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C2002/ 2509 , Transcript of Proceedings [2002] AIRCTrans 1993 (3 June 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:(07)3229-5957 Fax:(07)3229-5996

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOFFMAN

C2002/ 2509 

TEXTILE, CLOTHING AND FOOTWEAR UNION OF AUSTRALIA

and

COMBAT CLOTHING PTY LTD

Notification pursuant to Section 99 of the Act
of a dispute re alleged refusal to entry of
company premises

BRISBANE

10.36 AM, MONDAY, 20 MAY 2002

PN1

THE COMMISSIONER: May I have the appearances, thank you.

PN2

MR M. JALOUSSIS: Yes, if the Commission pleases, my name is Jaloussis, M. I seek leave to appear on behalf of the Textile, Clothing and Footwear Union of Australia. With me I have MR J. MOREL, Secretary of the Queensland Branch.

PN3

THE COMMISSIONER: Yes, thank you, Mr Jaloussis.

PN4

MS S.DAVIS: Yes, may it please the Commission, my name is Davis, S. I appear for the Australian Industry Group on behalf of Combat Clothing. Commissioner, I have with me MR S. BRUCE, the Managing Director of the organisation, as well as a MS B. LOGAN, an employee representative of the company.

PN5

THE COMMISSIONER: Do you have any objection to Mr Jaloussis' appearance?

PN6

MS DAVIS: No, Commissioner, we don't.

PN7

THE COMMISSIONER: Leave to appear is granted.

PN8

MR JALOUSSIS: Thank you, Commissioner.

PN9

THE COMMISSIONER: Yes, Mr Jaloussis.

PN10

MR JALOUSSIS: Thank you. Commissioner, this matter has been notified as a result of the refusal by the company to grant to Mr Morel access to the company's premises on 15 May pursuant to notice that had been initially given to the company by the union on 2 May in writing. Commissioner, the issue is that this company has now - this is the third occasion where the company has frustrated attempts by the union to enter the premises of the company for the purpose of having a meeting with employees during their lunch break, and, as I indicated to you, the initial notice this month was given on 2 May, in writing, for a visit to take place on 9 May.

PN11

The company - notice was given by facsimile transmission on that day. The company notified the union on 7 May that members of management had unexpectedly been called away interstate on urgent business and would not be available, and therefore they weren't prepared to allow the visit to take place, bearing in mind, Commissioner, that this was a visit to consult and confer with employees, not with management.

PN12

The union then made contact with the company on 13 May, and it was agreed that Mr Morel, the Secretary of the union, would visit on 15 May. He attended the premises of the company on that day and was refused access to the lunch room purportedly on the basis of national security reasons. I understand this company makes some clothing and related equipment for the Australian Defence Forces, and on the basis of national security Mr Morel was not allowed to enter the premises and to confer with the employees in the lunch room, and, Commissioner, as I indicated, this is not the first time this has happened.

PN13

Earlier this year in March a request was made in writing for access to be granted to the employees during their lunch break. That request was made in writing on 12 March for the visit to take place on 18 March, sufficient time for the company to make arrangements. A facsimile was received back from the company with a handwritten notice, and I can hand up a copy of that notice to you, Commissioner.

PN14

THE COMMISSIONER: Yes, thank you.

PN15

MR JALOUSSIS: You will see there's a handwritten notice that says:

PN16

Inconvenient time. Senior management would not be on site. Please reschedule for the following week and advise.

PN17

Now, I understand that, due to other commitments, the union on that occasion was not able to reschedule, but in respect to the current access that was sought a reply was received by the company, and I will hand up a copy of that one to you also, Commissioner. I do apologise. That's the reply dated 7 May, and you will note, Commissioner, on the second last paragraph a comment is made by Mr Stuart Bruce that the union failed to attend at the site on 18 March without the common decency of a telephone call, when in fact the author of that letter, a Michael Lawton, had cancelled the meeting with that handwritten notice faxed back to the union.

PN18

So, Commissioner, this is just an indication of the frustration that the union has been experiencing with this company over a period of time, and it goes back earlier, and we are seeking the assistance of the Commission on this occasion to try and resolve this impasse. The union is not being unreasonable in seeking access as it is entitled to seek that access under the act. It wants to confer with the employees. It has members on site. It wants to confer with the employees during the lunch break as it is entitled to do so.

PN19

Now, we are seeking the assistance of the Commission, and if this matter cannot be resolved in this Commission, Commissioner - and I have already put my friend on notice - the union does intend to take it further, but we do want to try and resolve it here today to establish some sort of cordial relationship with the company in order to avoid any unnecessary further proceedings. Thank you, Commissioner.

