Knudsen and Australian Postal Corporation
[2004] AATA 448
•7 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 448
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/997
GENERAL ADMINISTRATIVE DIVISION ) Re RUSSELL KNUDSEN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date7 May 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. .........(Sgd) J Cowdroy.......
Member
CATCHWORDS
WORKERS’ COMPENSATION – applicant in receipt of weekly workers’ compensation payments in addition to his salary – applicant involved in industrial action – respondent entitled to withhold payments for period of industrial action
Workplace Relations Act 1996 ss 4 and 187AA
Occupational Health and Safety (Commonwealth Employment) Act 1991 ss 37 and 38
REASONS FOR DECISION
7 May 2004 Ms J Cowdroy, Member 1. This decision relates to a hearing on 3 and 4 July 2003 in Brisbane. It concerns the review of a decision made by the Respondent on 3 October 2002 not to pay the Applicant the amount of $34.37 because he had participated in industrial action on 24 September 2002.
2. The Applicant was self-represented and called evidence from Mr P Kelly and Mr C Thiele. The Respondent was represented by Ms K E Downes of Counsel who called Mr G MacKenzie and Mr D Whitson.
3. The T documents were entered into evidence as Exhibit R1, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, as well as the following material:
Exhibit R2 Three Minutes of Meetings
Exhibit R3 Copy of Parity Postal Transport Officer Group Mail Processing
Exhibit A4 Statement of Russell Knudsen dated 6 February 2003
Exhibit A5 Copy of Carousel Trial for Drivers’ Pay Parity
Exhibit A6 Pay Parity Proposal
Exhibit A7 Documents relating to safe operating procedure
Exhibit A8Fax from Peter Kelly to Glen Mackenzie and Cameron Thiele dated 11 September 2002
Exhibit A9 Minutes of Meetings
Exhibit A10 Documents relating to Australia Post Workplace Relations
Exhibit R10 Mr Knudsen’s duty statement for 24 September 2002
Exhibit A12 Report by Stacey Rodyhouse re Carousel at Australia Post
4. The matter was decided on the basis of the exhibits, the evidence of the witnesses, the submissions of the parties and relevant case law and legislation.
Background
5. The following is by way of background information and is not in dispute. The Applicant is a Postal Transport Officer employed at the Northgate Mail Centre. He has a compensable employment related condition in respect of which he receives compensation payments in addition to his normal salary. Compensation payments are calculated as a reflection of penalty payments and overtime which the Applicant would have received were it not for his compensable condition.
6. On 27 September 2002, a determination was issued by the Respondent to the Applicant, setting out the amount of his workers’ compensation payment for the period 12 September 2002 to 25 September 2002.
7. Subsequently the Respondent’s claims manager re-considered that determination and issued a reviewable decision on 3 October 2002. That reviewable decision revoked the earlier determination and advised the Applicant that due to participation in industrial action this pay was to be reduced in the amount of $34.37 on the basis that he took unauthorised leave. The reduction represents the compensation portion of the applicant's overall salary which he would have received but for his participation in what the Respondent perceived as industrial action on 24 September 2002.
8. The Applicant lodged his application with this Tribunal on the basis that he should receive the additional payment as he had not participated in industrial action and what has been classified as unauthorised leave related to a safety issue at Northgate Mail Centre.
The Issue
9. The issue for the Tribunal to decide is whether on 24 September 2002 the Applicant participated in industrial action.
Evidence
10. The Applicant gave evidence of the sequence of events leading to a certification of an agreement, by the Australian Industrial Relations Commission on 25 September 1997, between Australia Post and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, such agreement being described as “parity postal transport officer group – mail processing group agreement 1997” (hereinafter called Pay Parity Agreement).
11. The Applicant had been a member of the consultative committee as the drivers' representative from the Northgate depot. The Pay Parity Agreement was the result of consultation and discussions over a considerable time. Due to retirements, ill health and transfers the applicant was the only remaining employee of Australia Post who had been on the working party and therefore the only employee with copies of the various documents relating to the Pay Parity Agreement.
12. In 2001 a new transport management structure was put in place. Part of the Pay Parity Agreement set out operational changes to workers' duties at the carousel areas. The Applicant formerly worked in the carousel area but after injuring himself he had been employed as a driver, transporting mail between mail centres. After the Pay Parity Agreement was instigated, the drivers did a lot more break-up of the mail product, which streamlined the operations in the area and reduced the number of mail officers required.
13. Over time, the number of officers available to assist in moving loads over 16kgs reduced and this was a source of some concern for the drivers. Mr Knudsen’s understanding was that the reduction in staffing had been the subject of consultation between employees and management for approximately eighteen months prior to 24 September 2002.
