C2007/2836, Transcript of Proceedings [2007] AIRCTrans 347 (17 July 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17103-2

COMMISSIONER GAY

C2007/2836

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
The Australian Workers’ Union
and
Bluescope Steel
(C2007/2836)

MELBOURNE

2.18PM, MONDAY, 02 JULY 2007

PN1

MR L BUNTMAN: If it pleases the Commission, I appear for the Australian Workers Union. I am joined by MR R RUDD from the Australian Workers Union and MR K WARREN, employed by Bluescope.

PN2

MR G PARMENTER: If it pleases the Commission, I appear on behalf of Bluescope Steel, together with MR J MCCALLUM and MS G KIAMOS.

PN3

THE COMMISSIONER: All right. Thank for this file, Mr Buntman. What do have to say?

PN4

MR BUNTMAN: Thank you, Commissioner. I trust you have the original documents which I filed the dispute notification, which outlined the key causes of the certified agreement. The issue really here revolves around the employee, Mr Warren, who has been employed by Bluescope for a number of years. He’s been working since May - - -

PN5

THE COMMISSIONER: You should stand Mr Buntman, we’re on the record now.

PN6

MR BUNTMAN: Yes, thank you. Apologies.

PN7

THE COMMISSIONER: Not at all.

PN8

MR BUNTMAN: Mr Warren has been employed with Bluescope since May 2001 as a warehouse operator and crane driver and is always the designated occupational health and safety member of his work crew which is work crew D. On 28 March 2007 there was an incident in the workplace where Mr Warren believed that another employee had engaged in an unsafe work practice. He reported that incident and as a result, believed he was a victim of bullying and harassment.

PN9

THE COMMISSIONER: As a consequence of that - a consequence of reporting, Mr Warren was the victim of bullying and harassment?

PN10

MR BUNTMAN: That’s correct.

PN11

THE COMMISSIONER: Yes, I see.

PN12

MR BUNTMAN: Now, those issues are currently being resolved privately between the supervisor and employee and don’t really pertain to the particular issue here but it’s necessary to mention it just for brief background purposes. But as a result of that harassment, Mr Warren became quite ill in terms of suffering anxiety in the workplace and was unable to attend work. Since 13 April to 4 July he has medical and WorkCover capacity certificates to verify those absences which are a result of work anxiety and bullying.

PN13

THE COMMISSIONER: The certificates attest to that, do they?

PN14

MR BUNTMAN: They do, Commissioner.

PN15

THE COMMISSIONER: So they’re not - most certificates that don’t have much to say. They say something like you’ve just said.

PN16

MR BUNTMAN: Yes. I have the exact wording. They predominantly say “work anxiety as a result of victimisation over raising a safety issue at work”. Some say, “Ken will be unable to return to work until the issue is resolved without Ken being disadvantaged or penalised”. And the most recent ones say that Ken - “Mr Warren is fit to return to work but not under his supervisor who he believes has targeted him”. That’s the current situation as to his absence.

PN17

THE COMMISSIONER: Mr Parmenter has a copy of those, I take it?

PN18

MR BUNTMAN: Yes.

PN19

MR PARMENTER: Yes.

PN20

THE COMMISSIONER: I would like to see that, Mr Buntman.

PN21

MR BUNTMAN: No problem.

PN22

THE COMMISSIONER: So I can get a feel for what the words - how they fall.

PN23

MR BUNTMAN: I’ll provide you with the most recent one. This the most recent medical certificate, if it pleases the Commission.

PN24

THE COMMISSIONER: You may not want to tender this, Mr Buntman. I’ll just have a look at it and perhaps we’ll see what happens to it in due course. All right. The one you have given me is quasi-passive. It reads:

PN25

Mr Warren is fit to return to work for normal duties but not under -

PN26

And it names, I take it, a fellow employee.

PN27

MR BUNTMAN: That’s correct.

PN28

THE COMMISSIONER: All right. But there are others that draw other conclusions, it seems, that go into the diagnosis?

PN29

MR BUNTMAN: That’s correct. I have certificate of capacity documents from Victorian WorkCover Authority in the prescribed form which do go onto state work anxiety as a result of victimisation which I can hand to you.

PN30

THE COMMISSIONER: But they’re statements of Mr Warren, are they, not from a practitioner?

PN31

MR BUNTMAN: No, these are the medical practitioner’s form signed by the medical practitioner.

PN32

THE COMMISSIONER: I might just have a look at them. Have you seen that, Mr Parmenter? I’ll give these back to you in a minute, Mr Buntman.

PN33

MR BUNTMAN: Thank you.

PN34

THE COMMISSIONER: Yes. Mr Buntman, just so I understand how you say these should be read, I’ll give one of these - it might be a bit easier if I give one of the two back to you. I’ll hold this up, Mr Parmenter, you must have yours somewhere - I hope you have. You’ll see patient’s full name is Kenneth Warren, patient’s address, and it sets it out:

PN35

Description of injury disease.

