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C2003/ 902 , Transcript of Proceedings [2003] AIRCTrans 709 (3 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883

TRANSCRIPT OF PROCEEDINGS


O/N VT1651
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

C2003/ 902 

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION
- FOOD AND CONFECTIONERY DIVISION
VICTORIA REGION

and

ACI MOULD MANUFACTURING

Notification pursuant to section 99 of the Act
of a dispute re the employers decision to terminate
a member and refusal to follow the dispute settling
procedure

MELBOURNE

10.00 AM, THURSDAY, 13 FEBRUARY 2003

This matter was heard concurrently with
C2003/960 but not formally joined

PN1

THE COMMISSIONER: I will deal with the 99 matter - section 99 matter first. Can I take appearances please.

PN2

MR M. ADDISON: Yes. If the Commission pleases I believe it is our application, the 99, I appear on behalf of the AMWU together with MR T MAVRAMATIS, MR V. THEUMA and the shop stewards from the site.

PN3

MR R. MARASCO: I am from the Australian Industry Group. I act on behalf of our member company, ACI Operations Pty Limited. With me is MR B. DELANEY, MR F. NIEUWHOF and MR M. MINNITI.

PN4

THE COMMISSIONER: Yes, Mr Addison.

PN5

MR ADDISON: Yes, thank you Commissioner. Commissioner we lodged the alleged industrial dispute notice under section 99 with regard to the matters that are occurring at ACI, Box Hill. My instructions, Commissioner, are that the company has initiated the dismissal of a member of ours allegedly on the grounds that the member has sustained an injury. The member has actively been involved in a rehabilitation program for some period of time. The member was employed on the site and was working at the site.

PN6

Last Friday the company wrote a letter asking the member - and I might hand a copy of that letter up, Commissioner, and the response, I will just hand them up as a block. And the first letter there, Commissioner, is the letter dated 3 February to the member, to Louis, basically asking him to provide reasons why the company should not terminate his employment. The second letter is a response filed on behalf of our member from Mr Mavramatis, the Metal Division Organiser involved with the company

PN7

You will note in the second paragraph of the letter from Mr Mavramatis that he would like to take three weeks of his accrued annual leave so he can try and rest and improve his injury. In the meantime Louis would have the opportunity to visit his doctor and have the doctor re-assess his injury. I am instructed that Louie's doctor was on leave so it was difficult for him to actually see the doctor but with the three weeks annual leave it would have given that window of opportunity for the doctor to return, for Louis to go the doctor, have the injury re-assessed, etcetera, etcetera, etcetera.

PN8

And we thought that was a reasonable proposition to put to the company however the company then moved to terminate Louis's employment. Now, we say, Commissioner, that the company is in breach of its enterprise agreement by that action, that it would have been appropriate for the company to follow a dispute resolution procedure. At clause 12 of the enterprise agreement, which covers this company, provides, at subparagraph 6 of clause 12:

PN9

In order to allow the peaceful resolution of grievances, the parties shall be committed to avoid stoppages of work, lock-outs, any other limitations on the performance of work whilst the procedure and negotiations and conciliation are being followed.

PN10

And then at sub 7:

PN11

The employer shall ensure that all practices applied during the operation of the procedure are in accordance with safe work practices and consistent with the established custom of practice at the workplace throughout the stages, the status quo applies.

PN12

Now, the status quo, we say, is Louis attending work albeit on not full hours, limited hours, but that is the status quo. The company have asked for reasons. We have supplied reasons. We have made a suggestion to the company about an appropriate process to deal with the matter. The company have simply breached their enterprise agreement. The company have breached the disputes settling procedure. The company have said to us, no, we are not going to follow our agreement and we say appropriately the Commission should direct the company to follow a disputes settling procedure, re-establish the status quo and start negotiations with the AMWU to resolve the matter. If the Commission pleases.

PN13

THE COMMISSIONER: Thank you. Mr Marasco.

