C2006/2054, Transcript of Proceedings [2006] AIRCTrans 784 (31 May 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15110-1

SENIOR DEPUTY PRESIDENT KAUFMAN

C2006/2054

AUSTRALIAN LICENCED AIRCRAFT ENGINEERS ASSOCIATION, THE
AND
FORSTAFF AUSTRALIA PTY LTD T/AS FORSTAFF AVIATION
s.170LW - Application for settlement of dispute (certification of agreement)
(C2006/2054)

MELBOURNE

10.15AM, WEDNESDAY, 22 MARCH 2006

PN1

MR G NORRIS: I appear for and behalf of the Australian Licensed Aircraft Engineers Association. With me I have MR S THORPE and MR D HARLAND.

PN2

MR P MELHUISH: May it please the Commission, I appear on behalf of Forstaff and with me is MR C RAFAEL.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Melhuish. Well, Mr Norris, what’s all this about?

PN4

MR NORRIS: Commissioner, if I may just outline briefly the history of events related to this matter which may put some perspective in regard to how we see the agreement applying and the nature of the dispute over the application of the agreement between the parties. Commissioner, Mr Steven Thorpe who is an employee at Avalon and an aircraft maintenance engineer, an unlicensed aircraft maintenance engineer, worked on a particular shift and he was an occupational health and safety representative in accordance with the Victorian Occupational Health and Safety Act. He was elected representative for his designated work group.

PN5

The way the designated work groups work at Avalon is that a particular shift would have an occupational health and safety representative and that particular shift would work in a particular hangar. Mr Thorpe at the time of the alleged incident was an occupational health and safety rep for A shift in hanger 5. Mr Thorpe became concerned over a period of time in the period between November and January 2006 encompassing the Christmas break when a number of employees were on leave. The occupational health and safety standards in the work area were not being observed to an appropriate level to provide a safe work place. In particular, most of the issues revolved around inappropriate lighting and housekeeping type functions that needed to be done to ensure that tripping hazards were minimised in the workplace.

PN6

Over a period of time from November 2005, Mr Thorpe tried to address those issues himself on the basis of as an occupational health representative and took corrective action himself in supplying lighting on a number of shifts at different times to correct these situations. However, he continually became frustrated at supervision’s lack of effort in addressing a continual problem. On 25 January he had a particularly bad shift, he went to see his supervisor, Mr Dave Collison, and he tried to draw the attention of Mr Collison to the safety issues that were on the shift. Mr Collison initially replied to Mr Thorpe and we’ll present evidence on this - the actual nature of the conversations later, Commissioner - sorry, your Honour.

PN7

Initially, Mr Collison ordered Mr Thorpe back to work and that he didn’t have time to deal with his matters. At that point Mr Thorpe became agitated and shouted at Mr Collison words to the effect of how is he supposed to get his job done if the safety issues are not attended to? The actual words of the conversation we will get to later. As a result of that, in the following shift Mr Thorpe and Mr Collison came to an arrangement whereby Mr Thorpe would apologise to Mr Collison in regard to the manner in which he spoke, and to a crew leader, Mr Khalil, who Mr Thorpe went to Mr Collison to seek some help about.

PN8

As a result of that conversation there was an agreement reached between the three people that an apology would be given in regard to the manner in which Mr Thorpe spoke and that bygones would be bygones and they would get on with life. Later on that shift - - -

PN9

THE SENIOR DEPUTY PRESIDENT: What date are we talking about now?

PN10

MR NORRIS: We’re talking about 25 January.

PN11

THE SENIOR DEPUTY PRESIDENT: Still on the 25th. Yes.

PN12

MR NORRIS: On the next available shift which was the 28th January - - -

PN13

THE SENIOR DEPUTY PRESIDENT: You started saying “later on that shift” and I interrupted you. Did you want to finish that?

PN14

MR NORRIS: No, eventually after calming down Mr Thorpe went back to his workplace.

PN15

THE SENIOR DEPUTY PRESIDENT: Now we are on 28 January, yes.

PN16

MR NORRIS: On 28 January, Mr Thorpe came to work and immediately went and saw Mr Collison, after a conversation he had with Doug Harland, the union rep on the site, where Doug Harland recommended that it might be a good idea if Steven went and effectively made up with Mr Collison to get on with life.

PN17

THE SENIOR DEPUTY PRESIDENT: I thought he done that on the 25th.

PN18

MR NORRIS: My error, your Honour, that happened on the 28th.

PN19

THE SENIOR DEPUTY PRESIDENT: I see. That’s when they - yes, okay.

PN20

MR NORRIS: On the 28th in effect Mr Thorpe was under the impression that the matter was reconciled and that the three parties would get on with their normal day-to-day work and address the problems that were before them. Later on that day, on that shift, Mr Thorpe sent an email to Mr Collison highlighting the safety issues that were outstanding in an effort to have them addressed. As a result of that email being sent to Mr Collison and in unfortunate circumstances where unintentionally the email was copied into Mr Collison’s manager. Mr Collison took offence to that and subsequently lodged a complaint to Forstaff about Mr Thorpe’s conduct in regard to the night before and we can bring evidence in regard to supporting that submission, your Honour. Forstaff then sought to make allegations against Mr Thorpe in regard to alleged serious misconduct and as a result of that Forstaff presented to Mr Thorpe the allegations verbally and he was given - - -

PN21

THE SENIOR DEPUTY PRESIDENT: When you say verbally was it orally or in writing?

PN22

MR NORRIS: Orally, at a meeting.

PN23

THE SENIOR DEPUTY PRESIDENT: Who was at the meeting?

PN24

MR NORRIS: Mr Rafael, Mr Harland, Mr Thorpe and I believe another Forstaff - Mr Collison and Mr Khalil Ramenan. As a result to that, and in following in the procedure in the Jobs Australia Aircraft Maintenance Refurbishment Avalon Site Agreement 4, clause 25, Mr Thorpe was given some time to prepare a statement and to reply to the allegations made. Subsequent to that, the company called Mr Thorpe in on 2 February and a statement was provided to the company in regard to - - -

PN25

THE SENIOR DEPUTY PRESIDENT: By Mr Thorpe?

PN26

MR NORRIS: By Mr Thorpe in regard to the alleged incidence. Mr Thorpe then subsequently received a disciplinary letter.

PN27

THE SENIOR DEPUTY PRESIDENT: What date was that?

PN28

MR NORRIS: That was on 6 February. It is a letter on Forstaff Aviation letterhead dated 6 February under the heading of, “Formal warning of serious misconduct incident 25/1/06”, signed by Mr Con Rafael, site manager, Avalon. In that letter, your Honour, it states that a warning will be placed on his personal file and he will be required to transfer to hanger 6, C shift on Wednesday 15 February at 7 am and report to Grant Harvey, supervisor. The ALAEA - your Honour I might hand a copy of that and have that marked.

PN29

THE SENIOR DEPUTY PRESIDENT: I won’t mark it at this stage as you are only opening at the moment. It’s not - I’m dealing with evidence, I will just have it on the file.