14. On that day, the Applicant returned to the depot for a meal break which was from 4.30pm to 5pm. It was usual procedure for his truck to be unloaded and reloaded during this period for the next run. Mr Peter Kelly told him that there was concern about safety issues at the carousel and the drivers had walked away from the carousel. He was told that senior management and union officials were meeting and Mr Kelly asked him if he could attend the meeting. He understood that he was the logical choice, as he was the only person from the working party committee who had a sound knowledge of the discussions which led to the Pay Parity Agreement being certified.
15. The Applicant indicated that he was aware that he would not be paid to attend the meeting unless he was given authority from management and Mr Kelly indicated to him that such consent had been given.
16. The Applicant attended the meeting, which ran from approximately 7pm to 9.20pm. He subsequently became aware that he was not going to be paid for the time spent in his attendance. He was aggrieved because he believed that some of the documents he supplied at the meeting were one of the main factors in resolving the matter. He considered he was not involved in industrial action but that he attended a meeting at management’s instigation.
17. He recalled Mr Whitson, Head of Transport Operations. arriving at the depot which he was sitting outside at the “smoko table” with the drivers who refused to work at the carousel area. He recalled Mr Whitson telling the group that he considered there was an illegal stoppage, that industrial action was taking place and he ordered all of the employees to return to work. He was unsure whether the direction was given during his meal break, but he believed it was not a direction with which he needed to comply in any event, as he had already been alerted to the possibility that he would be attending the meeting. He did not recall anyone of the drivers informing Mr Whitson that they were on strike. In any event, even if this had occurred, he did not consider that a driver in the carousel area had any authority to make such a statement on his behalf.
18. During the course of the meeting, he made management aware of certain information relating to the carousel that they had hitherto appeared to be unaware of, however, the matter was not resolved at the time. He was aware of a directive that neither he, nor the drivers, would be paid for the time they did not work. The following day discussions between union officials and senior management resulted in a resolution of the issue in relation to carousel staffing and the drivers returned to normal operations.
19. Peter Kelly, a union representative and the health and safety representative at Northgate depot, gave evidence as to the lack of assistance that was given to Mail Centre staff. Although indication had been given that support staff would be available for lifting heavy loads, such assistance was not always forthcoming. On the day in question, he had received a new roster for the carousel area, which had removed the last of the assisting staff. Upon receiving the roster he considered that there was imminent danger that someone could be injured. He had met with the drivers and advised that the Mail Centre roster had withdrawn assistance and he had made comments to the effect “It is up to you guys. We’ve got a safety issue out there. What do we do about it? Bingo. We stopped on safety issue” (page 67 of transcript).
20. Although he was aware that there was a procedure whereby a provisional infringement notice (a "PIN") could be issued which put management on notice that safety was being compromised, he had been previously told by Mr Glen MacKenzie, the Occupational Health and Safety Manager at Australia Post, that PIN notices were not normally issued while there was a standard operating procedure in place.
21. Mr Kelly had had discussions with Mr MacKenzie on 11 September 2002 during which he raised drivers’ concerns about the lack of assistance that was being given to them. He considered that there was poor response from management and the issue had been an on-going one for at least 18 months. His requests to put on extra staff had been repeatedly refused. He had been following the delegated procedures and had been bringing up the matter at the OH&S meetings repeatedly.
22. He indicated that he made an offer that the men would return to work if the area could be made safer by providing assistance to the drivers and was told this was not available. He did not consider the drivers were on strike. He said:
“We were waiting for a conclusion to the safety issue of staffing levels, assistance to fork lift movement, ULD, all those things in a confined area with vehicle/people traffic and heavy parcels and pillars etc. All those well-documented and well-discussed issues.” (page 41 of transcript)
23. A request was conveyed to him by Mr Cameron Thiele that management wanted a small representative group to attend the meeting. He and the Applicant attended that meeting after being nominated as representatives by vote of the drivers.
24. Mr Cameron George Thiele, a full time organiser with the Communications, Electricians and Plumbers Union (the Union) for the past 13 years was on the organising committee in 1996 for the Pay Parity Proposal. He received a telephone call at about 5pm on 24 September 2002 and was advised that there “an industrial matter going on at Northgate transport” (transcript, page 88). Enroute to Northgate, he received a telephone call from Mr Kelly saying that the drivers were upset at the lack of action being taken to resolve the problems at the dock at Northgate and that they had stopped work.
25. He arrived at the Northgate depot at 6pm and convened a meeting with the drivers to ascertain the situation. He informed the drivers that the action could be deemed to be illegal and the drivers had to consider their position. He was given an undertaking by the drivers that the action involved safety concerns they had at the dock involving the loading and unloading of vehicles. He asked for two representatives to accompany him to the manager’s office to try and resolve the problem and the nominated persons were Mr Kelly and the Applicant.
