C2056/269, Transcript of Proceedings [2006] AIRCTrans 75 (18 January 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996

COMMISSIONER MANSFIELD

C2005/6269

LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
AND
CHUBB SECURITY PERSONNEL
s.99 - Notification of industrial dispute
(C2005/6269)

MELBOURNE

10.02AM, FRIDAY, 23 DECEMBER 2005

PN1

MR B REDFORD: I appear for the union in this matter and I'm joined at the bar table by MS E MORRIS and MR N SAGROS.

PN2

MR K BOURKE: I appear on behalf of the Australian Industry Group and with me at the bar table is MR S SULLIVEN and MR P CAREY from Chubb.

PN3

THE COMMISSIONER: Thank you, Mr Bourke. This is a notification of dispute under section 99 of the Workplace Relations Act in relation to alleged unfair treatment of employees being transferred from the ordinary location of work that's been lodged by the Liquor, Hospitality and Miscellaneous Workers Union and the employer is Chubb Security Personnel. Mr Redford, is it your preference to put something on the record about this dispute or would you prefer at this stage to go into conference and see if there's a means of assisting with a resolution of this dispute through conciliation?

PN4

MR REDFORD: Perhaps if I just give you the facts, Commissioner, on the record.

PN5

THE COMMISSIONER: Yes.

PN6

MR REDFORD: A broad outline of how we've come to this point.

PN7

THE COMMISSIONER: Yes. You can speak up if you wish, Mr Redford. Maybe your Christmas celebrations have been going too long or something.

PN8

MR REDFORD: Lunch time. Commissioner, the dispute concerns Mr Sagros and Ms Morris and they're both an employee of the respondent and members of the union and they both worked at the Reserve Bank site in the city for some time, both of them beginning on that site in 2003.

PN9

THE COMMISSIONER: A very important site too, Mr Redford, because I have coffee there regularly. I do require proper security.

PN10

MR REDFORD: Yes, Commissioner. Well, both Mr Sagros and Ms Morris worked with the armed unit at that site. Mr Sagros was also the occupational health and safety representative and in about February 2005 the respondent introduced a new type of gun holster on that site called the Uncle Mike's holster to replace the previous model of holster which was made of leather. The respondents say that the previous model of holster should be replaced by a new model in particular because it was involved in an incident in Sydney involving an accidental discharge of firearm involving Chubb Security officers.

PN11

They also say that the previous model of holster was the kind of model that was involved in that quite tragic incident involving the shooting of a Victorian police officer earlier this year.

PN12

THE COMMISSIONER: So this is the employer who is saying that the holster needs to be replaced?

PN13

MR REDFORD: That's right. That's right.

PN14

THE COMMISSIONER: Is there any dispute about that, Mr Redford, that it was desirable to replace the holster?

PN15

MR REDFORD: I think there is, Commissioner. I don't think it's a key matter in relation to the dispute itself. Perhaps generally speaking what we would say is that the employees complain that they haven't been given the detail of the information in relation to those matters that they would like in order that they could understand the justification that's being used for the replacement of the holsters. We do though know however that the client who is a company called Note Printing Australia has also been involved in the phase out of these holsters and have effectively imposed a requirement that leather holsters not be used on their sites.

PN16

They don't require the particular model of holster, the Uncle Mike's holster that's being used by Chubb, they simply require that the holsters not be made of leather as I understand it, Commissioner. The problem is that Mr Sagros and Ms Morris find the holster impossible to use. They both find that the holster - - -

PN17

THE COMMISSIONER: It's a problem for a security guard.

PN18

MR REDFORD: It is indeed.

PN19

THE COMMISSIONER: They can't withdraw their weapon.

PN20

MR REDFORD: It is indeed and we say a very serious occupational health and safety issue obviously, Commissioner. Their problem is that the holster sits too high on the hip and causes problems in relation to the withdrawal of the firearm and also discomfort in rubbing on the hip and upper part of the body. Now, as a result of these discomforts and difficulties both Mr Sagros and Ms Morris reverted to their old holster in February 2005.

PN21

THE COMMISSIONER: Not a terribly good idea I would think. If the contracting party is saying they don't want leather holsters on their premises, but go on.

PN22

MR REDFORD: Yes. Well, a fair point, Commissioner, although they used those holsters from February 2005 until October 2005 without incident and without any complaint by the employer or by the client.

PN23

THE COMMISSIONER: So they went back to the leather holsters between February and October?

PN24

MR REDFORD: Correct.

PN25

THE COMMISSIONER: Okay.

