C2001/3675, Transcript of Proceedings [2001] AIRCTrans 1732 (30 July 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 8372

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2001/3675

HEALTH SERVICES UNION OF AUSTRALIA

and

ST JOHN OF GOD SERVICES VICTORIA

Notification pursuant to Section 99 of the Act
of a dispute re alleged unfair redundancy

MELBOURNE

8.38 AM, THURSDAY, 12 JULY 2001

PN1

MR O'CONNOR: I appear for the HSUA.

PN2

MR R.J. MEDINA: I appear for St John of God with MR J. KENWRIGHT who is the Manager Accommodation Services of St John of God.

PN3

THE COMMISSIONER: You appear or you seek leave? You appear do you, Mr Medina? You appear or you seek leave? You appear?

PN4

MR MEDINA: Yes.

PN5

THE COMMISSIONER: Thank you, Mr Medina. Yes, Mr O'Connor.

PN6

MR O'CONNOR: Commissioner, today we are asking the Commissioner to assist in resolving an industrial dispute that is - - -

PN7

THE COMMISSIONER: Just a moment. Mr Medina, I will ask you again. Do you appear or do you seek leave? Do you appear or do you seek leave?

PN8

MR MEDINA: No, I appear.

PN9

THE COMMISSIONER: On what basis do you appear? Are you an employee of St John of God?

PN10

MR MEDINA: No, I am not an employee of St John of God.

PN11

THE COMMISSIONER: Then on what basis do you appear?

PN12

MR MEDINA: VICRAID is a member organisation of VICRAID which is a peak organisation in the disability accommodation sector and we hold authorities to appear for our member agencies.

PN13

THE COMMISSIONER: Are they - is it a registered organisation?

PN14

MR O'CONNOR: No, VICRAID is not a registered organisation.

PN15

THE COMMISSIONER: Then on what basis do you appear?

PN16

MR MEDINA: Well, I appear as an agent for - - -

PN17

THE COMMISSIONER: So you seek leave to appear as an agent?

PN18

MR MEDINA: Yes. Well, I - in that effect, I do seek leave to appear as an agent.

PN19

THE COMMISSIONER: Thank you, Mr Medina. Mr O'Connor, do you have any objection to the application for leave?

PN20

MR O'CONNOR: None whatsoever.

PN21

THE COMMISSIONER: Leave is granted, Mr Medina. Now, Mr O'Connor.

PN22

MR O'CONNOR: Thanks, Commissioner. Commissioner, also can I just state also that we have five members of the HSUA here today who are involved in the dispute. Commissioner, we are here today to ask the Commission to assist in resolving an industrial dispute. I would like to give you some background to the current situation and also outline some of the issues that are involved. St John of God Services is a non-Government provider of an intellectual disability service. It has a number of community residential units across Melbourne. Community residential units, Commissioner, are a suburban home for clients with an intellectual disability.

PN23

Our members work in the area of direct care for those clients, assisting them to live in the community. In this instance there are eight community residential units which are suburban homes around the north-western suburbs of Melbourne that are directly affected by a recent decision to make one team leader position redundant. Commissioner, the team leader position is one which usually exists in each community residential unit and usually involves a trained and experienced employee who assists staff, other staff, and also manages - at a certain level manages the running of the house.

PN24

The dispute has come about due to a decision by Mr Kenwright, the manager of the north-western region of the St John of God services, where he called a meeting with two team leaders and both HSUA members who are here today and informed them at that time that their two positions would be merged into one position and that one position would be covering two houses. At that time he also offered them the opportunity to apply for that position against internal and external applicants and offered them no option for redeployment and explained to them if they were unsuccessful in applying for this position that they would be declared redundant.

PN25

He informed them that the position, the new position that was created, would be advertised in the paper that week. Also I would say that the employees involved, it was the first opportunity they had been told of this decision or a review had taken place. The union contacted Mr Kenwright and asked that a meeting be held between the union and management to discuss the decision. At the meeting we asked the management how and why they had come to make this decision and we were told that they had been informed by middle management that this restructure should occur.

PN26

Commissioner, I would like to stress that St John of God has failed to provide us with any reasons why a redundancy has been declared and decided upon, except to say it was the opinion that less work was required to be performed in these two particular CRUs compared to the other six community residential units.

