C2015/2118, Transcript of Proceedings [2015] FWCTrans 355 (16 June 2015)

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PN1

THE COMMISSIONER: Good morning. You haven't appeared, have you, Mr Guy?

PN2

MR GUY: I have, Commissioner, in the last matter.

PN3

THE COMMISSIONER: You have? Okay. That will do me.

PN4

MR GUY: Thank you.

PN5

THE COMMISSIONER: My usual associate is in Barcelona. I would much rather be here.

PN6

MR GUY: I appreciate you saying it, whether you mean it or not.

PN7

THE COMMISSIONER: Where are we up to with this matter?

PN8

MR SLOAN: If I may, Commissioner ‑ ‑ ‑

PN9

THE COMMISSIONER: I've read the Harrison report.

PN10

MR SLOAN: Thank you very much. I would just say this on the Harrison report, it is a fairly short form of report, you will have seen, Commissioner, but I think in fairness to Mr Harrison I should point out that he did interview some 31 witnesses in order to compile that report. It was, unfortunately, written in some hurry, as Mr Harrison was due to go overseas on 6 May, and so only had a short period of time between the completion of the investigation and his departure, to complete the written report.

PN11

So while it appears in a fairly short form, it does summarise, in effect, quite a wealth of material, as I understand it. What you will have seen in that report, Commissioner, is that - I think that we would say that there are, effectively, three findings, or three - I think his findings can be summarised in three says: one is that Mr Karzai, who is at the heart of these disputes, may have engaged in conduct that was naive and indiscreet, but he's not a threat to the site.

PN12

The second finding is that there is a genuine perception that management does not take employees' concerns seriously enough; and finally that other employees on the site have engaged in behaviour that Mr Harrison described as being intimidation and harassment. We have proposed, Commissioner, that all of these matters be resolved in this way: that Mr Karzai would be counselled about appropriate workplace behaviour, after which he will be returned to the position he held prior to the dispute arising.

PN13

The second thing is that obviously to the extent that there is a perception that employees' concerns are not being taken seriously enough, that will be taken up with the relevant management on site. And finally we propose that yard meeting be held for the remainder of the workforce to outline the key findings of the Harrison report and essentially draw a line in the sand about these matters. We would be encouraging the employees at those sessions - we would be reminding employees of their obligations about appropriate workplace behaviour.

PN14

While on one level it might be said that the findings would warrant more serious action being taken, I think at this stage it would be enough to tell everyone that the findings have been made and that any further inappropriate behaviour might then lead to sanctions against any offending employees.

PN15

THE COMMISSIONER: It's six of one, half a dozen of the other, isn't it, in the report? Anyway.

PN16

MR SLOAN: We see it as slightly different. I think we see it as Mr Karzai having said things that were naive and indiscreet, but not to the point where it was threatening; whereas the behaviour that Mr Harrison finds against the workforce in a more general sense is in a more serious category. So we don't want to make a bad situation worse, if I can put it simply, Commissioner. We think everyone just needs now to take a long, deep breath and get on with the business of doing their jobs.

PN17

We don't want to inflame the situation by over-responding to the report, but equally we don't want to leave it unaddressed to the broader workforce. As I say, that is how we intend to deal with Mr Harrison's report. We've held off doing anything pending today's discussion, Commissioner. We had suggested to the union that the third step - that is, the meetings with the employees - could be conducted jointly with the TWU so that there was some greater buy-in, if you like, from all concerned.

PN18

For reasons which I'm not at liberty to go into, the union has opted not to do that in a joint way. I will let Mr Guy talk to that if he chooses to do so.

PN19

THE COMMISSIONER: That's their option.

PN20

MR SLOAN: That's right. It's not. We would have preferred, obviously, for everyone to hold hands, as in Kum Ba Yah, but that is not going to happen in this situation.

PN21

THE COMMISSIONER: Certainly the report itself can't be released broadly when it contains words like "dangerous, schizophrenic, untrustworthy and manipulative" in relation to a person. As I see this, all this boils down to is that Mr Karzai holds deeply held but somewhat eccentric views about some matters, and some people don't want the benefit of his advice on those matters.

PN22

I think there are a couple of simple outcomes of this, isn't it? Mr Karzai could broadly shut up about religion and politics at work unless people indicate to him that they wish to partake in that sort of conversation with him. And he certainly shouldn't be doing it on work time anyway. Apart from that, Mr Karzai has got a right to work there and not be subjected to any adverse action by his fellow employees.

PN23

I think what Mr Harrison says somewhere there about an incident taking on a life of its own, I think a lot of stuff has taken on a life of its own in this, but I will hear from Mr Guy now.

PN24

MR GUY: Thank you, Commissioner. Commissioner, I can confirm that we have declined Mr Sloan's request to have a joint meeting, and I won't go into that in too much more detail. The only ‑ ‑ ‑

PN25

THE COMMISSIONER: You don't need to justify it.

PN26

MR GUY: Thank you, Commissioner. The only point to which the union - I have clear instructions and wish to speak to - is that the union holds a view that Mr Karzai, rather than returning to his previous position that he held before the dispute arose, remain in a position in which he held after the dispute arose, and that seems to have been working quite well for a number of months.