PN30

MR NORRIS: Yes. Subsequent to that and in accordance with the dispute - with the investigation discipline and grievance procedure, clause 25 of the certified agreement, the ALAEA wrote to Mr Rafael on 13 February 2006 and officially lodged an appeal against the disciplinary action proposed by the company to be taken. However, we were informed later on that day that the company was going to force Mr Thorpe to swap shifts before the appeal process was going to be heard. , your Honour, , the swapping of a shift or the forced swapping of a shift, in our view, is not in the spirit of the disputes procedure of the agreement, nor the investigation discipline and grievance procedure in that it all at the status quo to Mr Thorpe’s detriment because in moving him from that designated workplace to another he effectively would loose his occupational health and safety representative status. The company was well aware of this and it’s our view, your Honour, that the company constructed this situation to remove an occupational health and safety representative from this designated work group.

PN31

THE SENIOR DEPUTY PRESIDENT: Is that a breach of any occupational health and safety legislation if it be proven?

PN32

MR NORRIS: We believe that it is contrary to the Victorian Occupational Health and Safety Act provisions and I can refer to those in greater detail later.

PN33

In regard to the process then of the matter, the ALAEA then wrote to Forstaff on 14 February. I myself wrote to Mr Rafael stating that:

PN34

We have been informed that the company will seek to disadvantage Mr Thorpe in his employment whilst he is subject to the disputes procedure of the EBA by carrying out disciplinary action which is under appeal. The ALAEA now confirms ...(reads)... Mr Thorpe is considerably stressed over the manner in which this matter has been dealt with and has requested all further communications on this issue be done through the ALAEA site representative handling this matter, Doug Harland.

PN35

THE SENIOR DEPUTY PRESIDENT: Mr Norris, what is the alleged disadvantage to Mr Thorpe?

PN36

MR NORRIS: The alleged disadvantage is that he will be deprived of his occupational health and safety - - -

PN37

THE SENIOR DEPUTY PRESIDENT: How does that manifest itself? Does he lose any allowances or any emoluments?

PN38

MR NORRIS: He doesn’t loose any allowance or emoluments; he looses the right to represent the workforce as an elected representative.

PN39

THE SENIOR DEPUTY PRESIDENT: That may be an advantage if he’s relieved of that responsibility.

PN40

MR NORRIS: It may be an advantage, but Mr Thorpe is a very keen and - - -

PN41

THE SENIOR DEPUTY PRESIDENT: Yes. I understand what you’re saying.

PN42

MR NORRIS: Having said that, your Honour, Forstaff again insisted that Mr Thorpe report to the shift and unfortunately Mr Thorpe had to seek medical attention in regard to his condition which, as fortune would have it, his annual leave was due and he took that annual leave.

PN43

THE SENIOR DEPUTY PRESIDENT: When did he take that?

PN44

MR NORRIS: He took the annual leave on 13 - - -

PN45

MR THORPE: Sorry, your Honour, I probably need to just fill in.

PN46

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

PN47

MR THORPE: I was on sick leave until - from the 14th, from the 15th until the 22nd and annual leave was 23 to the 13 March.

PN48

THE SENIOR DEPUTY PRESIDENT: So, Mr Thorpe was on sick leave from 15 February to 22 February then annual leave from 23 February until when?

PN49

MR THORPE: 13 March.

PN50

THE SENIOR DEPUTY PRESIDENT: 13 March. And now? What happened after 13 March?

PN51

MR NORRIS: After 13 March Mr Thorpe was due to return to work and the ALAEA maintained with Forstaff that he should return to work on his normal shift and not be moved and the status quo remain until such time as the appeal should be heard. On 13 March - I will hand a copy of this up, your Honour. We wrote to - - -

PN52

THE SENIOR DEPUTY PRESIDENT: To keep track of these documents I’ll mark these for identification.

EXHIBIT #MFI1 LETTER FROM FORSTAFF TO MR THORPE DATED 06/02/2006

PN53

THE SENIOR DEPUTY PRESIDENT: The document you’re about to give me will be MFI2.

PN54

MR NORRIS: That letter, your Honour, is a letter to Mr Con Rafael. It is entitled, “Steven Thorpe alleged serious misconduct incident” and it’s from Gary Norris, senior industrial officer of the ALAEA.

PN55

THE SENIOR DEPUTY PRESIDENT: Are you handing that up?

PN56

MR NORRIS: I will be, your Honour. In effect, the letter, your Honour, maintains the ALAEA’s stance that Mr Thorpe should not be moved during the process of going through the discipline and grievance procedure.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes. The letter signed by you dated 13 March address to Mr Rafael will be marked.

EXHIBIT #MFI2 LETTER SIGNED BY MR G NORRIS TO
MR RAFAEL DATED 13/03/2006

PN58

THE SENIOR DEPUTY PRESIDENT: Yes, what happened after that?

PN59

MR NORRIS: After that, your Honour, the ALAEA received this following correspondence from Forstaff, addressed to Tim Heywood, federal secretary of the ALAEA, 25 Stoney Creek Road, Bexley, and it says, “Re Steven Thorpe” and it’s on Forstaff letterhead and it’s signed by Peter Melhuish, general manager employee relations.

EXHIBIT #MFI3 LETTER FROM FORSTAFF TO ALAEA DATED 14/03/2006

PN60

MR NORRIS: If I could take you - while Forstaff states their position in that, there was an offer made and if I can take you to the second last paragraph, where it has the words:

PN61

With regards to the conduct of an appeal process we offer the following:

PN62

THE SENIOR DEPUTY PRESIDENT: Yes.

PN63

MR NORRIS:

PN64

Forstaff is under no obligation to provide the ALAEA with written statements as part of the disciplinary or appeal process. The letter from the ALAEA formally requesting ...(reads)... the ALAEA lodged an application to the AIRC on 6 March 2006.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes, why did you lodge that while Mr Thorpe was on annual leave?

PN66

MR NORRIS: Because the issue arose in regard to compulsorily moving or altering the status quo in regard to Mr Thorpe’s shift status.

PN67

THE SENIOR DEPUTY PRESIDENT: But that was the subject of attempts by you and the employer to sort that out and Mr Thorpe was on leave at the time.

PN68

MR NORRIS: That is correct. Well, employer at the time, your Honour, was insisting that Mr Thorpe for all intents and purposes was moved or was to be recommence back on the moved shift, which in effect would have altered the status quo during the appeal process or the disciplinary - the investigation process. And at that time that would have effectively - the punishment effectively would have been carried out as such.

PN69

THE SENIOR DEPUTY PRESIDENT: Well, we have the letter of 14 March. What happened then?

PN70

MR NORRIS: If I could take you to the next paragraph in that letter, your Honour:

PN71

In closing we reiterate that Forstaff expects Mr Thorpe to comply with our lawful directions and report for duty on his new crew at hangar 6 at 0700 hours on 15 February 2006. After Mr Thorpe has commenced work on his new shift the company will then convene a meeting to review the issue in accordance with clause 25.4 of the certified agreement.