PN36

And then there’s a box which is one line high. I think yours is drawn the same way as this, Mr Buntman:

PN37

Work anxiety as a result of victimisation over raising a safety issue at work.

PN38

Then on the left-hand side, alongside a larger box, “Diagnosis”, and then the words, “Work anxiety”. Is the diagnosis - those two words along - in the box alongside or do you say the description is the doctor’s description, not just what the doctor was told?

PN39

MR BUNTMAN: We would say that the description is quite possibly what
Mr Warren and the diagnosis is the doctor’s opinion.

PN40

THE COMMISSIONER: All right. Thank you. Right, Mr Buntman, off we go.

PN41

MR BUNTMAN: The purpose of those documents is merely to indicate that, at this point, Mr Warren has been absent from work and he provides the relevant documentation for his absence for that point in time. The key issue revolves around clause 15 of the certified agreement which is titled discretionary sick leave. Now, it’s a lengthy clause. I just wanted to run through it. It’s at annexure AW2 of the dispute notification.

PN42

THE COMMISSIONER: Yes, thank you for that. I have it here.

PN43

MR BUNTMAN: If I could just draw you to a few of those pauses, just for the purpose of outlining out position. 15.1 says that:

PN44

The discretionary sick leave is insurance which aims to protect employees unable to attend work because of personal injury or illness and in exceptional circumstances that may be a maximum of 12 months.

PN45

Now, it’s our contention that Mr Warren did suffer personal injury or illness for which he was unable to return to work, hence the medical certificates, and that he did receive discretionary sick leave payments for a period of less than 12 months also noting that there was a no minimum cap on discretionary sick leave payments. That’s a general clause. 15.3 goes on to state that “where the employee is unable to attend work because of either personal illness or injury not covered by workers compensation or as a result of pressing personal or domestic necessity the employee will be paid their ordinary base rate” excluding overtime, penalty rates and so forth.

PN46

Mr Warren has not received any workers compensation payments for his illness or injury and he hasn’t been able to attend work since 12 April 2007 to the present day. So, pursuant to that clause it would appear to us that Mr Warren was entitled discretionary sick leave, which he did receive.

PN47

THE COMMISSIONER: I’m sorry, what do you mean - when you say he was entitled to discretionary sick leave, do you mean to be permitted to be absent from duty?

PN48

MR BUNTMAN: Yes, and to be paid for that absence.

PN49

THE COMMISSIONER: Yes, all right.

PN50

MR BUNTMAN: Thank you, Commissioner. 15.3.1 goes on to state - - -

PN51

THE COMMISSIONER: Perhaps just before you move off that point, Mr Buntman, of course it is discretionary, isn’t it? To whom or in whom does the discretion in here? Who has the discretion?

PN52

MR BUNTMAN: It’s our contention, Commissioner, that my meeting the requirements of that clause the discretion - if the employee meets the requirement of clause 15 the company should be paying discretionary sick leave, that discretion lying with - how can we say that - discretion lies with the company to pay that sick leave if the requirements of the clause are met.

PN53

THE COMMISSIONER: I want to understand this, thank you. The discretion lies with the company in the event that the requirements are met.

PN54

MR BUNTMAN: That’s correct.

PN55

THE COMMISSIONER: So it’s still a discretion so you - I mean, clearly, if you don’t meet the requirements, if you’re clearly out then you’re out.

PN56

MR BUNTMAN: That’s correct.

PN57

THE COMMISSIONER: But you’re saying if you’re in - if you meet the requirements - perhaps I don’t know if there’ll be a dispute about that - then the company can exercise its discretion to pay or not to pay. Is that what you’re putting?

PN58

MR BUNTMAN: If I could re-say - I may not have said it a bit confusingly. The clause is tied in with the normal sick clause and so we would view it as a fact that in the situation where your illness or injury is not that normal sick leave, there’s a discretion that extra leave up to a maximum of 12 months can be paid, almost like an income protection type situation.

PN59

THE COMMISSIONER: Well, it can be paid. It’s not an entitlement but it can apply.

PN60

MR BUNTMAN: Well, we would argue that the clause, although titled “Discretionary Sick Leave”, reads as though if you actually meet the requirements you should - you must be paid.

PN61

THE COMMISSIONER: I notice that the word “may” is there on the third last line:

PN62

Sick leave may be up to maximum of 12 months after taking into account - - -

PN63

MR BUNTMAN: That’s correct. But then this is where the confusion arises because at 15.3 it does state:

PN64

When an employee is unable to attend at work because of either -

PN65

Illness, then that employee will be paid their ordinary base rate, if and then certain criteria are listed.

PN66

THE COMMISSIONER: Yes, I see. Thank you.

PN67

MR BUNTMAN: And that is where - if I can just direct you towards that. We say that Mr Warren has fulfilled all those requirements in that in at 15.3.1 it states that the employee advises the company of the absences and there’s - also there are medical certificates and documentation to that effect. 15.3.2 states reasonable proof of illness is provided.

