C2001/3844, Transcript of Proceedings [2001] AIRCTrans 1806 (7 August 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER JONES

C No 3844 of 2001

AUSTRALIAN LIQUOR, HOSPITALITY
AND MISCELLANEOUS WORKERS UNION

and

SERCO SODEXHO DEFENCE
SERVICES PTY LIMITED

Notification pursuant to Section 99 of the
Act of a dispute re alleged failure by the
company to follow the dispute resolution
procedure in the award in relation to an
employee

SYDNEY

WEDNESDAY, 18 JULY 2001

Adjourned sine die

PN1

THE COMMISSIONER: May I have appearances, please?

PN2

MS J. TAVERNER: If it pleases the Commissioner, for the Australian Liquor, Hospitality and Miscellaneous Workers Union New South Wales Branch and with me today, Commissioner I have MS A. HERMANTO, an organiser from the union, MR S. PEJCINOVIC who is here in relation to this particular dispute and MR S. GERSBACH who is a delegate from the site at Serco.

PN3

THE COMMISSIONER: Thank you very much.

PN4

MR TOWNSEND: If the Commission pleases, I appear for Serco Sodexho Defence Services Pty Limited and I have with me, MR R. WOMBOLD, the site manager at Kuttabul.

PN5

THE COMMISSIONER: Thank you, Mr Townsend. Ms Taverner, it's your application.

PN6

MS TAVERNER: Thank you, Commissioner. As you would have seen, our notification of an alleged industrial dispute and we're here today to seek under s102 of the Workplace Relations Act a conference between the parties. The reason we are seeking this conference between the parties is that we say that clause 17 of the Australian Liquor, Hospitality and Miscellaneous Workers Union Defence Contract Award 1997 has not been complied with by Serco. The circumstances of the non compliance are that Mr Pejcinovic has been suspended from his employment with full pay by the company and that suspension was effective from 27 June this year.

PN7

Mr Pejcinovic was invited to attend a meeting with management of Serco on 5 July of this year in order to discuss the reasons for his suspension. That meeting went ahead on 5 July and under the dispute resolution procedures that are outlined in the award, Commissioner, under clause 17 - I'm sorry, do you have a copy of that award?

PN8

THE COMMISSIONER: I don't.

PN9

MS TAVERNER: I might hand a copy of that up if that assists you?

PN10

THE COMMISSIONER: Yes. Thank you.

PN11

MS TAVERNER: I'm making reference to clause 17, Commissioner.

PN12

THE COMMISSIONER: Yes, thank you.

PN13

MS TAVERNER: As you'll see in clause 17.3 it states:

PN14

A dispute shall be dealt with in the following manner ...(reads)... nominated company representative.

PN15

THE COMMISSIONER: And that's been carried out?

PN16

MS TAVERNER: Yes, it's our submission that the meeting on 5 July was in compliance with that particular clause. There was no resolution of the dispute on 5 July so we say that in accordance with the dispute resolution procedures that clause 17.3.2 should now kick in which is that unresolved discussions shall be referred to the state branch of the union and the company. On 6 July we communicated by telephone with Mr Ray Wombold from Serco and advised him that we would like a meeting pursuant to that clause of the award and some negotiations took place and ultimately to date a meeting has not been held pursuant to that clause and in fact - - -

PN17

THE COMMISSIONER: What do you mean, you just said some discussions took place.

PN18

MS TAVERNER: In a sense the discussions as to whether a meeting would be held or not took place between the union, Mr Wombold and Mr Baxter, who I understand is the human resources adviser with Serco. The upshot of all of that is that to date we've not had a meeting between the state officials of the branch and the management at Serco and it's our submission that a correct interpretation of clause 17 in the award, given the factual circumstances in this case warrant a meeting between the state officials and management at Serco.

PN19

Commissioner, we also wrote to Mr Wombold and pointed out the provisions of clause 17 and that letter - if you could just bear with me while I locate that letter. Sorry, Commissioner, on 6 July which was the day after the first meeting with Serco I wrote to Mr Wombold and requested a meeting in accordance with the provisions in clause 17.3.2. I suppose the matter is as simple as it's our submission that we are in dispute. There's a disagreement between the parties.