PN72

In reply to that, your Honour, the RAA immediately wrote back having received this letter at 3.30 - around 3.30 on that day. Unfortunately, the people involved were in meetings with Qantas in regard to 256 ..... being made redundant in Sydney.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes.

PN74

MR NORRIS: The acting federal secretary, Mr Stephen Fenwick, wrote to Mr Melhuish in correspondence, which I’ll hand up.

EXHIBIT #MFI4 LETTER FROM ALAEA TO FORSTAFF DATED 14/03/2006

PN75

THE SENIOR DEPUTY PRESIDENT: Yes?

PN76

MR NORRIS: In that letter, your Honour, the ALAEA effectively replies to the company but the paragraph I suppose that I could take you to at this point in time is that in response to the previous letter on 14 March, and on this same day, 14 March, Mr Fenwick wrote back saying:

PN77

We acknowledge your concession that Forstaff will hear the appeal pursuant to clause 25.4 of the certified agreement upon Mr Thorpe returning from his annual leave.

PN78

THE SENIOR DEPUTY PRESIDENT: It was supposed to be on 13 March, you told me. What happened in between the 13th and the 15th?

PN79

MR NORRIS: Mr Thorpe was rostered off. His normal shift was due to commence on 15 March, which would be when the normal shift fell. The company sought to bring that forward to start him on the other shift which in effect was what we objected to, that they were in effect putting in place the punishment before the appeal was heard.

PN80

Mr Fenwick then goes on to say that:

PN81

We have contacted Mr Thorpe and have instructed him to attend Avalon on 15 March 2006 for the purpose of having the appeal heard. I am instructed as senior industrial officer Gary and site rep Doug Harland to attend and represent Mr Thorpe.

PN82

Your Honour, subsequently on 15 March I attended the site for the purposes of hearing the appeal as alluded to in Forstaff’s letter and I was refused entry by Forstaff at the security gate. This in direct contradiction to - issue of entry is in direct contradiction to the provisions of the certified agreement and undertakings given by the company thereunder. Clause 25 of the EBA, the certified agreement, is right of entry of ALAEA officials. It states that:

PN83

An ALAEA authorised representative has the right to enter the company’s premises for the purposes of conducting union business and for the purpose of consulting with members in respect to matters relevant to ...(reads)... within a location determined by the company in a duly authorised place.

PN84

THE SENIOR DEPUTY PRESIDENT: Well, it’s really 25.4.1 that you’re interested in, isn’t it?

PN85

MR NORRIS: Well, there are a number of issues.

PN86

THE SENIOR DEPUTY PRESIDENT: Mr Thorpe no doubt desired to have the right of - sorry. No, I misread that. Yes, go on. I’ll withdraw that.

PN87

MR NORRIS: Your Honour, where this particular issue is relevant is that in good faith Mr Thorpe and the ALAEA turned up at the site to have the appeal heard as alluded to in Forstaff’s letter and Forstaff in their great wisdom denied entry to the ALAEA so that the appeal effectively could not be heard. It was their intent to delay the appeal being heard so that Mr Thorpe would be forced in effect to start on that shift and put him in the invidious position of having to determine whether or not he should start on that shift or stay on his old shift. He received a phone call from Mr Rafael on 13 March.

PN88

THE SENIOR DEPUTY PRESIDENT: 13 March? We’re going back to the 13th, are we?

PN89

MR NORRIS: Yes, instructing him to start on that particular shift and if he didn’t start he may face further disciplinary action including termination of employment. So, in an effort to have this matter sorted, the ALAEA in good faith has taken all the necessary urgent action to resolve the matter before Mr Thorpe starts. Now, in regard to clause 27of the agreement - - -

PN90

THE SENIOR DEPUTY PRESIDENT: Just before you go to that, what’s happened since 15 March? Has Mr Thorpe worked at all?

PN91

MR NORRIS: I’ll get to that.

PN92

THE SENIOR DEPUTY PRESIDENT: Okay. Well, you take your own course. Very well.

PN93

MR NORRIS: Your Honour, in regard to the provisions of clause 27, there is a sentence in that that says:

PN94

The company may waive these requirements.

PN95

THE SENIOR DEPUTY PRESIDENT: “May”.

PN96

MR NORRIS: May waive.

PN97

THE SENIOR DEPUTY PRESIDENT: Yes, not “must”.

PN98

MR NORRIS: As part of the EBA negotiations the ALAEA had, as you may be aware, we’re virtually a joint venture partner in the commencement of Avalon and had a particular standing and in an endeavour to maintain that standing while the EBA has those provisions, and it was thought at the time that there may be a number of other unions that may wish to seek entry to the site. The ALAEA and Forstaff agreed to this provision in the EBA because at that time the new EBA certified that it was uncertain as to whether what became of the ..... schedule section 133 matter was uncertain as to what the outcome of that may be.

PN99

Have said that though, in regard to the ALAEA Forstaff agreed to a protocol which is encapsulated in a letter dated 12 September 2003, which I’ll hand up, your Honour.

EXHIBIT #MFI5 LETTER ON FORSTAFF STATIONARY REGARDING RIGHT OF ENTRY FORSTAFF AVALON SITE DATED 12/09/2003

PN100

THE SENIOR DEPUTY PRESIDENT: Yes, I have read that, thank you.

PN101

MR NORRIS: Your Honour, if I could take you to that letter, that letter in effect states that the ALAEA has the right to enter the site at any time. That was the agreement.

PN102

THE SENIOR DEPUTY PRESIDENT: For certain purposes, yes.

PN103

MR NORRIS: For certain purposes. And under the right of entry heading the letter says:

PN104

This letter is to confirm the right of entry and delegate arrangements agreed during the recent negotiations with Jobs Australia ...(reads)... fails to adhere to this agreement they will be withdrawn by Forstaff.

PN105

Your Honour, that was complied with, the notice was given to Forstaff. However, Forstaff decided to play silly games in regard to Mr Thorpe’s situation to take advantage of Mr Thorpe and deny the ALAEA the right to represent him in regard to an appeal which could have been heard on the day. Now, on that day, your Honour, it was alleged that Forstaff management were not available. However, Mr Melhuish, the employee relations manager, and Mr Rafael, the site manager, were available in that Mr Rafael actually attended the security gate to see who was out there and was observed by those present.

PN106

THE SENIOR DEPUTY PRESIDENT: All that means is that he was there. It doesn’t mean he was available.

PN107

MR NORRIS: Well, it does take some time to walk to the gate and back and in that time people may well have been heard.

PN108

THE SENIOR DEPUTY PRESIDENT: You’d have to be hopeful, wouldn’t it?

PN109

MR NORRIS: And Mr Melhuish took enough time to discuss the issue with one of our site reps and attempted to prevent him from coming to the gate and having discussions with ourselves. That was Mr Robin Arthur. Your Honour, the issues arising out that brief chronology, without getting into the nitty-gritty or the merits of the Mr Thorpe’s particular circumstances and the facts of the case, arise out of the agreement in regard to whether or not the agreement should be applied in such a manner - - -

PN110

THE SENIOR DEPUTY PRESIDENT: Before you get to that I would like an answer to my question. What’s happened to Mr Thorpe since 15 March? That’s a week ago. What’s he doing?