PN26

MR REDFORD: Another particular problem with the holsters though I omitted to mention with respect to Ms Morris is that the holster was not issued with a female style utility belt whereas the previous model of holster had both the male and female style utility belt and - - -

PN27

THE COMMISSIONER: What's the significant difference between the two belts?

PN28

MR REDFORD: Well, we think that it's likely that the nature of the unisex utility belt if you like or the failure to issue a specific utility belt designed for females likely contributes to the problems that Ms Morris - - -

PN29

THE COMMISSIONER: Is it thicker, thinner, longer?

PN30

MR REDFORD: I don't know, Commissioner.

PN31

THE COMMISSIONER: But it's not a belt designed for a female?

PN32

MR REDFORD: Indeed.

PN33

THE COMMISSIONER: Okay.

PN34

MR REDFORD: Now, the employer concedes that there's usually some difficulty involved in the implementation of new equipment and that that can be overcome with training and they say that this training was provided and they also say that both Ms Morris and Mr Sagros were resistant to participating in that training. Now importantly, Commissioner, we dispute that. All we know is that there was a session conducted with Ms Morris in relation to the new holster in June 2005 in which she participated in a test using the new holster and a device applied to the holster to space it from her hip that was hoped to assist her, but the outcome of that test was that it was found that the holster was unsuitable for her use.

PN35

She continued to use the old one. And there was also a session conducted at a firing range as I understand it in around about September 2005 with the new holsters which as I understand it the respondent places some reliance on but what we say is that that training session is really nothing more than a display of the new equipment and some photographs and no genuine instruction was given and most importantly of all, at no stage has there been an opportunity for these two employees to work with an expert in terms of perhaps adjusting the equipment or moving the equipment around or tailoring the equipment in some way to make it easier for them to use.

PN36

THE COMMISSIONER: But Mr Redford, what I'm hearing is the Reserve Bank said to Chubb Security we do not wish your security staff to wear leather holsters in the future because we are aware that accidents have occurred which we believe were attributable in part to the use of these leather holsters, guns discharging, whatever. Your two members who were stationed at the Reserve Bank employed by Chubb were advised by their employer here is a new holster, the Reserve Bank requires us to get you to wear them. They tried them, they believed there are difficulties in wearing them. You have said the holster sits too high, you have said there wasn't a specific female designed belt to sit the holster on. There's this issue about spacing out from the hip, etcetera.

PN37

So your members then decided that they would use the old leather holsters from February to October and they did that. Now, I suspect I'm going to hear from
Mr Bourke that the Reserve Bank may have become aware of the non use of the preferred holster and may well have drawn that to Chubb's attention, I don't know. But even if they didn't, they had told Chubb at some stage leather holsters are not to be worn and I don't know what happened in terms of the transfer because the issue here is your two members have been transferred from the Reserve Bank to some other location and that is costing them a part of their previous income.

PN38

It may be further away from their homes, it may be a different shift arrangement, whatever, but they have lost income. Now, is that the situation?

PN39

MR REDFORD: One thing that I think is important for me to pick up on is
that - - -

PN40

THE COMMISSIONER: Sorry, Mr Redford, if the problem is that your two members say I will wear these holsters but we've got to know how to wear and we've got to know how to withdraw the weapon, et cetera, et cetera, I can't understand why Chubb wouldn't have said, well okay, this is how you do it and I'm not sure how much training is needed to take a person who is an experienced security officer from one holster to the next. It would appear to me not very much but I may be mistaken in that regard. But if push came to shove and the two employees were given the choice, you wear the holster or you're transferred, is that the situation?

PN41

MR REDFORD: That's the situation from Chubb's perspective.

PN42

THE COMMISSIONER: So what are we doing here?

PN43

MR REDFORD: Well, Commissioner, can I say this, it's not the case that the Reserve Bank have said to Chubb you need to use the Uncle Mike's holster. The Reserve Bank say, as I understand it, we don't want to use leather holsters and there's lots of different kinds of holsters and lots of different kinds of - - -

PN44

THE COMMISSIONER: Yes, well, there may well be but I imagine an employer wouldn't want to issue half a dozen different types of holsters to its security employees if that involves training people and issuing weapons which fit in a particular holster and et cetera, et cetera. I would have thought an employer normally in the security industry would say I want the best holster available for our staff to do their duties and that is what we're going to choose, not sort of, well, here's half a dozen, choose what you want.

PN45

MR REDFORD: Well, the problem being that these two particular employees have experienced difficulty using that particular kind of holster.

PN46

THE COMMISSIONER: How many employees does Chubb have who wear holsters?

PN47

MR REDFORD: I don't know, Commissioner. I would presume that there would be a fair few.

