C2006/3017, Transcript of Proceedings [2006] AIRCTrans 1143 (16 October 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15858-1

COMMISSIONER BLAIR

C2006/3017

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
AUSTRALIAN AUTOMOTIVE AIR PTY LTD
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/3017)

MELBOURNE

11.08AM, MONDAY, 02 OCTOBER 2006

Continued from 18/9/2006

PN1

MS J BORNSTEIN: I appear for the union and MR A GIERLICZ.

PN2

MR I DIXON: I seek leave to continue my appearance with MR T O'BRIEN and MR M JAMES for the company.

PN3

THE COMMISSIONER: Thank you. Leave continues in both instances. How do you like our salubrious surroundings, aren't they good?

PN4

MR DIXON: Very impressive.

PN5

THE COMMISSIONER: Good. Don't all respond at once.

PN6

MR DIXON: Just a long walk from the lifts that's all.

PN7

THE COMMISSIONER: Well there are two purposes. One is to provide a better environment and a better ambiance. The second is to get the parties fit. Now the Commission's relisted this matter for report back because it understands or it has received correspondence. Firstly dated 20 September from Baker McKenzie in regards to a proposal that the Commission put to the parties in conciliation and the correspondence indicates that the employer in this matter, that is Australian Automotive Air Pty Ltd, appear to be prepared to accept the Commission's recommendation to the parties.

PN8

And in correspondence dated 26 September 2006 from the AMWU it appears that they would, sought to have the matter brought back on in order to, as I understand it, have the parties position clarified and the details of what has been agreed to on record. Ms Bornstein?

PN9

MS BORNSTEIN: Yes that's correct, Commissioner. As it was left before you on the last occasion the parties, because of the lack of agreement at that time, had not worked out the exact details of the supervisory role of the Commission so the union has sought this listing. Also with the purpose of clarifying a couple of aspects in the proposal from the company by Baker McKenzie.

PN10

THE COMMISSIONER: Right. Thank you. Mr Dixon?

PN11

MR DIXON: Commissioner I'm not sure what parts, I mean it does need some detail determined but as we would see it and I'm happy to start the ball rolling on the details, if there's no further events which is what we all of course genuinely hope for and there's no other problems either way, well certainly from the company's point of view, then we would not see there would be any further hearings needed at all.

PN12

To take the other extreme as we have preserved in the letter, if there was an event which required summary termination the company reserves its right to take that step and we are mindful that summary termination is an extreme measure and I think most people know what that means. We would basically see things continuing as they have under the agreement negotiated between the union and the company in the past with the normal procedures of the enterprise agreement applying.

PN13

With this right, in other words if there was a counselling or a first warning or anything like that happening, that would take place, a final warning but if we're say at the stage where there was, say a first warning in place and the union or Mr Gierlicz had some objection to that, then that would be the subject of the quarterly hearing and Mr Gierlicz and the union would object to it or would raise it and it would be discussed under your supervision.

PN14

If within the three months period something occurred, where there was a series of behaviours which led - would lead in the ordinary course as the company would see it, to termination, for example there was something which ..... that is not summary dismissal but termination in the ordinary course. Then we would see that as being something which I think you indicated there was liberty on each party to apply to the Commission.

PN15

So the company before taking any steps would anticipate, before taking any termination steps would anticipate that Mr Gierlicz would apply through the union to have this matter back before you so that those matters which are going to be the subject of that step would be reviewed by the Commission. So that's sort of, we saw it broadly, the supervision's there, the safety net's there if you like of the Commission to prevent any steps but otherwise life goes on as before. That's as we see it, Commissioner.

PN16

THE COMMISSIONER: Right. Thank you. Yes Ms Bornstein?

PN17

MS BORNSTEIN: Commissioner, you might recall that when we were on, last before you and on the occasion before the union indicated a preparedness to accept initially a suggestion which was then reframed as a recommendation which contemplated that in the circumstances the Commission would adopt, if you like, a supervisory role. The suggestion, later a recommendation, suggested that the parties agree to report to the Commission on a quarterly basis or as such other time as agreed in relation to any issues, problems or discussions concerning the employment relationship between the parties.

PN18

The Commission will recall that the Commission suggested that those reports be properly presented and not on a tram ticket as it were. The Commission recommended that in consideration of that proposition that there also be liberty to apply. The union considered that in the context of the past history between, and the allegations against Mr Gierlicz that that supervisory role would certainly, for the purposes of the Commission, clarify any issues between the parties which at the moment are unclear and can only be ultimately determined in proceedings either here or elsewhere.