PN27

The parties, to my knowledge at least, have not had any problems working in that situation or that environment, but I understand that Mr Sloan and Toll have a different view as to where he should work. But beyond that ‑ ‑ ‑

PN28

THE COMMISSIONER: Mr Karzai might hold a different view as well.

PN29

MR GUY: He may indeed, yes, Commissioner. But beyond that, I don't think there is much more to talk to with respect to the report. The union, of course ‑ ‑ ‑

PN30

THE COMMISSIONER: Do you see the report as a fair summary of what has gone on?

PN31

MR GUY: Commissioner, I wasn't there when the initial dispute arose, and I don't have as much of an intimate understanding of - knowledge of the matters as Mr Harrison.

PN32

THE COMMISSIONER: I wasn't either.

PN33

MR GUY: I respect the report and I think that it - I trust in what Mr Harrison has to say.

PN34

THE COMMISSIONER: One of the problems here is there's a 418 order hanging over all of this, and I've got to tell you that it is - unless I can be utterly persuaded, it is my intention to revoke that order. An interim order shouldn't go on as long as this one has just as some sort of convenience to wave at the workforce from both sides. I will hear argument if argument is going to be put to me, but on what I'm saying now, my intention is to revoke that order at the end of these proceedings.

PN35

MR GUY: We would welcome that, Commissioner.

PN36

THE COMMISSIONER: The problem is the commission is not really geared up to do this sort of interpersonal dispute stuff. I've read the Harrison report. It seems to cover all the bases. It doesn’t really come up with any possible solutions, which is what I had hoped for, something Solomonic. I do intend to revoke the order. And as far as I'm concerned, the company is perfectly free to place Mr Karzai where they wish to place him.

PN37

I think Mr Karzai should be strongly counselled, particularly when he's on working time not to engage in the behaviour that he has. He apparently is a person with a series of hobby horses, and we all know a person like that, who will buttonhole you at the first opportunity and presume you're interested enough to listen to them, when you're not. I can only deal now with the consequences that may arise if the company sends him back there. I just hope Mr Karzai is chastened, as well as others, about this.

PN38

MR GUY: Commissioner, if I can respond to that last point this way: Mr Karzai has - I can say that there have been informal discussions with Mr Karzai, and they will be formalised in the way that you have outlined, so hopefully that will put to rest those issues going forward.

PN39

THE COMMISSIONER: What I want you to tell Mr Karzai is if someone doesn’t express an interest in his opinions, that he should keep them to himself whilst at work.

PN40

MR GUY: I think, Commissioner, to be frank, we're going to go a step further and say that at the workplace and on work time he should keep his opinions to himself.

PN41

THE COMMISSIONER: Absolutely.

PN42

MR GUY: Whether or not someone expresses an interest.

PN43

THE COMMISSIONER: I think we live in such a pluralist society now that there will be quite wild differences of opinion on the matters that are covered in the report, and it just doesn't make for a harmonious workplace for people to air their views.

PN44

MR SLOAN: Yes. We support that. And Mr Karzai will be counselled to that effect. While I'm on my feet, Commissioner, the issue of the section 418 interim order: I don't think I could, with any credibility, stand in front of you and ask that it be continued in the circumstances. I don't intend to do that.

PN45

I simply note this - more for my friend's benefit than anything else - that I would hope that it was not just the presence of the order which has kept things on an even keel over the last weeks and months, but a genuine preparedness by the workforce to resolve these issues and move forward. I would hope that the revoking of the order was not seen by the employees as some sort of signal that they were now free to vote again with their feet, like they have twice before.

PN46

THE COMMISSIONER: It could certainly be reinstated on a separate application ‑ ‑ ‑

PN47

MR SLOAN: That's right. I just wanted that said.

PN48

THE COMMISSIONER: ‑ ‑ ‑ at very short notice. When do you think the process of talking to Mr Karzai and the other people and his return to the depot will finish by?

PN49

MR SLOAN: By the end of this week.

PN50

THE COMMISSIONER: Given that, I think that there's utility in my order not being revoked until close of business on Tuesday of next week.

PN51

MR SLOAN: Thank you very much, Commissioner.

PN52

THE COMMISSIONER: We will just keep it there. It has hung over their heads for so long, it may as well hang over for another week.

PN53

MR SLOAN: Another week, yes.

PN54

THE COMMISSIONER: But apart from that, I think the 739 applications, I've dealt with them.

PN55

MR SLOAN: I think that is correct.

PN56

THE COMMISSIONER: And the 418 application will be dealt with by revocation in a week's time.

PN57

MR SLOAN: Thank you very much, Commissioner.

PN58

THE COMMISSIONER: And if there are further problems, someone will have to apply again.

PN59

MR SLOAN: We hope that doesn’t become necessary, Commissioner.

PN60

THE COMMISSIONER: Okay. I'm adjourned.

ADJOURNED INDEFINITELY [12.18 PM]

Fair Work Commission Transcripts

C2015/2118, Transcript of Proceedings [2015] FWCTrans 355 (16 June 2015)