C2001/3680, Transcript of Proceedings [2001] AIRCTrans 3524 (17 December 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 1522
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2001/3680

EDGARLEY HOME INCORPORATED

and

HEALTH SERVICES UNION OF
AUSTRALIA

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

MELBOURNE

9.06 AM, FRIDAY, 30 NOVEMBER 2001

Continued from 27.11.01

PN545

MR M. RAHILLY: I appear for the notifier in this matter.

PN546

MR D. HAYNES: I appear for the Health Services Union of Australia, together with MR J. JACKSON.

PN547

THE COMMISSIONER: Thank you. The Commission listed this matter this morning. It received a note yesterday from Ms Dewan indicating that some of industrial action has taken place, or is taking place, and that there were apparently some demands placed on Edgarley Home. Mr Rahilly.

PN548

MR RAHILLY: Commissioner, yesterday - or perhaps I could take it back a step. When we were last before the Commission we indicated that a meeting was to take place yesterday between Edgarley Home, represented by Ms Dewan, and the HSUA, represented by Mr Atkinson. That meeting did in fact commence yesterday. It didn't go particularly well, and at the end - well, not at the end, but at some point during the course of that meeting certain of the employees of the Home walked off the job.

PN549

They set up a picket line as they had previously done out the front of the place. Oddly enough they happened to have flags and placards and signs and what-have-you all ready, and as I understand it, the picket line and the strike action is continuing. I am also instructed that on local radio this morning Mr Jackson of the HSUA indicated that the matter was on before the Commission this morning, and that there would be no result. The strike action - - -

PN550

MS DEWAN: Unlikely.

PN551

MR RAHILLY: That it would be unlikely that there would be a result, and that the strike action would continue. During the course of the discussions yesterday my client was provided with a number of documents, a raft of documents perhaps, which purport to be complaints about the administrator. Now, the Commission will recall in previous proceedings that the Commission had directed - we sought from the HSUA and the Commission directed the HSUA to provide material in relation to these complaints. That was some 4 or 5 months ago.

PN552

The material was provided yesterday, and a response was demanded to that material by 1 pm on Monday. Given the circumstances that Edgarley finds itself in owing to anonymous complaints to the Standards Accreditation Agency, visits by the Standards Accreditation Agency, and requirements by the Standards Accreditation Agency to respond and put in action plans by 21 December, the position of my client is somewhat difficult, and a demand to respond to this raft of material by 1 pm on Monday was considered to be entirely unreasonable.

PN553

What was done was a suggestion by Edgarley Home that a process be put in place to attempt to defuse the situation and to achieve a return to work. And a memo was prepared, it was given to Mr Atkinson, and it read thus:

PN554

The Board and Management of Edgarley Home acknowledges that some staff have submitted written complaints ...(reads)... before the AIRC tomorrow morning, we request all bans, actions, limitations be ceased immediately.

PN555

And it is signed by the President of the Board. I think a copy of that memo was forwarded to the Commission by fax.

PN556

THE COMMISSIONER: Yes, I have got that, thank you.

PN557

MR RAHILLY: Given that the strike action continues, it is obvious that - sorry, the response to that from the HSUA was, pending the appointment and work of a mediator, that the Administrator be stood down, and further that the mediator be appointed from Monday of next week. With respect, both of those demands are impossible demands, they are unreasonable demands, and my client could not accede to them. My client is attempting, nevertheless, to find a mediator.

PN558

My client has contacted the Victorian Association of Health and Extended Care, and has been given the name of a person who may be prepared to act as a mediator, but needs to contact that person, and needs to determine the basis upon which the mediation would occur, but it cannot be done by Monday. Commissioner, you will recall - and as I don't have my client's file in relation to the matter, at an earlier stage the Commission issued directions.

PN559

One such direction was to cease the industrial action which was then taking place - and I think it was from memory, direction 6 to which we have referred the Commission on a number of occasions through the course of this dispute, due to the actions of the HSUA and its officers and members - the Commission directed that neither side take action which was designed to further inflame the dispute, and I think made some comment in clarification of what that direction actually meant.

