C2006/2087, Transcript of Proceedings [2006] AIRCTrans 995 (22 August 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15530-1

SENIOR DEPUTY PRESIDENT DRAKE

C2006/2087

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
AND
AUSTRALIA POST
s.170LW - Application for settlement of dispute (certification of agreement)
(C2006/2087)

SYDNEY

11.22AM, TUESDAY, 08 AUGUST 2006

Continued from 3/4/2006

Hearing continuing

PN220

THE SENIOR DEPUTY PRESIDENT: Mr Dwyer.

PN221

MR DWYER: Yes, I don't - - -

PN222

THE SENIOR DEPUTY PRESIDENT: Are you still for the applicant?

PN223

MR DWYER: Yes I am. I don't think there's a change in the appearances.

PN224

THE SENIOR DEPUTY PRESIDENT: Ms Perigo?

PN225

MS PERIGO: Yes your Honour and with me is MR SKEEN.

PN226

THE SENIOR DEPUTY PRESIDENT: Mr?

PN227

MR SKEEN: Skeen? S-k-e-e-n, your Honour.

PN228

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Rykmans enquiry proceeded and the outcome has been notified to me that he was – now I can't find it. What was the outcome, Ms Perigo?

PN229

MS PERIGO: Your Honour the outcome was Mr Rykmans received a warning counselling. There were a number of allegations, not all those allegations were proven.

PN230

THE SENIOR DEPUTY PRESIDENT: So in what issue was he given a warning counselling?

PN231

MS PERIGO: So your Honour if I can take you to - excuse me just a minute your Honour. In relation to the four allegations, the first breach was not proven. The second breach was proven in relation to two parts of the agreement that was 6.7(b) and 6.9 and the third and fourth breaches were proven.

PN232

THE SENIOR DEPUTY PRESIDENT: 6.7?

PN233

MS PERIGO: (b) and 6.9 and the third and fourth breaches were proven.

PN234

THE SENIOR DEPUTY PRESIDENT: Okay and has Mr Rykman appealed that outcome?

PN235

MS PERIGO: Mr Rykman sat down with his manager, the counselling took place. The original appeal mechanism for …..

PN236

THE SENIOR DEPUTY PRESIDENT: Thank you. What do you say, Mr Dwyer?

PN237

MR DWYER: Yes your Honour. We've brought it here firstly, it's a warning counselling. To many people this is not a big issue, however to a manager this is quite an important issue to have on the file. So we take this quite seriously, what's occurred. As you've heard there's no appeal against this. We do wish to have this matter brought on. We believe Mr Rykmans hasn't breached any part of the agreement or any part of the code of conduct or the other relevant documents. There's a, you've heard a number of things as we've gone on with this matter.

PN238

It started some time ago. You're aware of the issue of representation. When it came to representation on this of course in those circumstances, our Mr Metcher did attend on this occasion. He was told that he would only be an observer and was not able to intervene. There was a request for documentation so we could understand further what the matter was about. That was not provided to Mr Rykmans or to Mr Metcher even though it had been offered in writing at an earlier stage. The hearing itself didn't proceed - - -

PN239

THE SENIOR DEPUTY PRESIDENT: I'm sorry. Even though it had been offered in writing?

PN240

MR DWYER: Yes.

PN241

THE SENIOR DEPUTY PRESIDENT: Or requested in writing?

PN242

MR DWYER: Offered.

PN243

THE SENIOR DEPUTY PRESIDENT: So the other side had, the Australia Post person had offered to provide that information earlier?

PN244

MR DWYER: We have a letter where it was offered.

PN245

THE SENIOR DEPUTY PRESIDENT: But you didn't accept that offer? How come you didn't have it then - - -

PN246

MR DWYER: We requested the document.

PN247

THE SENIOR DEPUTY PRESIDENT: Yes.

PN248

MR DWYER: And that wasn't provided.

PN249

THE SENIOR DEPUTY PRESIDENT: And it wasn't?

PN250

MR DWYER: Wasn't.

PN251

THE SENIOR DEPUTY PRESIDENT: All right.

PN252

MR DWYER: The hearing, if I could call it that, didn't really proceed beyond the opening stage where the documentation wasn't provided. Mr Metcher wasn't allowed to represent Mr Rykmans in any way. It was adjourned at that stage and Australia Post went off and did whatever they wanted to do. Another issue in there is the actual, the charges. You will recall it started at fairly vague charges, you gave directions that they make them more specific and they did make them more specific.