PN19

The purpose was to commence again with a clean slate. I'm concerned that the position of the company now seems to have stepped away from the Commission's recommendation, notwithstanding the letter from Baker McKenzie which indicated that they were prepared to accept that recommendation which saw a formal supervisory role for the Commission, irrespective of whether there were problems or not. We understand obviously and acknowledge that the parties have rights under the agreement.

PN20

The supervisory role of the Commission is aimed at resolving any issues between the parties as to Mr Gierlicz's conduct and allowing the parties to move forward with the assistance of the Commission which undoubtedly, should problems arise, be very blunt indeed. As it now stands the letter, what the letter says and what Mr Dixon has just said might seem to be somewhat of a dispute and the recommendation that the Commission made as to how the supervision would be conducted by the Commission into the future for a period of some 12 months or as otherwise agreed.

PN21

THE COMMISSIONER: Mr Dixon, did you want to say anything?

PN22

MR DIXON: Only this, Commissioner, I should make it clear that we would start with a clean slate, that we believe there would be a supervisory role but we didn't see that as taking away from the ordinary ongoing processes.

PN23

THE COMMISSIONER: Could I just, if I could summarise it this way. Point 1, that as of today's date Mr Gierlicz would have a clean slate. Point 2 that in three months time which would take us up just before Christmas in this instance, there would be a report back to the Commission and the company would obviously provide details as to any issues that they believe would give some concern to the company about a pattern of absence or a pattern of behaviour that may warrant the application of disciplinary process.

PN24

That report back would provide the Commission with an opportunity to hear from the company, obviously hear from the union and Mr Gierlicz. If at that point the Commission was concerned that there may be a pattern developing regarding absence or behaviour and it's made this position very clear to Mr Gierlicz in the past, it would say so to Mr Gierlicz that it had an issue about that and he would need to smarten himself up.

PN25

If the Commission felt that there was not a pattern that was developing then it would say so to the company as well. Point 3, that does not prohibit either party from exercising their rights and to have the liberty to apply to the Commission earlier than the three month period if for instance the company felt that there was an issue that warranted a disciplinary step prior to the three months or if Mr Gierlicz felt that the actions of the company may be placing his employment and his ability to perform his duties in jeopardy.

PN26

So liberty is applied to both parties. Obviously the Commission does not see that this is a never-ending report back process. What it seeks to do is to try and provide an environment where the parties can actively build up an ongoing working relationship, which appears to have been available in the past but for some reason it seems to have got off the track a bit.

PN27

So the objective of the Commission is to provide the forum in which the parties can build a working relationship so that at some point both parties would agree there is no need for a further ongoing role within the Commission. Now as I see it that seems to be the way in which we could move forward unless there is something that needs to be added to that. I'm not sure. Ms Bornstein?

PN28

MS BORNSTEIN: No Commissioner, that was the union's understanding of the proposal.

PN29

THE COMMISSIONER: Right. Mr Dixon?

PN30

MR DIXON: Commissioner, we fully understand that now thank you.

PN31

THE COMMISSIONER: Okay well if we could just, if we may, just get our diaries so that we are very clear on when we're due to come back just before Christmas. How's Monday 25 December, is that all right? Just joking. Now I understand that there might be an issue of build up to Christmas so I don't want to leave it too late towards any break up that you may have so is the week beginning December the 11th a convenient week that we can pick a time? Is that all right?

PN32

MR DIXON: Yes thank you.

PN33

THE COMMISSIONER: Well if we pick Monday December the 11th at 9.30 for report back, is that okay?

PN34

MS BORNSTEIN: Commissioner, there are a couple of matters in the letter from Baker McKenzie that are of concern. I don't know whether the Commission would prefer to adjourn into conference, they may be matters that could be discussed usefully with your assistance and then have a report back on the record.

PN35

THE COMMISSIONER: Right. Have those matters been raised with Mr Dixon at all, Ms Bornstein?

PN36

MS BORNSTEIN: No they have not.

PN37

THE COMMISSIONER: Right.

PN38

MS BORNSTEIN: One of the purposes of this listing was that it was felt that they were matters that might be better dealt with before the Commission in conference.

PN39

THE COMMISSIONER: Right. Do you have any objections to that, Mr Dixon?

PN40

MR DIXON: No, not at all.

PN41

THE COMMISSIONER: Okay. All right. Thank you. The Commission will go into conference.

PN42

MS BORNSTEIN: Thank you Commissioner.

<NO FURTHER PROCEEDINGS RECORDED