Equal Opportunity - Discrimination on the basis of industrial activity in the area of employment - Review of dismissal of a complaint by Commissioner - Whether Respondent's policies and procedures discriminated on the basis of industrial activity - Anti Discrimination Act 1998 (Tas) Section 14, 16, 22, 72

REPRESENTATION:

1. The Determination concerns an application to review a decision made by the Anti-Discrimination Commissioner ["the Commissioner") dismissing a complaint. The complaint was made by Mr Peter Aylett ("the Complainant") under the Anti-Discrimination Act 1998 ('the Act") by a claim dated the 10th April, 2001. In that claim it was alleged that Australian Paper ("First Named Respondent") and Mr Tony Purdy ("Second Named Respondent") had discriminated against the Complainant on the basis of industrial activity in the area of employment.

2. The claim was accepted for investigation by the Commissioner. Following the investigation the Commissioner advised the Complainant by letter of 20th December, 2001 that his claim had been dismissed under section 71(1)(a) of the Act by reference to section 64(1)(a) or (b) of the Act.

3. The Complainant has applied to the Anti-Discrimination Tribunal ("the Tribunal") seeking a review of the Commissioner's dismissal of his claim. The application is made pursuant to section 71(3) of the Act which provides:-

4. Section 72(1) and (3) is also relevant and provides:-

5. In considering the application I have read and considered the following documents provided by the Commissioner.

6. In relation to the admissibility of new documentation which had not been available to the Commissioner during the hearing of a review of the Commissioner's decision, the Tribunal is not constrained by the Act to limit its consideration to the documents that had been available to the Commissioner. The Tribunal will apply a test of relevance to any new material that has been tendered. Where additional items of evidence have been taken into account they will be referred to in this decision where relevant.

7. The decision of the Commissioner to dismiss the Complaint is stated by her to be "somewhat lengthy" as she has set out in considerable detail the information received from both the Complainant and the Respondents. The Tribunal will not set out that detail again, but will refer to specific correspondence or documents as required.

8. The factual background circumstances are that the Complainant was employed at the Wesley Vale Paper Mill as a Machine Operator. The Complainant claimed that he was targeted by management as a result of raising safety concerns in the workplace. Issues of the Complainant's "bad attitude" and inability to work with his crew were raised by the Second Named Respondent and were discussed at a meeting involving the Complainant, all the crew and a Union Representative. This was prior to Christmas 2000.

9. The Complainant rang in sick later on 18th February, 2000 and the Company had some difficulty covering for him during the shift that evening. There appeared to be an issue as to whether the Complainant was at home on the evening he called in sick.

10. On 28th February, 2000 the Complainant was asked by Mr Bob Bright if he was refusing to train a person to the position of Senior Operator. The Complainant claimed he was refusing but indicated that training had been suspended as a consequence of the safety issues previously raised.

11. The Complainant was asked again later that day by Mr Bright and the Second Named Respondent if he was refusing to train a person to the position of Senior Operator. The Complainant wanted a Union Representative, Mr Mark Fagan, to be present at the meeting but he was unavailable. The Complainant left the meeting. Approximately half an hour later Mr Bright and the Second Named Respondent went to the Wet End control room where the Complainant was. Mr John Tregenza was also present. The Complainant says the Second Named Respondent asked him more than a dozen times if he was refusing to train a Senior Operator and the Complainant indicated he wanted Union representation.

12. Further meetings and correspondence from the AMWU concerning the issues of safety and training particularly as they related to the Complainant are detailed in the Commissioner's decision. The Complainant had been training Mr John Tregenza and that training was suspended but ultimately reinstated.

13. The other aspect for consideration is the terms and effect of the relevant Enterprise Bargain Agreement. On 15th January, 2001 the Wesley Vale Mill Agreement 2000 was certified by the Australian Industrial Relations Commission pursuant to the Workplace Relations Act 1996.

14. As a consequence of this agreement, inter alia, it was intended that employees maintain competency in their career path at their current function or job role, one level above and one level below.

15. The Complainant was a level 7 Operator at the Wet End and was a very experienced employee. Level 7 was the highest level available, although there had been discussions during the negotiation of the agreement from some level 7 Operators wishing to have a new level 8 created. As a consequence of the agreement a number of less qualified employees received either promotions or pay rises, but the Complainant did not because he was already at the top level. The Complainant could not retrain for any higher level at the Wet End as he was at the top level

16. The Company was of the view that as it was some time since the Complainant had worked at the Dry End (1994) and because there had been a number of significant technological improvements in the equipment at the Dry End, the Complainant should undertake retraining at the Dry End. This occurred.

17. The First and Second Named Respondents denied discrimination of the Complainant on the basis of industrial activity. The arguments put by the First Named Respondent included reference to the fact that the Complainant was commended for his reporting of work safety breaches and was not to be criticised or discriminated against for such a report. Further, the First Named Respondent indicated that it required all employees to comply with the agreement reached with Union assistance and ratified by the Industrial Commission, and that the Complainant's refusal to comply or to be positive in the implementation of his responsibilities under the agreement resulted in difficulties for the First Named Respondent but not discrimination.

