C2005/2604, Transcript of Proceedings [2005] AIRCTrans 928 (18 April 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11188-1

COMMISSIONER GRAINGER

C2005/2604

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE-VICTORIAN BRANCH AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
AND
TASMAN GROUP SERVICES PTY LTD OVENS RIVER PTY LTD COMPASS RECRUITMENT
s.99 - Notification of an industrial dispute
(C2005/2604)

MELBOURNE

1.36PM, WEDNESDAY, 06 APRIL 2005

PN1

MR C MORGAN: I seek leave to appear on behalf of the applicant in this matter.

PN2

THE COMMISSIONER: I note there is no respondent here and I know that we have heard from Ms Zeitz that Compass was not going to be here. My associate has just attempted to contact Mr Smith from one of the other respondents and he apparently has left for the day. I am happy to grant you leave, Mr Morgan, but you will understand that it is going to be difficult to progress the matter very far today in the absence of any of the respondents.

PN3

MR MORGAN: Commissioner, I fully understand that and I thank you for listing this matter at fairly sort notice. Commissioner, if I could also indicate and from the bar table rather than perhaps through formal sworn evidence that I did initially speak to Mr Mitchell on Friday afternoon. He at that stage had received the notice of listing. He told me that he would be in Malaysia on Tuesday and would not be able to attend the conference here today.

PN4

I indicated to him that I took the view that this was a relatively straightforward matter. He simply need contact people at the Yarrawonga abattoir and then arrangements need to be made to get Mr Rahman back to work at the earliest opportunity. I asked him to make that telephone call and contact me again on Monday. I was engaged in a Commission conciliation pretty much all day Monday.

PN5

He did leave a message on my answer phone at about lunch time. I spoke to him yesterday. He again indicated that he would be overseas from later that day and he asked for an adjournment. I indicated that again in my view, whether he could or could not be there, it was a matter of him getting solicitors or counsel to this conference because this is an urgent application which needs to be dealt with.

PN6

He indicated that he thought that this could be dealt with next week at a time which is convenient to him and I indicated that I would proceed today, regardless of that. Commissioner, that sets out why I was keen to have the matter heard today. I will shortly and formally indicate the sort of orders that I would be seeking both under sections 99 and 127 and I will obviously then indicate that I realise that there are doubtless certain matters on which you would wish to hear from the respondent and so I will put the orders in front of you, but with the hope of some rather than others being made.

PN7

THE COMMISSIONER: Yes. Well, this is a section 99 application at this stage, is it not?

PN8

MR MORGAN: That is correct, Commissioner. Commissioner, it is, but I would ultimately be asking for orders to be made by the Commission under section 127 in relation to the cessation of what we say is industrial action by the employer. Commissioner, might I just formally tender - your associate did mention prior to commencement that you wished me to tender a copy of the award and perhaps I could formally do that.

PN9

THE COMMISSIONER: Well, what I said was I haven't got any of those documents here and if you are wanting to refer to them - - -

PN10

MR MORGAN: Commissioner, I will perhaps hand them to your associate for the sake of completeness so that you have them. They are, of course, my only copies. I don't think I need to refer to them in great detail. I have also got a copy of the common rule declaration and a copy of the award. Commissioner, could I also inquire whether you received, or your associate received yesterday by fax, a rather bulky fax, namely the applicant's submissions?

PN11

THE COMMISSIONER: Yes, I have got those submissions in front of me and if you would like to tender them, I will mark them.

EXHIBIT #A1 APPLICANT'S SUBMISSIONS

PN12

MR MORGAN: Thank you, Commissioner. Commissioner, there are some other documents that I would seek to tender which I didn't have with me at the time that I completed the submission yesterday, if I could hand them up in a bundle, Commissioner, rather than one by one and they could be noted appropriately.

PN13

The first is a copy of section 155A from the Accident Compensation Act in Victoria and, Commissioner, in my submissions on the final page, at paragraph (f), which is paragraph 25(f), I made reference to section 122 of the Accident Compensation Act which was when I last looked at it a section dealing with the obligations of an employer to provide alternate duties in the case of an injured worker with an ongoing incapacity, but some capacity for work.

PN14

That section was repealed a number of years ago and it has been replaced by section 155A and I have a copy of that. I am afraid I can't tell you the source of the photocopy. I believe it is the loose-leaf volume relating to accident compensation.

EXHIBIT #A2 COPY SECTION 155A ACCIDENT COMPENSATION ACT

PN15

MR MORGAN: Thirdly, Commissioner, there is a letter from Cambridge Integrated Services which I believe to be the WorkCover insurer for what is really the nub of the issue here, the respondent employer or employers.