PN68

THE COMMISSIONER: Yes.

PN69

MR BUNTMAN: ..... out of these documents. The next one is:

PN70

The employee agrees to cooperate in an interview with a crew leader on resumption of work.

PN71

Well, Mr Warren has not resumed work as yet so that requirement cannot be met but is undergoing private mediation to that effect. 15.3.4 states that:

PN72

During the course of the absence and until the return to full-time work, the employee agrees to participate in periodic reviews.

PN73

And then adhere to a return to work program. The employee has not been advised of any periodic reviews by Bluescope. Bluescope have not prepared or engaged in any form of return to work program with Mr Warren. So it’s the failure of Bluescope to adhere to their own agreement there that Mr Warren cannot fulfil that particular clause.

PN74

THE COMMISSIONER: What do you say about 15.4? Is there a typographical error in there?

PN75

MR BUNTMAN: 15.3.4, Commissioner?

PN76

THE COMMISSIONER: I’m asking about 15.4.

PN77

MR BUNTMAN: Yes, Commissioner.

PN78

THE COMMISSIONER: What do you say? What’s the story about that?

PN79

MR BUNTMAN: That’s a typographical error, Commissioner.

PN80

THE COMMISSIONER: All right. And how should that read?

PN81

MR BUNTMAN: We would submit it should read clause 15.3.

PN82

THE COMMISSIONER: And there lies the discretion? Presumably you’re - - -

PN83

MR BUNTMAN: Yes, that’s correct. That is correct.

PN84

THE COMMISSIONER: - - - ..... is there if someone doesn’t satisfy those - whatever they were.

PN85

MR BUNTMAN: That is correct. I stand corrected, Commissioner.

PN86

THE COMMISSIONER: No, no, it’s just a question of how it - what’s its proper operation. What did the parties intend in the normal - or perhaps not even what they intended but what the words actually mean.

PN87

MR BUNTMAN: I would say that - again, there are a number of contradictory clauses here. That one would point again to a discretion of the company provided the requirements above, 15.3, are met.

PN88

THE COMMISSIONER: Yes.

PN89

MR BUNTMAN: If I can continue on to 15.4, it does, as you just say - it’s at the discretion of the company.

PN90

THE COMMISSIONER: Yes.

PN91

MR BUNTMAN: And we would say Mr Warren has met those requirements. The issue at hand is the fact that Mr Warren did receive those payments and as at 2 June he was cut off from those discretionary sick leave payments. So the discretion was exercised to pay Mr Warren his sick leave and as of 2 June those ceased without any notice or any information. At the bottom of that page is clause 15.8.1 which states:

PN92

Long-term absences will be managed by a process aimed at caring for employees. The company will work with the employee and any other parties to ensure the employee returns to work as early as possible.

PN93

And it lists what that process may involve. Again, we submit that Bluescope has taken no steps to develop a return to work program or any steps to try and get Mr Warren back to work other than a private mediation between the supervisor involved and Mr Warren himself.

PN94

THE COMMISSIONER: Do you say that that isn’t an entirely reasonable step? Did the union - heard you say anything about that? Do you say it’s a reasonable thing for them to have organised? There’s no point there, is there, with whatever that activity is that will hopefully lead to a rapprochement, some tranquillity between Mr Warren and Mr Spry, whatever his name is.

PN95

MR BUNTMAN: Yes. That’s correct. I mean, we submit that Bluescope could have done a lot more to try and resolve the issue of returning the parties back to a tenable working relationship or even alternative arrangements for Mr Warren or even counselling or something to assist in the process and none has been forthcoming.

PN96

THE COMMISSIONER: Who has organised that reconciliation? Is that organised by the company or was it at the union’s request?

PN97

MR BUNTMAN: I believe the mediator was engaged by Bluescope and so they have taken a step to get - - -

PN98

THE COMMISSIONER: I’m sorry, they have taken - - -

PN99

MR BUNTMAN: I’m sorry, Commissioner. Bluescope have engaged a mediator who is attempting to work with the supervisor and Mr Warren at that very personal level to get them communicating again.

PN100

THE COMMISSIONER: Does the union say that’s an appropriate or inappropriate thing for them to have done?

PN101

MR BUNTMAN: That’s a start. That is a good thing. But it doesn’t really touch the surface of the real issue in the workplace which was of bullying and harassment and we say Bluescope haven’t addressed those issues sufficiently enough. If I could just continue on with clause 15.8 - I’ve almost completed.

PN102

THE COMMISSIONER: Yes. No problem.

PN103

MR BUNTMAN: 15.8.1 lists eight items which are involved and it says:

PN104

Where an employee is absent or incapacitated for 20 days or more actual or predicted a return to work program will be developed. This will apply regardless of origin of condition.