PN27

THE COMMISSIONER: Did they have any obligation to do that?

PN28

MR O'CONNOR: Did they have any obligation under the award?

PN29

THE COMMISSIONER: Yes, under any award or instrument.

PN30

MR O'CONNOR: No, there is no obligation, not under the award, no, not to consult with the union and I suppose the heart of our point, really, Commissioner, is that we believe that the employer has to have a valid reason and we believe and I understand the Commission has ruled in the past that it is not sufficient for an employer simply to show that he or she has acted in the belief that a termination was based on operational requirements and that in this situation, while there might not be an obligation to consult with the union, there has been no, as far as I understand from the members, no consultation with the employees.

PN31

Commissioner, we also believe that a reasonable employer should consult with their employees before implementing a decision of making employees redundant and that this is a requirement of the standard TCR clause. Commissioner, the union has attempted to meet with the employer on numerous occasions. We have contacted the employer to respond to our concerns in writing on two occasions and we are yet to have meaningful discussions. The union members have implemented work bans across the eight community residential units in an attempt to get the employer to recognise the need to consult and make a fair decision.

PN32

Can I just point out, Commissioner, that the employees affected, many of them, I would suggest almost all of them, have never contemplated any such action before in their working lives and that they have I suppose resorted to this in order to get their employer to consult and I suppose consult with them through this process. Fundamentally, the issues that we would like the assistance of the Commission to address is the fact that there has been no consultation with the employees regarding the change of structure, that there has been no process to identify a need for a redundancy specifically in relation to not only the employees' positions and work loads, but also in relation to the needs of the clients who have an intellectual disability.

PN33

We also believe that individual employees have been targeted in the fact that two employees have been asked to meet with the employer and have been told that they have been made redundant and we also believe that there is no valid reason for a redundancy. We are asking the Commission to issue an order which I can go into in more detail if you like.

PN34

THE COMMISSIONER: Yes. You have aroused my curiosity of what sort of order you think I can issue.

PN35

MR O'CONNOR: Well, I was going to ask you whether you can.

PN36

THE COMMISSIONER: Yes, go on.

PN37

MR O'CONNOR: We would like the Commission to issue an order that the employer withdraw the threatened redundancy, that they withdraw all advertisements for the positions, because they have already advertised, that they enter into a process of consultation with the union, that they thoroughly review issues of work load and duties across the service, that they provide all relevant information to the union, that either party can refer the matter to the Commission and that the parties report back to the Commission in four weeks. If the parties are unable to reach agreement, we would request that the Commission determine the question of whether there is any redundancy at all. Thanks, Commissioner.

PN38

THE COMMISSIONER: Yes, thanks, Mr O'Connor. Mr Medina.

PN39

MR MEDINA: If the Commission pleases, when this matter came on so quickly, I did indicate to the union and the Commission that I would be seeking an adjournment of these proceedings on the basis that I have rather a full schedule myself and I have to appear in other places today. Moreover, I have had one conference on the matter with St John of God and I attended one meeting with the union and the employees involved when the issues and the rationale for the restructure was explained and debated, but that is the extent of my involvement today.

PN40

I did ask Mr Kenwright in contacting Mr O'Connor if he would agree to an adjournment of these proceedings and I also asked him what he advised the Commission to seek the hearing so urgently, because Mr Kenwright was advised yesterday of a hearing today and certainly because of my schedule even yesterday, I had difficulty in having any sort of a conversation with him. I would say if the matter has been brought on, Mr Commissioner, at short notice, I would have apprehended that the Commission perceive some urgency as to the welfare of their clients that St John of God is concerned for, as there were - I would assume the Commission was also aware that there were some bans.

PN41

THE COMMISSIONER: We had a notification yesterday that said that the union required or sought an urgent hearing and contained in the notification was the statement that industrial action is occurring. We always seek to accommodate urgent hearings.

PN42

MR MEDINA: I appreciate that, Mr Commissioner, but it has been my experience that it is often difficult to accommodate these matters at short notice.

PN43

THE COMMISSIONER: Yes, it is, as you see, by the hour.