PN20

THE COMMISSIONER: Just explain to me, there is a dispute of the three -you're pointing out, associated with the employee in this case and the union to the company but is that the only dispute or is the dispute that you can't get the company to do what you believe should done under 17.3.

PN21

MS TAVERNER: The general dispute we say is that Sasa has been suspended with full pay from his duties on the basis of his alleged attitude problems in relation to his work. We want a fair opportunity to investigate that allegation and in order to investigate that and discuss the allegations made by the company we request a meeting in order to do so. The consequences of the allegations that are made by Serco, and particularly those allegations made in the letter of 27 June are very serious. The upshot of the allegations are that Serco allege that Sasa has an unsatisfactory attitude towards workers with whom he works on the site at HMAS Kuttabul and we say there's no evidence of that and so therefore we would like a meeting with the company in order to examine - - -

PN22

THE COMMISSIONER: Yes, but have you requested a meeting under 17.3.2?

PN23

MS TAVERNER: Yes, we have, Commissioner.

PN24

THE COMMISSIONER: And what, it's been refused?

PN25

MS TAVERNER: Yes, that's correct. I have a copy of the letter if you would like me to provide that to you. Unfortunately, the letter - it's a copy and it's actually been prepared as part of a draft affidavit. The affidavit is not actually signed at the moment so you might notice it's got a reference to an annexure notation on it and that actually is the reference to the actual affidavit but I won't actually file the affidavit today but the copy of the letter will explain to you - it will show our request to the company.

PN26

THE COMMISSIONER: I'll mark that exhibit U1.

EXHIBIT #U1 LETTER TO THE COMPANY DATED 6/7/01

PN27

MS TAVERNER: Unfortunately I don't have any copies with me, Commissioner.

PN28

MR TOWNSEND: We might have a copy in the folder here.

PN29

MS TAVERNER: Letter dated 27 June. They do appear to have a copy, Commissioner.

PN30

THE COMMISSIONER: You have a copy, do you?

PN31

MR TOWNSEND: We've got one dated 6 July, is that it?

PN32

MS TAVERNER: Yes, sorry, that's it.

PN33

THE COMMISSIONER: Okay, you've got a copy. Yes. Okay, but nothing has happened?

PN34

MS TAVERNER: Nothing has happened - - -

PN35

THE COMMISSIONER: No contact?

PN36

MS TAVERNER: There has been continual phone contact between the parties in the sense between the union and Mr Wombold and Mr Baxter. There's been no direct communication to my knowledge between the company and Sasa.

PN37

THE COMMISSIONER: Has there been a refusal by the company in writing or on the telephone?

PN38

MS TAVERNER: It's only been a refusal by phone.

PN39

THE COMMISSIONER: Verbal?

PN40

MS TAVERNER: Yes. Actually, I'm sorry, I stand corrected. I may in fact have a copy of a letter refusing a meeting which I'm happy to provide, Commissioner.

PN41

THE COMMISSIONER: That would assist the matter from your angle. I've got to hear from Mr Townsend yet but - - -

PN42

MS TAVERNER: Sure. I do have a copy of a letter dated 6 July 2001 from Ray Wombold acknowledging our request for a meeting in accordance - - -

PN43

THE COMMISSIONER: On 6 July?

PN44

MS TAVERNER: Yes, that's correct. I note that I didn't actually receive the letter until Monday, 9 July.

PN45

THE COMMISSIONER: Yes, but you received that letter in response to your letter of the same date?

PN46

MS TAVERNER: Yes, that's right.

PN47

THE COMMISSIONER: Okay.

PN48

MS TAVERNER: Would you like a copy of that letter?

PN49

THE COMMISSIONER: Yes, I mark it as exhibit U2.

EXHIBIT #U2 LETTER FROM COMPANY TO UNION DATED 6/7/01

PN50

MS TAVERNER: Would the Commission like to hear formal submissions regarding the interpretation of clause 17? I'm not sure if it's appropriate to make those.