PN20

THE COMMISSIONER: Do I take it - sorry, have I got the right pronunciation? Is it Jaloussis?

PN21

MR JALOUSSIS: That's correct.

PN22

THE COMMISSIONER: Jaloussis. Sorry. Mr Jaloussis, do I take it then that neither you nor Mr Morel have had the opportunity to sit down and even discuss matters with the company management? Am I correct in that?

PN23

MR JALOUSSIS: In respect to the most recent incident?

PN24

THE COMMISSIONER: Or just more generally.

PN25

MR JALOUSSIS: Well, personally, I haven't, Commissioner. I have spoken to my friend this morning outside and indicated to her what we believe the problem was. Obviously there is a difference of opinion as to what occurred on 15 May. My instructions from Mr Morel - my instructions are that this is not the first occasion where access has been in one way or another, frustrated by at the last minute management being called interstate, and because of management not being available therefore access is not granted to the union, and there's nothing in the act that requires management to be there.

PN26

This is a meeting with employees during their lunch break. That's the union's entitlement, and that's what the union has sought. As I indicated to you, these problems, Commissioner, go back as far as '96. There is correspondence here involving visits again in which didn't take place because management was called interstate at the last minute on urgent business. So it's a sequence of frustrating events that have taken place, that have brought this matter before the Commission, hopefully for a resolution.

PN27

THE COMMISSIONER: Yes, thank you. Yes, Ms Davis?

PN28

MS DAVIS: Yes, may it please the Commission. Commissioner, we dispute strongly any claim that the union has been refused a right of entry to the company's premises. In fact, we say that a meeting actually occurred on Wednesday, 13 May, of which Mr Morel did have an opportunity to not only discuss with management any issues but also to discuss with employees. What we say is that at that time Mr Morel became, let's just say, unhappy, and as a result of that left without taking, or making, the most of the opportunity made available.

PN29

But I think that my friend is quite correct in that there is a history, and I would like to just go through that history briefly, and I guess specifically dealing with the chain of events leading up to why we are here today. As I understand it, the first correspondence that the company received from the union was on 12 March 2002, of which I believe Mr Jaloussis may have handed you a copy of that correspondence?

PN30

THE COMMISSIONER: Yes, that's correct.

PN31

MS DAVIS: Now, that correspondence requested a visit on the company's premises for 18 March. What occurred following that, Commissioner, was as I understand it a letter was sent back - the fax was sent back by Mr Michael Walton advising that it was an inconvenient time, but as I understand it, there was a further piece of correspondence - a further fax from the union outlining the way the legislation operates, quoting section 285, and the union's right of entry to hold discussions with employees.

PN32

Following receipt of that further piece of correspondence, the company changed their schedules. Management changed their schedules to make sure that they would be available if issues arose from that meeting, and in fact advised employees the day prior to the meeting - advised the employee representatives of which, Commissioner, the company has two employee representatives that act like a - a consultative meeting if you like, but employees raise any grievances or issues with the employee representatives, who then take it to management.

PN33

In this instance what occurred was management advised the employee representatives, including Ms Betty Logan, who is present here today, that the union would be attending the company's premises the following day, that is, 18 March to conduct a meeting with employees. What was also advised was that an area would be made available for the employees to have their lunch, and also listen to the union should they chose.

PN34

Now, 18 March arrived. Employees attended, ate their lunch, awaited the union, and the union did not - did not attend. The second bit of correspondence, or third bit of correspondence that the company received from the union was a further request to visit the company's premises. This time on 9 May. At that time that further correspondence did not advise or provide any explanation as to why the union had failed to attend on the 18th, so what occurred was a correspondence or a fax was sent through by the company; that correspondence, I believe, once again you have been provided with a copy, and it's dated, Commissioner, 7 May 2002.

PN35

THE COMMISSIONER: Yes.

PN36

MS DAVIS: Now, Commissioner, if we look at the top paragraph it makes it quite clear, it says:

PN37

We would like to advise that this day is unsuitable, and would like to negotiate another mutually convenient time for your site visits,

PN38

so the company wasn't saying, "No, we're not interested. No, you're not allowed on site. Here is the time, we know it's not convenient for you, but tough." The company was more than happy to sit down and negotiate a time for the union to come and meet with its employees. Now, I take on board the comments made by Mr Jaloussis in this matter that the union is coming to discuss matters with employees, and I think Mr Jaloussis pointed to the provisions of section 285C as well as section 285E, not anywhere prescribing that management must be present.

