C2007/2650, Transcript of Proceedings [2007] AIRCTrans 217 (2 May 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16794-1

COMMISSIONER LEWIN

C2007/2650

s.170LW -prereform Act - Appl'n for settlement of dispute (certified agreement)
Transport Workers' Union of Australia
and
K & S Integrated Distribution Pty Ltd
(C2007/2650)

MELBOURNE

10.04AM, FRIDAY, 20 APRIL 2007

PN1

MR H SMITH: I seek leave to appear on behalf of the Transport Workers' Union of Australia, together with MR G VICTOR-GORDAN an officer of the Union Assist, MR D NAGTZAAM our member of the union and MR P EARL another official of the union.

PN2

MS K EVANS: I seek leave to appear on behalf of K & S Freighters, together with MR M LANE, operations manager K & S Freighters and MR G TREWIN, our national OH&S manager.

PN3

THE COMMISSIONER: Thank you, Ms Evans. Yes, Mr Smith.

PN4

MR SMITH: If the Commission pleases, this is a fairly unique matter, certainly for me. It arises out of what is fundamentally a WorkCover dispute. It's now moved beyond that to where our member, having been cleared for duties, is now being denied work by the company. Look, what I would like to do is give a little bit of history of what I'm aware of and then Kay will probably want to respond; but then it probably would be appropriate to go into conference.

PN5

Our member was injured in March of 2006 and that became a long-term matter; was operated on around the middle of last year but early this year a medical assessment was done of him on the basis of the insurance company, I would have thought. What it basically said that they believed he was now fit for duties and that he should be encouraged to return to work. It would have been on that basis, I believe, that on 12 February – and I will give you a copy of this, Commissioner – is that under the Workplace – sorry, wrong Act – under the Accident and Compensation Act the company sent our member a notice saying that they were going to terminate payments of – weekly payments and medical ......

EXHIBIT #A1 TERMINATION OF EMPLOYMENT NOTICE

PN6

MR SMITH: Now prior to that coming into effect - that was never challenged and prior to it coming into effect David saw his medical practitioner and on Tuesday 6 March of this year he was cleared to return to work with no encumbrances on that. The only thing that the certificate says is that he should continue physiotherapy, and again I will give you a copy of that, Commissioner.

EXHIBIT #A2 MEDICAL CERTIFICATE DATED 06/03/2007

PN7

MR SMITH: Even though he had a clearance it's my understanding that it was indicated to David that no immediate duties would be available and on that basis he took some accrued annual leave. But on 8 March Mr Grant Trewin sent him a copy of this letter, and again I will give that to the Commission. This is an interesting letter, if you can read it. It says:

PN8

The company is required by the Occupational Health & Safety Act 2004 to ensure that you are fit and safe to perform all aspects of all duties provided to you without risk of you suffering a further injury. Therefore we are seeking from you further information relevant to your recent medical certificates to clarify your medical condition and work capacity.

PN9

As you can see on that previously supplied certificate there is no restriction.

PN10

THE COMMISSIONER: Just out of interest, what was the period of annual leave?

PN11

MR SMITH: At that stage a couple of weeks, he put in for.

PN12

THE COMMISSIONER: So when was that period?

PN13

MR SMITH: Well, it would have run from the 6th or the 7th and he would eventually - - -

PN14

THE COMMISSIONER: Of March?

PN15

MR SMITH: Of March? Yes, sorry. Of this year.

PN16

THE COMMISSIONER: Yes. To?

PN17

MR SMITH: The 27th? No, 26 March he took that leave because he then, on my advice - when the matter seemed not to be moving to any resolution I advised him to write to Mr Grant Trewin saying that he would present for work at 5.30 on 27 March and I will supply the Commission - - -

PN18

THE COMMISSIONER: So that occurred, did it?

PN19

MR SMITH: Well, he issued the – sent the fax which was on a Friday, I think, and that he(sic) would have been starting on the following Tuesday. No response was received in relation to that.

PN20

THE COMMISSIONER: Did he present for work?

PN21

MR SMITH: He presented for work and was told by the local manager – again, I'm not present so I'm relying on that information – that he was not rostered on for duties on that day.