PN51

THE COMMISSIONER: Well, I think it's straight forward. They're the steps that are there. You're putting forward a submission that you want to move to the next step which is 17.3.2 and you're saying the company has refused to do that to date. I think that's all that's needed. I don't need formal submissions on the dispute procedure itself. Is it appropriate now to hear from Mr Townsend?

PN52

MS TAVERNER: Yes, if there's nothing further that you'd like to hear from me.

PN53

THE COMMISSIONER: Well, I might have some questions I have got to ask as a result of what Mr Townsend says to me. Mr Townsend?

PN54

MR TOWNSEND: Commission pleases, this particular matter relates to allegations by other employees of the site at Kuttabul, those employees being security officers of which we have about 30 at the site, to what is alleged by those employees of harassment and statements made by the applicant in this matter which the company took into account. They invited the applicant to a meeting to discuss those particular complaints and I might say those complaints have since been put in writing and there are a number of them from a number of different people.

PN55

The issue was discussed at that meeting and the applicant did have representatives there, another union delegate. As I understand it, and an organiser or an officer from the union and at the end of that discussion - prior to that I must say that he had been suspended on full pay. So there's no question of suspension without pay. He was just told to stay at home until this matter was finalised and that he was invited to this meeting. Following the meeting he was advised that his actions were not what could be expected and I have copies, I hand up a copy of a letter that was sent to him, signed off by Mr Wombold and the circumstances of this was that the letter was initially sent - do you have a copy?

PN56

MS TAVERNER: Dated 10 July?

PN57

MR TOWNSEND: Yes.

PN58

THE COMMISSIONER: I'll mark that C1.

EXHIBIT #C1 LETTER FROM COMPANY TO MR PEJCINOVIC DATED 10/7/01

PN59

MR TOWNSEND: The letter was initially sent to the applicant by registered post. We hadn't heard from him and following some investigation we found that the letter had been held up at the office as the applicant was due back to work yesterday, as I understand it. He didn't return, this was when the check was made and he has since had the letter delivered to him so he has a copy of the letter. I must say also that the signed statement of the allegations by the employees, copies of those had been given to him at the meeting that was held and I understand he is due to return to work tomorrow evening on night shift to follow his roster line.

PN60

We say that the question of suspension is over. The letter sets out our position clearly. We say this was a disciplinary matter which we were entitled to follow and as the letter sets out that he was given every opportunity to discuss these matters at the meeting and the company has come to a decision to give him what is called a first and final written warning regarding his attitude and his conduct at the site. The letter also states that he will be transferred to another site as soon as an appropriate spot is found for him. I understand that he doesn't drive, so therefore when an appropriate position might come about at another site, we don't know because there are some sites you do need transport to get to them and of course we're taking that into account.

PN61

So we say that this is not a matter of a question of following a disputes procedure. This was purely a matter that occurred on the site to which we, the employer, had available to it to conduct an inquiry and to apply a disciplinary measure. That, as I understand it, is what the union doesn't like but we say the matter is now finalised. The letter has been given to the employee and he understands the position that is requested of him. If the Commission pleases.

PN62

THE COMMISSIONER: Any response, Ms Taverner?

PN63

MS TAVERNER: Thank you, Commissioner. If I may just respond. It appears that the company is characterising the dispute which is at issue as an internal disciplinary or management problem which can be actually sorted out within the confines of the company and without liaison with the union. I might point out at this stage that Sasa is, of course, a union member and he requested our assistance and involvement in this matter on his behalf and we would rely on clause 17 to say that we in fact have a right to participate in the handling of the dispute and the procedures which are followed in handling the actual dispute.

PN64

We say that the position is better characterised as being a dispute which if you give it its ordinary plain English meaning, is a disagreement between two parties and what we say we have here is simply a disagreement between two parties and we request procedural fairness and a proper opportunity to respond to the serious allegations which have been made against Sasa. As Mr Townsend adverted to, there have been allegations made by security officers who work at the site and I'm instructed that these people do not work directly with Sasa and we - these statements were provided to us on the afternoon of Thursday, 5 July and we were asked to respond the following Monday, 9 July.