PN39

What we say, Commissioner, is that it doesn't say that management doesn't have to be on site. What it provides is the union have a right to come in and talk to employees, and what we say is that the company was not frustrating that, the company was simply seeking a time that would be convenient for both sides. Now, Commissioner, following that correspondence of which I might add the very last paragraph says:

PN40

Can you please call me on -

PN41

and Mr Bruce provides his mobile phone number to enable to union representative, Mr Morel, to make direct contact. Mr Morel did take up that invitation and contacted Mr Bruce the following Monday, which I believe was the 9th - the 13th - I apologise, 13 May. Now, what was agreed to was the - sorry, what was agreed to was a time of Wednesday, 15 May. What was also explained to the employer - to the union representative was the company actually operates under a split lunch shift.

PN42

So where earlier correspondence of the union had referred to a timeframe of 12 pm to 12.30, the company notified them that as the company has a split shift, and due to being very, very busy at the moment, the fact that there was a split shift, that the union would be able to stay not from 12 to 12.30 but actually 12 to 1, so made sure that the union was aware of the lunch-times for both shifts. Once again, I would not say that this would be conduct of a company trying to frustrate the union's right of entry to hold discussions on meetings with employees.

PN43

What occurred was on 15 May, which was the Wednesday, Mr Morel arrived at the company premises at approximately 11.45 am, and at that time he was met by Mr Bruce. Now, Mr Bruce advised Mr Morel on his entering of the company's premises that he would not be able to go and hold the meeting in the lunch room, Commissioner.

PN44

The lunch room is located in an area where access is only via the factory, and it was explained to Mr Morel, to which my friend has made some comment, to national security, but what was explained to Mr Morel was that the company did not want Mr Morel or any other be it sales reps, or any other person, going through the factory at this time due to the fact that they were working on, firstly, a classified defence export job, and, secondly, the company at that time also had four high-ranking Australian Defence, I believe, Air Force officials who were doing a tour of the company's premises, inspecting the job that was being done, because there was also an Australian Defence Force job being done at the same time. So on that basis another area was made available for the union to meet employees. That area was the company's showrooms. That area is based in the administration area of the business.

PN45

So, Commissioner, it is not a case of the company has said, "Sure, we will make a place available, it's only a five kilometre walk to get there." It was an area that was made available in the company's administration area. I am also instructed that tables and seats were made available for people to sit down. So what occurred was Mr Morel was not at all happy with the fact that he would not be able to go through the factory. Once again, we say that this is because of very strict operational requirements of the business, and that the company was not acting unreasonably in failing to provide access to the lunch room. Instead, another area was made available for Mr Morel to meet with employees.

PN46

Now, I've not been able to find anywhere in the Act where it says the union must meet with employees in the lunch room. What the Act does provide is that the union must be provided an opportunity to meet with employees. What we say is that that has occurred. Now, following some discussion as to the locality, Ms Betty Logan who was going to be present at the first meeting advised her employees that were also on that first lunch shift that the union representative was present, that he was downstairs; advised staff to go and grab their lunches and if they wanted to come down and listen that they may.

PN47

Now, Ms Betty Logan was advised by a few employees that they weren't interested. There were also employees who advised that they would rather go and have a cigarette break. Ms Logan went down the stairs, down to the showroom and, at that time, was the only employee who wanted to listen to Mr Morel's discussion or meeting, if you like. Now, when Ms Logan arrived at the showroom, Mr Morel was on the phone. As I understand it, he was on the phone to his solicitor seeking advice regarding not being provided access to the company's factory. Ms Logan started eating her lunch, waiting for Mr Morel to get off the phone.

PN48

Once Mr Morel got off the phone, he started packing up his gear and stood up as if to leave. Ms Logan asked him where he was going if he wasn't staying. Mr Morel made comments to the effect of, "Why bother," and also made comments of the fact that Mr Bruce was sitting in the room and also present. Now, Commissioner, I believe Mr Morel made comments to the effect that he would not hold meetings with employees while Mr Bruce was present in the meeting, that he felt Mr Bruce may cause intimidation, that Mr Bruce may terminate employees, comments to those effects.

PN49

As a result, Mr Bruce said, "Well, obviously, I deny that I'd take any such action. However, if you would like me to leave, that's fine," and he consequently left. Now, as I understand it, Mr Morel was still leaving anyway. In fact, he'd made it quite clear that he was leaving the company's premises, to the point where Ms Logan asked him, "Well, aren't you at least going to stay for the second lunch shift," to which Mr Morel once again advised, "Well, what's the point?" So what we say is that Mr Morel was provided with an opportunity. In fact, as I understand it, employees were going to be attending in the second lunch meeting as well.