26. He was present at the meeting and that there was no suggestion made by any of the management staff that Mr Knudsen was not expected or welcome at the meeting. He recalled Mr Whitson expressing the opinion that he considered the drivers’ action was industrial action and that Mr Whitson indicated he would be making contact with the State Manager, Mail Network to seek her advice in that respect. He had heard “scuttlebutt that PIN notices are not allowed in Queensland" (page 93, transcript).
27. Mr Glen Stuart MacKenzie, Manager, Employment Health Safety and Environment for Australia Post for the past five years confirmed that a valid PIN had not been issued in relation to the carousel at their Northgate transport depot at any time. General policy was that there was a strong preference for matters in relation to occupation health and safety to be resolved by way of consultation. He said:
“If there’s any issues, raise the matter with management or come direct to my area, health and safety area, and we’ll resolve it and if we can’t then the PIN process can apply.” (transcript, page 94)
28. He received a telephone call from the manager for Mail Network who advised that there was a stop work meeting at Northgate. He attended the premises. Upon attending, he formed the view that the stoppage was an industrial action rather than a safety issue. He was there if management wanted advice on OH&S issues and he thought that he might have been of assistance if there was a safety issue involved.
29. He had met with Mr Kelly on the previous Friday and did not believe there was any safety issue. He acknowledged however, that at that meeting Mr Kelly raised concern about the staffing at the carousel. He explained that if there were insufficient staff to meet the standard operating procedures in relation to assistance with heavy bags, in particular, that Mr Kelly should take it back through his manager. He informed Mr Kelly at that time that it was not a safety issue but it was a management issue as to how resources were allocated. He described the issue as “a lack of communication”.
30. He rang Mr Peter Tyler of Comcare the following morning to ascertain his opinion. Mr Tyler indicated to him that he should probably treat the matter as an industrial issue.
31. Mr Douglas George Whitson, Manager, Australia Post Transport Queensland for the past 12 months, attended the Northgate depot on 24 September 2002, arriving at approximately 5.30pm. He observed a group of drivers sitting underneath the stairwell leading up into the main office and amongst the group he recognised the Applicant. He asked the group what was going on and a response was received from someone, whom he could not identify, that the employees were on strike. He then indicated to the drivers that it was an unauthorised stoppage and asked them to return to work. His request was refused and he was informed that he needed to talk to the drivers' representative. He then told the drivers that they were on nil pay and requested them to go back to work. At that stage, the Applicant responded “No, you need to talk to our union rep" (transcript page 116).
32. He spoke to Mr Kelly who indicated that it was an OH&S issue with the carousel. He queried why a PIN notice had not been issued if it was an occupational health and safety issue.
33. He indicated at the meeting that he considered that it was an industrial issue. An offer was made by Mr Thiele to the effect that if management viewed it as an industrial issue, the drivers would stay out. However, if it was viewed as an OH&S issue in relation to the weight of bags at the carousel, the drivers would return to work on the basis that the safety issue would be resolved and the drivers would work overtime to make up lost time.
34. He formed the view that it was an industrial action after he had spoken to the drivers upon arrival. He formed the view that the Applicant was one of the striking workers. He was not expecting, nor did he invite the Applicant to attend the meeting although he did not ask him to leave. He indicated that he spoke to his State Manager who agreed with his general view at the time that the matter was an industrial issue.
35. He made enquiries as to any change in roster on that day and had been informed that there had been no change.
36. The issue was resolved the next day on the basis that a review of the carousel area would be carried out which would address the issue of safety, including the issue of having a postal transport co-ordinator at the carousel and also a mail officer at the carousel to assist drivers to unload heavy bags. Such review occurred and a report was produced some two weeks after the event, which addressed issues associated with the carousel that management should have been addressing.
37. He agreed that safety concerns needed to be addressed however, realistically the drivers had stopped work because they had not followed due process. He did not issue a request that one or two drivers’ representatives attend the meeting on that evening and nor did he ask Mr Kelly or Mr Thiele to seek representatives to attend such a meeting.
Legislation
38. The relevant legislation is contained in section 187AA(1) of the Workplace Relations Act 1996 (Cth) (the Act). This section relevantly provides:
“An employer must not make a payment to an employee in relation to a period during which the employee engaged, or engages in industrial action if:
…
(c)the industrial action was taken or is being taken in connection with work regulated by an award, a certified agreement or an AWA…”
39. Section 187AA(2) relevantly provides:
“An employee must not accept a payment from an employer if the employer would contravene subsection (1) by making the payment.”