PN65

It was after that request was made that we respond that we then requested the second meeting involving the state officials of the branch in accordance with the proper rules of fairness and procedural fairness and natural justice. As Mr Townsend has stated today, it's clear that the company has already made its mind up in relation to this issue. The company has reached a decision to relocate Sasa from HMAS Kuttabul to a different site and in fact I think the letter that Mr Townsend handed you, the letter of 10 July 2001 which appears to be signed off by Ray Wombold, it appears from a reading of that letter that a decision has in fact already been made.

PN66

We say in fact that if a decision has been made it's been made unfairly. It's been made without proper submissions from the union or in that for that matter proper submissions from Sasa in relation to the actual dispute. We say the evidence relied upon by the company to relocate Sasa is unreliable. It's not been properly tested. It comes from people with whom Sasa does not directly work and Serco appears to be relying on an argument that he morale at the site has dropped or decreased in the last couple of weeks or months by virtue of Sasa's attitude and their evidence for that comes from people with whom Sasa does not directly work. Sow we would question the reliability of those statements.

PN67

Secondly we would say that we haven't been given a proper opportunity to respond to what is in those statements and we say that not only does clause 17 say that we would have a proper opportunity to respond but the consequences of transferring Sasa from HMAS Kuttabul to a different site are very serious consequences for Sasa and it appears on the facts before us that Serco has made a unilateral decision to transfer him without negotiations with Sasa, without discussions with Sasa and without discussions with his representatives being the union.

PN68

Mr Townsend said that it is in fact a disciplinary matter in his view and correct me if I'm wrong but I think that the disciplinary matter is now over which again suggests that Serco has a closed mind to this issue. That statement to me implies that their minds are made up. As far as they're concerned they've reached a conclusion that Sasa is to be moved. We say there's no proper basis for moving him. Even if there is a proper basis for moving him we've not had an opportunity to address that.

PN69

If I could perhaps address what appears to be the reasons for moving him, there appears to be some disagreement as to what the reasons are for moving him. My instructions are that on 5 July at the meeting with Serco, Serco advised Sasa that they had no problem with his work performance and I have further instructions that there's never been any quarrel with Sasa's work performance at HMAS Kuttabul. It's never been raised directly with him and it's never been in issue and yet we have Serco seeking to transfer him on the basis of perceived attitude problems. So we say that if there is an attitude problem with his work it's never been raised before and yet we have the letter of 10 July which is apparently a final warning in relation to his unsatisfactory attitude in relation to his behaviour towards other staff members.

PN70

If I could just point out, Commissioner, that as I stated before, Sasa has been suspended on full pay from 27 June of this year. He's not been at the site, he's not been working at the site. He's had no direct contact with staff members during working hours at that site and yet we have a letter dated 10 July which on the face of it appears to be, as I said, a final warning letter and we would question how the company could make the leap from an initial warning on 5 July whilst Sasa was on suspended full pay from the work place to a final warning on 10 July when he has clearly on the facts not been at work during that period.

PN71

So we say there could be no possible allegation of him having any attitude problems in his work nor any work performance problems during the period of 27 July, [sic], the date of the commencement of his suspension up to and including 10 July and in fact up to today. In the hearing room today, he's still suspended from work today.

PN72

THE COMMISSIONER: He didn't know he was going back though, did he?

PN73

MS TAVERNER: That's correct. My instructions are that he received this letter yesterday by courier.

PN74

THE COMMISSIONER: The company has explained the reason behind that.

PN75

MS TAVERNER: There's an apparent lifting of the suspension effective from 17 July and - - -

PN76

THE COMMISSIONER: Yes, but a letter of 17 July that clearly ..... concern or involvement seems to be, as I see it, from the company as to reasons why personally he didn't get the letter.

PN77

MS TAVERNER: Yes, we acknowledge that reasons have been provided by Serco and we accept that that may in fact be the case but our submission is that Serco purported to give a first warning to Sasa on 5 July, on a date when he was suspended from work and then they're now purporting to give him a second and final warning on 10 July and it's clear on the facts that between 5 July when the meeting was held and 10 July, the date of his - - -

PN78

THE COMMISSIONER: Wasn't at work.