PN50

We say that one employee did attend for the first meeting but apparently she wasn't good enough for Mr Morel who advised that she was working for management because she is an employee representative. So I would like to put clearly on the record now that Ms Betty Logan is an employee. She works alongside all the other employees. She is an employee that has been nominated and elected by all other employees for the purposes of the Workplace Committee and at no time has she been classed as a manager or a salaried employee. In fact, she told me this morning that her job is there to work for the other girls, not for management. So we say that there was an opportunity provided and Mr Morel just did not make himself available to that opportunity that was provided. if it pleases the Commission.

PN51

THE COMMISSIONER: Can I just take you back to the March incident. Do you accept that Mr Walton sent this communication back to the union, saying that the meeting as planned wasn't convenient?

PN52

MS DAVIS: Commissioner, I must acknowledge that I only found out about that, that return fax, this morning. I can confirm that that did occur. Mr Michael Walton has advised us that, following sending that fax back to the union, a further correspondent was received by the company from Mr Morel. Well, actually, I can't even confirm whether it was from Mr Morel or Mr Jaloussis, but apparently there was further correspondence that outlined the union's right of entry to the company's premises and, as I understand it, quoted sections of the Act.

PN53

So, based upon that advice, Mr Walton arranged for senior management to reschedule to make sure that there was someone present there, hence why in the correspondence where it says:

PN54

Senior management restructured their busy schedules to avail themselves to you and its staff consultation -

PN55

and that's in a letter dated 7 May. So a time was made available, and as I understand it, that was following instructions of the union that they were going to be there on the 18th.

PN56

THE COMMISSIONER: Mr Jaloussis, do we need to put much more on the record, really? I mean - - -

PN57

MR JALOUSSIS: Well, I'd just like to respond to a couple of matters, Commissioner. I won't take the credit for the letter that my friend refers to because it didn't come from me. I think it came from Mr Morel. I'm just not quite clear on what my friend is saying about the appointment that was made for 18 March because, on the one hand, there's a return fax from Mr Walton advising the union that it's an inconvenient time. Then I understand my friend to say that they've advised the people to be there in the lunch room, that the union is going to attend. But the union didn't attend and nobody told them.

PN58

So I assume that the management who had cancelled the meeting didn't advise their employees that the union would not be attending, the union not being in a position to advise those employees because they're not there. The way I understood my friend to be putting is that this meeting was cancelled on the 18th and the union never told the employees. If that's the case, it's a very strange submission to be putting to the Commission when it was cancelled by the employer without the union having an opportunity to have any contact with the employees.

PN59

Insofar as the incident on the 15th, Commissioner, this is a visit that was initially planned a week earlier. It was rescheduled at the request of the company. The telephone call was made by Mr Morel on 13 May. It was arranged for 15 May to suit the company. This is a company that says it has Australian Defence contracts. One would have thought that, having made the appointment on 13 May for 15 May, this company would have known what other appointments it had on that day and I'm sure the four high ranking Defence personnel didn't show up out of the blue to go through the factory and inspect what was going on.

PN60

I'm sure they had made an appointment with senior management and senior management was aware of that at the time that they agreed that the union could attend. So if they have gone and made an appointment at a time that was inconvenient to them, well, that was their business. The union sought access to the lunch room where all the employees take their lunch. Providing the union with a room, the sales room, where the employees who want to see the union have to parade through the administration area where Mr Bruce was seated in this meeting room. He was seated there. He didn't offer to leave. That's disputed. He was seated there the whole time.

PN61

Quite clearly, that was very intimidating to any of the employees who wished to come and see the union rather than being present in the lunch room where they would be taking their meal break and nothing could be said to them about having conferred with the union. So this is just part of the behaviour of this company, Commissioner, where they're forcing the employees to parade through the administration area into a separate room where Mr Ron Bruce is seated. In actual fact, Mr Stuart Bruce, a gentleman who is here today, I understand, agreed to allow Mr Morel into the factory but it was his father who insisted that Mr Morel not be granted access to the lunch room and that the meeting take place in the sales room.

PN62

So, Commissioner, there is a lot of dispute between what's gone on but it just indicates that the relationship here is not a very satisfactory one and we again implore the Commission to insist the parties try and resolve this matter. Thank you.

