C2006/1413, Transcript of Proceedings [2006] AIRCTrans 79 (23 January 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996

COMMISSIONER EAMES

C2006/1413

VISYPAK OPERATIONS PTY LTD
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.99 - Notification of an industrial dispute
(C2006/1413)

MELBOURNE

2.31PM, THURSDAY, 05 JANUARY 2006

PN1

MR R JOYCE: I appear on behalf of VisyPak Operations Pty Ltd, appearing with me is MR R STREET, the operations manager for VisyPak at Coburg and
MR A DOUGLAS, a partner of the law firm Heinz Law. It's not the intention for me to have Mr Douglas speak this afternoon, however in the event that you seek to have witness evidence then he'll be able to assist us with that. He may also be able to assist us during the conciliation phase.

PN2

MR T MAVROMATIS: I am from the AMWU metals division and with me I have the site delegate, MR J ZWART.

PN3

THE COMMISSIONER: Yes Mr Joyce.

PN4

MR JOYCE: Commissioner, firstly thank you for hearing this matter at short notice. We request your assistance to have the unlawful bans lifted at Coburg. These bans have impacted on our production, they have resulted in three stop work meetings totally approximately 3 hours and they resulted in approximately $10 000 in lost production. What you could do too Commissioner, if it would assist you, is that I have a copy of the resolution from the floor.

PN5

THE COMMISSIONER: Yes thank you.

EXHIBIT #J1 COPY OF RESOLUTION

PN6

MR JOYCE: Although it is not signed and it does not say it is from the floor, certainly the night shift production manager, the afternoon shift production manager, the production manager, all confirmed with formal discussions with employees and with the senior shop steward that indeed there was a resolution passed and there had been - there are bans currently in place at Coburg involving the use of screwdrivers. The site has been there for approximately 55 years and we have had the unrestricted use of screwdrivers during that 55 year period. What we seek is an undertaking from the union that the bans or limitations be lifted and we'd also seek a recommendation from the Commission in writing that the bans be lifted.

PN7

Commissioner, the reason why I request that in writing is that we have day shift, afternoon shift and night shift and although we have shift supervisors on all the shifts and team leaders, there's been real benefit for the company having a written document from the Commission because then we can individually provide that to each employee and those employees who are at home on annual leave, long service, on sick leave so each employee is aware from the beginning of their next shift that the unlawful bans have been lifted. Commissioner, earlier today we received a notification notice of listing, it's regarding Pastor Quiano v VisyPak. It's matter number U2005/7115, just to assist you.

PN8

THE COMMISSIONER: In fact I've got the file here with me, it's one that I've listed.

PN9

MR JOYCE: Yes indeed, so what we seek to do Commissioner is, we stand by the termination of this employee as being both lawful and appropriate. We would not accept an employee threatening another employee with a screwdriver. We welcome the opportunity for the conciliation conference on 16 February and what we'd seek to do is to answer any of your questions or we're happy to go into conference.

PN10

THE COMMISSIONER: Perhaps I should hear from Mr Mavromatis first, what he has to say about this.

PN11

MR MAVROMATIS: Yes Commissioner, there are bans on screwdrivers on the site and it has come after the event of an employee being terminated for carrying a screwdriver. The person was terminated on site, he was asked to do counselling, he continued to work and the company claimed that he was threatening a leading hand or a team leader. Now, originally the company offered him counselling, the team leader accepted the apology from the employee when the employee apologised in case he had offended the team leader and the team leader accepted that apology. What happened is the hierarchy of VisyPak got a hold of it and that was the end of it, that was the end of it. Then what happened then, the hierarchy of VisyPak got a hold of it and decided, no that's not good enough, we're going to make an example of this bloke after they did an investigation.

PN12

Now, there was no consultation with the union official, we did our own investigation with the team leader himself and the site's night shift supervisor, I guess or shift department manager. What we found is that there was no real evidence or witness that the person was threatening someone with a screwdriver. The company claimed there was witnesses that he - that the employee had admitted threatening the team leader. Their evidence they say was the health and safety rep witnessed that he had admitted threatening the team leader. We spoke to the health and safety rep and that wasn't the case.

PN13

They also say the other evidence was that another site delegate within another department was present when they terminated the person and the company says that that shop steward also witnessed the employee agreeing that he was threatening. We spoke to that shop steward also and he says that's not the case either. So we had a person, no consultation with the union, being sacked for carrying a screwdriver and we have great concerns over that. What we don’t want to see is this continuing. We don't want to see other employees being sacked for carrying screwdrivers. This person had a screwdriver, yes he was talking. He's a Spanish bloke, they talk with their hands sometimes, there was never any indication that he was threatening the team leader.