PN22

THE COMMISSIONER: Yes.

PN23

MR SMITH: Since Mr - - -

PN24

THE COMMISSIONER: Sorry, could I just ask you a question then?

PN25

MR SMITH: Yes.

PN26

THE COMMISSIONER: Since 27 March has your member been paid?

PN27

MR SMITH: He has accessed his own annual leave entitlements.

PN28

THE COMMISSIONER: So he has not been paid wages?

PN29

MR SMITH: Not by the company. No. I would have got to that in due course, Commissioner.

PN30

THE COMMISSIONER: Right. Sorry, just bear with me for a moment.

EXHIBIT #A3 LETTER FROM MR GRANT TREWIN TO
MR DAVID NAGTZAAM DATED 08/03/2007

PN31

MR SMITH: Some time during the week of the 20th I spoke to Mr Grant Trewin on the basis of that letter that I have just passed up under his name, and asked specifically what provision of the Act he was relying on, to prevent David from returning to work. He could not provide me with that information so – and I also challenged that they could even use that Act to do that because since Mr Nagtzaam injured himself, this company are now covered by the Federal Comcare legislation, although David's claim continues to be dealt with under the Victorian system because he was injured at that time.

PN32

On the 28th – and I pass up a copy of this - - -

EXHIBIT #A4 LETTER TO MR TREWIN DATED 23/03/2007

PN33

MR SMITH: On 28 March the Union wrote to Grant Trewin, pretty much sort of asking him again to identify the provisions of the Act that relies on. The response to that, Commissioner, has been deafening. No response was received at all and as Mr - - -

EXHIBIT #A5 LETTER DATED 28/03/2007

PN34

MR SMITH: As Mr Trewin is the national OH&S and E manager, sorry; a fairly senior officer of the company, I found that pretty amazing but so be it. And look, I will just report to this. I'm not going to table anything. Also on 28 March, Union Assist, which is the organisation we use for injured workers where they have disputes with their employer, lodged a formal complaint with the Victorian WorkCover authority.

PN35

I have already made the point to you that the company is now covered by the Federal legislation, Accident Compensation and Rehabilitation Act I think it's called. Our member now only has two and a half to three weeks of annual leave credits available so he will get to a stage where he has no form of income whatsoever. It is – and I don't pretend to be an expert – it is my understanding that under the Victorian legislation if a worker is able to return to work, his full duties, within a 12-month period of being injured, then he has to be offered the same or substantially similar work. They are not terminating him, they are just refusing to provide work.

PN36

Although the company are in breach of the Act, there is no ability – it's a Victorian Act for WorkCover – there isn't – there's provisions to fine them for breaching it; there's no provisions for them to order the company to comply. So that's part of the reason we are in a dilemma and we end up being here today. David did some light duties before he had operation(sic), which was around the middle of last year, but none have been offered or have been available since then. I understand some were talked about after the operation, but it would have engaged – compelled him to travel from Cranbourne out to Trebonina, a place I understand you are well and truly aware of, Commissioner.

PN37

It's our view that if we were taking action of a similar kind to this, that it would be unprotected action because they are preventing him from working.

PN38

THE COMMISSIONER: I see. You say it is a lock-out.

PN39

MR SMITH: No provision in the award to stand down and also I go to the agreement at 11D Suspension and Investigation, the only ability under the agreement, really relates to disciplinary action. Again, we are not talking that here and clearly – and I'm prepared to go into more argument later on if that's of interest - - -

PN40

THE COMMISSIONER: Mr Smith, if I could just interrupt you. What are you seeking?

PN41

MR SMITH: Recommendation, an order or just plain old cajoling of the company to comply with its obligations.

PN42

THE COMMISSIONER: We do not do any cajoling here. We have necessary statutory powers to deal with these matters. But to what effect? What exercise of power do you seek, to what effect?

PN43

MR SMITH: Well, I would be seeking at the end of the day, if we can't resolve it, that in accordance with the settlements of disputes that the company ought
to - - -

PN44

THE COMMISSIONER: Be required to what?

PN45

MR SMITH: Ought to provide the employee with work. They can't continue to leave him in this hiatus where he is at the moment.