PN105

And we submit again that no return to work program has been established and medical certificates clearly provided that Mr Warren would be absent for more than 20 days. Then the rest of those points really go to the failure of Bluescope to develop a return to work program and review it. It says:

PN106

All cases of extended sick leave will be reviewed on a monthly basis and will focus on the effectiveness of the return to work program.

PN107

Again, no return to work program is in place. It says:

PN108

If the employee is unable to adhere to that return to work program -

PN109

Well, there’s no program in place again. And the final point is:

PN110

If the company contemplates any changes to an employee’s payment or conditions of employment, this will be discussed with the employee and his or her union delegate or representative. Once a decision is made the relevant union will be advised prior to the employee being notified of the decision and any changes will be advised to the employee and union with four weeks’ notice.

PN111

Mr Warren was receiving discretionary sick leave payments. He was cut off from those payments as of 2 June. He was not notified and just discovered, I think, when he didn’t receive any pay. The union certainly wasn’t notified of that change with four weeks’ notice and there has been no discussion as to - or anything in writing to the union certainly as to why he was cut off.

PN112

Sir, the dispute here today is not so much about was he or wasn’t he getting any discretionary sick leave, because he was. It’s got to do with that arbitrary cessation of discretionary sick leave. We say it’s not justified and that based on the certified agreement he should have resumed discretionary sick leave payment. Mr Warren currently receives no income. He is still absent and his current medical certificate is until Wednesday. There doesn’t seem to be a return to work immediately at the moment, given current mediations and so forth that are occurring.

PN113

THE COMMISSIONER: Have there been any of these sessions yet?

PN114

MR BUNTMAN: The first session is scheduled for Thursday, Commissioner. But again, we like to hope that would resolve some of the bigger issues but realistically we don’t believe it will, but are attempting to fully participate in the mediation in an aim to get Mr Warren back to work as soon as possible and for Bluescope to have an effective employee and so we’d seek the - - -

PN115

THE COMMISSIONER: Yes, thanks, Mr Buntman. Yes, Mr Parmenter.

PN116

MR PARMENTER: Commissioner, I would just like to outline some background and to hopefully provide some context on the matter. Some of the points that Mr Buntman has made we say are correct; some of the points we say are incorrect. I’ll just go through them piece by piece.

PN117

On 13 April Mr Warren advised that he wouldn’t be attending work as he was stressed due to bullying from his supervisor. Mr Warren hasn’t returned to work since that date. On 16 April Mr Warren lodged a formal complaint in relation to bullying by his supervisor. On the same date he also lodged a workers compensation claim for anxiety. Bluescope has established investigation processes for complaints of this nature: bullying, intimidation, harassment, etc. and the bullying allegation was investigated by the company.

PN118

On 11 May Mr Warren was advised that his workers compensation had been rejected. So that matter has subsequently been subject to conciliation and remains. On 29 May Mr Warren was advised of the outcome from the allegation of bullying - sorry, was advised of the investigation into the allegation of bullying. The investigation showed that there was no foundation to support his claim

PN119

THE COMMISSIONER: Just so I understand that, Mr Parmenter. What was he advised of on the 29th, that there was an investigation underway?

PN120

MR PARMENTER: No, he was advised of the outcome of the investigation. So the investigation ha been carried on and WA completed and the outcome was there was no basis to his claims. So, during that meeting on 29 May it was agreed with Mr Warren’s return to work would involve a mediation process as part of a return to work process. So we say the mediation process was part of a broader return to work plan.

PN121

Mr Warren had also lodged a claim of bullying with WorkSafe and the WorkSafe investigation reached the same conclusion as Bluescope Steel’s internal investigation.

PN122

THE COMMISSIONER: Just before you move off the Bluescope position, I have written here, “Agreed at that meeting on 29 May that the return to work would involve mediation as” - and I think you put this - “as part of a broader return to work plan”. Is that how it should be seen?

PN123

MR PARMENTER: Correct.

PN124

THE COMMISSIONER: And was there a broader return to work plan?

PN125

MR PARMENTER: Well, our position was that bringing Mr Warren back into the workplace would necessarily involve a mediation process so that he could work effectively with his supervisor in future.

PN126

THE COMMISSIONER: I understand that. So there was a mediation and hopefully that will reconcile the two.

PN127

MR PARMENTER: Correct.

PN128

THE COMMISSIONER: But perhaps coming away - again the helicopter goes up another 100 feet and the slightly broader perspective, is this right, I should see that as part of a return to work program?

PN129

MR PARMENTER: That was the way we saw the matter and certainly in the letter that we provided Mr Warren in relation to the meeting on 29 May we say as part of that letter:

PN130

Investigation into your claims of bullying were unsubstantiated and we do not see any need to separate you and your supervisor Nick Spry. On this basis the grounds of any return to work will need to be on the following basis.

PN131

And then there are a number of points:

PN132

You participate in a mediation program between Nick and yourself prior to us attempting to bring you back to work. An outcome of this program must be that both Nick and yourself can reach agreement to work together on an ongoing basis.

