TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT YOUNG
COMMISSIONER LEE
s.604 - Appeal of decisions
Appeal by Piefke
(C2022/2126)
Sydney
3.30 PM, MONDAY, 6 JUNE 2022
PN1
THE ASSOCIATE: Parties, I confirm the Full Bench has joined the hearing. Parties, can I confirm that you can see and hear me okay?
PN2
MR ZIELINSKI: Yes, I can.
PN3
MR PIEFKE: Yes, thank you.
PN4
THE ASSOCIATE: Thank you. Deputy President Young, can you see and hear me okay?
PN5
DEPUTY PRESIDENT YOUNG: Yes, I can, thank you.
PN6
THE ASSOCIATE: Thank you. Commissioner, Lee, can you see and hear me okay?
PN7
COMMISSIONER LEE: Yes, I can.
PN8
THE ASSOCIATE: Thank you. The Fair Work Commission is now in session. This is a section 604 hearing between Jeffrey Piefke and Rio Tinto, matter C2126/2022, a permission to appeal hearing.
PN9
VICE PRESIDENT HATCHER: I'll take the appearances. Mr Piefke, you appear on your own behalf?
PN10
MR PIEFKE: Yes, I asked the question. I've got live duties under AMSA law to go out at 1400 into live operations. Under my duty of care, for the health of myself and others, I haven't got the weight or the time. I've tried to tell the Commission that I've got responsibilities as – under AMSA law. I've got to go to sea, I'm dressed to go to sea. I've got to run a tug. Now, I've begged that under safety for myself and others that I need to postpone this hearing, I'm sorry.
PN11
VICE PRESIDENT HATCHER: Well, I'll come back to that, Mr Piefke. Mr Zielinski, you seek permission to appear for the respondent, correct?
PN12
MR ZIELINSKI: Yes, I do, Vice President. It's Zielinski, Z-i-e-l-i-n-s-k-I, initials P M, counsel instructed by Minter Ellison.
PN13
VICE PRESIDENT HATCHER: We might return to the question of permission somewhat later until we deal with this preliminary issue. Mr Piefke, first of all, you were directed to file an outline of your written submissions which you've failed to comply with, notwithstanding a number of reminders. Why is that?
PN14
MR PIEFKE: Because all submissions have been submitted over the last three years to .gov.au on many occasions. From ANSA, Freedom of Information. I've been to the Fair Work Commission three times under Commission Williams, which is why we're here. Now, all the submissions have been submitted constantly until I ended up in the Federal Court. Now, if you don't understand your own held submission under AMSA law, duty of care, what do we understand? It's their own submissions; not mine.
PN15
VICE PRESIDENT HATCHER: All right.
PN16
MR PIEFKE: I don't understand, yes.
PN17
VICE PRESIDENT HATCHER: Mr Piefke, in the decision which you've appealed, the decision of Commissioner Williams - - -
PN18
MR PIEFKE: Yes.
PN19
VICE PRESIDENT HATCHER: - - - the issue was that you filed an unfair dismissal application in which you allege you'd been dismissed by Rio Tinto.
PN20
MR PIEFKE: No, no, no, no, no. That wasn't – I was sanctioned. I was sanctioned and I don't know why.
PN21
VICE PRESIDENT HATCHER: Okay.
PN22
MR PIEFKE: That was under – I went to work, under Rio Tinto, I was on their vessel. They short-listed me for two jobs, for the same job I lost in go – I was working on three different Rio Tinto sites and all of a sudden I've been sanctioned with no underlying evidence.
PN23
VICE PRESIDENT HATCHER: Right.
PN24
MR PIEFKE: So I was on board their vessel. I was on board, operating it, and then I got a phone call the next saying, 'No, you're not allowed on here', and they said, 'Well, ask Rio Tinto.' I've asked Rio Tinto and they won't submit their - - -
PN25
VICE PRESIDENT HATCHER: All right. Mr Piefke - - -
PN26
MR PIEFKE: You know - - -
PN27
VICE PRESIDENT HATCHER: Mr Piefke, is this the case that you accept that you were not employed by Rio Tinto?
