T6590
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Mines and Metals Association (Incorporated) and The Australian Workers' Union, Tasmania Branch
Industrial dispute - strike action by members - arbitration REASONS FOR DECISION This was an application for a dispute hearing made under Section 29 of the Industrial Relations Act 1984 by the Australian Mines and Metals Association (Incorporated) (the Association) for and on behalf of TEMCO Pty Ltd of Bell Bay in Northern Tasmania (the Company). The dispute was between the Company and The Australian Workers' Union, Tasmania Branch (the AWU) over certain disciplinary action taken by the Company against four members of one shift for alleged misbehaviour. As a result of the disciplinary action the AWU members at the works had taken strike action on the afternoon of Monday, 21 October, 1996 and were still out on strike when the first hearing took place on the afternoon of Tuesday, 22 October, 1996. The Company initially sought only a prompt return to work, but, later consented to extend the dispute hearing to include consideration of the disciplinary action. On the night shift at the Company's works on Tuesday, 15 October 1996 some of the workers on Shift No. 1, during a standard break from furnace work, gave themselves very short haircuts in their crib room and allegedly left the crib room in an unsatisfactory state. The disciplinary action taken by the Company included dispersing the four employees into other shifts and giving them warnings as to their future employment. At the first of the two hearings, following submissions from the parties, the Commission strongly recommended to the Union that its members return to work immediately on the basis that the dispute would be heard further on Thursday, 31 October 1996, nine days later. The AWU members returned to work on the night of the first hearing, 22 October 1996. The Company's first witness was Terence John Kiely, the Production Supervisor of Shift No. 3, the shift which relieved Shift No. 1 at about 6:40 am on Wednesday, 16 October 1996. Mr Kiely said that, following complaints from the employees on Shift No. 3 about the state of the crib room which they encountered when they arrived at work to commence their shift which was due to start at 7.00 am on that morning, he inspected the state of the crib room and confirmed that it was a disgrace and not fit for eating in. He said there were half-finished breakfasts on the table, there was dirt on the table, there was what looked like chewed-up food in the sink, the rubbish bin was full and there was a large pile of hair on the floor behind it. At the time he inspected the crib room the previous shift had all gone home and it appeared that no attempt at all had been made to clean the crib room. He said the mess could not have been caused by the on-coming shift employees. Mr Kiely also said there had been hair in the wash basin in the toilet area: he did not think hair-cutting was acceptable behaviour in a crib room which should be for eating only. Mr Kiely gave evidence that he had been a Production Supervisor at TEMCO for 18 months and prior to that he had been a relief Production Supervisor for two years. He had been employed at TEMCO for eight years and he had previously been a cleaner for 10 years on mining and construction sites. He said he had never before struck a room in such a bad state as the crib room concerned in this case. The Company's second witness, Gregory John Hannon, was the Production Superintendent at TEMCO and he gave evidence as to the events following Mr Kiely's report to him at 8.00 am on Wednesday, 16 October 1996, as to the state in which the crib room had been found. Mr Kiely was the only direct witness brought in this case and I consider his evidence to be crucial: it was not countervailed. I do not propose to canvass all the evidence and submissions put to me by both sides in this dispute, they were many and wide ranging. The main factors were as follows:
It was submitted by the Union that the penalties imposed by the Company were excessive, personal lives had been upset and roster and holiday arrangements had been jeopardised unnecessarily. The employee who had been responsible for cleaning the crib room had been allocated to do so by the shift as was the custom: the Union expressed concern that the onus for the alleged misconduct was placed on the shift and not the individual employee who was prepared to accept full responsibility. The Company submitted that the Union did not follow the agreed dispute settlement procedures in that strike action was taken before the dispute could be referred to the Commission. The Union countered this by saying that the Company had acted unilaterally by penalising the four employees. As to the cleaning arrangements amongst the shift members the Company said, whilst it did not object to the practice of allocating one employee to the job, it was Company policy for the group to be responsible. This had been made well known to all employees generally through the Company handbook the contents of which had been brought to the attention of the four employees in recent times. It appeared from the evidence and submissions that all crib rooms and other such areas on the site were not in pristine condition and the Company and the employees were engaged in an improvement process. The Company produced as an exhibit an extract from the TEMCO Safety Book which stated amongst other things: "All food scraps, newspapers and rubbish should be placed in the garbage bins and the crib room cleaned by the workgroup at the completion of each day or shift." 1 It was pointed out that whilst the transfer was a punishment it did not involve any loss of normal income nor demotion. The Union had claimed that the Company had previously praised the shift in question in that earlier it had been put forward as an exemplary "self-directed team". The Company, in response, said that being so, the disputed actions of the four employees reflected badly on them even more so. In answer to the Union's statement that the four employees had been discriminated against the Company advised that three of the four were permanent employees (the other being on a short term contract) whereas any others involved who might have been disciplined had been casual employees who had since completed their employment with the Company. The Company also said it had proceeded properly in that it had reviewed the events surrounding the dispute and had discussed it with each of the four employees during which the presence of a union representative was permitted and was availed of by three of them: only then did the Company decide to act. The Company submitted that it was bound to take the actions it did because it had to uphold its own policies and standards and abide by State legislation (the Workplace Health and Safety Act 1995) which required it to maintain a safe and clean workplace specifically in relation to crib rooms and such like. The Company also produced as an exhibit an extract from the Workplace Health and Safety Act 1995 and relied on the "Duties and Obligations" of employers specified therein, in particular from Section 9(2)(i): "... (2) Without limiting subsection (1), an employer must so far as is reasonably practicable - ... ... (i) ensure that any accommodation, or eating, recreational or other facility, provided for the benefit of the employer's employees while they are at work, or in connection with the performance of their work, and under the control of management of the employer, either wholly or substantially, is maintained in a safe and healthy condition."2 The Company submitted that the Commission ought not to interfere in this matter unless it found the Company's actions harsh, unjust or unlawful. Decision There was much made at the hearing about the hair-cutting aspect of the events involved with the dispute. In itself I do not accept the hair-cutting as a pivotal factor in this dispute. There was no evidence that the practice was explicitly forbidden by the Company and it was alleged by the Union that it had happened before without a Company reaction. The real problem was the state the crib room was left in by the out-going shift. I am satisfied that the shift left the crib room in an unacceptably dirty state (including the cut hair left unremoved). I am satisfied also that the state the crib room was left in at the time in question was on a plane far different from the general state of the crib rooms at the site. I accept the evidence of Mr Kiely in this regard. Consequently I decline to interfere in this matter. It would not be proper in view of the misconduct, for the Commission to reverse the Company's decisions as a result of these events especially since the disciplinary actions taken neither reduced the employees' pay nor their position (I am disregarding the possible loss of monies under the Agreement due to the strike action). It is important to note that it was the responsibility of the shift to clean the crib room before departing at the end of the shift. In this case the crib room was not cleaned as required. The Company could not be criticised for regarding the shift's failure to clean up the crib room as a dereliction of duty. It would also be unwise for the Commission to interfere when the Company was seeking to ensure the proper implementation of its obligations under the Workplace Health and Safety Act 1995. I do not accept the Union's claim that the Company had discriminated against the four employees concerned in that others on the shift in question were not disciplined. It is clear from the Company's exhibit "TEMCO 1" the role of each employee in the relevant events which occurred on the shift had been reviewed carefully by the Company and each of the four employees disciplined had been given the opportunity to discuss the situation and put his account. On the basis of that exhibit, which was not disputed, I accept that the discipline applied was consistent with the involvement of each of the employees and their employment status.
P A Imlach Appearances: Date and place of hearing: |