PN16

THE COMMISSIONER: Now, is that a document that you think I have got?

PN17

MR MORGAN: No, Commissioner, sorry, it is one of the new ones to be tendered. I have only seen this document in the last 20 minutes and interestingly it mentions an employer, Yarra Ranges Management Services Pty Limited, which is not listed in the current name of respondents which again might give some difficulty in terms of progressing to orders today, but that is a letter, Commissioner, dated 4 March in which the WorkCover claim for weekly payments is accepted under the Act.

PN18

Finally, to bring the pay slips up to date, I have further pay slips, one for a period terminating in February of 2005 which indicates again that - and I will take you to the other pay slips shortly, Commissioner, that Mr Rahman is a permanent employee and that he is paid some sick leave over a particular period in February and then finally there is a pay slip which was issued on 6 March, but includes pay up to 3 March. Mr Rahman has not been paid since 4 March. Commissioner, perhaps if I could tender those as a bundle.

EXHIBIT #A3 LETTER FROM CAMBRIDGE INTEGRATED SERVICES TO MR RAHMAN DATED 04/03/2005
EXHIBIT #A4 PAY ADVICE FOR MR RAHMAN FROM COMPASS RECRUITMENT FOR WEEK ENDING 06/03/2005
EXHIBIT #A5 PAY ADVICE FOR MR RAHMAN FROM COMPASS RECRUITMENT DATED 23/02/2005

PN19

THE COMMISSIONER: Yes, go on.

PN20

MR MORGAN: Thank you, Commissioner. Commissioner, there are a number of matters raised in the submissions that I provided to your associate yesterday, if I could perhaps go through those and make a number of minor amendments to them.

PN21

THE COMMISSIONER: Yes.

PN22

MR MORGAN: In relation to the award, perhaps I should just go back, again as a formality, Commissioner. The Meatworkers' Union states that this award, the Federal Meat Industry Processing Award, applies to Mr Rahman's employment directly by virtue of the common rule declaration of Commissioner Smith made 18 November 2004.

PN23

Mr Rahman is a permanent employee of one or more of the named respondents and potentially in view of the letter from Cambridge Integrated Services, another body that is not currently party to these proceedings and by virtue of clause 2.2.2 of the declaration, the award is binding on each of the employers. Another provision of the award to which I should probably draw your attention, Commissioner, is clause 18, the stand-down provision.

PN24

It is the standard stand-down provision in relation to breakdown of machinery and such like and whilst there is nobody here from the respondent, I do formally bring that to your attention. There are a number of matters of fact, Commissioner, as well that I would seek to amend very slightly. Paragraph 11 - - -

PN25

THE COMMISSIONER: This is the submissions?

PN26

MR MORGAN: Of the submissions, on the second page, Mr Rahman's instructions are that he received - this is new, he received a telephone call in the afternoon from Brent, Brent being the WorkCover consultant, he believes, for Compass to instruct him, Mr Rahman, to go back to work on the next day, 4 March 2005 and to call him the next day. At the start of paragraph 12, on 4 March and then it should be deleted:

PN27

Brent rang again and said to -

PN28

So it should read:

PN29

On 4 March Mr Rahman called Brent and left a message to call back and then later that day there was a telephone call from Brent.

PN30

And that call goes on.

PN31

THE COMMISSIONER: Well, what I suggest you do is actually - we are not going to get very far with this today in the situation which exists, I suggest that you actually send the amended written submissions to replace these with those corrections made.

PN32

MR MORGAN: Yes.

PN33

THE COMMISSIONER: Yes, thanks. Go on.

PN34

MR MORGAN: Commissioner, hearing what you say, my intention had been to seek the making of some interim orders under section 127 in view of the industrial action which we say is currently being undertaken by the employer or one or more of them in terms of preventing Mr Rahman from undertaking his pre and post-injury duties, i.e. as a sticker on the kill floor, but without use of the rise and fall platform in accordance with his doctor's certificates and most recently his doctor's report.

PN35

THE COMMISSIONER: Nobody has been notified that you are seeking orders under section 127.

PN36

MR MORGAN: Save by the submissions, Commissioner.

PN37

THE COMMISSIONER: Save by the submissions, that is right.

PN38

MR MORGAN: Which do set out in some detail the basis upon which the jurisdiction for those orders would be based.

PN39

THE COMMISSIONER: Yes.