PN14

THE COMMISSIONER: Won't all that be dealt with when the unfair termination application is dealt with?

PN15

MR MAVROMATIS: Yes it will be Commissioner, but what we have concerns is that we won't see another one and another one and another one. We have great perceptions why the company is terminating this employee. We believe there are redundancies coming up, they're trying to save money on redundancies. We also believe they had redundancies - - -

PN16

THE COMMISSIONER: This is nonsense.

PN17

MR MAVROMATIS: No, it's not nonsense. It's absolutely true and - - -

PN18

THE COMMISSIONER: Have you got any evidence to put before the Commission in relation to proposed redundancies?

PN19

MR MAVROMATIS: Have I got any evidence? No, but what I have got - - -

PN20

THE COMMISSIONER: Then all we've got is an anecdotal submission put from the bar table. The situation as I understand is that a member of yours has been terminated.

PN21

MR MAVROMATIS: Correct.

PN22

THE COMMISSIONER: There are allegations in relation to that termination, as I understand my brief reading of the material, is that the man was accused of threatening a superior at the plant. An investigation was conducted, the company decided to terminate him. Whether that's right or not, that's something that - because you've made an application on behalf of the member concerned, that will be dealt with under the unfair termination provisions of the Act.

PN23

MR MAVROMATIS: Correct.

PN24

THE COMMISSIONER: Why should there be a ban on the carrying of screwdrivers by other members of the workforce in those circumstances?

PN25

MR MAVROMATIS: Why? Because what the members and the employees of VisyPak are concerned about, they carry screwdrivers all the time.

PN26

THE COMMISSIONER: Apparently for 60-odd years.

PN27

MR MAVROMATIS: Correct and we don't want to see another person face another termination.

PN28

THE COMMISSIONER: What evidence have we got that that's likely to occur? Has it ever occurred before?

PN29

MR MAVROMATIS: The evidence is in our face.

PN30

THE COMMISSIONER: Well we'll deal with that in due course.

PN31

MR MAVROMATIS: That's the evidence - you asked me what evidence we've got. We've got evidence that a person's been terminated already.

PN32

THE COMMISSIONER: And we'll deal with that.

PN33

MR MAVROMATIS: And we will but what we - - -

PN34

THE COMMISSIONER: What's this got to do with the rest of the workforce?

PN35

MR MAVROMATIS: Because the rest of the workforce carries screwdrivers also.

PN36

THE COMMISSIONER: And?

PN37

MR MAVROMATIS: And we don't want to see another termination.

PN38

THE COMMISSIONER: What evidence have we got that that's likely to occur?

PN39

MR MAVROMATIS: We've got evidence that a person's already been terminated.

PN40

THE COMMISSIONER: And that will be dealt with. What have we got that would indicate that this is some sort of a vendetta that's - they're my words, that the company's embarking upon to terminate the service of their employees? We've got none.

PN41

MR MAVROMATIS: I say we have Commissioner.

PN42

THE COMMISSIONER: Well you point me to it.

PN43

MR MAVROMATIS: Well we've got one already.

PN44

THE COMMISSIONER: Beyond Mr Quiano, we've got no evidence have we?

PN45

MR MAVROMATIS: Beyond it? Correct, not that I'm - - -

PN46

THE COMMISSIONER: Then why is there a need for a ban on the rest of the workforce carrying screwdrivers?

PN47

MR MAVROMATIS: For that exact reason Commissioner.

PN48

THE COMMISSIONER: You can't give me any other reasons?

PN49

MR MAVROMATIS: No Commissioner.

PN50

THE COMMISSIONER: All right, anything else you want to tell me?

PN51

MR MAVROMATIS: There is more I want to tell you. On 30 June, we faced 59 redundancies and the union's position was, you're making too many people redundant. The employees say there is too many people redundant. The reason this person was terminated, and you probably don't want to hear it but, the reason why this person was terminated was because he requested annual leave. That's what actually initiated the person's termination.

PN52

THE COMMISSIONER: That will be all dealt with I presume in the - under the application.

PN53

MR MAVROMATIS: Correct. I just thought I might add that.

PN54

THE COMMISSIONER: Nothing further?

PN55

MR MAVROMATIS: Nothing further.

PN56

THE COMMISSIONER: What the company is seeking here is an undertaking that the bans will be lifted. What's your view about that?

PN57

MR MAVROMATIS: I can't give you an undertaking Commissioner, until I speak to my members.