PN48

THE COMMISSIONER: There are, I imagine, Chubb employees, hundreds of security employees. I will be listening to Mr Bourke as to whether other people have got the same problem. It is a serious situation if a person who is employed as a security guard and they find that the equipment that they're issued with is not satisfactory/not ideal for their purposes because there may well be situations at times where they've got to withdraw their weapon quickly and efficiently and if that isn't possible that's a problem. There may also be problems of comfort and discomfort but every job has a degree of discomfort with it, but go on.

PN49

MR REDFORD: Well, the problem we have, Commissioner, is that every effort to investigate whether this particular kind of model of holster can be adjusted in such a way as to enable these two employees to wear it has not been made, nor has every effort been made to investigate whether there might be another kind of holster that might meet the requirements imposed by Chubb and the client that these employees can make, notwithstanding that there may be issues in relation to different styles of equipment and I accept that, but every effort in relation to those two things hasn't been made in our submission.

PN50

There has been scant attempt to provide instruction in things like adjustment and indeed in training of the use of these holsters in our submission and that's a problem for us.

PN51

THE COMMISSIONER: I'm not terribly familiar with holsters, accepting though I see them. Actually I saw one this morning. I was over having a coffee at the Reserve Bank and I noticed the holster sitting on the hip of the person who was standing outside the bank just having a cigarette. He normally stands behind the counter just inside the main entrance and my recollection is that it was a leather holster, but anyhow I didn't notice it. I noticed the gun there but I didn't pay close attention to what style and the composition of the holster. But how are holsters adjusted? Maybe Mr Bourke is more of an expert on holster adjustment. I'm not asking you to stand up, Mr Bourke.

PN52

MR REDFORD: I was starting to very quickly sit down there, Commissioner.

PN53

THE COMMISSIONER: But you know, I imagine there's a belt goes through a loop on the holster and then you have to be able to flick it open and things like that. But how much adjustment is there available on a holster?

PN54

MR REDFORD: Well, I would have thought that there would be significant ability to adjust them. What I certainly am instructed by our members who are far more knowledgeable in these matters than I, Commissioner, is that what's really important from an occupational health and safety perspective is that each holster be tailored to each individual's needs. These are not generic in items of equipment. As one can imagine as a matter of logic that these pieces of equipment sit on bodies that are all different and people have different lengths of arms and different shapes of bodies and nevertheless need to access their weapon I would have thought in emergency situations as quickly as possible and so certainly if we do move into conciliation, Commissioner, I'm keen to do so, my members will be able to provide you with much more expert information about holsters generally than I can.

PN55

THE COMMISSIONER: Well, they will provide me with opinion, I'm not sure it will be expert opinion. Obviously an opinion of people who are experienced in the area but I noted a moment ago that Chubb has got probably hundreds of security personnel who wear weapons, who have weapons in holsters. I will be interested to hear what the general pattern is with those and what if any, you know, expert reports have been done on holster design and suitability and these issues that Mr Redford is putting that the individual security officer needs to have the holster virtually tailored to their own body shape. I'm not sure. Mr Redford, I hear what you say.

PN56

MR REDFORD: Yes.

PN57

THE COMMISSIONER: Now, is my proposition basically correct, that Chubb has been required by the client to cease using leather holsters, they then issue a non leather holster or a different style holster, your two members who are over at the Reserve Bank, and I would be interested to know whether there are other security personnel over there, that your two members found the new holster unsuitable and they went back to their old holster? I imagine there was then a point at which the employer said to them you are not permitted to wear your leather holster despite the fact that you wore it between February and October, you either go to the new holster or else we're going to have to take you out of the Reserve Bank.

PN58

For a reason which is yet to be properly understood, in terms of the opinion of the other side your members refuse to start wearing the leather holster and as a consequence the employer said, well, you can't work here any more, we're going to move you somewhere else and here we are. Is that the situation?

PN59

MR REDFORD: That's a fair summation, Commissioner. There's one small piece of factual matrix that I just want to round that out with and it relates particular to Ms Morris. Ms Morris was in exactly the position you've outlined and there was a proposal that she move to the Monash University site but the Monash University site requires training in certificate III which she doesn't have so she was required first to do a training course in November.

PN60

THE COMMISSIONER: Yes.

PN61

MR REDFORD: During the period between her finishing at the Reserve Bank and her training course she was paid, however was not able to begin the training course because she was required to perform jury service. She contacted a member of the employer to advise that she was required to attend jury service. She asked whether she should attend the parts of the training that she was available. He said no. He said we will reschedule the training for another time. Now, incidentally it turned out that Ms Morris wasn't ultimately required to sit on a jury, but that's by the by, Commissioner, but that's what happened.