PN111

MR NORRIS: Yes. Since 15 March Mr Thorpe then attended work on his normal shift. Your Honour, I do have a witness statement of Mr Thorpe.

PN112

THE SENIOR DEPUTY PRESIDENT: No, just tell me at this stage.

PN113

MR NORRIS: On 15 March.

PN114

THE SENIOR DEPUTY PRESIDENT: Has he been working.

PN115

MR NORRIS: Yes, he has been working.

PN116

THE SENIOR DEPUTY PRESIDENT: On what shift?

PN117

MR NORRIS: He attended for work on 15 March on his normal shift, where he wasn’t give any work. He attended for the full shift.

PN118

THE SENIOR DEPUTY PRESIDENT: So what did he do? Nothing?

PN119

MR NORRIS: Mr Thorpe informs me that his name didn’t appear on the time sheet for payment purposes although he’d not been - - -

PN120

THE SENIOR DEPUTY PRESIDENT: I’m not surprised.

PN121

MR NORRIS: The time sheet system works down there - that the supervisor on the shift. Well, the time sheet is actually generated electronic with the - - -

PN122

THE SENIOR DEPUTY PRESIDENT: Just to save a bit of time with this. For the last week has Mr Thorpe been working?

PN123

MR NORRIS: Yes, he has, your Honour.

PN124

THE SENIOR DEPUTY PRESIDENT: On what and where?

PN125

MR NORRIS: On that date he did his normal shift and then it was due to be rostered days.

PN126

THE SENIOR DEPUTY PRESIDENT: Did it get to that stage?

PN127

MR NORRIS: And then he was instructed by the company - - -

PN128

THE SENIOR DEPUTY PRESIDENT: On the 15th?

PN129

MR NORRIS: On the 16th.

PN130

THE SENIOR DEPUTY PRESIDENT: Yes.

PN131

MR NORRIS: He was instructed of 15th to attend the company’s site on the 15th February by letter send to the ALAEA.

PN132

THE SENIOR DEPUTY PRESIDENT: Yes? And to work in hangar 6, I assume?

PN133

MR NORRIS: And to work in hangar 6.

PN134

THE SENIOR DEPUTY PRESIDENT: Yes.

PN135

MR NORRIS: He was instructed to attend at 7 am on a particular shift. However, when he arrived the supervisor on that shift had no idea that he was supposed to be on that shift.

PN136

THE SENIOR DEPUTY PRESIDENT: This is at hangar 6?

PN137

MR NORRIS: Hanger 6, your Honour. And as it turned out, the company had instructed Mr Thorpe to turn up for the wrong shift, basically the wrong start time. Instead of being on C shift he found out when he attended the site that he was actually being rostered - being called in to go on B shift, which was a mistake by the company. He subsequently attended that shift that day, made himself available for work.

PN138

THE SENIOR DEPUTY PRESIDENT: For C shift?

PN139

MR NORRIS: B shift. That was the mistake shift.

PN140

THE SENIOR DEPUTY PRESIDENT: Yes, he attended B shift which was a mistake.

PN141

MR NORRIS: Yes. And then on that day - I may just refer to Mr Thorpe’s statement, your Honour.

PN142

THE SENIOR DEPUTY PRESIDENT: Mr Norris, if you’re not sure about it, don’t worry. After the 15th - from the 16th where’s he been working.

PN143

MR NORRIS: He has been, your Honour.

PN144

THE SENIOR DEPUTY PRESIDENT: He has been working?

PN145

MR NORRIS: Yes.

PN146

THE SENIOR DEPUTY PRESIDENT: In hangar - - -

PN147

MR NORRIS: Well, he’s worked in hangar 5 and in hangar 6.

PN148

THE SENIOR DEPUTY PRESIDENT: Okay. Carry on.

PN149

MR NORRIS: On the start of commencement of his shift where he attended work - - -

PN150

THE SENIOR DEPUTY PRESIDENT: And it’s probably too early to know whether he’s been paid for all of the work that he alleges that he’s done?

PN151

MR NORRIS: Well, there are issues that arise out of that in that the EBA requires that seven days notice be given for a shift change otherwise penalties will be paid. And there are issues in regard to - - -

PN152

THE SENIOR DEPUTY PRESIDENT: Sorry I asked.

PN153

MR NORRIS: And there are issues as to whether or not he’s being paid in regard to the other days that he attended.

PN154

THE SENIOR DEPUTY PRESIDENT: Yes, I think I have enough of a picture at this stage, at any rate, to know what’s going on. This is an opening. The company will have its chance and then I assume we’ll go into conference following the usual course, the usual practice of the Commission.

PN155

MR NORRIS: Yes, your Honour.

PN156

THE SENIOR DEPUTY PRESIDENT: So I don’t want you to go into too much detail, Mr Norris.

PN157

MR NORRIS: I won’t, your Honour. The issues in dealing with this for Mr Thorpe and the ALAEA and other occupational health and safety reps is this: firstly, we believe that the company cannot unjustifiably, unreasonably and unfairly - or unfairly move an elected occupational health and safety representative from a shift for the purposes of depriving him of his representative status. We can refer to the appropriate section of the Victorian Occupational Health and Safety Act at a later time.

PN158

The company cannot for disciplinary purposes that are unjust, unreasonable or unfair move a person or impose the disciplinary action before the processes of the EBA procedures have been served. The company cannot deny the ALAEA the right to enter the site under the agreements reached under the clause 27 of the certified agreement. And the issue there is that we believe the company acted in a manner so as not to have this dispute resolved, to not have the appeal heard, expeditiously so that Mr Thorpe would be placed in a position of having to choose between his employment or accepting the shift change.

PN159

Now, when Mr Thorpe did attend the shift change he provided a letter to the company - just bear with me, your Honour.

PN160

THE SENIOR DEPUTY PRESIDENT: He did so under protest or something to that effect?

PN161

MR NORRIS: That’s exactly correct. And in presenting that letter to the company on that day he was then called into the office by Mr Melhuish and Mr Rafael.

PN162

THE SENIOR DEPUTY PRESIDENT: What date was that?

PN163

MR NORRIS: 17 March.

PN164

THE SENIOR DEPUTY PRESIDENT: Yes.

PN165

MR NORRIS: I’ll provide a copy of that correspondence to you, your Honour, in due course.

PN166

THE SENIOR DEPUTY PRESIDENT: Yes.

PN167

MR NORRIS: Effectively in Mr Thorpe’s letter he requested that he remain even though he was starting on that shift in protest and under threat and reserved his rights, he requested from the company the appropriate time to finish off the occupational health and safety assignments that he had delegated to him by Qantas management and as a result of his occupational health and safety representative’s duties. In the meeting with Mr Melhuish and Mr Rafael, Mr Melhuish stated to him that in regard to that - - -

PN168

THE SENIOR DEPUTY PRESIDENT: It’s Qantas not Forstaff that delegated those duties? You said Qantas.