PN79

MS TAVERNER: Yes, he wasn't at work so we say there's no evidence whatsoever to support a finding that he's got an unsatisfactory attitude, let alone an unsatisfactory attitude that warrants a final warning.

PN80

THE COMMISSIONER: But isn't the claim by the company in the letter about unsatisfactory attitude related to his performance prior to being suspended?

PN81

MS TAVERNER: That is correct, Commissioner and we acknowledge that. However we don't accept it because we say - my instructions are that there's never been any allegations of poor or unsatisfactory work performance made against Sasa.

PN82

THE COMMISSIONER: We talk about work, work can be taken in many ways but an actual work performance may be quite satisfactory but then you can get an attitude problem and it may be an attitude to a single individual in the work place or in the working environment that causes a problem.

PN83

MS TAVERNER: Yes, I accept that, Commissioner and we certainly do accept that work performance is a wide interpretation and it could certainly include attitude whilst at work and attitude to the members with whom one works. However we say in this case, accepting that, we say in this case the evidence on which Serco is purporting to make a decision to transfer him to another site is flimsy at the best. It's unreliable. The evidence which was given to us which is the written statements which Mr Townsend referred to, handwritten statements by people with whom Sasa does not work. They date - - -

PN84

THE COMMISSIONER: Doesn't that go to a situation within the work environment that the problem may not be with the immediate work ethics or the people surrounding that work ethic but with somebody else in the organisation? For instance, I'm not saying it's the case, but for instance that he works along quite well with people ..... but he's got some problem with ..... down the road and that creates a problem if there ..... that could be a problem and that's what I'm suggesting as an example.

PN85

MS TAVERNER: Yes, we certainly accept that and we do accept that when it comes to assessing or gauging ones attitude to colleagues at work that of course it doesn't just involve your inter-relationships with people with whom you directly work but that is not our only objection to Serco making this decision on the basis of the statements. We also say that the statements are questionable and of limited value because they date back to February of this year. They're based - - -

PN86

THE COMMISSIONER: Weren't they July?

PN87

MS TAVERNER: No, one of the letters dates back to February of this year and from recollection the other letters date from May and June of this year.

PN88

THE COMMISSIONER: Well, isn't that a case - may be a case being built up?

PN89

MS TAVERNER: It could possibly be a case, Commissioner, however we say that the statements are unreliable in the sense that they contain hearsay statements. They're unreliable statements. They're statements that have not been subject to proper scrutiny by either Sasa nor the union on his behalf. We've not had a proper opportunity to respond to the allegations made within those statements and our prime complaint when it comes to the procedures which have been implemented by Serco in relation to this dispute are that the procedural requirements have not - clearly not been complied with in this case.

PN90

In that Serco has given 10 individual statements to Sasa on 5 July, asked him to respond by 9 July. Told him at the meeting on 5 July that they had no problem with his work performance and that in fact it was an operational requirement that they transfer him to another site. So we question the making of the decision on the basis of his so-called unsatisfactory work performance when he was clearly told at the meeting by Peter Baxter on 5 July that Serco did not have a problem with his work performance and yet we say now the situation is characterised as a situation whereby Serco is transferring him because they obviously have some concerns, whether they're true or not we don't know because we haven't had a proper opportunity to look at them and discuss them with the company and that's our main complaint.

PN91

But they are purporting to transfer him to another site which is a very serious step to make when it comes to ones' employment without giving him a proper opportunity to respond to the allegations which have been put to him and the allegations which have been used to justify the decision which has purportedly been made by Serco. We also say - - -

PN92

THE COMMISSIONER: So you're saying that the allegations made against him, the individuals, he hasn't had any opportunity whatsoever to respond to them?

PN93

MS TAVERNER: Not an effective or proper opportunity we would say.

PN94

THE COMMISSIONER: What do you mean by effective?

PN95

MS TAVERNER: An effective or proper opportunity would be, in our submission, a proper opportunity to look at those statements, to discuss the nature of the statements and the complaints made in those statements with Serco directly at a meeting and that is in fact why we have requested - in fact that's the reason for our application today to request an order from the Commission that the parties sit down together and discuss these matters before such draconian and serious action is taken against Sasa.