PN58

THE COMMISSIONER: On what basis were the bans initiated? Was there a meeting of members or whatever?

PN59

MR MAVROMATIS: Yes, there was a meeting of members.

PN60

THE COMMISSIONER: When did that occur?

PN61

MR MAVROMATIS: That occurred yesterday.

PN62

THE COMMISSIONER: The company has also indicated there has been three stop work meetings, is that right?

PN63

MR MAVROMATIS: There has been and part of the enterprise agreement talks about employees having the right to have meetings. We followed the process, giving the company 24 hours notice and the company bluntly refused, we're not going to let you have a meeting with the troops and that's why there were stop work meetings. We say the company breached the EBA.

PN64

THE COMMISSIONER: Okay. Mr Joyce, anything further you want to put?

PN65

MR JOYCE: No Commissioner, we do note that Mr Mavromatis on behalf of the union did confirm that there are bans on site. We hope, and in the past we've been able to have benefit from the Commission going into conference, we'd hope just to take some of the heat out of this if we could and see if we can resolve it.

PN66

THE COMMISSIONER: I think there might be some merit in that. I take it you wouldn't be opposed to us going into conference Mr Mavromatis?

PN67

MR MAVROMATIS: No objection Commissioner.

PN68

THE COMMISSIONER: All right, then we'll adjourn these proceedings into conference.

<SHORT ADJOURNMENT [2.44PM]
<RESUMED [3.01PM]

PN69

THE COMMISSIONER: The matter before the Commission this afternoon arose from an application from VisyPak Operations Pty Ltd in relation to what was alleged to be industrial action that had been taken by its employees, members of the AMWU in relation to a ban on the use of screwdrivers at the site and over an issue that arose following the termination of a member of the AMWU, Mr Pastor Quiano. The union on behalf of Mr Quiano had earlier lodged an application for relief in relation to his termination pursuant to section 170CE of the Act and the Commission as currently constituted have listed a conference in relation to that application for Thursday, 16 February this year.

PN70

Having heard the initial submissions from the parties the Commission adjourned these proceedings into conference and as a result of this conference sought an undertaking from both the company and the union in relation to the future processing of this matter. What was being sought from the company was that while this matter at the very least is being dealt with, that the company would not take any unilateral action against any other employees over the use and carrying of screwdrivers within the plant. On the basis that the company gave that undertaking and the Commission having agreed to re-list the unfair termination application for Friday, 13 January of this year, a month earlier than it had anticipated listing the matter, it was sought that the union would recommend to its members the lifting of those bans on the use of screwdrivers and would continue with their application under section 170CE.

PN71

The union had sought to have further meetings of its members to pass on that recommendation but at the request of the Commission I am suggesting that a copy of the transcript of this part of the proceedings be made available to the two parties to form the basis of a notice which would be displayed at the workplace noticeboards and that the shop stewards and delegates currently at the site would have the opportunity to also go amongst their members to explain what has occurred this afternoon and to indicate that the union was supporting the recommendation.

PN72

What I seek from the parties now is an undertaking from them on the record that in the first case from the company's point of view that they will not take any unilateral action against other employees in relation to the use of screwdrivers.

PN73

MR JOYCE: Commissioner, I confirm on behalf of VisyPak Operations the company will not take any unilateral action against employees for carrying or using screwdrivers at work.

PN74

THE COMMISSIONER: Good, thank you. Now, Mr Mavromatis, on behalf of the union are you able to indicate that the union would be prepared to recommend the lifting of the bans on the use of screwdrivers whilst the matter is being dealt with in the way that I have outlined?

PN75

MR MAVROMATIS: Commissioner, we do recommend to our members at VisyPak Coburg to carry on using the screwdrivers.

PN76

THE COMMISSIONER: In the normal way?

PN77

MR MAVROMATIS: In the normal way.

PN78

THE COMMISSIONER: Good, thank you. And that the current bans would be lifted?

PN79

MR MAVROMATIS: They are the only bans and they will be lifted. The recommendation is that they're lifted, yes.

PN80

THE COMMISSIONER: That they be lifted, all right, thank you. What I will do is I will arrange for the reporting service to have this transcript made available as early as possible and we will communicate that to the two parties as soon as it is available. In the event that there are any further difficulties in relation to this matter, which I don't anticipate would be the case, I will leave it open to either parties to ask for the matter to be re-listed should that be necessary. On that basis we will adjourn these proceedings.

<ADJOURNED INDEFINITELY [3.06PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #J1 COPY OF RESOLUTION PN5