PN169

MR NORRIS: Qantas, the vendor.

PN170

THE SENIOR DEPUTY PRESIDENT: Yes.

PN171

MR NORRIS: The structure down there, your Honour, is such that Qantas provide the day-to-day supervision, Mr Collison and Mr Ramenan were actually Qantas employees.

PN172

THE SENIOR DEPUTY PRESIDENT: I see.

PN173

MR NORRIS: And Forstaff supply the labour. But Qantas in effect supervise the contract and the workforce.

PN174

THE SENIOR DEPUTY PRESIDENT: Yes.

PN175

MR NORRIS: Mr Melhuish stated in words to the effect in regard to the request for Mr Thorpe on a without prejudice basis to finish off his occupational health and safety assignments that he’d been given. Some of that work was quite significant. The statement was made that:

PN176

You have been moved from your designated work group. You are no longer an occupational health and safety representative and therefore we will not give you any time to do that.

PN177

Your Honour, that’s the current status.

PN178

THE SENIOR DEPUTY PRESIDENT: Yes. So Mr Thorpe’s working in hangar C and not as an occupational health and safety rep, and doing so under protest. Yes, I understand.

PN179

MR NORRIS: Your Honour, if I could take you to the provisions of the procedure.

PN180

THE SENIOR DEPUTY PRESIDENT: Which procedure?

PN181

MR NORRIS: In the certified agreement.

PN182

THE SENIOR DEPUTY PRESIDENT: Yes.

PN183

MR NORRIS: I take it you have a copy?

PN184

THE SENIOR DEPUTY PRESIDENT: Yes, I have.

PN185

MR NORRIS: Yes. I think the copies would be same, on page 56, clause 25.

PN186

THE SENIOR DEPUTY PRESIDENT: No, they’re not the same but it doesn’t matter, I have clause 25.

PN187

MR NORRIS: Clause 25 - the procedure has been followed in regard to stage 1, stage 2. However, in 25.3.4 it says:

PN188

If following such interview the proposes -

PN189

And I note the word “propose”:

PN190

- to take disciplinary action the employee shall be informed of that proposed disciplinary action ...(reads)... representative of the association.

PN191

Then in 25.4, Mr Thorpe was informed of a proposed action.

PN192

THE SENIOR DEPUTY PRESIDENT: In the presence of an accredited representative?

PN193

MR NORRIS: Yes, your Honour. In 25.4, the stage 3 of the appeal process, it says:

PN194

An employee upon whom the company proposes disciplinary action shall, if he so desires, have the right to appeal against such disciplinary action.

PN195

THE SENIOR DEPUTY PRESIDENT: Yes.

PN196

MR NORRIS: That right of appeal was exerted within the seven days and the clause was complied with by Mr Thorpe.

PN197

THE SENIOR DEPUTY PRESIDENT: Is that in one of the letters you have given me?

PN198

MR NORRIS: Sorry, I didn’t quite hear - - -

PN199

THE SENIOR DEPUTY PRESIDENT: Is that in one of the letters you have handed up to me?

PN200

MR NORRIS: The appeal letter, yes, it’s - it’s MFI2, yes.

PN201

THE SENIOR DEPUTY PRESIDENT: Yes.

PN202

MR NORRIS: Your Honour will note that in that letter as well that we requested that the company supply us with the statements and material and witness statements that they seek to rely on because in the actual disciplinary letter, they allege that there are other witnesses to Mr Thorpe’s alleged actions. The company wouldn’t supply us with those particular statements and Mr Thorpe has not had the opportunity to answer any allegations that may be made in those statements.

PN203

What we say, your Honour, is that the company cannot impose the action, the disciplinary action, because it’s proposed, before the appeal process takes place. And the logic to that is this, it’s that if in the appeal process the company is shown to be totally and absolutely wrong, the parties then have the opportunity to reach any arrangements which may accommodate settlement of the matter. However, if the punishment has already been carried out the company only has to stand, regardless of the outcome, it will just stand as it is - - -

PN204

SENIOR DEPUTY PRESIDENT: Well, not necessarily, not in this case. Say the appeal’s for next week, and upheld, Mr Thorpe would go back to hanger 5 and resume his jobs and occupational health and safety record.

PN205

MR NORRIS: We would assume so, your Honour, however - - -

PN206

SENIOR DEPUTY PRESIDENT: It’s not very different to a criminal trial for instance, where somebody’s convicted, goes to jail, appeals and languishes in jail until the appeal is heard. If he succeeds on appeal, he’s released.

PN207

MR NORRIS: Your Honour, there have been recent cases in New South Wales, a different jurisdiction, where people have appealed against criminal convictions and have been released on bail - - -

PN208

SENIOR DEPUTY PRESIDENT: Depends on the nature of the matter.

PN209

MR NORRIS: Depends on the nature. And we say that in regard to this particular situation, given that Mr Thorpe has a certain amount of extra status in regard to his employment on that shift, to in effect move him from that status while this appeal process is going.

PN210

SENIOR DEPUTY PRESIDENT: I understand.

PN211

MR NORRIS: It is an injury, not only to his personal pride and self esteem, but he’s seen to be injured by the workforce.

PN212

SENIOR DEPUTY PRESIDENT: Yes.

PN213

MR NORRIS: That’s created a massive problem for other occupational health and safety reps in the workforce who see this as a threat to them being able to carry out their duties effectively, because if the company can in effect get away with this sort of action, whenever they have an occupational health and safety rep that may pursue things enthusiastically, they don’t particularly like in regard to - - -

PN214

SENIOR DEPUTY PRESIDENT: You don’t need to spell it out, Mr Norris, I understand your submission.

PN215

MR NORRIS: So it does create a larger problem for us. There’s also another issue that’s arisen between the parties in regard to the application of the agreement and that is the nature of the application of the disputes procedure. If for instance this matter was proceeded through the disputes procedure, clause 24.1.5, the disputes and grievance procedure states, “Until the matter is determined, the status quo shall prevail and where” - - -

PN216

SENIOR DEPUTY PRESIDENT: Sorry, where’s this? 24 point?

PN217

MR NORRIS: Clause 24.1.5.

PN218

SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN219

MR NORRIS:

PN220

Until the matter is determined, the status quo shall prevail and work shall continue as normal, comma, as instructed by the company. No party shall be prejudiced ...(reads)... with this clause.

PN221

Your Honour, where ALAEA and the company differ on this is that effectively - - -

PN222

SENIOR DEPUTY PRESIDENT: What is the status quo, yes?

PN223

MR NORRIS: Well, what is the status quo, but it’s also in regards to the words, “the work shall continue as normal, comma, as instructed by the company”.

PN224

SENIOR DEPUTY PRESIDENT: Yes.

PN225

MR NORRIS: The ALAEA maintains that the status quo is effectively the position that you were before the action was taken by the company, or any party for that matter.

PN226

SENIOR DEPUTY PRESIDENT: Yes.