PN63

THE COMMISSIONER: Mr Jaloussis, I intend letting the parties try to do that themselves first. I would have thought that between yourself and Ms Davis it really would be possible to resolve those matters. Just so it's very clear I want you to agree exactly where the place will be as to where the meeting should occur, when exactly in terms of date and time and who will be the contact point so there is no doubt that it's management rep X rather than Y and equally from Mr Morel's side as well, you know, it's not going to be someone else and everyone knows exactly who is going to turn up when and where. I will leave you to confer about that and to resolve that. I wouldn't anticipate we need to go back on the record unless you have some contrary view. Do you have any reason to think - - -

PN64

MR JALOUSSIS: Commissioner, not at this stage. It depends on the outcome of the discussions I have with my friend. If there is an agreement I'd like to have that agreement put on the record. I would like to emphasise that there is no need, in our submission, for senior management to be present when this meeting is taking place. I'm sure that there are other members of management who are on site administering the business of the company. But this requirement that senior management be present - although it doesn't say that they can't be present, there is nothing in the Act that says that should be present, so perhaps that might make things easier if the meeting can take place - - -

PN65

THE COMMISSIONER: Well, again, I would have thought that that's something you could have resolved, but it certainly comes under my heading as to who will be there. I'm confident you can resolve those issues. I'll give the parties a short time. If you would let the Registry know as soon as you are ready, Mr Jaloussis. On the basis that there is some agreement we will go back on the record.

PN66

MR JALOUSSIS: Yes, thank you.

PN67

THE COMMISSIONER: We'll adjourn for a short time.

SHORT ADJOURNMENT [11.07am]

RESUMED [11.28am]

PN68

THE COMMISSIONER: Yes, Mr Jaloussis?

PN69

MR JALOUSSIS: Yes, thank you for that opportunity, Commissioner. It has proved to be fruitful. We have had a discussion. Mr Bruce has indicated to us some difficulties that the company has in respect to the work that he is performing for defence, and we accept those difficulties. However, Mr Bruce has indicated that he is prepared to assist the union to have a meeting with the employees during their lunch break by designating the sales room - I think I am describing it correctly - the sales room that was made available to Mr Morel on the 15th, designating that room as the lunch room on a date to be agreed between the company and the union for all employees to take their meal break in that room at a time when Mr Morel, or another officer of the union, can then consult with them. As I have indicated, that will take place at a time convenient to the two parties. There will be some discussions once diaries are able to be accessed.

PN70

Commissioner, the company has indicated that it will not allow access to the union, or it can't allow access to the union until at least 28 June, because of the nature of the work that it is performing, and we accept that. However, we do request through the Commission that the company consult with the union at all times when there are these difficulties, because the union may well want to carry out other visits to the company's premises, not only to consult with employees, but for other reasons, and we don't want the issue blowing up again if need be, if the company can then advise the union if there are any difficulties beforehand, and then a mutual suitable date can be arranged. Now, as far as today is concerned, Commissioner, we have that agreement. I think that will resolve the issue for the time being, and we thank you for the time that you have allowed to us.

PN71

THE COMMISSIONER: Thank you. Yes, Ms Davis?

PN72

MS DAVIS: Yes. May it please the Commission, we would confer, or confirm, the comments made by Mr Jaloussis; an agreement has been reached whereby a date still to be designated shall provide for the lunch room being held in the show - so the lunch room will be the showroom for one day whereby employees will be having their lunch in that particular room, and Mr Morel will have access to that room for the purposes of holding meetings with employees.

PN73

Commissioner, I just wanted to clarify though comments made by Mr Jaloussis where he made mention to consultation. I'm sure he didn't mean consultation generally that every time the company gets a contract which is confidential in nature that they will contact Mr Morel, but more just if Mr Morel is going to be coming on to site and is unable to go on to the factory that he would be advised at that time. I'm sure that is what Mr Jaloussis meant. But other than that, Commissioner, that ceases our submissions in this matter.

PN74

THE COMMISSIONER: Yes, thank you.

PN75

MR JALOUSSIS: My friend has got it right, Commissioner. I'm not that unreasonable.

PN76

THE COMMISSIONER: No, I expected that's what you thought, Mr Jaloussis. If Mr Morel is going on and he gives advice and there's a problem, you expect the company to say, look, we've got a problem at that time. Yes, I commend the parties for working out what was a practical solution to some of the issues and I trust that the matters will progress in accordance with the understandings you now have. The matter stands adjourned.

ADJOURNED INDEFINITELY [11.32am]