PN44

MR MEDINA: Indeed. That is also what I assumed, Commissioner.

PN45

THE COMMISSIONER: Yes.

PN46

MR MEDINA: I should say that in fact that is not the case. There are no clients being adversely affected at this point in time. The couple of bans that are in place relate to purely administrative matters. As to an alleged unlawful redundancy, I would point out that nobody has been made redundant at this point, although - - -

PN47

THE COMMISSIONER: Have jobs been spilled?

PN48

MR MEDINA: Excuse me?

PN49

THE COMMISSIONER: Have jobs been spilled?

PN50

MR MEDINA: At the moment the proposal would make one position redundant.

PN51

THE COMMISSIONER: Yes, and who has been selected for that?

PN52

MR MEDINA: Well, no one has been selected at the moment.

PN53

THE COMMISSIONER: Have both persons been told they could apply for it?

PN54

MR MEDINA: Indeed.

PN55

THE COMMISSIONER: What has happened to their jobs, if they are applying for a job?

PN56

MR MEDINA: Well, they are still, as I understand it, performing their duties.

PN57

THE COMMISSIONER: No, my question is this. If somebody has been told to apply for a job, what has happened to their job?

PN58

MR MEDINA: Well, they have been informed one of those jobs will become redundant.

PN59

THE COMMISSIONER: And has the employer selected which one?

PN60

MR MEDINA: Which job?

PN61

THE COMMISSIONER: Yes.

PN62

MR MEDINA: Well, there is an amalgamation involved.

PN63

THE COMMISSIONER: I understand that. My concern is this spill and fill notion, the spill and fill notion being that it is the employee's fault if they don't get the job. My concern is the employer has an obligation to decide who is redundant.

PN64

MR MEDINA: Well, yes, I take your point.

PN65

THE COMMISSIONER: Yes.

PN66

MR MEDINA: I think the selection process would obviously then rely upon the employer and I suppose at the end of the day that is going to be the outcome, I suspect.

PN67

THE COMMISSIONER: But both have lost their job. In the minds of employees, both have lost their job.

PN68

MR MEDINA: Yes.

PN69

THE COMMISSIONER: And both must now apply for a position and one of them will be successful, or may not be successful, I am sorry, because it is advertised both internally and externally.

PN70

MR MEDINA: That is so.

PN71

THE COMMISSIONER: So what has happened to the jobs that they occupy? Why are they threatened to be dismissed from their jobs, or have they been dismissed from their jobs if they are being asked to apply for another job?

PN72

MR MEDINA: Well, no, they haven't been dismissed from those jobs. They are still performing them, but in implementing the restructure, there will only be one position where there are now two.

PN73

THE COMMISSIONER: I see, so which one is the employer going to tap on the shoulder?

PN74

MR MEDINA: I don't know.

PN75

THE COMMISSIONER: Why do both of them have their jobs at risk? Why doesn't the employer just pick one and say that is the job?

PN76

MR MEDINA: Well, this is another problem I have, Mr Commissioner, because I have had one short discussion with - - -

PN77

THE COMMISSIONER: Yes. I see.

PN78

MR MEDINA: With my client. And I must confess that is not an issue that I covered with Mr Kenwright.

PN79

THE COMMISSIONER: Yes. In seeking the adjournment, is there anything that you are able to put forward to put the whole issue on hold until the matter returns?

PN80

MR MEDINA: Well, I would make the point that the process is proceeding at the moment and nobody has been made redundant at this stage. There are some minor bans in place.

PN81

THE COMMISSIONER: But would you agree with me that two persons have been given notice of termination?

PN82

MR MEDINA: No, not formally, they haven't, as I am aware.

PN83

THE COMMISSIONER: But they have been told, unless they apply and are successful, they're going to lose their job.

PN84

MR MEDINA: They will be made redundant.

PN85

THE COMMISSIONER: Yes. They're going to lose their job.

PN86

MR MEDINA: Yes.

PN87

THE COMMISSIONER: Isn't that notice of termination?

PN88

MR MEDINA: Well, I supposed terminated on the basis that one of them could be, one of them could be redundant.

PN89

THE COMMISSIONER: Both of them could be redundant.