PN28
MR PIEFKE: No, but that's right because you have a look here, your Honour, my employment contract is not signed. So Mr Quinn was employing me, that I was working with Rio Tinto until 31/1/2019. I wasn't even working for Rio Tinto. I was working for Pacific Aluminium which they have trouble submitting to Work Safe.
PN29
So Work Safe was under the impression I work as a mechanical fitter when I'm a tug engineer working for Pacific Aluminium. And even if I was working for Rio Tinto as Mr Quinn openly admitted, my contract's not signed. So who was I working for? They can't even tell you. Ask them yes or no, who was I working for. Pacific Aluminium or Rio Tinto.
PN30
VICE PRESIDENT HATCHER: Mr Piefke.
PN31
MR PIEFKE: A yes or no will do.
PN32
VICE PRESIDENT HATCHER: Mr Piefke, this will be easier - - -
PN33
MR PIEFKE: Yes.
PN34
VICE PRESIDENT HATCHER: - - - if you just let me ask the question and stop interrupting me, please. Okay.
PN35
MR PIEFKE: Yes.
PN36
VICE PRESIDENT HATCHER: So you lodged an unfair dismissal application claiming that Rio Tinto was your employer and dismissed you on 22 December 2021. Correct?
PN37
MR PIEFKE: No, I was sanctioned. Where else do you go for a sanction?
PN38
VICE PRESIDENT HATCHER: Okay.
PN39
MR PIEFKE: How do you go to the Fair Work Commission integrity team to find out why you were sanctioned.
PN40
VICE PRESIDENT HATCHER: Okay.
PN41
MR PIEFKE: And then you find out you're not even working for them. This is systemically connected since the 31st, those four bullies bullied me and my family clean out the door after 28 years' service on quantum reports that weren't submitted, data reports where I was in an unsafe environment of their own submissions. Not mine. I was trying to protect myself and others as – not Commissioner, as Lucev J instructed. I was systemically bullied for trying to protect myself and others. Now, it's all systemically connected. For the last three years, and I've been to the Fair Work Commission four times for the same subject matter and here we go and Rio just sweep it under the carpet like it didn't happen.
PN42
VICE PRESIDENT HATCHER: Mr Piefke, do you accept that Rio Tinto was not your employer as at 22 December 2021?
PN43
MR PIEFKE: Yes, I didn't have a contract. I didn't sign a contract so, yes, you're correct. I wasn't working for anyone or Rio ever for the last 20 – for the last 15 years because the contract is not signed.
PN44
VICE PRESIDENT HATCHER: Well - - -
PN45
MR PIEFKE: So, yes, and then they don't even know that my contract wasn't signed. They sent it to me, went to Work Safe and they didn't even know what I was doing, and it wasn't signed.
PN46
VICE PRESIDENT HATCHER: Who was your employer at that time?
PN47
MR PIEFKE: Pacific Aluminium. I signed a contract with Pacific Aluminium, so Rio have got their wires crossed. They were trying to get rid of it and trying to sell Rio Tinto because they didn't wash their hands of it. They sent emails and everything, 'You're Pacific Aluminium now'. So I signed that contract and here we are, Rio show up like a bunch of mugs.
PN48
VICE PRESIDENT HATCHER: Okay, so - - -
PN49
MR PIEFKE: (Indistinct).
PN50
VICE PRESIDENT HATCHER: In the decision that you've appealed can we take it that the Commissioner was correct when he said that there was no evidence that you were employed by Rio Tinto in December 2021 or dismissed by them?
PN51
MR PIEFKE: No, I was employed by Pacific Aluminium.
PN52
VICE PRESIDENT HATCHER: Well, what's your complaint about the decision then?
PN53
MR PIEFKE: Because I was sanctioned and I want to know why. After working for them, applied for two jobs and then short-listed for the job I lost, got bullied out of, worked at Ranger Mine, worked inland for (indistinct). Show up to the job, hop on board, quit your job, move house, and then all of a sudden I'm told sanctions. And Advanced Marine Services said, 'Ask Rio Tinto.' So I asked them. What did you get? Nothing. So I don't know why I'm sanctioned. For protecting myself and others? No signing the contract and working for Pacific Aluminium? I'm a bit confused. But Mr Quinn can answer that, yes or no, was I working for Rio Tinto or Pacific Aluminium? I can't be working for Rio because the contract is not signed.
