C2005/1578, Transcript of Proceedings [2005] AIRCTrans 961 (22 April 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11235-1

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2005/1578 C2005/1579

COOPER-STANDARD AUTOMOTIVE
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION MR JOHN GRESTY MR STEVEN SHERWOOD
s.127(2) - Application to stop or prevent industrial action
(C2005/1578)

COOPER-STANDARD AUTOMOTIVE
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION AND OTHERS
s.166A - Restriction on certain actions in tort
C2005/1579

ADELAIDE

3.01PM, TUESDAY, 12 APRIL 2005

PN1

MR MANUEL: I seek leave to appear as counsel for Cooper-Standard with me is MR LYNN of the company.

PN2

MS J SMITH: I appear for the respondent union, together with the respondent, MR STEVEN SHERWOOD and MR JOHN GRESTY.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Smith, what's your position in relation to Mr Manuel's application for leave to appear?

PN4

MS SMITH: I have no objection, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. I grant that application, Mr Manuel.

PN6

MR MANUEL: Thank you, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Manuel, I have called on both of these matters today. I intend to deal first of all with the section 127 application.

PN8

MR MANUEL: That would be appreciated, your Honour. Our position would be that the 72 hour period in any event under the 166A will not expire for at least a couple more days and my client's position is that this is quite pressing from its point of view.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes. I should also note that I have received a very short time ago witness statements for a Mr Ferris and a
Mr Busson - - -

PN10

MR MANUEL: There should also be one for Mr Lynn.

PN11

THE SENIOR DEPUTY PRESIDENT: And Mr Lynn.

PN12

MR MANUEL: Yes, that is correct, sir.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes.

PN14

MR MANUEL: And we hope - - -

PN15

THE SENIOR DEPUTY PRESIDENT: Have those statements been sent to the AMWU?

PN16

MR MANUEL: That is my understanding, sir. Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. Have you received those statements, Ms Smith?

PN18

MS SMITH: Yes, I received them just before coming down, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Manuel, apart from that, I'm in your hands.

PN20

MR MANUEL: Yes, thank you, sir. Your Honour, as you noted there are two applications here. One is a section 127 and one a 166A. Perhaps if I could put the 166A to one side and just outline the case for the company in respect of the 127. Perhaps I can give you a very brief overview of the facts.

PN21

Cooper-Standard is involved in the supply of automotive components. It manufactures them. It is part of what is sometimes called a "can ban" or "just in time" system whereby its clients or customers don't actually hold much in the way of stock, but are reliant upon Coopers and other people in the loop to produce and supply within time for them to into their products. And so, for instance, Cooper-Standard produces brake assemblies, which have to be added to a car at a particular point, and if they're not added to a car at a particular point then the process stops.

PN22

Cooper-Standard has four positions called setters. One of those positions is on afternoon shift or is ordinarily on afternoon shift and three of those positions are on day shift. Each one of those day shift positions works on a separate line. The position of a setter is critical to the operation of Cooper-Standard. If the setter is not there, then there is a real possibility, because the machines will not have been set up, they will not have been adjusted, they will not have been cared for in the manner required - there is a real possibility that the operations could stop. If the operations at Cooper-Standard stop for even a very short period of time, there is a knock on effect to the automotive suppliers.

PN23

In this case, there was a very unfortunate scenario where one of the three day setters suffered a person injury, not related to work. He advised Cooper-Standard that he was likely to be absent from work for about 6 weeks but it could be longer. A decision was made by Cooper-Standard that the most critical parts of their operation were the day shift and therefore they needed three setters. With the exception of the leading hand, they don't have any spare setters. What they therefore determined to do was to bring Mr Sherwood, who is a named party to this application, back on to day shift. The reason for bringing him back onto day shift was very simply to fill the gap created by the injury and absence of the other setter.

PN24

They provided him with 7 days notice of this change and if I could at this stage take you to the certified agreement which is the Cooper-Standard Certified Agreement 2004. It was in fact certified by your Honour on 1 June 2004.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, I have a copy of that document.

PN26

MR MANUEL: Thank you, your Honour. Then if you could go to clause 37 of that agreement, which is entitled "Changes to a Shift" and you'll see that it says:

PN27

An employee must be given a minimum of 48 hours notice in order to change shifts, commence shift and return from a shift.