PN62

THE COMMISSIONER: Yes, she was called up for jury service but she may not have been selected for jury service.

PN63

MR REDFORD: That's as I understand it, yes, and then began to - - -

PN64

THE COMMISSIONER: And Chubb stopped paying her from 17 November.

PN65

MR REDFORD: That's right and Chubb say that - the Chubb dispute that she was ever involved of the parts of the training that she could have attended, they dispute that she was told don't worry about any of the training, we'll reschedule it, they dispute that, and they say that then Ms Morris began to be offered casual shifts by way of messages left on her phone. Now, we concede that, that's true.

PN66

THE COMMISSIONER: Are both employees casuals or are they - - -

PN67

MR REDFORD: Both of the employees are permanent employees.

PN68

THE COMMISSIONER: Permanent employees.

PN69

MR REDFORD: And notwithstanding this Ms Morris received messages on her answering machine to the effect that she was being offered casual shifts. Now, on the basis that she was waiting for her training to be rescheduled at some point she didn't take those offers up and that's why the employer appears to have stopped her pay and that's a matter about which we're obviously - - -

PN70

THE COMMISSIONER: Okay, that's another issue in the dispute?

PN71

MR REDFORD: Yes, Commissioner.

PN72

THE COMMISSIONER: Good. Thanks, Mr Redford. Mr Bourke.

PN73

MR BOURKE: Thank you, Commissioner.

PN74

THE COMMISSIONER: What does the employer say about this issue of some degree of unsuitable of the holster and is training required on the use of holster and to what extent and has it been given?

PN75

MR BOURKE: Commissioner, I think probably the more expert individuals who will be in the conference are probably better placed to give you those details and I'd certainly like to start by saying that the speed of Mr Redford's retreat from any suggestion of expert knowledge about these things is matched only by my own so I think a conference will be a valuable experience from that point of view.

PN76

THE COMMISSIONER: Yes, okay. Well, that makes three of us in that case, Mr Bourke.

PN77

MR BOURKE: But Commissioner, just a little bit to add to the background and to some extent my facts are the same as Mr Redford's facts, Commissioner, is always a good thing. There was an accidental discharge in New South Wales in August 2004 and as a result of the investigation that was carried out by Chubb into that situation there was a finding that the holster could reasonably be seen to have contributed.

PN78

THE COMMISSIONER: Could not?

PN79

MR BOURKE: Could have.

PN80

THE COMMISSIONER: Could have.

PN81

MR BOURKE: Could have been responsible and on that basis it was decided to look at a replacement and eventually the decision was made that the Uncle Mike would be introduced. At this stage the 12, I believe it is, officers at the Reserve Bank are the first part of the business where that has been rolled out. The cash-in- transit part of the business will be next because both cash-in-transit and the RBA involve carrying weapons every shift. After that the intention is to eventually roll out the new holster Australia wide and the best guess seems to be that ultimately about eight or 900 employees will be issued with that.

PN82

As you heard, two of the 12 employees at the Reserve Bank have resisted use of the holster.

PN83

THE COMMISSIONER: What about the other 10, Mr Bourke?

PN84

MR BOURKE: My understanding is that the other 10 have had no problems, have experienced no difficulty and are using it despite your impression this morning that it may have been leather. I suggest maybe it wasn't but - - -

PN85

THE COMMISSIONER: Well, yes, it may not have been. I noticed the weapon but I didn't really look closely at the holster.

PN86

MR BOURKE: One does.

PN87

THE COMMISSIONER: Yes.

PN88

MR BOURKE: My instructions are that since January 2005 there have been meetings, training sessions, consultation with all of the employees and I am also instructed that there was extra resources devoted to the two members who are here today trying to get them to wear the holster. The situation is that at the moment Chubb has made that decision, the client clearly is of the same view, that the leather holsters are inappropriate.

PN89

THE COMMISSIONER: Is Mr Redford correct when he says that the Reserve Bank made it a condition of Chubb that they wear a non leather holster?

PN90

MR BOURKE: That's a general impression that I have. I don't know whether it's quite that specific but certainly I - - -

PN91

THE COMMISSIONER: I think I saw a slight nodding of the head there.

PN92

MR BOURKE: Yes, I would say that Chubb has probably made the decision first but certainly the Reserve Bank has come - or Note Printing has come on board with that, but that can be clarified later if necessary.

PN93

THE COMMISSIONER: Okay.