PN90

MR MEDINA: It's possible.

PN91

THE COMMISSIONER: Both of them. The employer has said, I'm abolishing your job, and I'm creating another one.

PN92

MR MEDINA: They haven't been given notice of termination.

PN93

THE COMMISSIONER: Has the employer abolished the position or given an indication of the position being abolished?

PN94

MR MEDINA: They have given an indication that the two positions will be amalgamated and therefore one team leader will be surplus to requirements.

PN95

THE COMMISSIONER: Yes. But they haven't said which one?

PN96

MR MEDINA: No, they have not.

PN97

THE COMMISSIONER: I look forward with eager anticipation to the unfair dismissal proceedings.

PN98

MR MEDINA: Well, given your comments, Mr Commissioner, that - - -

PN99

THE COMMISSIONER: Not before me, I mean - - -

PN100

MR MEDINA: That is an issue I will take up with my client when I have a further chance to - - -

PN101

THE COMMISSIONER: Yes.

PN102

MR MEDINA: In fact that is one of the reasons I would like to seek an adjournment of these proceedings, because I am completely unprepared to argue the matter.

PN103

THE COMMISSIONER: Yes. The advertisement that has gone in the paper, when do applications close?

PN104

MR MEDINA: Tomorrow, Mr Commissioner.

PN105

THE COMMISSIONER: Can you give me an indication or an undertaking that there will be no interviews for those positions for a period of say a week?

PN106

MR MEDINA: Yes, I am able to say that, Mr Commissioner.

PN107

THE COMMISSIONER: All right. And that no - - -

PN108

MR MEDINA: And certainly there will be no finalisation of the matter. If my friend has further information and he would like new information that he would like to put before St John of God then St John of God is only too willing to listen what has to be said.

PN109

THE COMMISSIONER: All right. Well if that is the case then the process can effectively be put on hold until the matter returns to the Commission. There can be no decisions made until the matter returns.

PN110

MR MEDINA: Yes. I can assure the Commission that there will be no final decision made as to an appointment to the one position that will remain.

PN111

THE COMMISSIONER: Is your client prepared to have discussions with the union about the alternatives to redundancy?

PN112

MR MEDINA: Yes, indeed. I mean in the very short discussion I had there was, you know, suggestions whether re-deployment might be - might be possible.

PN113

THE COMMISSIONER: Yes.

PN114

MR MEDINA: But it would also probably involve some sort of down grading of the employees present classification or it could.

PN115

THE COMMISSIONER: Well, there are different ways of dealing with that.

PN116

MR MEDINA: Yes, yes.

PN117

THE COMMISSIONER: All right. Thank you. What do you say, Mr O'Connor?

PN118

MR O'CONNOR: Commissioner, we would actually prefer today to actually try and work some issues out. We believe that the employer has had ample time to deal with this issue. They notified the employees on June 12 of their - I have got a memorandum here if you want to see it - that they notified the employees on June 12 of their redundancy and since that date - - -

PN119

THE COMMISSIONER: I had better see it now that you have said that.

PN120

MR O'CONNOR: It is not a termination notice or anything, it is just saying this is what is happening. It doesn't refer to their names.

PN121

THE COMMISSIONER: I don't know. As I indicated I have got this apprehension about the notion of spill and fill. I know the Federal Court said something about it but the notion of telling people that it is their fault if they don't succeed in a job application when they already are employed is a difficult one. Yes.

PN122

MR O'CONNOR: Commissioner, much of this - our feeling is that much of this is quite revisionist in a sense that the employer has had ample time to deal with the union and with our members. They have been advised in writing twice before the work bans have been introduced to ask to meet in good faith about this issue. They have not returned phone calls to the union after many - well, they have returned phone calls but never - on the message bank but never actually pursued a meeting with the union. One thing that goes to the heart of this issue, Commissioner, is not necessarily whether there - is not necessarily whether the processes - sorry - what goes to the heart of this issue, Commissioner, is actually whether the process has been fair and whether there has been a process at all.

PN123

THE COMMISSIONER: Well, it depends what you mean by process. If you mean whether or not the employer has the right to re-organise its business then your contribution to that might be a passing one. You don't have the right to decide whether or not the employer has one team leader or two team leaders.