PN28

What that does, we say, your Honour, is clearly recognise that the employer has a right to direct the employee to change shifts but then seeks to limit that right by requiring the provision of notice, and we would assume to avoid changes every 24 hours or so, or some sort of capricious behaviour. But the fact is that that section specifically recognises the authority of Cooper-Standard to direct an employee to change shift. So that's what it's done. It's given Mr Sherwood this direction. He's then refused to move. He initially raised an issue - I understand Mr Sherwood's wife also works on the afternoon shift at Cooper-Standard. I understand from my instructions that they share transport to and from work and so he initially raised the issue as to what was going to happen in terms of his wife getting to work.

PN29

I might add that that doesn't impact upon the ability of Cooper-Standard to direct him. But in any event, they had regard to that matter. The first thing that they did was that they indicated to him that they were prepared to maintain his afternoon shift loading even though he was on day shift and I would note that there is actually no legal entitlement to maintain afternoon shift if you're working on days. When that wasn't successful they indicated that they were prepared to move his wife back to day shift for the same period that he was there. You will note that therefore creates or removes the difficulty in respect of transport but it appears that that has not been accepted either.

PN30

He was due to attend on day shift today. He didn't attend. That's consistent with his own statements that he wouldn't be moving, he was working afternoon shift. It's also consistent with the role of the union. Mr Gresty has maintained a position on behalf of Mr Sherwood that he is entitled to remain on the afternoon shift pending the resolution of what he says is a dispute between the parties.

PN31

THE SENIOR DEPUTY PRESIDENT: Can I interrupt you, Mr Manuel?

PN32

MR MANUEL: Yes, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: Just to seek clarification. Do you say that Mr Sherwood is continuing to work the afternoon shift or is he not working at all?

PN34

MR MANUEL: He was on an RDO yesterday. He hasn't attended for work. If he attends for afternoon shift he'll be turned away because he is not rostered to work that afternoon shift. We don't need him there. In terms of Mr Gresty's role, Mr Gresty's position on behalf of the AMWU, and in representing Mr Sherwood, has been to say, "Look, the status quo remains while this dispute goes on". He asserts, "Well, the status quo is the fact that Mr Sherwood was working afternoon shift and it has to stay as it is".

PN35

In this case, the dispute resolution procedure is in fact taken straight out of the Metal Engineering and Associated Industries Award, 1998. It has absolutely no reference at all to status quo or anything similar. In fact, the references within the dispute resolution procedure are very much that the employee will continue to comply with their obligations under their contract of employment and industrial instruments. And at 3.2.3 the clause says:

PN36

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

PN37

And it talks about:

PN38

Unreasonably failing to comply with a direction to perform alternative work.

PN39

The contract for employment for Mr Sherwood is to be gleaned not just from the common law position but from the award and from the certified agreement. So one of the specific provisions of his contract of employment is that the employer, with the provision of at least 48 hours notice, is entitled to change his shift. So the notion put forward by Mr Gresty is either a misunderstanding of what status quo means or a misapplication of the Metals Industries award.

PN40

Let's assume for one moment - sorry, I should withdraw that. If we work on the basis that Mr Gresty has made that error in good faith, then that may well be an issue in the sense of well, he hasn't tried to cause problems at Cooper-Standard just for the sake of it. But it doesn't change the fact that he is wrong. And if he is wrong and he then misdirects Mr Sherwood on that basis, he must also bear responsibility for that.

PN41

What we say then is this, that the refusal by Mr Sherwood to comply with a lawful direction to change shift is industrial action. And the reason it's industrial action is because it's a restriction or limitation on the performance of work. In other words, if he complied with his contract of employment, he would change shift at the direction of the employer in this particular instance. His refusal to change shift is a failure to comply with a lawful direction and that's a restriction or limitation of performance. In terms of the union, we say that the union has got to the point where they may well have just misunderstood the nature of the dispute resolution procedure. But even putting or accepting that it is just a misunderstanding, the fact is their direction to their member is in breach, we say, of the certified agreement and also, we say, industrial action.