40. The term “industrial action” is defined in section 4(1) of the Act to mean:
“industrial action (except in Part XA) means:
(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:
(i) the terms and conditions of the work are prescribed, wholly or partly, by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or
(ii) the work is performed, or the practice is adopted, in connection with an industrial dispute;
(b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth;
(c)a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or
(d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work, if;
(i)the persons are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation, the committee of management of the organisation, or an officer or a group of members of the organisation acting in that capacity; or
(ii)the failure or refusal is in connection with an industrial dispute; or
(iii)the persons are employed by the Commonwealth or a constitutional corporation; or
(iv)the persons are employed in a Territory;
but does not include:
(e)action by employees that is authorised or agreed to by the employer of the employees; or
(f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer; or
(g)action by an employee if:
(i)the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.”
41. Section 37 of the Occupational Health and Safety (Commonwealth Employment) Act 1991, provides in effect that an employee can stop work if directed by a health and safety representative to do so where that representative has reasonable cause to believe that there is an imminent threat to the health or safety of one or more of the employees.
42. Section 38 of that Act states that a cessation of work in accordance with section 37 does not mean that the employee is entitled to refuse to perform any alternate work directed by the employer.
Submissions
43. For the Respondent, it was contended that the Applicant was not directed or instructed by the Respondent, through its management, to cease work and not to perform the remainder of his duties during his shift on 24 September 2002. Mr Whitson directed the Applicant and those who he was in company with to return to work and the Applicant’s refusal to do so and his subsequent actions indicated that he was on strike. Regardless of whether he was asked by union representatives or another employee to assist in negotiating with management about the carousel issue, the Applicant was nevertheless engaged in industrial action and as such he had no entitlement to be paid for the period during which he was engaged in such action.
44. For the Applicant, it was contended that he attended the meeting with management at management’s request and that he did not at any stage consider himself in the same situation as the drivers who had ceased work. In any event, he contended that the stop work by drivers involved at the carousel was a reaction from them about safety concerns and he submitted that management’s decision to categorise the stoppage as industrial action was unfounded and inappropriate.
Consideration and Conclusion
45. Much has been made by the various witnesses to this matter as to whether the working conditions in relation to the carousel were of such a nature that they caused a risk to the employees’ health and safety. It seemed to the Tribunal that the Respondent’s witnesses tended to downplay the employees concern about their health and safety. There was evidence from a number of witnesses that there had been on-going concern expressed to management about work practices at the carousel. It seemed rather trite to maintain the stance that the lack of staff allocation to assist with heavy lifting was a management issue rather than a safety issue.
46. However, irrespective of that, the issue for this Tribunal is to determine the status of the Applicant at the time he ceased work at about 5pm on 24 September 2002. The Applicant’s evidence is that, in attending the meeting, he believed he was there by either invitation or direction of management. The belief that he was at the meeting by invitation was no doubt reinforced by the fact he was not asked to leave by the management staff.
47. The evidence as to the events which led to the Applicant's presence at the meeting is confusing and contradictory. When one sifts through the plethora of versions on this aspect, it is clear that no-one sought sanction from any of the management staff for Mr Knudsen to attend that meeting.
48. What is significant however, is that the Applicant admitted that Mr Whitson, upon arrival at the depot, ordered those with whom he was seated to return to work. The Tribunal finds that an indication was given to Mr Whitson by one of the drivers that they were on strike and it was not unreasonable for Mr Whitson to form the view that the Applicant was part of the striking workers.
49. While I accept that the action taken by the employees may have been instigated because of concerns about safety, it is clear that the procedures which lead to a stoppage of work in such circumstances have not been followed. In particular, a Provisional Infringement Notice had not been issued. Mr Kelly’s evidence made it clear that the decision to cease work was one taken by the drivers and that cessation of work did not occur on the basis of a direction by a health and safety representative who had reasonable cause to believe that there was imminent threat to the health or safety of one or more of the employees. That being the case, the Tribunal finds that the stoppage by the carousel drivers was industrial action.
50. Even if that was not the case, and taking the hypothetical stance that the issue was one relating to safety, there is no indication that, at any point in time, the Applicant’s health or safety was likely to be compromised, given the fact that he did not work anywhere near the carousel.
51. Additionally, the Applicant was aware of the drivers' decision to cease work. There was no suggestion that this was done validly on the basis of safety issues. That being the case, the only view open to the Tribunal is that the stoppage of work was industrial action and the Applicant’s refusal to return to work when instructed by Mr Whitson, constitutes a refusal to return to work. That being the case, during the time in which Mr Knudsen was not carrying out his normal driving activities on the evening of 24 September 2002, the Tribunal finds he was not entitled to the sum of $34.37.
52. Accordingly, the Tribunal affirms the decision under review.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed:.................................................................................
AssociateDate of Hearing 3 July 2003
Date of Decision 7 May 2004The Applicant represented himself
Counsel for the Respondent Ms K E Downes
Solicitor for the Respondent Clarke and Kan
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