PN124

MR O'CONNOR: That is correct, yes.

PN125

THE COMMISSIONER: What you say you are entitled to, and which there is some decisions which support that proposition, is to be consulted in circumstances where it is going to impact upon people's livelihoods and their jobs and the ways of mitigating the effects of that. Now, there are a number of employers that actually co-operate and say well, we think we need one team leader but let us talk about it but at the end of the day it is their business.

PN126

MR O'CONNOR: Well, fundamentally also the other point that we have been making is the fact of valid reason and whether they do have a valid reason to proceed with the redundancy in the first place. And we are yet, at this stage, to see any evidence of a valid reason and that I suppose goes to the heart of the order that I asked you to issue, that is that we actually go into a process where the employer and the union sit down and actually look at the service as a whole, work out the reasons for the - - -

PN127

THE COMMISSIONER: But the Court - neither the Court nor the Commission is going to involve itself in judgments of that kind. It might - if somebody says well, the reason why the redundancy is it is because our delegate - and they actually want to sack the delegate. We get pretty excited about those sorts of arguments but the prerogative of management is the prerogative to be clever and the prerogative to be stupid to be exercised in both instances and we don't run businesses.

PN128

MR O'CONNOR: I suppose to the heart of the issue though is that whether the - which I think the Commission would get its teeth into - is the fact that our feeling is that this is a targeted redundancy, that the individuals have been targeted.

PN129

THE COMMISSIONER: I see.

PN130

MR O'CONNOR: That is the fundamental problem. Two people out of eight - there are - most of the team leaders are here today.

PN131

THE COMMISSIONER: Yes.

PN132

MR O'CONNOR: And they are also participating in the industrial action. Two of the eight were called in together and both told that their position would no longer exist. There was no - - -

PN133

THE COMMISSIONER: So not all team leaders were spilled?

PN134

MR O'CONNOR: No, no. Two team leaders were - - -

PN135

THE COMMISSIONER: I see.

PN136

MR O'CONNOR: Yes. And - so besides the fact that we would like to see some reasons for the redundancy in the first place, which we think there should be a valid reason, and specifically based on the industry in respect to I suppose notions and structures of client care which go to the heart of the issue for our members.

PN137

THE COMMISSIONER: Yes.

PN138

MR O'CONNOR: And I would suggest to some extent has been the catalyst for our members to partake in industrial action in the first place. There has also been - I am sure the employer won't deny - concerns raised by guardians and parents of these clients in respect to the taking away of this position. Commissioner, I think there is actually a lot here to go through before this decision is made and after that there is also the issue that the decision has been targeted and it can be demonstrated very easily.

PN139

THE COMMISSIONER: All right, Mr O'Connor. What I would propose to do is this, is that Mr Medina says that he is now involved in it and as a person of some experience I am going to grant his application for an adjournment until the 18th - until next Wednesday at 9 o'clock. In the meantime I am going to ask the parties to confer with the union and to discuss those matters that you have raised. Notwithstanding the employer's view that the bans are not hurting I don't encourage any escalation of the bans.

PN140

I think if the matter - if all matters can effectively be put on hold for the interim period and that there be no further action taken to fill the positions, no further action taken to deal with the positions, until the parties have had a good opportunity of having a discussion, then I will have a report back at 10 o'clock on the 18th. And then you will be able to tell me whether or not any further applications for orders or if anything else is needed there. I could indicate that I am available too at this stage most of that morning so if the parties need some assistance in conciliation we could always go into conference too at that stage. Mr Medina, are you content with that course?

PN141

MR MEDINA: Yes, I am, Mr Commissioner.

PN142

THE COMMISSIONER: What did I say 10 o'clock or 9 o'clock?

PN143

MR MEDINA: 9 o'clock.

PN144

THE COMMISSIONER: Yes, 9 o'clock, yes. Yes, 9 o'clock in the first instance. I may have a Full Bench at 10 o'clock. One hopes I don't but it may be the case. Thank you for your attendance. We will see you 9 o'clock on the 18th.

ADJOURNED UNTIL WEDNESDAY, 18 JULY 2001 [9.04am]