PN133

So it was part of an overall process to return Mr Warren to work.

PN134

THE COMMISSIONER: It seems to me it’s the total part of it but I want to give full weight to what you’re putting. I don’t know why you’re quite putting it the way you are. 15.8.1 has the parties obligating themselves, if you presumably get the - if someone is absent or incapacitated for 20 days or more irrespective of the origin of the person’s condition to develop a return to work program.

PN135

MR PARMENTER: Correct.

PN136

THE COMMISSIONER: And perhaps these things are all done in an unwritten way, an informal way, it just strikes me as a little bit - that isn’t the way - I assume the parties had gone about this in a methodical way. Are return to work plans ethereal or are they normally reduced to writing?

PN137

MR PARMENTER: No, they’re normally put down in writing.

PN138

THE COMMISSIONER: Right. Okay.

PN139

MR PARMENTER: Correct, yes. Just on 15.8.1, the wording of the clause actually goes on to say “the process may involve the following”. So there’s a series of dot points that may be used in bringing a person who’s had a long-term absence back into the workplace. It’s not an exhaustive list of guidelines, for example, and we would also say that in not all cases are each of those dot points applicable. Ongoing payment of sick leave is one of those points and I’ll come to that a bit further in my commentary.

PN140

THE COMMISSIONER: Yes. So that means - is this right, Mr Parmenter - that that use of the “may” means that none of the dot points are mandated? I understand the notion that points appropriate to a particular case may or may not be used so it’s not right that if someone is absent for 20 days or more a return to work plan will be developed?

PN141

MR PARMENTER: A return to work plan doesn’t have to be developed. So our position is, as you said, the use of the word “may” doesn’t mandate that each of those points has to occur. It may be appropriate in some cases for a range of those things to happen but also it may be appropriate that they don’t happen.

PN142

THE COMMISSIONER: Yes. It’s interesting that there’s not a passive verb in that. I follow what you’re putting and the parties have obviously chosen their - they have crafted these clauses to give effect to what they intended but I notice there that the first sentence then reads:

PN143

Will be developed.

PN144

The very next dot point is perhaps an example of another because it’s “may”.

PN145

MR PARMENTER: Yes.

PN146

THE COMMISSIONER: Then there are some:

PN147

All cases of extended sick leave will be reviewed.

PN148

So it seems that it’s not the way - if this is right - Bluescope don’t review the cases on a monthly basis. It struck me as the sort of thing you might do on a - the “will” might in fact mean “will”.

PN149

MR PARMENTER: Yes. And I would reflect back on some of the comments we mentioned a while ago - in some case it is appropriate to review on a regular basis monthly or perhaps fortnightly, more regularly. It depends on the circumstances of each case so we are taking each case on its merits.

PN150

THE COMMISSIONER: All right. Thank you.

PN151

MR PARMENTER: Just to go on, Commissioner, Mr Warren had lodged a claim of bullying with WorkSafe and the WorkSafe investigation reached the same conclusion and that is that there was no substance to his allegations of bullying.

PN152

The mediation process that we had discussed with Mr Warren and Mr Rudd on 29 May and which we had been keen to implement quite quickly has taken a long time to commence. And we say that’s largely due to Mr Warren refusing to participate in a mediation process, unless he had representation present. There have in fact been two mediations conducted so far. The first mediation was conducted on 25 June and a subsequent mediation occurred on 28 June. My understand is that there is another one booked for later this week.

PN153

On 13 June, Mr Warren faxed a medical certificate to Bluescope Steel.

PN154

THE COMMISSIONER: I’m sorry, what was that date, Mr Parmenter?

PN155

MR PARMENTER: On13 June. And that is in fact the certificate that you’ve seen a copy of from Mr Buntman which - it was dated for the period 4 June to 4 July. It was stated that Mr Warren was fit to return to work for normal duties but not under Nick Spry.

PN156

Mr Warren’s absence up until the date of this medical certificate was treated and paid as sick leave. In the first part of his absence payment had been made pending the outcome of his claim for workers compensation. And he has been - he was paid sick leave for a period of 14 April to 3 June, a period of approximately seven weeks.

PN157

THE COMMISSIONER: Was that discretion - is that in the discretion basket or did he have some other sick leave? When do you have to go into your discretionary basket?

PN158

MR PARMENTER: Just as a brief aside - we don’t actually have accruals as such.

PN159

THE COMMISSIONER: I see, yes.

PN160

MR PARMENTER: So it’s an - the overall sick leave is discretionary in some cases.

PN161

THE COMMISSIONER: Yes, I think I remember that now. I think even from the previous but I - yes, that’s right.

PN162

MR PARMENTER: Since 3 June Mr Warren’s absence has been mainly unpaid. There had been two periods of time where payments have been made to Mr Warren. One occasion was for a short period of annual leave which had been approved prior to his extended absence commencing. That was on 16 and
17 June. And the other related to his attendance at the occupational health and safety representatives course for the week commencing 18 June.

