENIOR DEPUTY PRESIDENT: Do you want to make any observations to me relative to that question that I have just asked Mr Gresty relative to clause 12.3 of the existing agreement?

PN138

MR BAKEWELL: Yes, Senior Deputy President. It would be our view that there would not be jurisdiction to proceed to arbitration and we have conceded there is jurisdiction to conciliate. The reason for that proposition is that as you pointed out, this agreement is read in conjunction with numerous other Electrolux certified agreements and we would understand the effect of the recent amendment to the Act would be to validate those matters that are pertaining to the employment relationship and invalidate, if you will, those matters that do not pertain. From the best of our recollection, we would say there are no matters that pertain to the employment relationship in any of the previous agreements that are of the nature that Mr Gresty would be seeking from the Commission, that is, an ability to resolve a dispute by ordering the company to remove Mr Thomas from the site or something similar.

PN139

The reference that has been given to you by Mr Gresty is in relation to whether or not pursuant to clause 12.2, an employee can take - withdraw their labour. This is not what this matter is about as I understood it. This matter is about whether or not Mr Thomas should or should not continue to be working in the vicinity of the manufacturing area, if the Commission pleases.

PN140

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Bakewell. Then on the basis that the parties appear to be in agreement that the capacity exists to conciliate the matter, I can advise them that I am prepared to conduct a conciliation. The whys, the wherefores and the hows of that conciliation have yet to be determined. If that conciliation does not resolve the matter then I would propose to list the issue of whether or not the jurisdiction exists to arbitrate the matter for a hearing to determine that question. I raise that with the parties now so that they can embark upon any conciliation process on a fully informed basis. Now, notwithstanding that we remain on the record, Mr Bakewell, does the employer have a position in terms of a suggested approach to the resolution of this matter?

PN141

MR BAKEWELL: The employer's position is it would be best for the Commission to get a full appreciation of the matters and issues that led up to the point where we are at. Beyond that, I think we would be in the Commission's hands thereafter as to any proposal that might be proffered as to how this matter might best be dealt with but we would have thought in the first instance the benefit of having that background would be clearly necessary for the Commission to assist the parties in some way, shape or form.

PN142

THE SENIOR DEPUTY PRESIDENT: Mr Gresty has in effect put two preferred outcomes from today's hearing to me. The first is fundamentally in Electrolux's domain or consideration, in that he is asking that Electrolux be mindful that Mr Thomas' presence on the site is inciting continuing concern and to the extent that he has set out the various reasons for his position in that regard we have probably achieved that objective in terms of today's hearing already.

PN143

The second is the more substantive objective where Mr Gresty is asking the Commission to try to persuade Electrolux to remove Mr Thomas from the manufacturing facility pending the outcome of presumably WorkCover, Workplace Services, police inquiries and now possibly, without putting words in Mr Gresty's mouth, some Commission investigation into the matter. Now, I'm sure Mr Gresty will hop up and tell me if I've misconstrued that request.

PN144

MR GRESTY: Excuse me, sir, I think are misinformed. I think there's a possibility that WorkCover may - - -

PN145

THE SENIOR DEPUTY PRESIDENT: I did mention WorkCover, Mr Gresty.

PN146

MR GRESTY: I'm sorry, I apologise.

PN147

THE SENIOR DEPUTY PRESIDENT: So that I can be clear. WorkCover, work place services, police, and possibly the Commission?

PN148

MR GRESTY: That is correct.

PN149

THE SENIOR DEPUTY PRESIDENT: All right. I think we've covered the field now.

PN150

MR GRESTY: I think we've done very well.

PN151

THE SENIOR DEPUTY PRESIDENT: Frankly, we've probably covered the next 18 months to 2 years, depending on the duration of some of those investigations.

PN152

MR GRESTY: Well, there's a lot to be said for forward plumbing, Commissioner. I think we've done an excellent job.

PN153

THE SENIOR DEPUTY PRESIDENT: Now, very bluntly, there does not appear to be a lot of point in embarking on a conciliation process if the Electrolux position is absolutely entrenched that it will not remove Mr Thomas from the site at all, from the vicinity of the manufacturing area. So is there capacity to negotiate around that issue, or has Electrolux determined a position in that regard?

PN154

MR BAKEWELL: The position is that the material available to date, which we think is quite thorough and comprehensive does not, in any way, substantiate a proposition that Mr Thomas should be removed from the site. It is a matter currently of employee perception of what they believe happened. Unfortunately, that perception being real, well-founded, unfounded, or otherwise. Mr Thomas is an integral, and vital part of the current operations of Electrolux, and because the investigations do not found, at the moment, any basis upon which to remove him, the company is extremely reluctant to do so, and therefore does not agree with the proposition.

PN155

To answer your question as to whether or not conciliation is therefore futile I would disagree with that proposition, because Mr Gresty has put that forward as his preferred outcome. There might be other outcomes yet that the parties have not considered, and have yet to materialise based on those discussions, and the background, and the information the parties will subsequently share should this matter proceed to conciliation. So in answer to your question, no we don't agree with the proposition put by Mr Gresty to remove Mr Thomas. In the second respect, we don't agree with the Commission's view that conciliation would be futile.

PN156

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Now, Mr Gresty, given the response that Mr Bakewell has given me, is there scope in your view to negotiate around an alternative to that which you have already expressed, namely, is there an alternative conclusion to this matter that might be the subject of negotiation which would not mean that Mr Thomas was removed from the manufacturing facility pending the outcome of the inquiries by WorkCover, work place services, the police, and possibly the Commission?