PN227

MR NORRIS: “And that work shall continue as normal”, in other words, if normal operations aren’t disturbed, then the normal aircraft can out and all that sort of stuff.

PN228

SENIOR DEPUTY PRESIDENT: Yes, the clause is inherent ambiguous.

PN229

MR NORRIS: It is, your Honour.

PN230

SENIOR DEPUTY PRESIDENT: It so often occurs, it’s not until a situation arises that these things manifest themselves.

PN231

MR NORRIS: We did have some expert assistance in drafting these things, but unfortunately when they are applied, and doubly applied in a particular manner - - -

PN232

SENIOR DEPUTY PRESIDENT: Yes.

PN233

MR NORRIS: - - - they do raise these things.

PN234

SENIOR DEPUTY PRESIDENT: Yes. I’m not being critical of the drafting; it’s very hard to draft a document to cover all contingencies.

PN235

MR NORRIS: Now, obviously the ALAEA’s position, your Honour, in regard to this clause, is that the words effectively mean in their plain meaning, “continue as normal, comma, as instructed by the company”, the “as instructed by the company” is within the context of continuing as normal in regard to the status quo, because the other words are “the status quo shall prevail”. Now - - -

PN236

SENIOR DEPUTY PRESIDENT: One wonders what they add to the phrase at all.

PN237

MR NORRIS: Well, as I see it, the company asserts that - - -

PN238

SENIOR DEPUTY PRESIDENT: We’ll give Mr Melhuish a go. He’ll tell us what the company says.

PN239

MR NORRIS: Yes, the nature of the dispute is that we assert that, in particularly Mr Thorpe’s case, is that the status quo being his normal shift, continue as normal, “as instructed by the company” would be particularly in regard to an AME or a LAME, for instance, they are daily instructed by the company in effect to the maintenance procedures and the work manuals, and handed out jobs in accordance with the maintenance procedures. And we say that “as instructed by the company” is not so much that the company can move you around for the purposes of disciplinary action, but in effect, the company can direct you to perform the tasks and duties that it requires of you, but within your normal shift.

PN240

SENIOR DEPUTY PRESIDENT: Yes.

PN241

MR NORRIS: Normal arrangements that apply at the time before the action is proposed to be taken. And really that in conjunction with the words in the appeal process in 24.5.4.1, the words “proposes disciplinary action”, we say if you read that in conjunction, then effectively the appeal should be led expeditiously, it should be done as soon as possible, and that the action should not take effect until after that process is dealt with, whether that be the appeal process in stage 4 arbitration. If your Honour pleases.

PN242

SENIOR DEPUTY PRESIDENT: Thank you, Mr Norris. Yes, Mr Melhuish. Now, I don’t require you to go through the chronology again and unless there’s something within the chronology with which you disagree.

PN243

MR MELHUISH: Well there’s a number of things I think we need to answer your Honour - - -

PN244

SENIOR DEPUTY PRESIDENT: Yes.

PN245

MR MELHUISH: - - - because we’ve been accused of playing games.

PN246

SENIOR DEPUTY PRESIDENT: Yes, I certainly expect you to address me on that. I just don’t need to have the facts reiterated if they’re agreed, in so far as they’re agreed.

PN247

MR MELHUISH: I’ll briefly go through it, the chronology as we see it, as it does differ in a couple of places your Honour. And I think what I really need to do for completeness is to really answer the allegations that have been made in the application itself, and I think that will give a clear picture of where the company stands on this issue. The first real allegation made in the application was the company had failed to apply or incorrectly apply clause 25.4 which is the appeal process. There’s been some discussion on that and as we’ve said, and I think it’s been highlighted, Mr Thorpe was on sick leave and was on annual leave for a period, which made it very difficult for us to convene that appeal.

PN248

There was also a great deal of work being done by both parties during that period to try and get a variation to the agreement certified in a timely manner to assist Qantas in making a decision that would be favourable to the future of Avalon. So we’re all busy, and I know we’re all busy; it’s just that it can’t be used as an excuse, but Mr Thorpe was not there. Mr Thorpe did give us his statement on 2 February and on the 3 February we considered that statement. The 4 and 5 February was a week-end therefore nothing could be done over those two days. The 6 February was a rostered day off. On 7 February Mr Thorpe refused to attend the meeting with management, and this is where we differ slightly in the timeframes, I think Mr Norris indicated that was 6 February. It was actually 7 February, I am advised. He refused to attend a meeting with management where the company’s determination on his statement could be advised to him. He was then advised of a formal warning that was being issued to him and the shift change via his union representative. On 8 and 9 February Mr Thorpe had sick leave, on 10 and 11 February he was rostered off, on 13 February - - -

PN249

SENIOR DEPUTY PRESIDENT: Sorry, when was he rostered off? 11th?

PN250

MR MELHUISH: On the 10th and 11th. I see another date in there now. I’m not sure what happened on 12th. On 13 February Mr Thorpe met with management, indicated his acceptance of the warning letter but requested that the decision to change of shifts be reviewed. On that same day the letter was received from the ALAEA formally appealing the decision and demanding that the shift not take place. On 14 February Mr Thorpe went home sick until the 23rd when his leave commenced. Another letter was received that day from the ALAEA again demanding the shift change not take place.

PN251

SENIOR DEPUTY PRESIDENT: Sorry, what date was that?

PN252

MR MELHUISH: That was 14 February. I think that letter has been marked, your Honour.

PN253

SENIOR DEPUTY PRESIDENT: I don’t think it has. Anyway it doesn’t matter, the union requested that the shift change not take place. Yes?

PN254

MR MELHUISH: On 6 March I had a conversation with Mr Norris at the ALAEA’s office. I was there on other business. And again we verbally confirmed our requirement for Mr Thorpe to change shifts as instructed by the company and then we would work through the disputes towards a settlement procedure in a proper way. Later that afternoon we received on the facsimile a notification that the dispute had been listed in the Commission. Mr Norris’s colourful letter on 13 March that he sent to Forstaff, again accusing Forstaff of not abiding by the appeal process. On 14 March the letter was then sent to the ALAEA reiterating that Thorpe was expected to move shifts as directed. Now this letter Mr Norris spoke to - - -

PN255

SENIOR DEPUTY PRESIDENT: Yes.

PN256

MR MELHUISH: - - - and I have to clarify some things in that letter.

PN257

SENIOR DEPUTY PRESIDENT: That’s MFI3?

PN258

MR MELHUISH: That is MFR3, yes.

PN259

SENIOR DEPUTY PRESIDENT: MFI3.

PN260

MR MELHUISH: MFI, sorry, your Honour.

PN261

SENIOR DEPUTY PRESIDENT: Marked for identification 3.

PN262

MR MELHUISH: Mr Norris brought to the Commission’s attention the last paragraph where Forstaff indicated that after Mr Thorpe had commenced work on his new shift, the company will convene a meeting to review the issues in accordance with clause 25.5 of the certified agreement. Mr Norris seems to indicate that we were saying we would convene that meeting immediately, and what we’re saying there - - -

PN263

SENIOR DEPUTY PRESIDENT: You say that “after” doesn’t mean “upon”?