PN54
VICE PRESIDENT HATCHER: Okay.
PN55
MR PIEFKE: So don't you need to ask them?
PN56
VICE PRESIDENT HATCHER: Okay.
PN57
MR PIEFKE: Not me, I've done nothing wrong.
PN58
VICE PRESIDENT HATCHER: Just for my benefit, can you explain then why you filed an unfair dismissal application against Rio Tinto when you accepted that you weren't employed by them and they didn't dismiss you?
PN59
MR PIEFKE: They did. It's systemically connected. I've been to the Fair Work Commission four times. If you can't understand their own safety submissions – they've swept me under the carpet like a dog. And now, 'You weren't working for us.' Well, who sanctioned me? The man on the moon? Who pays the bill? Ask Mr Lyle what happened to me in Dampier when I lost my job when I went back – when I went to the Fair Work Commission the first time for stealing safety data I put in place to protect Rio Tinto and their assets and their people and myself. And dry humped up the rear end while I was doing it. And anybody – you tell this to a little kid, they can work it out.
PN60
VICE PRESIDENT HATCHER: All right.
PN61
MR PIEFKE: Then you go back on the track and you say, hang on, I wasn't working for Rio, I was working for Pacific Aluminium. Ask them, not me. Who was I working for? I'm a bit confused.
PN62
VICE PRESIDENT HATCHER: Who are you working for now?
PN63
MR PIEFKE: I can't say that because I don't want to lose my job once again. I can't work for Rio Tinto ever again, I've been sanctioned and I want to know why. For being safe while being dry-humped?
PN64
VICE PRESIDENT HATCHER: You wanted to apply for an adjournment for what purpose?
PN65
MR PIEFKE: I've got to go to work in 15 minutes to start up a tug. I've got people's lives at risk and I've got pilot orders and I've got my own responsibility. I haven't got the time and the way to carry on right now. I've got responsibilities under AMSA law. Under my licence to operate which is duty of care, which gives me the jurisdiction to walk straight into that office when safety is involved, especially when there's waterfall and agile data reports there showing how safe I am.
PN66
VICE PRESIDENT HATCHER: Mr Piefke, if we grant you an adjournment will you be saying anything different from what you're saying today?
PN67
MR PIEFKE: Yes, yes, I'll be understanding the systemic bullying from 31st – 19 – all the way to the Federal Court, to the Fair Work Commission six times, all systemically connected. And the only reason under section 12 gives me this jurisdiction is that it changes the industry, the waterfall and agile taking system. I put it in place because I was scared and I had a problem. It was hidden from the get-go from Work Safe.
PN68
The quantum report, and I never seen my – laid my eyes on ever, I got it after the incident, it wasn't submitted to Work Safe, and that's Allianz insurance involved here. Why wasn't the Quantum report – and when I read it, that's when I went to AMSA. AMSA has got a hearing and a decision that's going to be handed down on the 22nd. You've already got the submissions from the Freedom of Information that shows you that Rio Tinto is willing to put people's lives at risk.
PN69
VICE PRESIDENT HATCHER: Mr Piefke, if we granted you an adjournment, I gather that you will not be contending in any future hearing that you were dismissed by Rio Tinto in December 2021?
PN70
MR PIEFKE: Well, I can't be because I was working for Pacific Aluminium.
PN71
VICE PRESIDENT HATCHER: Yes, all right. Is there anything else you want to say at this stage, Mr Piefke.
