C2001/3680, Transcript of Proceedings [2001] AIRCTrans 2960 (1 November 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 0765
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2001/3680

EDGARLEY HOME INCORPORATED

and

HEALTH SERVICES UNION OF AUSTRALIA

Notification pusuant to section 99 of the Act
of an industrial dispute re alleged staff concerns
regarding the administrator

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

WEDNESDAY, 17 OCTOBER 2001

EXTRACT OF TRANSCRIPT OF PROCEEDINGS [11.30am]

PN1

THE COMMISSIONER: The Commission would have to say in this particular matter, it is not quite sure what the agenda is, and it doesn't direct the curiosity to any particular party, but there seems to be some underlying issues that only the parties can resolve themselves, given that the Commission has somewhat limited powers. The directions issued on 17 July were to try and provide the parties with an environment so as to address issues that the Commission assisted the parties in addressing, but also to help form what may deem to be a working relationship.

PN2

It would appear to the Commission that some of the statements made by Mr Eden on behalf of the HSUA are, in fact, not factual. Mr Haynes made the point in terms of the application under section 285G(2) that Mr Eden has not breached his obligations under the Act in terms of right of entry, giving the appropriate notification. And, in fact, no evidence has been provided to the Commission that Mr Eden has, in fact, breached his obligations under the Act in terms of right of entry, and the creation of any industrial disharmony on site.

PN3

What Mr Eden has done, it would appear to the Commission, has made incorrect statements to the media which have simply got up the nose of management of Edgarley Home. Mr Haynes makes the point that some of the statements made by Edgarley Home are in themselves not factual as well. The Commission, in reviewing 285G(2), that provision of the Act does say:

PN4

However, the Commission does have power for the purpose of preventing or settling the industrial dispute to revoke a permit issued to a person under section 285A. If it does so it may make any order that it considers appropriate for the purpose of preventing or settling the industrial dispute about the issue of any further permit to the person, or of any permit or further permit to any other person under that section.

PN5

The Commission is satisfied that even if it did decide to revoke the permit of Mr Eden, it would not settle or prevent the industrial dispute that is currently before the Commission. It would simply mean that another officer of the HSUA would be involved in whatever the issues were at the Edgarley Home. The Commission does view though the comments of Mr Eden being in breach of its directions, particularly directions to subsection 6, which says that:

PN6

Either party is not to take any action or instigate any action that may give rise to the issues that are part of this dispute being inflamed.

PN7

Having decided not to revoke the permit provided to Mr Eden, it will issue an order to Mr Eden and to the HSUA that Mr Eden is not to make any public comments at all about Edgarley Home. The only authorised persons to make comments regarding any matter regarding Edgarley Home are either the President or the Secretary of the HSUA No 1 Branch. Hopefully that may try and assist in the parties settling down and trying to come to grips with whatever the issues are. And as the Commission has indicated, some of those, the Commission believes, it is not able to assist the parties with because they go beyond the bounds of the Act, and the role in which the Commission can play.

PN8

If the HSUA believes that they require further documentation in order to press any claim that they may have for an alleged breach of the award, they are to provide that request for and outline the particular documentation that they require by no later than Friday 19 October at 5 pm. If no request is forwarded to SIAG for the request of that documentation, then by close of business, that is 5 pm on Friday, 26 October, the HSUA are to indicate where they believed any alleged breaches have occurred.

PN9

SIAG will then respond no later than 5 pm on Friday, 9 November, as to whether or not they concur that breaches have occurred, and what process will be put in place to remedy those breaches. Secondly, if no breaches have occurred, according to SIAG, then they will provide an opportunity for further discussions to occur between themselves and HSUA No 1 Branch, and, if necessary, they can use the facilities of the Commission for those discussions to occur. Now, does that try and help put things back on track?

PN10

The Commission would also say that in terms of any public comment from Edgarley Home, it notes that the last press release was issued, as I understand it, by Mr Ross Astbury, who is the President and board of management. Is that right?

PN11

MR HAYNES: Yes.

PN12

MR RAHILLY: Yes.

PN13

THE COMMISSIONER: Well, then in keeping with what the Commission has said in regards to the appropriate officers to make the comments, if any, then Mr Astbury should be the only officer to make any comment on behalf of Edgarley Home. Can we all try and get this thing back on track, whatever the problem is? I am not sure what it is. There is something there, and I am not quite sure what it is, but let us see whether we can get it back on track. Are the parties clear on what has been put, Mr Rahilly?

PN14

MR RAHILLY: I am sorry, Commissioner?

PN15

THE COMMISSIONER: Are the parties clear on what has been put?

PN16

MR RAHILLY: Yes, I think so, Commissioner.

PN17

THE COMMISSIONER: Thank you. Mr Haynes?

PN18

MR HAYNES: The HSUA takes issue with some of the findings that form the basis of your order, on the grounds that we don't believe there was any evidence to support those findings, Commissioner. But we hear what you say, and we will consider the transcript.