PN264

MR MELHUISH: That’s correct. Now having said that, when I sent this letter to the ALAEA, which was approximately, in my recollection, about 1.30 in the afternoon by facsimile, I also attempted to ring the acting Federal Secretary to explain the letter. That phone call was never returned. MFI4, the letter that
Mr Norris states was sent in response saying that they would appear at an appeal in the morning, was faxed to our office at 17.37 hours, 20 to 6 pm. We were not aware of that letter until the opening of business the next day which was when Mr Norris would bring - we already had other issues to attend to that day, we had other appointments made. We were not in the position, at the drop of a hat, to see Mr Norris and to go through a lengthy appeal with Mr Thorpe. So I needed to explain that.

PN265

SENIOR DEPUTY PRESIDENT: Yes.

PN266

MR MELHUISH: It was not an issue of us turning him away at the gate, it was an issue of us not getting the proper notice, and while I’m on that issue, with respect to the letter MFI5 which Mr Norris handed up, nothing in that letter says that don’t have to attempt to give us the proper notice. Sending a facsimile after hours in a submission, your Honour, is not proper notice, and it also states that ALAEA claims to adhere the spirit of this agreement. We’d normally say that sending a notice after hours and not responding by phone is not in the spirit of the agreement.

PN267

MR NORRIS: With respect to us not applying the appeal process correctly in that you’d expect Mr Thorpe to move while the appeal process is being worked through, that’s not in itself a new notion. In October of 2004 the ALAEA disputed movement of a number of employees between hangers five and six to hanger four, which was then a new hangar.

PN268

SENIOR DEPUTY PRESIDENT: I think I’ve heard something about that in a previous case, didn’t I?

PN269

MR MELHUISH: I think so.

PN270

SENIOR DEPUTY PRESIDENT: I think I did.

PN271

MR MELHUISH: That ultimately came before Commissioner Eames in this Commission and was determined in our favour, but interestingly, in that case, if I can hand up a notice, your Honour - - - in that notice, a number of employees were being moved between hangars.

EXHIBIT #MFI6 NOTICE ON ALAEA’S LETTERHEAD REGARDING TRANSFERS FROM HANGARS 5 AND 6 TO HANGAR 4 DATED 14/10/2004

PN272

MR MELHUISH: The same issue arose at that time, your Honour, and - - -

PN273

SENIOR DEPUTY PRESIDENT: What were they? Occupational health and safety representatives?

PN274

MR MELHUISH: No, no, in so far as people moving rosters, people moving shifts and disputing their shift change, and the notion that a person move shifts and then work through the process is the issue I’m saying is not new. Now in that particular case, the ALAEA notified it’s members that they should move shifts as instructed by the company, while the issue was being progressed through the disputes in accordance with the settlement procedure, and even in the italics about midway down the page you can see there, your Honour, that they’ve highlighted the fact that work should continue as instructed by the company, and that - - -

PN275

SENIOR DEPUTY PRESIDENT: Yes.

PN276

MR MELHUISH: - - -that move as instructed by the company should be complied with, or indeed saying, if they not comply with that instruction to move, they may be in breach of the EBA and it goes as far as to say the ALAEA will not be held responsible for any member who knowingly breaches the certified agreement. So in that particular instance - - -

PN277

SENIOR DEPUTY PRESIDENT: Yes, that explains the reference in paragraph three of your letter marked MFI3 of 14 March.

PN278

MR MELHUISH: Yes, that is correct you Honour.

PN279

SENIOR DEPUTY PRESIDENT: Yes, now I understand.

PN280

MR MELHUISH: And we believe we are entitled to expect some consistency on these issues.

PN281

SENIOR DEPUTY PRESIDENT: Yes.

PN282

MR MELHUISH: So I’ve explained, your Honour, why we believe that we have complied with the appeal process. To date we have not yet had an opportunity to properly complete it. I know that on 16 March, Mr Thorpe returned to work on
15 March and Mr Norris very correctly raised the fact that he was mistakenly instructed to commence at 0700 instead of at 1500. That was my mistake. I misunderstood some instruction that I was given from Mr Rafael. The C shift didn’t in fact start on 15 March at three o’clock in the afternoon. We have in fact paid Mr Thorpe for that day including the shift penalties that he would have earned had he commenced on the correct shift at 1500.

PN283

SENIOR DEPUTY PRESIDENT: Yes.

PN284

MR MELHUISH: On 16 March which was a day that his new shift was not rostered on, Mr Thorpe attempted to commence work. He was asked to leave by the Qantas supervisor and Mr Thorpe, we were advised by the supervisor, said that he was there because Mr Norris had instructed him to commence on his old shift because the matter was in dispute. I was advised he finally went home and he did in fact report for work as required on 17 March and has worked that roster since.

PN285

SENIOR DEPUTY PRESIDENT: That’s the roster as directed.

PN286

MR MELHUISH: Yes, the roster as directed.

PN287

SENIOR DEPUTY PRESIDENT: That’s hangar 5.

PN288

MR MELHUISH: Hangar 6.

PN289

SENIOR DEPUTY PRESIDENT: Hangar 6 rather. Sorry.

PN290

MR MELHUISH: Hangar 6 as I understand it.

PN291

SENIOR DEPUTY PRESIDENT: Yes, sorry.

PN292

MR MELHUISH: We strongly reject, your Honour, the claim of moving Mr Thorpe is a disciplinary issue. Mr Thorpe has gone to our occupational health and safety coordinator seeking assistance, external counselling assistance because of stress. He broke down during that meeting. On the meeting with management on 2 February when Mr Thorpe gave us his witness statement, he also broke down citing the stress of the environment he was in was causing a lot of problems. We reiterated at that meeting that we would provide him with external counselling.

PN293

SENIOR DEPUTY PRESIDENT: And have you?

PN294

MR MELHUISH: We have, yes, your Honour. So for those reasons we think it’s quite proper to move Mr Thorpe, as we would with any other employee, out of the environment that is causing that stress, and allow him an opportunity to start again afresh and get on with life, again with our external assistance with the counselling. So we therefore submit that the only disciplinary action that was taken was the formal warning that was placed on Mr Thorpe’s file.

PN295

I might also add as far as with the notion that movement of rosters is disciplinary action, during that same week there was 110 other employees that moved either hangars or shifts in order to balance the manpower and the skills and experience across the facility. To the issue that the proposed move injures Mr Thorpe and his employment and has the effect of depriving him of his position as an elected OH&S representative, we say that the OH&S Act 2004 at section 55 contemplates an OH&S representative ceasing to hold office in the event that the person concerned ceases to be a member of that designated work group. The Act itself does not say that once a person is elected as an occupational health and safety representative they cannot be moved out of that designated work group.

PN296

SENIOR DEPUTY PRESIDENT: No, but if the reason for the move is to deprive him of his designation, that’s his complaint. He says, “I was moved so that I’d lose my OH&S status”.