PN42

In terms of the issue of discretion, your Honour, I'll come to that in more detail later, but fundamentally this is a dispute where one man is refusing to change shift where he is endangering the interests not only of the company but of his fellow employees, and of other employees in other companies because the automotive industry is notorious for its cascading effect. You stop one part, you invariably stop the others. They may not stop at exactly the same time, but that is always the risk.

PN43

In support of our case, there has been prepared three statements. The statement of Mr Robert Lynn, which is 35 paragraphs, probably gives you the overall story of all of the matters. The statements of Mr Ferris and Busson are on particular issues in respect of contact between them and Mr Sherwood about his preparedness or otherwise to move or to change the shift. I have all three here available for
cross-examination. What I was proposing to do was to tender these statements and the documents that are annexed to them and then make that their evidence-in
-chief then make them available to my learned friend for cross-examination, if that meets the needs of the Commission.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Manuel, before we get that far, I should alert you to the fact that I will want to hear from Ms Smith in terms of the union position before we get to that sort of point.

PN45

MR MANUEL: Obviously I'm in your hands, your Honour. If you would prefer that I perhaps retire at this point and - - -

PN46

THE SENIOR DEPUTY PRESIDENT: All right. I don't know whether there is any more information of a background nature that you want to give me?

PN47

MR MANUEL: I don't believe so, your Honour. I was then proposing to move to evidence.

PN48

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. Ms Smith, what's the union side to this particular story?

PN49

MS SMITH: Your Honour, we say that there is no industrial action happening, threatening, impending or probable. Mr Sherwood is here today. He had a rostered day off yesterday. We have the schedule of rostered days off and he confirmed this with Terry Ferris on Saturday and he was told to take it. He has seen his doctor today and he has notified the company that he will be off sick, and I have a copy of the certificate of sickness which I will tender when Mr Sherwood gives evidence. It's a personal illness, by an anxiety disorder. Mr Sherwood has not refused to change shifts. He will commence day shift when he returns to work on Friday when his certificate of sickness expires.

PN50

John Gresty is not able to be here today. He is interstate but he has given me some notes to refer to. He refers to a longstanding agreement between Mr Sherwood and the company that both him and his wife work on the same shift because they only have one car. This may not be in writing but the custom and practice, and the evidence will show that every time Mr Sherwood has changed shifts, his wife has also.

PN51

My learned friend's submission that the wife's change of shift was not acceptable either is not true according to my instructions. I was advised today that Mr Sherwood's wife received a letter saying that she can start work on day shift as of this Friday, 15 April. I'm not sure whether she's still required to work afternoon shift, then it won't be a 10 hour break on the Thursday. And that is what Mr Sherwood has been seeking all along, for the company to change his wife as previously agreed. This has now happened. So it is our submission that there is no industrial action happening, impending, or probable. And Mr Sherwood is here to give evidence.

PN52

THE SENIOR DEPUTY PRESIDENT: Ms Smith, so that I can understand the matter, just tease it out a little further - - -

PN53

MS SMITH: Yes.

PN54

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of the application together with the draft order proposed by the employer?

PN55

MS SMITH: Yes, I do, your Honour.

PN56

THE SENIOR DEPUTY PRESIDENT: Can I ask you to turn to that draft order. And without focusing at this stage as to whether an order is to be issued, or whether the parties might agree some other form of arrangement, can I ask you to go to the third paragraph with the heading, Industrial Action to Stop. Should I understand then that with respect to that third paragraph, what you're saying to me is a number of things. Firstly, the employee, Mr Sherwood, will transfer to day shift upon the expiry of his current medical certificate.

PN57

MS SMITH: That's correct.

PN58

THE SENIOR DEPUTY PRESIDENT: That the AMWU will not direct, procure, advise or otherwise authorise the employee to do anything other than transfer to day shift.

PN59

MS SMITH: That's correct. My instructions from Mr Gresty are that he never advised the employee not to attend in accordance with his instructions.

PN60

THE SENIOR DEPUTY PRESIDENT: Thirdly, that medical certificate has or will be provided to the company this afternoon.

PN61

MS SMITH: Yes. Mr Sherwood has advised the company of this absence and he has advised that his wife will be taking the certificate in when she commences. I think it would 3 o'clock today.