PN96

As I said, the statements were provided to Sasa on 5 July. He was asked to respond on 9 July. In that period fell a week end during which obviously we really only had two working days in which to respond to those statements which we say is not an adequate opportunity to respond to the statements in any case. It was also on 5 July that we notified Ray Wombold by telephone and requested a second meeting in accordance with clause 17 in order to discuss the global nature of the issues, the fact that they appear to have made a unilateral decision to transfer him to another site which is because of an operational requirement of Serco and the evidence for that is Peter Baxters' statement to Sasa at the meeting on 7 July that he would be moved because it was an operational requirement.

PN97

THE COMMISSIONER: Did Mr Baxter explain what the operational requirement was about?

PN98

MS TAVERNER: Could I just get some instructions? I understand that he didn't but I'd just like to confirm that. Thank you, Commissioner. My instructions are that Mr Baxter informed Sasa at the meeting on 5 July that he had already made the decision prior to the meeting being held and that he made the decision on the basis of the statements which were given to him by other security guards. So we would say on those facts presented Serco had reached a decision to transfer him, a unilateral decision without proper procedural fairness being afforded to Sasa.

PN99

The meeting on 5 July - - -

PN100

THE COMMISSIONER: When Mr Baxter explained to him the position did he get an opportunity to respond to it?

PN101

MS TAVERNER: Sasa had an opportunity to respond at the meeting on 5 July which I understood was quite - - -

PN102

THE COMMISSIONER: I'm talking about the transfer. Did he have an opportunity to respond to that statement that they were going to transfer him?

PN103

MS TAVERNER: I understand that he did have an opportunity to respond and he said, - - -

PN104

THE COMMISSIONER: Was the delegate present?

PN105

MS TAVERNER: Sasa is the union delegate at the site and the other people who were present at that meeting were Mr Gersbach and Annie Hermanto who is an organiser at the union.

PN106

THE COMMISSIONER: So he did respond?

PN107

MS TAVERNER: He did respond. Serco told Sasa at that meeting that he had signed a contract when he started his employment agreeing to be transferred to any other site of which Serco operates at and we in fact deny that that contract was ever signed and we've seen no evidence of a signed contract to that effect. So we're saying that even if Serco - - -

PN108

THE COMMISSIONER: Okay, you've never seen it but I mean, ..... sometimes tend ..... contracts.

PN109

MS TAVERNER: My understanding is, from my previous experience with Serco and I'm sorry to perhaps rely on my own anecdotal evidence - - -

PN110

MR TOWNSEND: Can I just correct something, Commissioner. We think referring to Serco, the companys' name is Serco Sodexho and there is a company called Serco and I wouldn't like them to be intertwined.

PN111

THE COMMISSIONER: Okay. It's a fine line but I understand what you're saying.

PN112

MS TAVERNER: I thank my friend for pointing that out to me. Perhaps for the record if I could just say that when I am referring to Serco I am in fact referring to Serco Sodexho Defence Services Pty Limited. My understanding from my own anecdotal experience and evidence is that if Serco was to decide to transfer one employee from one site to another site that's not an easy move to implement.

PN113

THE COMMISSIONER: Mr Townsend has already said that. He recognises it's not an easy thing to do and ..... by the fact that the person concerned or involved in this does not have a car himself and I gather from that that's a known problem in the transfer that is chosen. I don't see that the transfer is going to occur overnight and I don't think it's the intention ..... I gather from what Serco have said that they do intend doing the transfer immediately. It's a matter of finding a suitable site. They have intentions of transferring him even though it's not immediate.

PN114

MS TAVERNER: And that's our fundamental complaint, Commissioner. We submit that there's not been a proper negotiation or procedural fairness accorded to Sasa in relation to the issue of the determination to actually transfer him. There's no agreement from Sasa that he would be transferred. There's no basis on which to transfer him aside from Peter Baxters' statement that it's an operational requirement. So there appears to be a mixture of Serco saying that it's an operational requirement to transfer him to a different site and yet they're producing evidence and written documents to say that he has an unsatisfactory work performance and in fact this letter dated 10 July 2001 - - -

PN115

THE COMMISSIONER: Well, they don't talk about unsatisfactory work performance, it's unsatisfactory attitude.