PN163

There was a fair degree - a fair amount of discussion around the discretionary sick leave arrangements and I’ll just touch on those briefly. As Mr Buntman said the discretionary sick leave arrangements are outlined at clause 15C of the Bluescope Steel Western Port Certified Agreement 2004-07. The arrangements provide generous sick leave provisions for employees. However, the arrangements also enable the company to discontinue the payment of sick leave where there are concerns regarding the bona fides of an absence and that’s clause 15.7 which reads:

PN164

Nothing in these arrangements prevent the company from taking what it deems to be appropriate disciplinary action at any point where it has concerns over the performance or conduct of an employee or the bona fides of an absence.

PN165

THE COMMISSIONER: And you say you’ve done that?

PN166

MR PARMENTER: Well, we say in this case there are concerns about the bona fides.

PN167

THE COMMISSIONER: I follow that. But confiscating the pay would otherwise accrue to Mr Warren. That’s a disciplinary step, is it?

PN168

MR PARMENTER: I’m not suggesting that it’s a disciplinary respect. What I am suggesting is that we are concerned about the bona fides of the absence and that’s one of the reasons that came into play for the ceasing of the payment.

PN169

THE COMMISSIONER: All right. Well, 15.7 has a role to play or not?

PN170

MR PARMENTER: Yes.

PN171

THE COMMISSIONER: I mean, I understand 15.7 - I wouldn’t look beyond it. I look on its face and see what it means. What does it say?

PN172

Nothing in these arrangements prevents the company from taking what it deems to be appropriate disciplinary action at any point where it has concerns over the performance or conduct of an employee or the bona fide of an absence.

PN173

So you can - the fact that a bloke’s off or a woman's off, doesn’t mean that you can’t guts into them if you think that there is something they’re doing which is other than bona fide?

PN174

MR PARMENTER: That’s correct. That’s one way of - - -

PN175

THE COMMISSIONER: I’d like to feel I completely understand. So, in this case, we know - it presumably follows from what you say that you have such a view.

PN176

MR PARMENTER: We have a concern about the ongoing need for absence.

PN177

THE COMMISSIONER: So you can take appropriate disciplinary action against Mr Warren. It seems to flow - the logic is impeccable there.

PN178

MR PARMENTER: That’s correct.

PN179

THE COMMISSIONER: You form the view, you may or may not take disciplinary action.

PN180

MR PARMENTER: Correct.

PN181

THE COMMISSIONER: And the clause says you have to take appropriate disciplinary action by genuinely agreeing - you have to put the word “genuine” in front of every time you write the word “agreement”.

PN182

MR PARMENTER: Yes.

PN183

THE COMMISSIONER: But perhaps I won’t go any further than that. So, is this right, that you go - you take the next step that the confiscation of pay represents Bluescope’s taking of disciplinary action?

PN184

MR PARMENTER: In this case we say that that was appropriate and perhaps I can outline several other points which illustrate that.

PN185

THE COMMISSIONER: Yes, of course.

PN186

MR PARMENTER: 15.3.2 refers to reasonable proof of illness. The current medical certificate reads that Mr Warren was “fit to return to work for normal duties” but not under Nick Spry. So is that reasonable proof? We say no.

PN187

THE COMMISSIONER: Proof of what?

PN188

MR PARMENTER: Proof requiring Mr Warren not to attend for work. And the clause 15.3.4 also refers to - sorry, refers to:

PN189

During the course of the absence and until the return to full-time work the employee agrees to participate in periodic reviews and adhere to return to work plans.

PN190

So, as I outlined earlier, Mr Warren has delayed the implementation of the mediation process through his refusal to participate,

PN191

THE COMMISSIONER: How did that matter vest itself, Mr Parmenter? How was he taking this uncooperative position? How did that - were dates suggested and he was unable to attend or was there some other - - -

PN192

MR PARMENTER: I beg your pardon?

PN193

THE COMMISSIONER: How did he show - what makes you conclude that blame is referable to him for the delays? It’s under four weeks, isn’t it? It took - I wrote this down, let’s see if I can find it.

PN194

MR PARMENTER: The first proposal of a mediation process was on 29 May.

PN195

THE COMMISSIONER: 29 May and the first one occurred on 25 June.

PN196

MR PARMENTER: 25 June, so it’s roughly a four-week period between the two. My understanding of the situation was that Mr Warren had required or requested to have representation present at the mediation process. Our initial reaction or response to that was to say that we did not see that that was necessary in a mediation where you were trying to have an employee resolve his differences with his supervisor and with an external mediator present to ensure that there no untoward happenings during that process.

PN197

In the end, representation was present during the first two mediations and my understanding is that Mr Warren is keen to continue to have that representation present.

PN198

THE COMMISSIONER: When was the agreement of Bluescope forthcoming that representation was appropriate?