PN62

THE SENIOR DEPUTY PRESIDENT: I see. Yes. Thank you, Ms Smith.
Mr Manuel, I certainly don't want to stop you or indeed Ms Smith from calling evidence in this matter. But given the advice that Ms Smith's provided to me, I'm just not altogether certain where the matter is going to go from here. Do you need an opportunity to talk with your client before we progress it?

PN63

MR MANUEL: Yes, of course I do, your Honour, but I would make one observation. My client has deep concerns. When Mr Gresty, in accordance with the evidence of Mr Lynn, basically threatened the company with the use of sick leave in this matter to avoid Mr Sherwood actually providing service, then what do we get? He turns up, he has - we don't know anything about this medical certificate. These are the men you'd expect to know. They might have just been dropped at the office of course.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes.

PN65

MR MANUEL: But we have grave doubts but that having been said, I think we need to reconsider our position.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes. What I will do is I'll adjourn the matter for 5 minutes and give you the opportunity to think about it. It might even be possible for you to engage with Ms Smith in a discussion over the matter. Don't feel precluded from doing so.

PN67

MR MANUEL: Always possible. Thank you, your Honour.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes. I'll adjourn the matter for a short time.

<SHORT ADJOURNMENT [3.21PM]
<RESUMED [3.33PM]

PN69

THE SENIOR DEPUTY PRESIDENT: Mr Manuel?

PN70

MR MANUEL: Your Honour, thank you for that opportunity. I think I can dispose of this reasonably promptly. But I also need to be reasonably blunt. My client does not believe that Mr Sherwood is suffering from any medical condition. He believes that this is a purely tactical application on the part of him carrying out the threat of Mr Gresty a bit earlier in the week.

PN71

That having been said, it's got to be recognised that, your Honour, if faced with an apparently valid medical certificate and I know that my understanding hasn't been put forward to the Commission as yet, but assuming that that's going to occur, it would be extremely difficult in that case to find that there was in fact industrial action occurring, if for no other reason than an event of frustration. Add to that my learned friend's undertakings and I would seek to clarify that they are undertakings personally by Mr Sherwood to return to the day shift at the end of whatever his alleged sickness period is. Then we have to accept that it's extremely difficult to proceed with a 127 in that circumstance. We would ask the 166A be marked however, so that time will not necessarily start again should we have to apply further.

PN72

THE SENIOR DEPUTY PRESIDENT: Let's deal with those issues one by one, Mr Manuel. I will ask Ms Smith just to clarify that my understanding is correct in that I understood that she was giving advice which I can take is a form of undertaking specifically on behalf of Mr Sherwood. Is that the case, Ms Smith?

PN73

MS SMITH: Yes, that is the case, your Honour. And may I just say we resent my learned friend's allegation that Mr Sherwood is not sick and the company will note that Mr Sherwood attended meetings and he stated to them that he was not well at that time and his wife sat in on one of the meetings to speak for him as he was losing his voice. So that allegation is denied.

PN74

Also, Mr John Gresty has a meeting with Alistair Lee on Friday, 15 April in relation to this. It was originally set down for Monday - for yesterday, but this was changed to 12 o'clock on Friday 15 April. Therefore it is our submission that this section 127 application was brought when the dispute resolution procedure was still occurring and had not concluded. Those are our submissions.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes. We could argue about all of those sorts of things for some time. I think the key issue that I'm understanding very clearly is that you're confirming to me that Mr Sherwood is giving the advice that I recounted earlier, and in the form of an undertaking such that he is committing to return to work in accordance with the request that he work the day shift as of Friday, that is the expiry of his current medical certificate.

PN76

MS SMITH: And that undertaking is given because the company has now abided by their longstanding agreement that Mr Sherwood and his wife be placed on the same shift and Mr Sherwood's wife commences on day shift also from Friday. To resolve any future problems down the track that undertaking is given on the basis that when Mr Sherwood changes shift again his wife also will change to the same shift, your Honour.

PN77

THE SENIOR DEPUTY PRESIDENT: I see.

PN78

MR MANUEL: I think we need to be very clear on this. The company's position is there is no such agreement, never has been, and his wife is not being moved to meet the agreement but rather to try and resolve the dispute. There won't be any further undertakings as to what happens in the future.