PN14

MR MARASCO: If the Commission pleases, it is the company's position that the dismissal of Mr Pallis was one that was completely justified. It is not a decision that the company has taken suddenly or capriciously or spitefully. This has been a long going matter. It was first raised in proceedings before Commissioner Cribb last year where the company had put Mr Pallis on notice for some time, that he was unable to fulfil the inherent requirements of the job and that unless he could demonstrate and put forward sound medical reasons that he could perform the inherent requirements of the job for which he would be - was employed, the company would have to no alternative but to terminate his employment.

PN15

The company denies that it has breached the enterprise agreement. There is an enterprise agreement in place. We say that it is the union and the employees that have breached the enterprise agreement by taking unlawful industrial action which is the subject of a section 127 that the company has brought. There is currently 78 employees employed by the Box Hill site that manufacture moulds that are used to then manufacture glass containers. All 78 of employees are now on strike and there is also a picket at the front of the factory.

PN16

Employees have put a padlock on the front gate and have locked the front gate to prevent some employees going to work who may wish to fulfil their contracts of employment, not be strike - and not be on strike. Obviously the strike does have a consequences on those employees and their families and some employees may be wishing to return to work and get paid and are being prevented to do so because some of the employees have padlocked the front gate and also put parked cars at the front to prevent employees entering the premises but I will come to that issue at a bit further.

PN17

I don't want to go into too much detail at this stage but as I mentioned this is an ongoing matter. Since last year, Mr Pallis has been sent to a company to be assessed. His own doctor has also, over a long period of time, supplied WorkCover certificates indicating that he is unfit to do his position competently. He has been on alternative duties for two and a half years and the company is unable to sustain him any more on those alternative duties. I would just like to table a copy of the termination letter.

PN18

THE COMMISSIONER: I didn't mark the other letters tabled by Mr Addison. I won't mark this at this stage. What fell from Commissioner Cribb when she was dealing with the matter?

PN19

MR MARASCO: A section 127 was what fell at the first instance before Commissioner Cribb and I have got a copy of that section 127 order to table before you. The subject of those proceedings, the last section 127 actually had to do with a Mr Giuseppe Mafrici who was dismissed for poor performance after receiving several written warnings. In the conciliation conference the issue of Mr Pallis was also raised and the union did raise it as an issue saying, look, Mr Pallis has been put on notice back in October last year that the company can no longer keep him on alternative duties forever and that they were looking at assessing whether he could remain an employee of the company or whether the company would proceed to medically retire him. Would you like me to give to a minute, sir, to read the letter.

PN20

THE COMMISSIONER: If you would. Did the injury arise as a WorkCover matter?

PN21

MR MARASCO: Yes, it did, Commissioner.

PN22

THE COMMISSIONER: An injury which occurred in relation to the work.

PN23

MR MARASCO: That is correct, Commissioner.

PN24

THE COMMISSIONER: Yes, go ahead.

PN25

MR MARASCO: And that would be a - our position would be that the industrial action taken by the union and the employees is completely unjustified in relation to the Mr Mafrici matter which was the subject of the previous section 127 order granted by Commissioner Cribb. Mr Mafrici did go on to lodge proceedings under section 170CE of the Workplace Relations Act. The company denies, in this case, in relation to Mr Pallis, it has breached the dispute resolution procedure. As I said, we believe it is actually the union that has breached that procedure.

PN26

Mr Pallis, if he wishes to challenge the validity of the termination of employment, does have rights under section 170CE as well and that would be the appropriate form in which to challenge the termination. We say that the strike and picket has the consequence of affecting other employees and their families because the strike has been going and the picket most of this week since the termination of Mr Pallis's employment.

PN27

THE COMMISSIONER: How do you say the union has breached the disputes settlement proceedings?

PN28

MR MARASCO: We say they have breached them by going on strike and by having a picket out the front without following the steps in the dispute resolution procedure and that is all I wish to say at this stage, Commissioner.

PN29

THE COMMISSIONER: Thank you. Is there anything that you wanted to say in response?