PN253

We then had this issue that, they were basically asking him to do something which was unlawful. That came almost a hearing, recall came to the hearing day and then Australia Post conceded that it would have been unlawful for Mr Rykmans to do, what they'd been asking him to do. Beyond that the charges never got any more specific, it was just left that way and it's still left as just some sort of very vague accusation that it's a breach of certain parts of the EBA.

PN254

THE SENIOR DEPUTY PRESIDENT: And what is your allegation? That the enquiry process was not properly applied, is that what you're saying?

PN255

MR DWYER: Never properly applied. Never fair.

PN256

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. So you want this matter set down for hearing?

PN257

MR DWYER: Yes we do.

PN258

THE SENIOR DEPUTY PRESIDENT: Right.

PN259

MS PERIGO: Your Honour, it's our position that there will be some jurisdictional issues that will need to be raised if the matter is set down for hearing and we seek that those jurisdictional issues are heard in the first instance.

PN260

THE SENIOR DEPUTY PRESIDENT: All right how about 5 September?

PN261

MS PERIGO: Thank you, your Honour.

PN262

THE SENIOR DEPUTY PRESIDENT: We're already here. I'll hear you on the jurisdictional matters. Yes?

PN263

MR DWYER: Your Honour, I have a – it may not go but I have three days set down for an unfair dismissal and - - -

PN264

THE SENIOR DEPUTY PRESIDENT: All right. I only picked 5 September because I thought you would be here for the other matter.

PN265

MR DWYER: I would be but it was only mentioned - - -

PN266

THE SENIOR DEPUTY PRESIDENT: All right well give me your first available day after 4 September, Mr Dwyer, and we'll check that with Ms Perigo.

PN267

MR DWYER: That would be 7 September, your Honour. That's the first available date after the third, set a date for three days. Four, five and six for unfair dismissal.

PN268

THE SENIOR DEPUTY PRESIDENT: Okay. It's a bit awkward for me. I've got an afternoon matter and I can't tell how long this matter might take. What about - - -

PN269

MR DWYER: Your Honour, would you be issuing directions?

PN270

THE SENIOR DEPUTY PRESIDENT: I think that you can place in writing what the jurisdictional objections are before the hearing so you know what they are but other than that I don't see any need to.

PN271

MR DWYER: Just pardon, another question, I've just done one of these matters in Melbourne. Do you see us having the onus and going first?

PN272

THE SENIOR DEPUTY PRESIDENT: No. He who raises the jurisdictional objection gets to outline it first in my hearing.

PN273

MR DWYER: Yes. I had that reversed on me in Melbourne in a matter. I just wanted to clarify it.

PN274

THE SENIOR DEPUTY PRESIDENT: Well they're funny south of the border. How about the 19th?

PN275

MR DWYER: 19th?

PN276

THE SENIOR DEPUTY PRESIDENT: What about you Ms Perigo?

PN277

MS PERIGO: Your Honour, the 19th is suitable.

PN278

THE SENIOR DEPUTY PRESIDENT: Could you give an outline of what your jurisdictional objection is by say the end of business 8 September?

PN279

MS PERIGO: 8 September?

PN280

THE SENIOR DEPUTY PRESIDENT: I don't think you need to write up a legal submission, just a general outline would do and then I'll hear it on the jurisdictional objection on the 19th.

PN281

MS PERIGO: Your Honour, can I ask that the union respond to our
outline - - -

PN282

THE SENIOR DEPUTY PRESIDENT: By the 15th.

PN283

MS PERIGO: …..

PN284

MR DWYER: Which date?

PN285

THE SENIOR DEPUTY PRESIDENT: 15th?

PN286

MR DWYER: 15th.

PN287

THE SENIOR DEPUTY PRESIDENT: So the 8th then the 15th.

PN288

MS PERIGO: Your Honour, if I can clarify the hearing on the - - -

PN289

THE SENIOR DEPUTY PRESIDENT: Only jurisdiction.

PN290

MS PERIGO: Only jurisdiction, thank you. And I just want to respond to one comment that Mr Dwyer made. He said that Post conceded that it would have been unlawful to do what they asked Mr Rykman to do, well that's not the case. At the last hearing Post conceded that we don't have the right to stand down fixed term employment, and that is a separate matter. Thank you, your Honour.

PN291

THE SENIOR DEPUTY PRESIDENT: Do you want a copy of the transcript for today?

PN292

MS PERIGO: Thank you, your Honour.

PN293

THE SENIOR DEPUTY PRESIDENT: In both matters?

PN294

MS PERIGO: Yes your Honour.

PN295

THE SENIOR DEPUTY PRESIDENT: I'll order transcript in both matters. Thank you.

<ADJOURNED UNTIL FRIDAY 8 SEPTEMBER 2006 [11.31AM]