PN40

MR MORGAN: Commissioner, I would not be so bold as to make application formally for interim orders today in relation to continued employment, but one of the - perhaps I should say reinstated employment. What Mr Rahman does need urgently is a source of funds for he has been without pay from anybody, including any weekly payments of compensation, since - he should have been paid again, perhaps I should put it that way, he should have been paid with effect from 6 March. Now, it appears in the face of the pay slips that Compass Recruitment and/or Tasman Group Services and/or Ovens River, there is sufficient nexus between those companies and - - -

PN41

THE COMMISSIONER: Well, it appears as though he is being paid by Compass Recruitment, doesn't it?

PN42

MR MORGAN: It certainly does, Commissioner, and now is not the time to explore the precise relationship and Compass Recruitment is I think fairly generally accepted as a labour hire company. Whether or not it is ultimately the employer or the paying entity solely may need to be explored down the track. The orders that I would be seeking today, Commissioner, would be if you were prepared to hear me on the question of jurisdiction and then those other matters leading to the issue of interim order, firstly that the current named respondents provide a copy of the employment contract of Mr Rahman within a short period of time.

PN43

THE COMMISSIONER: I won't be issuing any orders today. However, I am happy to issue some recommendations if I think they are reasonable in the circumstances.

PN44

MR MORGAN: Thank you, Commissioner.

PN45

THE COMMISSIONER: So you are seeking a copy of his employment contract?

PN46

MR MORGAN: Yes.

PN47

THE COMMISSIONER: Yes.

PN48

MR MORGAN: Payment of wages at his normal weekly rate, Mr Rahman's normal weekly rate, back dated to 6 March and that the respondent - perhaps if I could formally take it from the orders that I propose to submit had there been representation from the respondent, forthwith cease to refuse to allow Mr Rahman's return to work and perform duties in accordance with his medical certificate and then the other side of that coin, the respondents permit Mr Rahman to return to duties on his normal roster in accordance with his medical certificate.

PN49

THE COMMISSIONER: Can I just ask you, Mr Morgan, what efforts have you made to confer with Compass or Mr Smith?

PN50

MR MORGAN: Yes, Commissioner, if I could refer you to an attachment to my submissions, F1 and F2, Nevin Lenne and Gross is my firm, Helen Collins is a solicitor who currently has conduct of Mr Rahman's WorkCover claim.

PN51

THE COMMISSIONER: And what response did you have to that?

PN52

MR MORGAN: None, Commissioner.

PN53

THE COMMISSIONER: None? And that went to Compass Recruitment?

PN54

MR MORGAN: It did.

PN55

THE COMMISSIONER: Now, what is your understanding of who is involved at Compass Recruitment? Somebody who is away overseas at the moment, is it?

PN56

MR MORGAN: A Mark Mitchell indicated to me in one of my conversations with him on Friday or Tuesday that he was the HR manager for Compass Recruitment and that the matter could not proceed without his involvement.

PN57

THE COMMISSIONER: Are you aware of anybody else at Compass Recruitment? So when is he due back?

PN58

MR MORGAN: He didn't tell me that, Commissioner.

PN59

THE COMMISSIONER: I think my associate actually has been told by Ms Zeitz a date, 14 or 15 April and it is the 6th today.

PN60

MR MORGAN: Commissioner, in addition to that, I have with me Mr Colin Drew who is the local organiser from the AMIEU who has attempted on a number of occasions to speak to Mr Mitchell about this, but without success.

PN61

THE COMMISSIONER: Do you think his employment has been terminated?

PN62

MR MORGAN: In my submissions, Commissioner, I did indicate that I thought that that was not the case because there seems to be a statement made by Brent, although what authority he has to hire and fire I couldn't say. This is in paragraph 12 of my current submissions:

PN63

Later that day there was a telephone call saying that Mr Rahman's job requires the use of a rise and fall platform on rotation. Mr Rahman told Brent that his doctor had said that he could not use the rise and fall platform and Brent said that Mr Rahman would be required to use that platform.

PN64

Now, again there is nothing other than that that I am aware of, Commissioner, which indicates that there has been a termination. There has certainly been no separation certificate, no formal notice, no statement to that effect made by anyone certainly with authority from one or more of the employers.

PN65

THE COMMISSIONER: You want a copy of his employment contract. Of course, you are wanting payment of his wages, his normal weekly rate back-dated to 6 March 2005. I don't know whether I will be inclined to recommend that at this stage. I will have a think about it, but, really, you want a statement from Compass as to this gentleman's - - -

PN66

MR MORGAN: Return to work.

PN67

THE COMMISSIONER: No, you want a statement as to his current employment status.

PN68

MR MORGAN: Yes.

PN69

THE COMMISSIONER: It is Mr Rahman, is it?

PN70

MR MORGAN: It is Mr Rahman.