PN46

THE COMMISSIONER: Right. The reason I ask that question is that I suspect that the way in which this matter arises under the agreement, subject to what I hear from the company in a moment, is actually more – is probably along a different nexus than the one that you have been pursuing in relation to your submissions. I understand all the facts are relevant to this consideration but as to any power that exists here, I suspect that it operates under clause 5 of the agreement, pursuant to clause 20; and it relates to the incorporation of the terms of the 1998 and 2004 awards as terms of the agreement and that that relates to the payment of wages.

PN47

MR SMITH: And that there is no stand-down provisions in either of those awards and the one that's applicable - - -

PN48

THE COMMISSIONER: All right. Well if you just be a little patient I will explain to you - - -

PN49

MR SMITH: Okay.

PN50

THE COMMISSIONER: - - - why I think that's the jurisdictional nexus in relation to this matter. This matter can only be dealt with by the Commission if there is a dispute over the application of a term of the agreement. The Commission has no general jurisdiction to deal with all these issues of occupational health and safety, WorkCover, anything of that nature. The whole of the dispute is not necessarily capable of a decision which is binding upon the parties, by virtue of the operation of the agreement, and in particular clause 20. Only a dispute over the application of the terms of the agreement is capable of being dealt with by the Commission.

PN51

MR SMITH: I was aware of that. But you needed to have some - - -

PN52

THE COMMISSIONER: All right. It is necessary for us to actually – and I want the company to have the benefit of hearing this before they reply to you because I think it will provide an expeditious approach to what solutions, if any, are available, having regard to whatever the facts are which, as I say, I have not heard the company on yet. But it seems to me that unless you can point to some particular term of the agreement other than the requirement the employer pay wages, by virtue of the operation of the incorporation of the relevant awards, that is the issue that is capable of being dealt with. That is to say, I will be interested to hear from the company as the basis upon which it says not so much whether it is entitled to decline to provide duties for your member, but rather on what basis it is not required to pay him. I think that is the essence of the matter that is capable of being dealt with under the agreement.

PN53

As I say, unless you can point me to some term of the agreement, the application of which is in dispute - - -

PN54

MR SMITH: No, I understand.

PN55

THE COMMISSIONER: You agree with me?

PN56

MR SMITH: We would argue that they are not complying with the agreement. So I accept the - - -

PN57

THE COMMISSIONER: What I am saying to you is, prima facie, it would seem to me that there is an obligation to pay your member wages. I am not going to go into the merits of WorkCover, occupational health and safety, unless there is something in the agreement that is relevant to the facts. But what is obviously relevant to the facts is the question of whether or not your member is entitled to be paid for the time that the employer says that he need not attend to perform his duties.

PN58

MR SMITH: And if that could not be resolved, we would be relying on the award and the agreement - - -

PN59

THE COMMISSIONER: Well, you rely on the agreement because the agreement takes the place of the award but it incorporates its terms. That is where I see any potential section 170LW jurisdiction arising.

PN60

MR SMITH: And if you go back to our original notification it cites a number of provisions of the agreement.

PN61

THE COMMISSIONER: All right. I am really inviting you now to, in addition to that, if you think there is a term of the agreement the application of which is in dispute, to identify that for my purposes. Because the first step that the Commission must take in relation to a notification of this kind is to characterise the dispute. That is a well settled procedural requirement now. It is actually jurisdictional in nature. There is no jurisdiction unless there is a dispute over the application or the term of the agreement. So in order to find out what the scope of the agreement is, you have to identify the term of the agreement that is said to be – the application of which is said to be in dispute. That is the very first step in this 170LW process.

PN62

MR SMITH: Yes.

PN63

THE COMMISSIONER: I have said well look, it seems to me that there is probably a dispute over the application or requirement to pay wages, because the employer is not paying wages according to what I have been told so far.

PN64

MR SMITH: And I did go and touch on - - -

PN65

THE COMMISSIONER: Which clauses do you wish to take me to?

PN66

MR SMITH: Well, 11D only provides for suspension, which is effectively what they - - -

PN67

THE COMMISSIONER: There is no suspension.

PN68

MR SMITH: But it relates to disciplinary and this clearly isn't disciplinary.