PN30

MR ADDISON: Yes. I just wanted - - -

PN31

THE COMMISSIONER: In a preliminary way, Mr Addison.

PN32

MR ADDISON: I want to respond to a couple of things that have been said, Commissioner. Commissioner, the disputes settling procedure and the agreement is binding on both parties. The initial breach of the disputes settlement procedure is clearly that of the company. You will note, Commissioner - and this is the first time I have seen the termination letter. The termination is because of injury. Mr Pallis has been on WorkCare for a significant period of time. He has supplied doctor's certificates for all of that time and I have just checked that Mr Pallis.

PN33

There has been doctor's certificates for all of the time that he has been on restricted duties, so to speak, and that has been a significant period of time. The company have accepted his performance of his duties in that restricted way for a significant period of time. Now, section 170CK makes it unlawful to terminate a person's employment for short term absences. That is regulated by regulation 30C of the Workplace Relations Act which defines short term absences.

PN34

30C effectively says it is unlawful to terminate a person's employment unless the person has been absent from work for three months, presuming that the person is on unpaid leave. Now, notable circumstances exist in this current dispute. The union has made a simple request of the company: Put Mr Pallis on, give us three weeks, we are not - so we can re-assess matters. We will sit down, we will have discussions with you. If we can reach agreement, good, if we can't, well, we can't, everybody's position is without prejudice.

PN35

The company have moved and dismissed Mr Pallis, we say, in absolute breach of the dispute settlement procedure. I am in a position this morning, Commissioner, to be able to say to you, the company puts Mr Pallis on, we go back to work, not a problem, the dispute is solved and we will three weeks discussions and we see if we can reach agreement. We are happy for those discussions to occur under the auspice of the Commission, if you believe that is appropriate, but all we want to do is sit down and discuss this matter with the company in a proper and civilised manner without the company taking unilateral, unprovoked, illegitimate action against an employee ie Mr Pallis. So we are happy to go into conference and have some discussions, Commissioner, but we do seek that direction.

PN36

THE COMMISSIONER: Mr Marasco, are you happy to go into conference?

PN37

MR MARASCO: Yes, I am happy to go into conference, Commissioner. I just wanted to say one thing very briefly though, for the record. It is incorrect to say that Mr Pallis was dismissed because of an injury. It is also incorrect to say that he was dismissed because of short term absence from work. In fact he hasn't been absent from work, he has been performing alternative duties. What the company has said all along and has said in proceedings before Commission Cribb last year, that the company cannot go on indefinitely providing him with alternative duties that do not exist as a full time position. If the Commission pleases.

PN38

THE COMMISSIONER: Yes, we will go off the record.

SHORT ADJOURNMENT [10.19am]

RESUMED [11.05am]

PN39

THE COMMISSIONER: I make the following recommendation to the parties and I will print and publish it in due course and issue it.

PN40

(1) All pickets and restrictions on work are to cease forthwith.

PN41

(2) The company is to record Mr Pallis as on its books from 7 February on the same terms and conditions that pertained at 7 February until Friday 28 February 2003.

PN42

(3) Mr Pallis is not at this time required to return to work but to make every reasonable effort to assist the parties to resolve this matter.

PN43

(4) The parties are to confer and review his health progress and the potential for his continued employment including a return to his previous C10 level.

PN44

(5) The outcome of the review will be subject of a report back at 10 am, Friday, 28 February, in the Commission where the parties are to agree the matter of his continued employment will be finalised.

PN45

In respect to the section 127 matter, the section 127 application will be listed for hearing at 4 pm tomorrow, Friday, 14 February 2003 and I suggest Mr Marasco that AIG notify CEPU who are not present this morning. If the company is satisfied with progress and the absence of threats or impending restrictions on work, it can advise my associate during the day tomorrow of its intentions. This matter is adjourned.

ADJOURNED UNTIL FRIDAY, 14 FEBRUARY 2003 [11.07am]