PN71

THE COMMISSIONER: His current employment status at Yarrawonga Abattoir, is that right?

PN72

MR MORGAN: Yes.

PN73

THE COMMISSIONER: And you want - now, who owns Yarrawonga Abattoir?

PN74

MR MORGAN: I am not sure. We think, Commissioner, that Tasman Group Services leases the abattoir.

PN75

THE COMMISSIONER: And you think that Compass is the labour hire firm?

PN76

MR MORGAN: Correct, yes.

PN77

THE COMMISSIONER: That supplies the labour.

PN78

MR MORGAN: Yes.

PN79

THE COMMISSIONER: All of the evidence seems to indicate that Compass is the employer.

PN80

MR MORGAN: And that may very well be, yes.

PN81

THE COMMISSIONER: You want to know who is the employer, but the other thing is you want a conference in regard to this matter as a matter of the utmost urgency.

PN82

MR MORGAN: Post haste, Commissioner, obviously at your convenience.

PN83

THE COMMISSIONER: Well, my concern is, of course, that as you know, this matter came up - your application was only in the other day and it happened to fit in with my coming to Shepparton. I am not planning to be back and in fact I have no capacity to be back in Shepparton for quite some time, so I am just wondering what your views are as to - I mean, if I were to list this again, it would have to be listed in Melbourne.

PN84

MR MORGAN: Have car, will travel, Commissioner. I am sure that is not an issue for any of us.

PN85

THE COMMISSIONER: So you want them to confer as a matter of urgency with AMIEU, Mr Rahman and Mr Morgan, is that right?

PN86

MR MORGAN: Yes, thank you. Commissioner, I am sorry, might I just make - it just occurred to me, I should perhaps seek your leave to add a further respondent, namely Yarra Ranges Management Services Pty Limited, given that they are stated on the letter from Cambridge Integrated Services, exhibit A3, to be the employer and that is the first I have heard of the company.

PN87

THE COMMISSIONER: Look, I would rather you did some work about that and lodge an amended application in the circumstances.

PN88

MR MORGAN: Yes, certainly.

PN89

THE COMMISSIONER: Yes, go on, as to the sorts of orders that you are seeking.

PN90

MR MORGAN: Well, Commissioner, the orders that I would be seeking ultimately would be orders in relation to Mr Rahman's return to work in accordance with his medical certificates and most recently the letter from his treating GP which is at attachment E1 to my submissions. Perhaps if I could put those on record and indicate that Mr Rahman is happy with and consents to those. I am reading, Commissioner, from the second page. It is labelled E2 in the attachment.

PN91

THE COMMISSIONER: E2?

PN92

MR MORGAN: E2.

PN93

THE COMMISSIONER: Yes.

PN94

MR MORGAN: I think that in the short-term, if it is acceptable to the workplace and there is relevant work, he should be allowed to return to work after medical review and a clinical examination by myself, as this might help in resolving the issue of "stress," then the following restrictions might be appropriate, (1) not to use the "rise and fall" platform until orthopaedic review and possibly workplace assessment; (2) not to list, push or pull more than 10 kilogram load; (3) rest for 10 minutes after every hour of restricted duty.

PN95

Commissioner, I should perhaps bring it to your attention the fact that at attachment D there are copies and regrettably in some cases not particularly clear copies of a number of WorkCover certificates of capacity. I have adopted the course at pages D1 and D2 of extrapolating the appropriate data and putting it into table form rather than reading them through as clear documents.

PN96

Once the intention of the employer became known, that Mr Rahman could only return to work if it was with a rise and fall platform, he underwent a stress reaction and there is a medical certificate of 7 March 2005 which is D5 which introduces a new diagnosis, namely work related stress.

PN97

Prior to that, the diagnoses have been in relation to the back and the back pain, but as Dr Omidiora says in that extract, once a return to work plan in accordance with those restrictions is put together, hopefully or perhaps doubtless the work related stress will to a large extent dissipate given Mr Rahman's current financial difficulties.

PN98

THE COMMISSIONER: Yes, all right. Anything further?

PN99

MR MORGAN: Thank you, Commissioner, no. The fact that you would be prepared to make some of those recommendations, Commissioner, I won't perhaps formally address you on what might be the jurisdiction for those.

PN100

THE COMMISSIONER: No, don't. I would rather Ms Zeitz be present when you do that. The other thing is that I should order a copy of the transcript, to be made available to the parties and list the matter for report back and possible further hearing in Melbourne which will not be until after the safety net hearings next week, so it will be the week after next.