PN72
MR PIEFKE: Just be safe and don't move people and don't bully people and bring out your big pit-bulls to come and get innocent little people who have done nothing wrong. And thanks to the indigenous and the people they hurt on (indistinct) country. Made me ashamed in front of my people that I love, all because of Rob Macdonald, Aaron Dean, Kyle Murray, telling lies from the get-go. And then they send these boys out to protect the bullies. I want a commission, an integrity commission. And let's put the truth on the table, let's put the data on the table and see who's telling porkies. Not me. I'm not being rude, I'm sorry, I'm just, I'm hurt. You hurt my family. My 16 year old has disappeared. Are you going to bring her back, Rio? 16, she won't come home. That's why I lived in Goh, for 28 years I lived in Goh for that reason, to get them out of this big rat race.
PN73
SPEAKER: The thing is that the contract wasn't signed and if you were working for Rio you'd like to know but you're trying to let them know that there was a breakdown somewhere along the lines where your contract was not signed by Rio Tinto when, in fact, you were still working under the old contract.
PN74
MR PIEFKE: Workplace agreement contract.
PN75
SPEAKER: Signed by Pacific Aluminium. Pacific Aluminium were then taken over by Rio Tinto.
PN76
MR PIEFKE: And they swap their shirts when they feel like it.
PN77
SPEAKER: There's no signed - - -
PN78
MR PIEFKE: 'You're back at Rio now, Jeff.'
PN79
SPEAKER: There's no signed contract in place to say that Jeff was working for Rio Tinto. They used the old contract and didn't even – there'd been no signed or any visual thing form - - -
PN80
VICE PRESIDENT HATCHER: Mr Piefke, can I just say with the greatest respect, you're the one appearing here so we're here to listen to what - - -
PN81
MR PIEFKE: I put my wife's name down, she's the one that's been hurt.
PN82
VICE PRESIDENT HATCHER: Okay. Is there anything - - -
PN83
MR PIEFKE: I put her name down.
PN84
VICE PRESIDENT HATCHER: Is there anything else you want to say today, Mr Piefke?
PN85
MR PIEFKE: No, just the hearing – give me the date of the next hearing and this time I'll bring a lawyer.
PN86
VICE PRESIDENT HATCHER: Okay. Look - - -
PN87
MR PIEFKE: I've got enough evidence. I've got enough substantial evidence, of their own repelled evidence that they don't even understand their own safety systems. They don't even know what I do there. They don't even understand.
PN88
SPEAKER: They didn't even know that you were working there.
PN89
MR PIEFKE: They don't even know I was working for them. No, it was – yes, anyway, I'm not going to go flapping down my jaws, I've got the substance, I've got the evidence, the whole truth and nothing but the truth. So if they want to look after bullies - - -
PN90
SPEAKER: Yes, you were getting paid by them, you were (indistinct) - - -
PN91
MR PIEFKE: I recommend Lucev J to run the integrity commission because he's the only one that jumped the fence with me and crossed the red line and said I was systemically bullied pillar to post. Now, if everyone wants to call Lucev J a liar, well, we'll see when we're in court and when then federal judge has got something to say about it.
PN92
VICE PRESIDENT HATCHER: All right. We've heard from you, Mr Piefke. Mr Zielinski, I don't think there's any purpose in use being heard – in us hearing from the respondent at this stage so we'll defer any issue about whether the respondent should be granted permission for legal representation. I think the appropriate course now is to adjourn and we'll consider what's been put by Mr Piefke and decide - - -
PN93
MR PIEFKE: Is everybody communicating with these people outside my – separately, privately, will you? Without my hearing?
PN94
VICE PRESIDENT HATCHER: No.
PN95
MR PIEFKE: So you're not going to communicate with anybody from that room there after we hang up?
PN96
VICE PRESIDENT HATCHER: No.
PN97
MR PIEFKE: Thank you for your integrity.
PN98
VICE PRESIDENT HATCHER: All right.
PN99
MR PIEFKE: You say that - - -
PN100
VICE PRESIDENT HATCHER: All right. I think that's as far as we can take it today, so we'll now adjourn.
PN101
MR PIEFKE: Sorry for my (indistinct), it's frustrating on my behalf, sorry.
PN102
VICE PRESIDENT HATCHER: All right. We're now adjourned.
ADJOURNED TO A DATE TO BE FIXED [3.48 PM]