PN199

MR PARMENTER: It was shortly - around about 18 June.

PN200

THE COMMISSIONER: And do you say Mr Warren got cracking then once there was agreement about who was to attend.

PN201

MR PARMENTER: I don’t think “get cracking” aptly describes it. It certainly occurred but I’m not sure that there was any great rush for it to happen.

PN202

THE COMMISSIONER: The date proposed that he didn’t - I just want to get onto this because if there’s a bit of weight to be placed on it then I’ll place it and Mr Warren - his course would be reversed or retarded, but if there’s no weight to be placed on it then I’ll disregard it. So what makes you say that because you want me to draw an adverse inference in respect to Mr Warren I’m happy to do so if it’s got a bit of merit to it.

PN203

MR PARMENTER: Our position, Commissioner, was that mediation was a way for the parties. So even though we had conducted an investigation into Mr Warren’s allegations of bullying and found them to be of no substance, we were prepared to go down the path of arranging a mediation to bring him back into the workplace to be an effective contributor. That didn’t occur because of Mr Warren’s insistence to have people present during the mediation. I’m not sure if I’m providing the sort of information you’re looking for.

PN204

THE COMMISSIONER: I have written here, “BS keen to implement 29 May mediation”.

PN205

MR PARMENTER: Correct.

PN206

THE COMMISSIONER: So from 29 May - perhaps that was the first time - that was the first date proposed. I’m just not sure.

PN207

MR PARMENTER: No, no.

PN208

THE COMMISSIONER: That was when it - - -

PN209

MR PARMENTER: That was when it was proposed. So that was - - -

PN210

THE COMMISSIONER: That mediation occur?

PN211

MR PARMENTER: No, at that meeting - on 29 May it was suggested to Mr Warren and Mr Rudd that mediation occur, that it be arranged and occur.

PN212

THE COMMISSIONER: All right. Now, we know that it didn’t occur until Sunday, 25 June, unless I’m misreading - - -

PN213

MR PARMENTER: On 15 June there was agreement to move forward with mediation on 25 June, which was a Monday is what I’m told.

PN214

THE COMMISSIONER: It must be - my associate will be glaring at me shortly because I’m getting this a bit wrong.

PN215

MR PARMENTER: It could be us getting it wrong, Commissioner.

PN216

THE COMMISSIONER: No, no, it will be very rarely - it’s a serious dispute when we can’t get the calendar, the Gregorian calendar gets you every time. You’re going to assure me, aren’t you, that whatever else you say, that a certain date is ......

PN217

MR PARMENTER: Yes, sir.

PN218

THE COMMISSIONER: Let’s see if we get this right. On the 29th the meeting that you had, it was agreed that - well, it was ultimately agreed, presumably the condition posed by Mr Warren, he wanted someone there with him when the mediation was suggested and blah, blah, blah, there was a bit of to-ing and fro-ing and some time went past and then you gave me that date - what was it, the 15th?

PN219

MR PARMENTER: 15 June.

PN220

THE COMMISSIONER: Then what happened on that date?

PN221

MR PARMENTER: On 15 June there was contact between Mr McCallum and Mr Warren to advise him in relation to his two days of annual leave and payment for the occ health and safety reps course and, at the same time, that a mediation had been arranged for 25 June.

PN222

THE COMMISSIONER: Mediation proposed for 25 June which was a Monday. So everyone knows it was a Monday. All right. I think before I got tangled up with the calendar you were telling me Bluescope’s view was that he was still dragging the chain?

PN223

MR PARMENTER: That was certainly our perception of the situation.

PN224

THE COMMISSIONER: So on 15 June he was told that he had paid for these other bits and pieces, all was well there.

PN225

MR PARMENTER: Yes.

PN226

THE COMMISSIONER: You’d say there's a bit of company bona fides for you.

PN227

MR PARMENTER: That’s correct.

PN228

THE COMMISSIONER: He’s fixed him up for those other things.

PN229

MR PARMENTER: Yes.

PN230

THE COMMISSIONER: And you have said, well, during the 25th mediation and he did something which permits you to now say he was recalcitrant.

PN231

MR PARMENTER: Well, he had, up until that point, refused to participate.

PN232

THE COMMISSIONER: At no point he was on the program?

PN233

MR PARMENTER: At that point, in the same conversation Mr McCallum indicated that if you want to have representation present bring it along.

PN234

THE COMMISSIONER: And the mediator was available for the 25th and Mr Warren subscribed to that, he came along?

PN235

MR PARMENTER: Correct.

PN236

THE COMMISSIONER: With his representative?

PN237

MR PARMENTER: With his representative.

PN238

THE COMMISSIONER: And then he came along a second time on the 28th.