PN19

THE COMMISSIONER: Well, one finding is that some of the statements made by Mr Eden are inaccurate. And there was no admission, nor was there any finding that, in fact, Edgarley Home had breached the award. What was said, very clearly what was said, is that if you can identify where there has been a breach of the award, or there has been under-payments, then you are obliged to draw it to their attention, and they will remedy it. That is what they have said.

PN20

MR HAYNES: Indeed, Commissioner. My point is that the newspaper, the veracity of the newspaper reports of Mr Eden's comments have not been tested, and are not necessarily accepted by the union.

[11.44am]

PN21

THE COMMISSIONER: Well, let met tell you that the Commission as currently constituted has had over 20 years experience in dealing with the media and dealing with industrial relations and it does know that at times what one says can be and quite often is misconstrued by the media to suit themselves. But having said that, Mr Eden should be aware of that and be very careful - well, he should not have to be any more because he is not going to say anything to the media because if he does he will be disobeying a direct order of the Commission. So we will not have to worry about it but let us make sure that whatever is said is accurate and if it can be misconstrued then you are better off saying nothing. Okay. I hear what you say. Yes, Mr Rahilly.

PN22

MR RAHILLY: Commissioner, there is one other matter that still remains of concern to my client.

PN23

THE COMMISSIONER: Yes.

PN24

MR RAHILLY: It has been referred to in the course of proceedings today. That is this continued suggestion about bullying within the workplace. Now, the way it stands at the moment, as the Commission will recall, is that no firm direct allegation has been made. The allegations remain out there somewhere and are referred to from time to time. That obviously has a destabilising effect and may well in the context of the Commission's comments just given continue to have a destabilising effect on the ability to resolve the dispute.

PN25

We would perhaps request the Commission to give some consideration to that circumstance and whether now or in a short time in writing the Commission might like to make some observation or direction or some such thing in relation to that question. If the Commission pleases.

PN26

THE COMMISSIONER: Yes, thank you, Mr Rahilly. Mr Haynes.

PN27

MR HAYNES: Commissioner, we would strongly caution the Commission against any such course in that the issue of workplace bullying and harassment is comprehended within a number of the WorkCover claims that have been made by members of staff in relation to employment at Edgarley and the appropriate course, Commissioner, is for the WorkCover investigations and findings to continue. If the Commission pleases.

PN28

THE COMMISSIONER: Mr Rahilly touched on that saying that there are claims relating to, I think he said incapacity or something, I wrote it down, and Mr Rahilly did indicate that some of those claims, I think three of those claims were accepted because the time had run out in which the insurer had to accept or reject the claim and that was I think a 21 day period - 28 day period. Mr Rahilly also said allegations of bullying have not been referred to the Board or to the WorkCover Authority.

PN29

Now, it is interesting to note that in the last week or so there has been some media coverage concerning the issue of alleged bullying within the workplace and in fact there is a very interesting article in today's Fin Review about what may perceive to be bullying may in fact not be bullying at all, it may be that the person is inappropriately trained or does not have what may perceive to be a correct manner in dealing with staff, but it may not be bullying.

PN30

The Commission does hear what Mr Rahilly says and in fact the issue of bullying was raised at the conference that was conducted by the Commission in Casterton, there were allegations there of alleged bullying. Now, if there are firm allegations that are to be made then procedural fairness and natural justice dictates that the person to whom the allegations are made against should have an opportunity to respond to those. It is all right to go out into the broad area and say, well, there are allegations of bullying, but if they are not specific and they are not made against the particular individual then it is somewhat mischievous to say that there are allegations of bullying if in fact there are no firm allegations.

PN31

Now, there are a number of procedures and there are a number of various acts that the parties, particularly the HSUA if they wish to pursue the issue of bullying, they can pursue it. For instance, I understand that they might be able to pursue it under the Equal Employment Opportunity Act if they wish. Simply to rely on the WorkCover Authority to pursue the issue of bullying because somebody has made a WorkCover claim I don't think is in itself sufficient. So therefore the Commission would recommend that if the HSUA have specific claims of bullying against somebody at Edgarley Home then they should provide those allegations to, in this instance, SIAG being the representative of Edgarley Home by no later than Friday, 26 October.

PN32

Now, there may be an issue about a fear of reprisal. That is why the Commission has suggested that those who make the allegations the documents should be forwarded to SIAG. SIAG shall not in dealing with their client name the person who makes the claim but shall provide the details of the claim to Edgarley Home in order for them to be able to respond. Now, unless there are allegations made by 26 October I think it is fair to say that people have a right then to say that there are none. Now, the Commission would take the same view if the HSUA were in the same position as Edgarley. You are entitled to hear what the allegations are against you and unless specifics can be provided you can safely assume that there are none, people are just being a bit mischievous. Okay. Is that clear? All right, thank you. The Commission stands adjourned.

END OF EXTRACT [11.51am]