PN116

MS TAVERNER: Yes, thank you, Commissioner, an unsatisfactory attitude in relation to his behaviour which we would say probably encompasses work performance.

PN117

THE COMMISSIONER: Well, doesn't necessarily. It could but it doesn't have to. An attitude problem doesn't necessarily affect the work.

PN118

MS TAVERNER: No, our submission would be that work could be conducted in a completely satisfactory fashion notwithstanding a perceived attitudinal problem.

PN119

THE COMMISSIONER: That may be the case in this situation because of ..... company. No problem with the work performance.

PN120

MS TAVERNER: In fact - - -

PN121

THE COMMISSIONER: It's the attitude problem that seems to be the situation.

PN122

MS TAVERNER: We say in relation to the attitude problem which appears to be relied upon by Serco to transfer him along with the so-called operational requirements to transfer him, we say that there's no properly examined or properly - the union hasn't had a proper opportunity to look at the allegations on which Serco has based its decision to transfer him. Serco say that they're transferring him because he supposedly has an unsatisfactory attitude. He's a disruptive influence and he's having an adverse effect on morale and yet the union, as his representatives, have not had a proper opportunity to examine or test in fact those factual assertions that are made in this letter of Mr Wombold.

PN123

THE COMMISSIONER: But there have been representatives of the union present as I gather at the meetings.

PN124

MS TAVERNER: That's correct, Commissioner. However, I might point out that the statements upon which Serco rely were only provided to Sasa at that meeting so effectively the union did not have a proper opportunity to examine those statements and to make any submissions, oral or written to Serco at that point in time.

PN125

THE COMMISSIONER: Okay, Mr Townsend, you want to say something?

PN126

MR TOWNSEND: Yes, if I just could make a couple of statements, Commissioner. Firstly the - - -

PN127

THE COMMISSIONER: If you would just wait until Ms Taverner is ready.

PN128

MS TAVERNER: Sorry, Commissioner, just before Mr Townsend starts, perhaps if I could just make one other comment in relation to the meeting on 5 July.

PN129

THE COMMISSIONER: Yes.

PN130

MS TAVERNER: I'm instructed that at that meeting on 5 July when those statements were provided to Sasa, Mr Gersbach who is one of the other union delegates at the site said to Mr Baxter that this is in fact a lot of information, can we have another meeting in order to provide us with an ample opportunity to look at these statements and to have a proper discussion and so therefore may we have another meeting. I'm instructed that Mr Baxter's reply was that he declined to have another meeting and in fact he said to Sasa and the other people present at that meeting that if they walk out of the room at that point in time his employment would be terminated.

PN131

So we say that given those facts, if that is in fact what did occur at the meeting on the 5th and they are my instructions from people who were present at that meeting, that that's just another indication of Serco's attitude towards this dispute and their unwillingness to deal with it in a proper and fair way.

PN132

THE COMMISSIONER: Yes.

PN133

MR TOWNSEND: Commissioner, first of all it appears to me to be quite strange that my friend seems to be adducing statements from the people behind me who were the three people who were at the meeting on 5 July and I would have thought that if any of these adverse statements had been put forward by my friend, if they had any real truth to them then surely they would have been gathered by the union and presented without having to be taking instructions on the run as it is this morning and in fact we refute entirely the last suggestion that Peter Baxter informed the member that he would be terminated if he walked out of the room.

PN134

We also refute one of the other statements made, that alleged Peter Baxter made a statement to say that the decision had already been taken that he was going to be transferred. We say they are not correct. We say that at the meeting on 5 July, and let me say prior to that there was something like, as I said earlier, I think it's eight or 10 statements signed by other employees at the site, firstly. Those statements were tested by Mr Wombold who interviewed each and every one of them.

PN135

At the meeting on 5 July the person involved was given every opportunity to reply to the allegations. He declined to do so and he sought that he be given until the 9th on the Monday to reply. When the Monday came and no reply had been received he then said that he wouldn't be replying as I understand it and in fact he said that the union had told him not to. We say the company has given - first of all we say the company is entitled to discipline its employees in a proper fashion. We say that we're entitled to give a person a warning after hearing what that person has to say and testing the allegations of other employees.