PN157

MR GRESTY: We don't know in what that solution proposal may well be. We don't know. What we do know is the coloured situation is simply untenable. There's no - - -

PN158

THE SENIOR DEPUTY PRESIDENT: Well, let me put something to you just for consideration. My recollection is that the Electrolux Christmas, or annual shut-down is in the order of 2 weeks.

PN159

MR GRESTY: It is approximately that, sir.

PN160

THE SENIOR DEPUTY PRESIDENT: I would have thought it unlikely that information can be obtained from Mr Denton within that time frame.

PN161

MR GRESTY: It would be difficult.

PN162

THE SENIOR DEPUTY PRESIDENT: Yes.

PN163

MR GRESTY: I'm not aware of his presence. I've attempted to contact him, but he hasn't responded, so I simply don't know where he is.

PN164

THE SENIOR DEPUTY PRESIDENT: So it does not appear that anything of great moment will occur over the next 2-week period, which allows the resolution of the matter. It further occurs to me that the next significant step in this process would appear to be some form of discussion between Mr Denton, possibly represented by a delegate, or an official from the AMWU, and Electrolux personnel, and that on the basis of that interview, I'm presuming that Electrolux will then be in a position to either or both formalise its investigation into the matter and conclude that investigation, and/or reach or review its conclusion that Mr Thomas ought not be removed from the vicinity of the manufacturing area.

PN165

If you agree with that then it seems to me that a possible approach to this matter would involve giving the parties time in which to complete that investigation process, particularly giving Electrolux that time, which would take in all likelihood at least 3 weeks. It may be accomplished in shortly over 2, but to be on the safe side let us allow a 3-week time frame. Following the adoption by Electrolux of either or both a definitive position on the investigation, and a definitive position relative to Mr Thomas, it would appear to me to be logical and consistent with the process set out in clause 12 of the agreement, and the provisions of the award relative to the dispute resolution, that the parties then sit down and have a discussion over those issues.

PN166

If agreement cannot be reached at that point then the question of what happens about Mr Thomas could then be brought into the Commission, believe it or not, consistent with the dispute resolution provisions of the agreement, or the award which are called up by the agreement. At that point can I suggest to you the parties might come to the Commission armed with both their proposition as to what should happen, but also a preparedness as to whether or not they are prepared to negotiate around alternatives. If no agreed outcome can be determined as a result of those discussions, then the matter would be listed, as I said earlier, for a hearing on the question of whether or not the Commission has the capacity to arbitrate the matter.

PN167

One option that the parties may want to consider is whether or not the Commission is asked to look at the results of this investigation, so as to comment on and perhaps provide some capacity for the parties to have the Commission review that recommendation, or that investigation, in terms of both its propriety, outcomes, and its conclusions. Now, I simply put that to you for consideration. I will ask Mr Bakewell to consider the same option. It may be that you can respond now. It may be that you want 5 minutes with your delegates.

PN168

MR GRESTY: Now, I think your predictions certainly within time frames is very true. I think 3 weeks would certainly be more realistic, and we did notify and seek the assistance of the Commission and as a consequence of that we would be keen to continue having the assistance of this Commission to hopefully come to a mutually agreeable outcome. I suspect, on the basis that a lot of employees are not feeling too comfortable with the company at the moment. Any third party intervention would be helpful.

PN169

THE SENIOR DEPUTY PRESIDENT: All right. Mr Bakewell, what is the Electrolux position in relation to the proposal that I've put for consideration?

PN170

MR BAKEWELL: We confess considerable merit in the position, Senior Deputy President.

PN171

THE SENIOR DEPUTY PRESIDENT: Are you prepared to adopt that approach?

PN172

MR BAKEWELL: We are, Senior Deputy President.

PN173

THE SENIOR DEPUTY PRESIDENT: Mr Gresty, the earliest that I could relist this matter, that is me personally as distinct from a different member of the Commission, would be 24 January. I am more than happy to see whether I can procure another member of the Commission who is not on leave up until that time should an earlier date be required, but it seems to me that 24 January is probably going to come fairly close to your time frame, in any event.

PN174

MR GRESTY: I would be happy for the Senior Deputy President to continue to have carriage of this matter, and acknowledging the time frame we agree is a realistic one, we would be happy to meet with you on the 24th, sir.

PN175

THE SENIOR DEPUTY PRESIDENT: All right. I will leave aside time from 2 o'clock on 24 January, so that the matter can be listed. I will issue a recommendation today arising from this hearing. That recommendation will summarise the approach that I've talked about, and it will make it clear that the option is this: for the AMWU to seek that the matter be listed for a conference at 2 pm on 24 January. I won't list it for a conference, because I live in hope that you might start 2005 off in a more amicable industrial environment than the parties are ending 2004, and it may be that the parties can come up with an agreed outcome in this matter in the course of the discussions that I expect them to have prior to the 24th.

PN176

If, however, particularly in that week leading up to the 24th the parties consider they need a conference on 24 January then contact with my office would ensure the publication of a notice of listing for that time. The recommendation that I issue will also make it clear that I don't see anything in the information that has been provided to me to date that entitles employees to take either continued or renewed industrial action, and that it would be fundamentally inconsistent with the requirements of the Act for such action to occur. Now, do you have a problem with any of that?

PN177

MR GRESTY: No, I don't. I agree with what you are saying.

PN178

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Bakewell, do you have a problem with that?

PN179

MR BAKEWELL: No, Senior Deputy President.

PN180

THE SENIOR DEPUTY PRESIDENT: That recommendation will be issued later today. I will adjourn the matter on that basis, and I wish the parties a peaceful Christmas.

ADJOURNED INDEFINITELY [11.39am]