PN239

MR PARMENTER: On the 28th, yes. So, to go a little further with the sick leave and probably just to summarise or rehash what I have already said, in Mr Warren’s case we do have concerns around the bona fides of his absence. We do not believe that he’s provided reasonable proof to support his absence and he delayed participating in the mediation process to enable a return to work. So we say that we’ve complied with the discretionary sick leave arrangements and that Mr Warren has been given a fair go in being paid sick leave for seven weeks.

PN240

Mr Warren’s claims of bullying have been investigated by Bluescope Steel and an external authority and have been found by both to be of no substance or to have no substance. From our perspective, Mr Warren needs to return to work if he wishes to be paid. We’re comfortable if the matter was to go into conciliation and have some private discussion.

PN241

THE COMMISSIONER: Yes.

PN242

MR PARMENTER: However, I would indicate, if it’s necessary to speak on record again we would reserve that right, Commissioner.

PN243

THE COMMISSIONER: Yes, thanks, Mr Parmenter. Do you want to be responsive, Mr Buntman, or do you want to have a conference?

PN244

MR BUNTMAN: If I could just make a few comments, Commissioner.

PN245

THE COMMISSIONER: Yes, go on. Of course.

PN246

MR BUNTMAN: Thank you. I’ll just start with the investigation. We do agree that Bluescope did investigate it but my instructions are that WorkSafe did not. They were happy for Bluescope to follow their own investigation procedures and no outcome was given by WorkSafe as to that investigation of bullying. Further, we’ve received no copies of that investigation report or the outcomes thereto from Bluescope.

PN247

If I can just refer briefly back to the mediation discussions. I must apologise, my notes ...... I believe I said that we didn’t think the mediation process would be successful, or something along those lines. What I was referring to there was up until 15 June, and you’ll see in my AWU4 there’s a letter I wrote to Mr McCallum. Up until that stage Mr Warren was denied union representation. They said: you cannot have it there and we will not allow you to have union representation, which prompted me to write that letter on 15 June. It was after that time that Bluescope were quite happy for Mr Warren to have union representation.

PN248

I have an email on 19 June from Mr McCallum which basically says that - what it basically states is that Mr Warren would be paid for union training. Now, Mr Warren was involved in union training for the week 18 to 22 June and so clearly he couldn’t attend a mediation in that time because he was a week on training at the Australian Workers Union. So the gap between when it actually occurred wasn’t - - -

PN249

THE COMMISSIONER: Well, he couldn’t in the sense that someone accorded a higher priority to the training.

PN250

MR BUNTMAN: That’s correct.

PN251

THE COMMISSIONER: And not - and attending that particular day of the training was otherwise thought to be given over to the reconciliation session.

PN252

MR BUNTMAN: That’s correct. We would say that Bluescope was aware of that and agreed with us that the mediation could occur after that date. We say Mr Warren did not drag his feet at any stage. He was happy to participate but obviously in a bullying situation doesn’t want to be alone in a room with the person he believes is bullying him. And so once he had that union representation present we proceeded as diligently as possible in that process and believe that - we hoped there would be a successful outcome returning Mr Warren back to work.

PN253

It was referred to that the mediation was part of a broader return to work program. Again, we would have liked some sort of document saying “here’s your return to work program. Mediation is the first step”. But we still contend we have never received any formal return to work program saying, “Here’s your process. Here’s the steps”. Bluescope as a self insurer would clearly have documents as to these effects or - I mean, they have hundreds of employees so we contend that there was no return to work program, merely just the mediation.

PN254

THE COMMISSIONER: You say it’s normal - the normative for a return to work plan to be developed if the criteria in the first dot point are satisfied? Is that how the agreement has operated in the past?

PN255

MR BUNTMAN: I couldn’t speak to that but I would like to think that where there’s a lengthy delay in the situation, particularly with the bullying that a proper and transparent return to work program would have been established and communicated to Mr Warren and the union, we contend that it hasn’t.

PN256

Clause 15.7 was referred to and I think you alluded to disciplinary action in terms of if there was concerns over the bona fide of an absence. Again, we would say that if there were such concerns Mr Warren and/or the union would have been written to under a standard disciplinary procedure process or even a letter saying: we don’t believe this medical certificate is valid.

PN257

Now, if I can speak quickly to the validity of that last certificate which is believe Bluescope said it was because he couldn’t work under Nick Spry, or something to that effect, I have a certificate of capacity which is dated 27 April 2007 which says exactly the same thing. When Mr Warren received discretionary sick leave payments there was no concern as to the bona fide nature of it and it’s of the exact same capacity as to his absence.

PN258

THE COMMISSIONER: Have you shown that to Mr Parmenter?

PN259

MR PARMENTER: Yes, that’s fine.

PN260

MR BUNTMAN: And the final point I need to make as I have written to you, the dispute also concerned union training pay and I would seek to withdraw that dispute as we’ve confirmed on 19 June that Mr Warren would be paid and I believe would have to be paid for that training.

PN261

THE COMMISSIONER: Yes, thank you. We’ll go off the record now.

<NO FURTHER PROCEEDINGS RECORDED