PN136

Now, sir at this point in time the employee has not lost one cent in earnings. He has been at home on full pay. The letter sets out what is now required of him for the future and he has got an opportunity to consider what he wants to do and where he wants to go and does he want to continue working with us because quite clearly the letter states that if his behaviour doesn't improve then he is seriously at risk of having a job with us at all and that stands.

PN137

Sir, if of course in the future we take some action against this person that then can be tested by you in a number of ways. At this point in time we haven't done so. We have merely given him a letter advising him that his behaviour, not his work performance as keeps being raised but his behaviour and his attitude is unacceptable up to this point in time and it's been explained and I'm sure, sir if you have read the letter you will see that it very well states what is now expected of him. So he's under no misunderstandings on that at all.

PN138

In respect to the being transferred to another position or another site, I've already said that there are difficulties in this and again if in the future we want to take some action that way then the union will have an opportunity, I'm sure, to approach the Commission on that if they so wish. We say, sir, there is nothing for the union to pursue at this point in time. That the disciplinary action has been taken, the person has been advised properly and thoroughly and he now knows the direction he has to take if he wants to continue working for us. If the Commission pleases.

PN139

THE COMMISSIONER: Thank you. ..... turns on it, ..... the position as I see it is that it's not the actual work performance that seems to be the problem. It's the attitude problem that the company is expressing as the difficulty they've got in ..... conduct situation I have. It's not in the Commissions role to interfere normally in disciplinary procedures that are carried out internally. I have some qualms about the view that it is a final warning but I preface that and I hastily preface that by saying at the same time I haven't had the full facts presented to me. What I have to decide really what the ..... attitude problems are.

PN140

I detect that somewhere along the line there are also some communication problems that occurred and whatever they are for the purpose of understanding on both sides I don't know. I'm not prepared to make an order at this stage. I am however prepared to make a recommendation that the union, that you, Ms Taverner and Mr Townsend and Mr Baxter sit down and try and sort out where these communications are may be going astray from both sides but at this stage I'm not prepared to make an order, nor am I at this stage prepared to interfere in the disciplinary procedures that have been started by the company.

PN141

If at the end of that the union is still not satisfied about the position then they may seek to have this matter relisted but at this stage I'm only prepared to make a recommendation that the parties sit down and confer and see if they can sort out where these misunderstandings and communications are occurring. For example, what Mr Baxter is supposed to have said and what he hasn't said. What has been denied he's said. Some of those allegations and statements of Mr Baxter could be quite ..... but the company have made the statement that they haven't been made so I believe that's just one instance of communications that need to be sorted out.

PN142

I'm not going to relist the matter. It will be a matter for the union to relist the matter if they .....

PN143

MS TAVERNER: If you please, Commissioner, may I just ask at this stage when you say a recommendation that we sit down and sort out the communication difficulties, is there some time limit upon which we could maybe gauge when we've actually had sufficient discussions before we - - -

PN144

THE COMMISSIONER: I don't know. That will be a matter for the parties to decide, matter for the parties to decide. I can't determine how long this is going to take. There may be certain things that come out of the conversation that need investigation by either side. I not going to set a time limit on it and say well I want you to be brought back ..... in fact if the parties have reached an agreement or an agreed position I don't need to know that but I would like to know from the parties that they've reached that stage so we can close the file but at this stage I will leave the file open, until the union then notify to advise us one way or the other whether you want the matter called on or indeed they want the matter closed then.

PN145

MS TAVERNER: The Commission pleases.

PN146

THE COMMISSIONER: You understand? No problems? This Commission stands adjourned.

ADJOURNED INDEFINITELY [12.08pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #U1 LETTER TO THE COMPANY DATED 6/7/01 PN27
EXHIBIT #U2 LETTER FROM COMPANY TO UNION DATED 6/7/01 PN50
EXHIBIT #C1 LETTER FROM COMPANY TO MR PEJCINOVIC DATED 10/7/01 PN59