PN101

In all honesty, I couldn't hear this before Mr Mitchell was back, anyway. To be really honest with you, I am actually wondering whether it wouldn't be better to - well, no, it is better for you to confer up here, isn't it? It is better for you to confer up here and seeing where you get to up here and then if I have got this matter listed for a few days later in Melbourne, if you need to press ahead, if you want to put in a 127 application or whatever, or an amended section 99 to bring in another respondent, you have got ample time to do all of those things.

PN102

MR MORGAN: Commissioner, I should indicate for the benefit of the transcript and also for the benefit of the respondents who choose not to be here, but Mr Mitchell has clearly indicated to both myself and to Mr Drew from the union that he would be available from next Monday to meet and confer on these matters.

PN103

THE COMMISSIONER: From next Monday?

PN104

MR MORGAN: From next Monday was what he informed both myself and Mr Drew.

PN105

THE COMMISSIONER: Well, Ms Zeitz for Compass said that he is not back until the 14th or 15th. I am going to recommend that he confer in the next week and if he hasn't done so, then he needs to make some other arrangement with you with regard to that and I will list the matter for report back and possible further hearing. I am on country circuit until the end of May, as well as being on the safety net Full Bench, but I am sure I can find a time in Melbourne in the limited bits of space that are actually there.

PN106

MR MORGAN: Thank you, Commissioner.

PN107

THE COMMISSIONER: But it would be in the week following that, so I am happy to issue a recommendation that the conferring take place in the next week.

PN108

MR MORGAN: Thank you, Commissioner. Commissioner, there is one other matter which you might think is superfluous, but which has been mentioned to me by Mr Rahman. We are not certain as to his current annual leave entitlements. I have referred on a number of occasions to his financial circumstances, without giving any clear indication of what those are.

PN109

He informed me that after a number of weeks without pay, there is a car payment due this Friday and if that is not met, there is a likelihood his car will be repossessed. He is not certain as to his annual leave entitlements and if you would be minded to put a recommendation that that be included as part of the information package to be provided to us - - -

PN110

THE COMMISSIONER: Yes, I will.

PN111

MR MORGAN: Together with a recommendation that payment of any accrued annual leave be made to Mr Rahman as a priority upon request for Mr Rahman.

PN112

THE COMMISSIONER: Yes. Well, I may feel more inclined to recommend that than a payment of his wages at his normal weekly rate back dated to 6 March. If he is entitled to annual leave, then he should at least be able to get annual leave and I can understand that if he is feeling financial stress, he will want to access whatever source of funds are available.

PN113

MR MORGAN: Thank you, Commissioner, and again it may well be that at some stage weekly payments might kick in from the insurer, but they are not generally over anxious to part with their money.

PN114

THE COMMISSIONER: Yes, sure. Anything further?

PN115

MR MORGAN: Thank you, Commissioner, not at this stage.

PN116

THE COMMISSIONER: All right. Look, then I am just going to think about that and I am really not in a position here to issue those recommendations. Unfortunately, it is going to have to be Friday before I issue them. They will issue on Friday morning, as soon as we are back in our chambers in Melbourne.

PN117

MR MORGAN: It wouldn't assist, Commissioner, if I could carry out some of the typing function?

PN118

THE COMMISSIONER: No, the typing is not a problem. It is the transmission from here, when we are the guest of the Magistrates Court. I will consider what can be done.

PN119

MR MORGAN: Thank you, Commissioner.

PN120

THE COMMISSIONER: But we are not really - we are not even able to be in email contact with the Commission. I can't even send something back by email to the Commission to send out. I will think about what we can do, but I am just foreshadowing it may be Friday morning before we can actually get something out.

PN121

MR MORGAN: Thank you, Commissioner.

PN122

THE COMMISSIONER: But the problem is not the actual typing of the recommendations. That can be done and will probably be done in the next hour or so, once I have decided what those recommendations are going to be. Thanks,
Mr Morgan.

PN123

MR MORGAN: If the Commission pleases.

PN124

THE COMMISSIONER: Thank you. I now adjourn.

<ADJOURNED ACCORDINGLY [3.20PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 APPLICANT'S SUBMISSIONS PN11
EXHIBIT #A2 COPY SECTION 155A ACCIDENT COMPENSATION ACT PN14
EXHIBIT #A3 LETTER FROM CAMBRIDGE INTEGRATED SERVICES TO MR RAHMAN DATED 04/03/2005 PN18
EXHIBIT #A4 PAY ADVICE FOR MR RAHMAN FROM COMPASS RECRUITMENT FOR WEEK ENDING 06/03/2005 PN18
EXHIBIT #A5 PAY ADVICE FOR MR RAHMAN FROM COMPASS RECRUITMENT DATED 23/02/2005 PN18