PN79

THE SENIOR DEPUTY PRESIDENT: Ms Smith, do you need to confer with Mr Sherwood in this respect? My understanding from Mr Manuel is that whilst the employer has agreed to transfer Mrs Sherwood or Mr Sherwood's wife, on this occasion there is no ongoing commitment in that regard.

PN80

MS SMITH: Those are my instructions that even though there may be no written agreement that there has in practice been an agreement and this has been complied with, the custom and practice, and evidence if needed, will show that on every occasion where Mr Sherwood has changed shifts his wife has also.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes. Well, the - - -

PN82

MS SMITH: So that would support his advice.

PN83

THE SENIOR DEPUTY PRESIDENT: The issue though here is a question that I'll put into two time frames. It appears that Mr Sherwood is giving an unequivocal undertaking relative to the commencement of day shift work as of Friday on the expiry of his certificate.

PN84

MS SMITH: That's correct.

PN85

THE SENIOR DEPUTY PRESIDENT: And it appears that a component in Mr Sherwood's thinking in that regard is that notwithstanding his medical certificate, he has taken into account the fact that on this occasion Cooper-Standard have agreed to transfer is wife to day shift for the same duration of the day shift work allocation.

PN86

MS SMITH: For the what? Same duration - - -

PN87

THE SENIOR DEPUTY PRESIDENT: Same duration as this particular day shift work allocation. I haven't noticed Mr Manuel jump up and object to what I've paraphrased in that regard. But if I can put that in the immediate time category, then there appears to be a potential issue for the future, that is, in the event of future shift changes which Mr Sherwood was asked to undertake in accordance with clause 37 of the agreement. You're indicating that it is Mr Sherwood's understanding that there is an unwritten agreement which would ensure that his wife was offered a similar shift change to correspond.

PN88

MS SMITH: That's correct, your Honour.

PN89

THE SENIOR DEPUTY PRESIDENT: Mr Manuel has indicated that the company does not consider that there exists an agreement such as to warrant that undertaking for the future. That to me would imply that if in the future Mr Sherwood was asked to transfer from one shift to another, in accordance with clause 37, and he felt that there was an existing custom and practice or an unwritten agreement to give effect to a corresponding change to apply to his wife, then that is a matter that could be taken up through the dispute resolution procedure which is set out in clause 12 of the agreement.

PN90

MS SMITH: As it was on this occasion, your Honour.

PN91

THE SENIOR DEPUTY PRESIDENT: But that that would not necessarily preclude Mr Sherwood from complying with that instruction or any future instruction in terms of the requirement to change shifts.

PN92

MS SMITH: That's correct, your Honour.

PN93

THE SENIOR DEPUTY PRESIDENT: Mr Manuel, does that assist in clarifying the matter? It doesn't necessarily absolve or resolve the possibility that there could be future disputation.

PN94

MR MANUEL: No, that's quite right.

PN95

THE SENIOR DEPUTY PRESIDENT: But absent a second proposed shift change for Mr Sherwood, I'm not quite sure how far we can progress that future issue.

PN96

MR MANUEL: If I could respectfully suggest that as the matter currently stands, you must - perhaps if you have doubt as to your jurisdiction in the matter - - -

PN97

THE SENIOR DEPUTY PRESIDENT: You can certainly suggest that as the applicant, Mr Manuel.

PN98

MR MANUEL: However, I note that we haven't had the medical certificate put into evidence.

PN99

THE SENIOR DEPUTY PRESIDENT: Yes. Well, medical certificate could be put into evidence as long as it's done fairly quickly. Is that the case, Ms Smith?

PN100

MS SMITH: I have one here for yourself and Mr Manuel.

PN101

THE SENIOR DEPUTY PRESIDENT: It can either be put into evidence or it could simply be given to you, Mr Manuel.

PN102

MR MANUEL: I'm happy with either.

PN103

THE SENIOR DEPUTY PRESIDENT: I'm not sure that it needs to be put into evidence at this stage.

PN104

MR MANUEL: Yes. Thank you, your Honour.

PN105

MS SMITH: Do you wish a copy, your Honour?

PN106

THE SENIOR DEPUTY PRESIDENT: No, I don't require a copy at this stage, Ms Smith, unless the parties want to debate the authenticity of that certificate.