18. The Complainant's Counsel submitted that the decision for determination of whether there has been discrimination by the Respondents as alleged has 3 elements:-

19. the Complainant's complaint of discrimination was based on alleged discrimination on the basis of industrial activity in the area of employment.

20. The Commissioner found in her decision that denying or limiting access to opportunities for promotion, transfer or any other benefits on the basis of a defined attribute, such as industrial activity would fall within the scope of employment as an area of activity covered by the Act. She further found that the Complainant had been involved in industrial activity. Counsel for the Complainant did not seek to challenge the finding that the Complainant had been involved in industrial activity, but she did seek to challenge the conclusion reached by the Commissioner that there had been no less favourable treatment of the Complainant as a consequence.

21. The Tribunal accepts the Commissioners conclusion that the Complainant had been involved in industrial activity in the light of the information available to it. His level of participation in Occupational Health & Safety issues with the involvement of a union can be defined as industrial activity. See for example, the decision of The Victorian Civil and Administrative Tribunal of Dickenson -v- Shire of Yarra Ranges (2000) VCAT 1093 at p3.

22. Further the Commissioner concluded that the Complainant's involvement in making comments regarding isolation procedures was carried on with the general support and/or sanction of the MW Union. This conclusion was based on information supplied by the AMWU to the Commissioner. She therefore found that this activity by the Complainant also fell within the definition of industrial activity.

23. The Commissioner in her decision to dismiss the complaint, then went on to consider whether there was any "less favourable treatment" of the Complainant by the Respondents. Ms Taglieri submitted that the Commissioner had fallen into error by accepting at face value the information before her from the Company in relation to the issue of retraining and transfers of employees and Ms Taglieri provided a further statement from the Complainant and statements from other employees in relation to the alleged less favourable treatment of the Complainant. The Commissioner also provided further statements regarding the process of retraining and transfers.

24. In 2000 the Australian Paper Agreement 2000 (The Core agreement) was finalised together with the Wesley Vale Mill Agreement 2000.

25. The Wesley Vale Mill Agreement 2000 includes the establishment of "one up and one back training" whereby employees are required to be competent at the level of their actual position, one level below their position and one level above their position (Clause 14.1.3). This training was intended to enable individuals to progress in their own career path but was also intended to provide for the needs of the business (Preamble to clause 15, training and Development).

26. Ms Taglieri provided statements from fellow employees of the Complainant which averted that they had not been required to change shifts to facilitate their career path training. One statement referred to a voluntary change of shifts to ensure the obtaining of permanency. Ms Taglieri submitted that until the Complainant's situation in April 2001, the Company had engaged in consultation with employees, that there was proactive involvement of employees in training and in the circumstances of transfers and that people were not required to transfer against their will. Ms Taglieri went further and submitted that not one individual had been forced to make a change for training purposes.

27. Mr Donald Kidd in his statement dated the 28th of July 2002 states as follows:

28. Ms Taglieri indicated that the Complainant wished to make it clear that he did not have a problem with "one back" training it was the circumstances in which he was required to transfer contrary to his wishes which he complains of and alleges constituted less favourable treatment. Ms Taglieri also posed the question as to why the Complainant was the first person to do one back training on the paper machine.

29. There is clear evidence available, and it was not disputed by the Complainant, that on the 17th of February 2001 he was absent on sick leave. As a consequence the WV11 Paper Machine shut down for the remainder of the shift for want of an operator on the wet end of the machine. The Complainant would normally have been the wet end operator on that shift. Mr John Tregenza had not completed his training as wet end operator at that time and could not therefore replace the Complainant. The Company gave notice to the Regional Secretary of the AMWU's Printing Division on the 22nd of March 2001 that once Mr Tregenza was available as an alternative operator on the wet end of the paper machine the Complainant would be retrained in the dry end. On the 11th of April 2001 Second Named Respondent wrote to the regional Secretary again confirming the Complainant's intended retraining and the intention to transfer him to another shift for that purpose. On the 26th of April 2001 a written memo was provided to the Complainant advising him he would commence on C shift on the 29th of April 2001. This notice was given in accordance with the terms of the Enterprise Bargaining Agreement which required 48 hours notice of any transfer.

30. Clause 14 of the Second Named Respondent's statement (fourth dot point on page four) says that "The catalyst for Peter being the first such operator was the costly shut of the paper machine on D shift on the 17th of February 2001 and the need to avoid such a recurrence".

31. The Commissioner concluded that the Complainant's transfer from one shift to another for the purposes of training was not less favourable treatment as he was not the only employee required to do so and that "there was or appears to have been (necessarily in the light of the shut down and Enterprise Bargaining Agreement) an emphasis on multi-skilling and the need for more variously skilled workers" (p.43).

32. Having considered the extensive materials provided by both parties to the Commissioner and to the Tribunal and the submissions of Counsel for each party, the Tribunal is of the view that the decision of the Commissioner to dismiss the Complainant's complaint was correct. It is the Tribunal's view that there is insufficient evidence to establish on a prima faire basis, that the Complainant was treated less favourably than other employees when he was required to retrain in another shift.

33. The complaint therefore lapses under section 72(1) of the Act.