PN94

MR BOURKE: The situation that Chubb is in at the moment as a result of that is that if these employees are not prepared to go to the Reserve Bank with the appropriate holster then they have to be rotated off site. Now, as I understand it Mr Sagros has been off work for some time and he has put in a WorkCover claim recently which has not been resolved and not been accepted yet and the company is challenging that, but he hasn't worked for some time.

PN95

THE COMMISSIONER: He has a physical disability or something else, or what?

PN96

MR BOURKE: I am not aware of the details, Commissioner.

PN97

THE COMMISSIONER: Okay.

PN98

MR BOURKE: Now, in the case of Ms Morris the fact is that the rate that they're paid relates to the site that they work on and while she was offered the job at Monash she was also offered maintenance of her Reserve Bank rate for I think a period of a month and I understand there's a difference of about 40 cents an hour in the rates that would apply. She was offered that to ease the burden but I understand that that hasn't been accepted.

PN99

THE COMMISSIONER: Where's the problem though, Mr Bourke, in
Ms Morris' payment? The information is she hasn't been paid by Chubb since
17 November. Now, she is a permanent employee, the explanation has been given by Mr Redford that there was a training course scheduled, the jury service call up intervened, Mr Redford says that Ms Morris advised the company about this and she was told look, okay, we'll reschedule the training course, don't worry about attending any of it. I think the company might have a different understanding about all that, but be that as it may, why is Ms Morris who is a permanent employee now being offered casual shifts instead of what would normally - what 38 hours a week?

PN100

MR BOURKE: Yes.

PN101

THE COMMISSIONER: So a full working week.

PN102

MR BOURKE: Well, most certainly. But Commissioner - - -

PN103

THE COMMISSIONER: Here we are leading up to Christmas and it's five weeks since she got any money.

PN104

MR BOURKE: Yes. Well, my instructions are or my understanding of the situation is that she's not been ready, willing and available to work. In respect to the jury service Mr Redford has identified largely the company's position. The training was available, was put in place, the four days were paid days and the company disputes quite strongly that she was ever told not to turn up on the first two days and as it turned out, had she turned up on the first two days she could also have done day 3 and day 4 because she wasn't required to attend court.

PN105

THE COMMISSIONER: Because she wasn't required for jury duty.

PN106

MR BOURKE: No.

PN107

THE COMMISSIONER: Yes. So we've got a difference of the facts here. The employee says I advised the company and I was told not to attend. The company says that not the case, the employee was always required to attend the first two days and then she could have attended the second two days, so there's a difference of facts and if we need to we can drill down a bit on that, who did Ms Morris talk to, what did he or she say about that conversation, et cetera.

PN108

MR BOURKE: I suspect that, and I don't know this, but I suspect that yesterday might have been the first time when the company reps had ..... that might have been the first time they heard of that because my instructions have been quite clear that she hadn't made any contact.

PN109

THE COMMISSIONER: Yes, and you're alleging that Ms Morris hasn't been ready and available for work.

PN110

MR BOURKE: That would be the technical explanation of it, yes.

PN111

THE COMMISSIONER: Is she eligible to go to the Monash site if she's not a level 3 qualified person?

PN112

MR BOURKE: My understanding is no, but that was why the training - - -

PN113

THE COMMISSIONER: And was there any other sites she could have gone to?

PN114

MR BOURKE: Look, I think any other possibilities are probably best dealt with in conference because I don't have that specificity of information.

PN115

THE COMMISSIONER: Okay, all right.

PN116

MR BOURKE: But just to finish off, Commissioner, my instructions are that both of these employees are valuable employees. Both of these employees the company is keen to have back in duties and the situation from the company's point of view is quite easy to resolve, they don't see that there are real issues with respect to the holster.

PN117

THE COMMISSIONER: Now, if they were prepared to wear the leather holster can they go back to the Reserve Bank?

PN118

MR BOURKE: At the moment there is no position at the Reserve Bank. There is a requirement for people at the Reserve Bank to have Reserve Bank clearance. The clearance of both of these have been withdrawn.

PN119

THE COMMISSIONER: Yes.

PN120

MR BOURKE: However, if the people can get to the appropriate level, and there's no reason why they couldn't get to the appropriate level of clearance, and a position became available, then - - -

PN121

THE COMMISSIONER: They would be considered for return to the Reserve Bank.

PN122

MR BOURKE: Certainly, and I believe with some degree of priority.

PN123

THE COMMISSIONER: Yes, all right.

PN124

MR BOURKE: If the Commission pleases.

PN125

THE COMMISSIONER: Well, perhaps we'll go into conference and see if we can take this further.

<NO FURTHER PROCEEDINGS RECORDED