PN107

MR MANUEL: I'm not sure there's a lot of value to be gained in the current forum with respect to - - -

PN108

THE SENIOR DEPUTY PRESIDENT: No. I have yet to do my medical degree, Mr Manuel, so I tend to stay away from those debates.

PN109

MR MANUEL: Yes. That is the - obviously we don't wish to formally withdraw as such but we would note that we perceive some significant jurisdictional problems.

PN110

THE SENIOR DEPUTY PRESIDENT: Yes. Well, if you don't intend to withdraw the application, I would expect that the application will be pursued.

PN111

MR MANUEL: I think perhaps another way for it to proceed is on the basis that we'll seek to lead no evidence, then your Honour dismiss the application.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes, all right, thank you. I will do that, Mr Manuel. That dismissal is obviously taking into account the undertakings that have been given in this matter.

PN113

Can I go from there to the section 166A application? The Act is fairly specific in terms of that section of the Act, Mr Manuel.

PN114

MR MANUEL: It is. That's certainly true, your Honour. It's a question of at what point. If you were satisfied the conduct had in fact occurred, at what point did the conduct end would be the question.

PN115

THE SENIOR DEPUTY PRESIDENT: Yes.

PN116

MR MANUEL: From my client's point of view the conduct - its first knowledge of the refusal to work on the grounds of sickness is that at - was, well, let's say about 3 o'clock or thereabouts. There may have been a medical certificate delivered up before then to the actual premises - but so we would say the conduct - until you withdraw the conduct that it's still subsisting even if you form the private intention to withdraw from it.

PN117

THE SENIOR DEPUTY PRESIDENT: Yes. But where would even - even if I were minded to note that sort of time frame in terms of this section 166A application, where will that take me, Mr Manuel, in terms of the context of this particular matter?

PN118

MR MANUEL: Only in the sense that as your Honour raised the issue, there is a possibility - I'd say a fairly strong possibility - of further disputation on the same issue between the parties. If there was then to be unlawful conduct, if I could refer to 166A(7). This talks about if the conduct stops before the end of 72 hours and after the conduct stopped other conduct occurred, and in the Commission's opinion the other conduct is substantially related to the first-mentioned conduct, then the other conduct is taken the part of the first mentioned.

PN119

The exercise today may well be more like an administrative function so that it's not as difficult in the future to determine the time has run. We would say on what we put before you that there is enough to conclude conduct has occurred because it's not necessary for the Commission to actually find that the conduct amounts to a tort or for that matter that the conduct for instance might be protected because those are issues that would go before a court where the litigation proceeded. It is enough that you be satisfied the conduct of the broad description that we have put before you has occurred and that it has stopped. And then the question would be, well, when has it stopped? Because that would be the relevant issue.

PN120

As I understand the notice, it was at about 1.30 yesterday that it was filed in the Commission. What we have is a direction to Mr Sherwood to attend work at
6.30 this morning. He advised us subsequently that he is sick but not at the time when he is meant to attend. So on an objective basis, at the very least, it was still going this morning at the time when he was meant to attend the day shift. We would say it only ends when his change of intention is communicated to the employer in this case. And in some respects we're at the mercy of my learned friend as to when she says that was communicated. I understand the suggestion was that Mr Sherwood's wife would or would have or did hand in the medical certificate at the workplace at probably just before her starting time, so just before 3 o'clock. So we would say that there would be enough to conclude, at least for a note on the file, that that is the circumstance and that is the time that should be accounted for.

PN121

THE SENIOR DEPUTY PRESIDENT: But the information you give me now will be recorded on the transcript. I'm a little at a loss as to the benefit associated with a note on the file which might then prompt Ms Smith to jump to her feet and dispute the authenticity of that, whereas the reality of the situation would, I think, be that should a further instance of alleged unauthorised and unprotected industrial action occur, then some of the ground that the parties have not covered today might well be the subject of a second application.

PN122

MR MANUEL: Yes.

PN123

THE SENIOR DEPUTY PRESIDENT: In which case no doubt you'd be relying on information you have given me today and the various witness statements that we haven't had to draw upon.

PN124

MR MANUEL: Yes. There's no doubt that the process under subsection (7) is actually for the subsequent Commission hearing, not for the first Commission hearing. I certainly accept that.