PN69

THE COMMISSIONER: If the company contends that there is a suspension, we will deal with that at that point.

PN70

MR SMITH: Back to the point that you just made, scope and application.

PN71

THE COMMISSIONER: All right. Well let us - - -

PN72

MR SMITH: It's the Transport Workers Award 1998 that applies in particular to this member, and that that award does not provide for stand-down provision. He has been capable and able of being able to return to work since the 6th, then he put holidays - - -

PN73

THE COMMISSIONER: Yes, there is no need to argue towards them. I am really just asking you to identify the clause for me to read the relevant provision and consider it, having regard to the facts.

PN74

MR SMITH: Well, it probably fundamentally goes back to five with scope and the application and the fact that our member has presented for work, capable of working, and the company are refusing to pay. I don't know if that's answered- - -

PN75

THE COMMISSIONER: I think rates of pay is probably a relevant provision.

PN76

MR SMITH: Of the agreement?

PN77

THE COMMISSIONER: Yes. Well it seems to me that it is inescapable, having regard to what you raise, that clause 12 is a relevant provision. There is another one too and that is payment of wages which is clause 11N, page 6 of the document that I am looking at, although I am not quite sure of the form in which the agreement has been published.

PN78

MR SMITH: The copy I've got is the same.

PN79

THE COMMISSIONER: All right.

PN80

MR SMITH: The same page.

PN81

THE COMMISSIONER: Those are the three that I identify from the facts that you have mentioned to me, and of course clause 20.

PN82

MR SMITH: Well we wouldn't be here if we couldn't use that clause, sir, and certainly my reading of it would give the Commission the power to resolve this dispute.

PN83

THE COMMISSIONER: Yes, all right. I think it might be convenient if I was
to - - -

PN84

MR SMITH: Well I had almost reached the conclusion of the matters that I wanted to put on record at this stage.

PN85

THE COMMISSIONER: All right. Is there anything else?

PN86

MR SMITH: Not at this stage. No.

PN87

THE COMMISSIONER: Very well. Thank you. Ms Evans.

PN88

MS EVANS: Thank you, Commissioner. I understand the reference to the breaches of the clauses. If I just provide you with a brief response.

PN89

THE COMMISSIONER: It is a question about – strictly speaking it is a question of the application of them. I am not suggesting there is a breach.

PN90

MS EVANS: Okay. The application.

PN91

THE COMMISSIONER: We just have to identify what the point of departure in the enquiry is first; what parts of the agreement are under consideration.

PN92

MS EVANS: Okay. Would you like me to provide a response to - - -

PN93

THE COMMISSIONER: I think it is up to you to address whatever you like, at this stage.

PN94

MS EVANS: Okay. I will just provide a brief response. K & S is a large transport company, major cities within the nation. The operations that we are talking about is the Coca Cola operations and that's based in the eastern suburbs. The OH&S component of it: we have a large OH&S team. We have – particularly over the last 18 months we have increased OH&S resources on a national basis. We have run out behavioural training that has focussed on personal responsibility and at-risk behaviour.

PN95

The coke operations that Mr Lane manages has approximately 35 employees. David has been with that operation for about two and a half years. He has lodged a WorkCover claim in March last year and has been on restricted duties or unfit for duties for a period of approximately 12 months. Within that rehabilitation process, that has been challenged through the VWA. That has been investigated and has found to be appropriately managed within the rehabilitation forum.
The company has offered him full return to work programmes in accordance with his restrictions and they have been unsuccessful within that period of time. During the period of his rehabilitation he has expressed a desire for a specific run within the operations. That has been assessed and had been deemed not suitable to be offered.

PN96

The point that we got to within the conciliation – there was an independent assessor that deemed David to be fit. It was - his payments were terminated and at that time he was continuing to provide GP – his own GP's certificates that had him as unfit. That determination from the insurance company went to conciliation where the point was discussed about suitable duties, about the preference for suitable duties. When the company was unable to provide them they were advised that at that point he would receive – obtain a fit for full certificate and that was produced the next day, in contradiction of a previous certificate that had been issued.