PN297

MR NORRIS: Well, we reject that notion.

PN298

SENIOR DEPUTY PRESIDENT: Yes, I understand that.

PN299

MR NORRIS: We would also say that this isn’t the jurisdiction to pursue issues of that.

PN300

SENIOR DEPUTY PRESIDENT: That’s an argument I understand also. Yes.

PN301

MR MELHUISH: We’d also say that being and occupational health and safety representative is not a condition of employment. Mr Thorpe’s employment has not been injured, in our view. He’s on the same hours of work, the same roster pattern, he’s earning the same money and doing the same work. Being an OH&S representative does not absolve an employee from complying with the company’s required standards of behaviour and anti-discrimination and harassment policy. And his role as an OH&S representative is not a relevant factor and has not been a relevant factor in our submission in our decision to move him to another work location.

PN302

SENIOR DEPUTY PRESIDENT: Well, I thought it was in the sense that the stress occasioned by it, according to you, was the reason that he was moved, so that he would stop being an OH&S representative and thereby no longer suffer from the stress occasioned by that position.

PN303

MR MELHUISH: Well, there’s a number of facts I guess that’s attributed to that argument, that the issues he was having with his supervision and they were ongoing issues, may well have resulted from his duties as an OH&S representative. I may also have resulted from other things. That - - -

PN304

SENIOR DEPUTY PRESIDENT: I may have misunderstood you. I thought that your submission was that he was under stress because of his position as an OH&S representative and therefore you moved him to the other hangar so that that stress would be relieved.

PN305

MR MELHUISH: No, we moved him as we would with anyone else, your Honour. He came to us on two separate occasions, one with the occupational health and safety co-ordinator, he broke down, he sought assistance - - -

PN306

SENIOR DEPUTY PRESIDENT: Yes, but in relation to what?

PN307

MR MELHUISH: Stress.

PN308

SENIOR DEPUTY PRESIDENT: Caused by?

PN309

MR MELHUISH: Well, that’s undetermined, but the ALAEA would probably say that it was wholly to do with his occupational health and - - -

PN310

SENIOR DEPUTY PRESIDENT: Yes, well, we don’t need to go into that at this stage.

PN311

MR MELHUISH: The end result is that the relationship was strained with his supervision and that made things worse so - - -

PN312

SENIOR DEPUTY PRESIDENT: Yes.

PN313

MR MELHUISH: - - - in the normal course of events with any other employee, we would move them out of that environment into another environment.

PN314

SENIOR DEPUTY PRESIDENT: Yes.

PN315

MR MELHUISH: And that’s exactly what we did here.

PN316

SENIOR DEPUTY PRESIDENT: Yes.

PN317

MR MELHUISH: So I think, your Honour, we may leave it there for the time being.

PN318

SENIOR DEPUTY PRESIDENT: Yes.

PN319

MR MELHUISH: There’s just another thing I have to clarify. Yesterday, I received an email from Mr Norris seeking Mr Harland be released from duty to appear here today.

PN320

SENIOR DEPUTY PRESIDENT: Yes.

PN321

MR MELHUISH: I sent back an email to Mr Norris saying that was not possible, one day’s notice is not enough. Mr Harland is the licensee for aircraft engineer, your Honour, and to tell Qantas that a licensed aircraft engineer will not be available to them on that short a notice is just not suitable. We did mention, or I did suggest to Mr Norris that direction be sought today if he needed Mr Harland to give evidence.

PN322

SENIOR DEPUTY PRESIDENT: Yes.

PN323

MR MELHUISH: Directions be sought and go through the proper motions.

PN324

SENIOR DEPUTY PRESIDENT: Yes. Well, I issued a summons yesterday at the ALAEA’s request requiring Mr Harland to be here. Do you want that summons set aside, do you? Are you going to call on that summons today?

PN325

MR NORRIS: We intend to call evidence today, your Honour, if we get to that.

PN326

SENIOR DEPUTY PRESIDENT: And what evidence will Mr Harland give?

PN327

MR NORRIS: Mr Harland will be able to give evidence in regard to the nature of the complaint. He has first hand knowledge of the nature of the complaint that was laid and conversations that he had with Mr Collison and certain other evidence.

PN328

SENIOR DEPUTY PRESIDENT: Mr Norris, if Mr Harland is here already, he is here pursuant to a summons that was issued. Do you - the horse has bolted, hasn’t it?

PN329

MR NORRIS: But the summons - it was also about the summons for Mr Rafael, he indeed is here too.

PN330

SENIOR DEPUTY PRESIDENT: There’s no such summons to produce documents?

PN331

MR NORRIS: But that was to produce documents.

PN332

SENIOR DEPUTY PRESIDENT: yes.

PN333

MR NORRIS: We did not get this until this morning - - -

PN334

SENIOR DEPUTY PRESIDENT: Yes.

PN335

MR NORRIS: Your Honour - - -

PN336

SENIOR DEPUTY PRESIDENT: Yes.

PN337

MR NORRIS: We concede that in regard to Mr Rafael, we understand that we attempted to serve the summons on him as soon as we obtained - - -

PN338

SENIOR DEPUTY PRESIDENT: Yes, you can both sit down, that summons hasn’t been called on - - -

PN339

MR NORRIS: It wasn’t.

PN340

SENIOR DEPUTY PRESIDENT: - - - obviously it hasn’t been complied with. I doubt that Mr Norris is going to call on it today. Because what I want to do today is move into conference so that we can try to sort this out before it gets to the stage of a formal arbitration, which will take some time on the facts that I have heard and tie up some resources that seem to me to be able to be used elsewhere and probably required to be used elsewhere. So what I’d like to do is go into conference if that’s acceptable to you, gentlemen.

PN341

MR MELHUISH: I’ll leave our submissions then, if the Commission pleases.

PN342

SENIOR DEPUTY PRESIDENT: Yes. Mr Norris?

PN343

MR NORRIS: We’re happy to adjourn to conference.

PN344

SENIOR DEPUTY PRESIDENT: Yes, thank you. Well, we’ll do that now.

<ADJOURNED ACCORDINGLY [11.27AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MFI1 LETTER FROM FORSTAFF TO MR THORPE DATED 06/02/2006 PN52
EXHIBIT #MFI2 LETTER SIGNED BY MR G NORRIS TO
MR RAFAEL DATED 13/03/2006 PN57
EXHIBIT #MFI3 LETTER FROM FORSTAFF TO ALAEA DATED 14/03/2006 PN59
EXHIBIT #MFI4 LETTER FROM ALAEA TO FORSTAFF DATED 14/03/2006 PN74
EXHIBIT #MFI5 LETTER ON FORSTAFF STATIONARY REGARDING RIGHT OF ENTRY FORSTAFF AVALON SITE DATED 12/09/2003 PN99
EXHIBIT #MFI6 NOTICE ON ALAEA’S LETTERHEAD REGARDING TRANSFERS FROM HANGARS 5 AND 6 TO HANGAR 4 DATED 14/10/2004 PN271