PN125

THE SENIOR DEPUTY PRESIDENT: Yes. So should I take it on that basis that having made those points, you don't wish to pursue that section 166A application?

PN126

MR MANUEL: I think I have to pursue it because if I withdraw it then I believe that that may well give away any time that's accrued. What I would suggest with respect to your Honour is that the answer could be that the Commission says "as at the time of the hearing of the application under 166A it is not satisfied the conduct is occurring".

PN127

THE SENIOR DEPUTY PRESIDENT: Yes.

PN128

MR MANUEL: That would then bring the matter to an end in respect of this application but would not have the potential impact that a discontinuance or withdrawal might have.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes. All right, thank you. Ms Smith, do you want to say anything to me about the 166A application?

PN130

MS SMITH: Yes, your Honour. It is our submission that my learned friend has provided no evidence that conduct has occurred which has resulted in personal injury or wilful or reckless destruction or damage or the other components in section 166A. If you - well, I haven't handed you the certificate of sickness which is dated 11 April 2005. Mr Sherwood attended the doctor on his rostered day off. If you wish, Mr Sherwood can give evidence saying that he was given medication and this resulted in him sleeping in and that's why he didn't notify at 6 am this morning because he was affected by the medication.

PN131

It is my submission that Mr Sherwood has never stated or refused to work on the new day shift as instructed and Mr Gresty has never instructed Mr Sherwood to not present himself for day shift. Therefore, we seek the 166 application be dismissed, your Honour.

PN132

MR MANUEL: Your Honour, if my learned friend wishes to re-visit those matters which I thought you had determined that we'd both revisit, then I think we would be in a position where we would have to call our evidence and I don't wish to.

PN133

THE SENIOR DEPUTY PRESIDENT: Mr Manuel, I'm not going to re-visit those matters. What I am going to indicate to the parties is that on the information presently before me, I am not in a position to conclude that the circumstances that exist here warrant the continuation of the section 166A application and accordingly I will dismiss the application.

PN134

However, in doing so I will note for possible future purposes that the parties are in dispute about the circumstances underpinning this matter and that should either party seek to rely upon their version of events in any future application, then I would expect that party to bring some evidence to the Commission so as to substantiate that position.

PN135

MR MANUEL: Yes. Thank you, your Honour.

PN136

THE SENIOR DEPUTY PRESIDENT: Before finally concluding both matters, I think it probably is appropriate that I make a couple of brief observations in this matter. I must say in this day and age it's somewhat unusual for a matter such as this to be brought to the Commission. It is a somewhat intriguing one in that in the vast majority of cases, disagreements such as this are sorted out through the cooperative process embodied in the dispute resolution provisions of an agreement. It would seem to me to be incumbent upon both Cooper-Standard, the AMWU and Mr Sherwood to take into account the obligations and the processes set out in that dispute resolution provision.

PN137

The major problems associated with conducting industrial relations in this way is that people tend to harbour a grudge and to grow to dislike each other which has a potential impact on future relationships. So my erstwhile suggestion to the parties is that they collectively have a look at how they might go about re-establishing a cooperative relationship which means that we don't have to sort out issues such as this which are of a relatively simple nature through these proceedings. That's not a comment directed at you, Mr Manuel. You're perhaps the only player in that group that I would not expect to be involved in these matters. There clearly exists the potential for the union to be involved. There clearly exists the potential for Mr Sherwood to express views to the employer and the employer has a vital part to play in the process.

PN138

But I did note the agreement which was certified on 1 June 2004 sets out not just a dispute resolution provision, but commitments to continuous improvement, that it is an agreement which is clearly predicated on the need for efficient operation of this business. I acknowledge that there are times when previous arrangements might need to change but I think common sense dictates that the parties might sit down and have a talk about these issues sooner rather than later. My concern is that if the issues are left unaddressed, they could arise again at an inconvenient time whereas a discussion in the very near future about shift changes or the potential for them, might resolve some of these problems, or at worst clarify the issues about which the parties are in dispute before they result in any lost time or potential industrial action.

PN139

So for what it's worth, it might be appropriate only to delay those discussions until Mr Gresty comes back to Adelaide.

PN140

MR MANUEL: Thank you, sir.

PN141

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

<ADJOURNED ACCORDINGLY [3.55PM]