PN97

The company effectively considered all alternatives and the point where we are at was the sudden change of certificate after being on restricted duties or unfit duties for a period of 12 months, that we were concerned about his health and safety, put him in a full unrestricted role for that period of time and subsequently took advice and the advice was to obtain more information from his medical provider; and that is the point that we were at.

PN98

In summary, we are totally committed to health and safety and see that putting him in a role after 12 months of being totally off as unsatisfactory until we obtain more advice; and that's where David was notified of that and we are awaiting that advice from his medical provider.

PN99

THE COMMISSIONER: What about the question of wages?

PN100

MS EVANS: In terms of wages - - -

PN101

THE COMMISSIONER: How do you say you are not liable to continue to pay wages?

PN102

MS EVANS: He has not performed the duties within the agreement.

PN103

THE COMMISSIONER: I thin it is a legal question, with all due respect. There is no legal basis for your non-payment of wages. I suggest you consult your legal advisers. They will tell you that unequivocally. I mean, we can have a seminar on employment and labour law if you wish.

PN104

MS EVANS: No, I appreciate that.

PN105

THE COMMISSIONER: Let us not waste our breath on that.

PN106

MS EVANS: Okay.

PN107

THE COMMISSIONER: You seek your own legal advice but I am absolutely confident you will find that you are obliged to pay the wages. If someone is ready, willing and able to work and he has evidence that he is able to work, then an employer is required to pay the wages; required to do so under common law in accordance with the contract of employment; required to do so under the terms of this agreement by virtue of the incorporation into the agreement of the awards but also, in my view, I would think that clause 12 also creates that obligation.

PN108

There might be a bit of a quibble about some of the words in clause 12. I mean, it is not necessary because it is a supervening provision over and above the award but I note the words "to be performed" and not "performed". Do you follow what I mean by that?

PN109

MS EVANS: I do.

PN110

THE COMMISSIONER: Yes. My suggestion is that if you are paying the wages – and I think, with all due respect, you are going to have to re-credit your employee's annual leave because I think you are obliged to pay wages, rather than have that person take their leave; from the 27th onward when they presented ready, willing and able to work and you had no basis in fact to believe that they were not ready, willing and able to work. You were simply enquiring into that for your better satisfaction that that was true, but all of the evidence that you had been presented with from the relevant parties, namely medical practitioners, was that your employee was ready, willing and able to work. At that point your legal obligation is either to engage the person on the duties or alternatively to say, "It's not necessary for you to perform the duties. You may stay at home". But if the person stays at home you are still obliged to pay them because that is your discretionary decision as to what they will be doing with the time they have contracted to provide to you with their service.

PN111

So I think that is the situation and frankly that is, I think, all I can do as a matter of jurisdiction. I do not have any jurisdiction under this agreement to settle these issues about whether or not your employee is actually fit for work or not. The agreement does not deal with that subject. The Commission therefore has no jurisdiction. So I think we can save ourselves a lot of time. You take what I say on advice.

PN112

Mr Smith, do you seek any other outcome from this?

PN113

MR SMITH: Sorry? Other than have our member referred to work and be paid?

PN114

THE COMMISSIONER: I do not see anything in the agreement that actually prevents the employer from saying, "Well, you don't have to work today". But that does not relieve them of the obligation to pay the employee who they have instructed not to perform any duties that day.

PN115

MR SMITH: It's highly unusual though, Commissioner, especially - - -

PN116

THE COMMISSIONER: It is not all that unusual. There are circumstances where employers will not require people to work for various reasons. They might want to do something else no the premises that day. That does not mean that all of the people that would normally be working there do not get paid.

PN117

MR SMITH: For this period of time though, it's highly unusual.

PN118

THE COMMISSIONER: Well it may be, but the question is jurisdictional. What jurisdiction does the Commission have to deal with whether or not your member should be provided with duties. How does that arise under the agreement?

PN119

MR SMITH: Well, it goes back probably that they are obliged to provide him with payment.

PN120

THE COMMISSIONER: I have already - - -

PN121

MR SMITH: Certainly the Commission don't have the power to direct that he carry out a particular duty.

PN122

THE COMMISSIONER: If you can point to a term of the agreement which indicates that there is an agreement that an employee in certain circumstances, such as this, would be provide with work then that would be a term of the agreement which would be in dispute in these circumstances.

PN123

MR SMITH: I probably can't do that.

PN124

THE COMMISSIONER: I do not think you can, with all due respect, and there is no point in this Commission exceeding its jurisdiction, unless invited by the parties into some sort of private conciliation. But that is a different thing to exercising its statutory powers in relation to the settlement of disputes under the agreement.

PN125

The Commission is empowered by the Act, by the preservation of section 170LW, to do what an agreement provides for in its settlement of disputes provisions about the application of the terms of the agreement. Cannot do any more.

PN126

MR SMITH: The only thing we will be seeking is if clearly it is within the power of the Commission to direct the company to pay in accordance with the agreement. Then - - -

PN127

THE COMMISSIONER: It is within the Commission's power.

PN128

MR SMITH: - - - anything else I wanted to add. We would have then, if that was the case – you need to establish that in the first instance – we would have then been seeking a re-credit of that annual leave that David - - -

PN129

THE COMMISSIONER: I have already indicated I think the company ought to just confirm what I am just saying to you.

PN130

MS EVANS: Yes.

PN131

THE COMMISSIONER: For your own satisfaction, you go ahead. If you have got a different point of view I will hear you.

PN132

MS EVANS: No. No, I understand.

PN133

THE COMMISSIONER: In due course we will list the matter and I will hear you, but what I am saying to you is that I think your legal obligations, without any further action by the Commission, under your employee's common law contract of employment and to the extent that it is governed by the agreement which incorporates an award, you are obliged to pay the employee and the employee's annual leave should be credited. Now that is an informal statement by me. It is not a decision for the purposes of the agreement. The reason for the statement is to enable you to confirm whether or not you accept that or otherwise; to do so by consulting your legal advisers if necessary. It is up to you.

PN134

If you do not accept it and you think there are reasons why those conclusions, which I described as prima facie conclusions, are incorrect I will hear you on that before making any decisions on this matter, as provided for by the terms of eth agreement.

PN135

MS EVANS: No. I understand and accept.

PN136

THE COMMISSIONER: I do not think we ought to waste our time- - -

PN137

MS EVANS: No.

PN138

THE COMMISSIONER: - - - rummaging around in other issues. That is the extent of the Commission's jurisdiction. That is my prima facie view. If you have a different view I will hear you on it. If you, on advice, agree, I think obviously you are going to have to carry out your legal obligations. Otherwise you could well be found to be in breach of the award, in breach of the agreement et cetera and open, not only o an award in favour of your employee, but also a penalty from the Court. All right? So could you let me know by, say, Tuesday of next week whether you intend to follow that course of action?

PN139

MS EVANS: Yes, I will.

PN140

THE COMMISSIONER: If the parties quite separately from the operation of the terms of the agreement want a conciliation in relation to what to do about the situation concerning the injury, the return to work, the appropriate duties, any other things to do with that, I will be happy to make myself available for that purpose. But it will be a conciliation without any powers.

PN141

The question of payment of wages is within power, in my view. It is a matter that is in dispute, the question of the annual leave entitlement is within power because it is a matter which is in dispute and is subject to the terms of the agreement by virtue of the incorporation of the terms of the award. The questions of injury, WorkCover, duties to be performed in light of the occupational health and safety issues, it has not been established to my satisfaction that those disputes are disputes about the application of the term of the agreement. If it is not, we will hear Ms Evans as to why there is a contrary view from the company in due course.

PN142

So I will look to some advice from the company by close of business on Tuesday and depending upon that advice this matter will either be re-listed or it will be resolved along the lines that I have indicated in the statement that I have made. Thank you.

<ADJOURNED ACCORDINGLY [10.41AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 TERMINATION OF EMPLOYMENT NOTICE PN5
EXHIBIT #A2 MEDICAL CERTIFICATE DATED 06/03/2007 PN6
EXHIBIT #A3 LETTER FROM MR GRANT TREWIN TO MR DAVID NAGTZAAM DATED 08/03/2007 PN30
EXHIBIT #A4 LETTER TO MR TREWIN DATED 23/03/2007 PN32
EXHIBIT #A5 LETTER DATED 28/03/2007 PN33