PN560

So we find ourselves again in a circumstance where the HSUA is flouting the Commission's direction, obviously is working towards not settling this industrial dispute, and is inflaming the situation even further. My client has provided me this morning with a statement by a number of staff of Edgarley Home which amount at the moment to a dozen expressing their concern at the circumstances, and I would read this to the Commission:

PN561

We the undersigned hereby express our concern and disappointment of present and recent events at Edgarley Inc ...(reads)... and the continuation of the aged care hostel in this town.

PN562

All the undersigned are employees of Edgarley Inc and union members. There are a dozen of them. I can provide a copy of that, if the Commission pleases.

PN563

THE COMMISSIONER: Thank you.

PN564

MR RAHILLY: At an earlier stage, and by way of example of the nature of the problem that exists, Commissioner, Edgarley arranged for them, that is the Victorian Association of Health and Extended Care, to go to Casterton to speak to staff in relation to the complaints that had been made to the Standards Accreditation Agency to which I referred earlier, and the possible outcomes for Edgarley if the Department of Aged Care and Community Services decided to impose sanctions upon the hostel.

PN565

The shop steward, one Chris Pearson, would not attend that meeting, and decided the members would not attend the meeting, because there were some Board members present at the meeting. It was an information session. It may have been of interest to the staff, it may have been instructive to Ms Pearson. It was certainly of interest to members of the Board, and the purpose of it was to explain just how serious the situation had become for Edgarley and its future operation, but because members of the Board were in attendance the shop steward decided for herself and for others that they would not attend the meeting. It has got to a ludicrous stage.

PN566

We, at this stage, would request the assistance of the Commission by way of direction to direct the HSUA and its members to cease industrial action of any kind forthwith, and to engage in a process designed to resolve the issues which are currently in existence at Edgarley Home. If the Commission pleases.

PN567

THE COMMISSIONER: Thank you. Yes, Mr Haynes.

PN568

MR HAYNES: Thank you, Commissioner. Mr Rahilly makes reference to the earlier directions of the Commission in which the Commission has said that neither side was to take action to further inflame the already difficult dispute and relationship between Edgarley Home and our members who work at Edgarley Home. But, Commissioner, we only have to go to the situation which existed earlier this week in relation to the issue of the quality assurance survey and the subsequent response of Edgarley Home to see clear evidence both before and after the hearing of Edgarley Home consciously and deliberately attempting to inflame the situation.

PN569

Commissioner, I will just remind the Commission of two things that you said on Tuesday, and I would read paragraphs 471 and 472 of transcript. And, Commissioner, what you said at that time was:

PN570

It is not a valid request to ask the employees to sign the survey. If the employees so choose to sign that, then so be it ...(reads)... direct accordingly that they be reinstated immediately to their place of employment.

PN571

And the Commissioner went on. But what happened after the hearing, Commissioner, is this, that a letter was sent by Edgarley Home to the two members concerned, Mrs Christine Pearson and Mrs Barbara Thompson. The letter indicated that members were to return to their normal duties, but Edgarley Home reserved their rights to pursue disciplinary action in relation to the survey following receipt of further advice and, Commissioner, I tender a copy of the letter that was sent to the members.

EXHIBIT #HSUA7 LETTERS FROM EDGARLEY HOME TO C. PEARSON AND B. THOMPSON

PN572

MR HAYNES: Now, Commissioner, as the Commissioner knows, Edgarley Home is located within Casterton. Casterton is a small town of no more than 1000 people. It is not a spread out town. What happened with this letter, Commissioner, is that it was posted on Tuesday night to our members, and I guess if a letter is posted at some time on Tuesday night, you would expect the letter to be delivered some time on Wednesday, that is probably a day and a half after the Commission's directions were issued.

PN573

I am advised that no attempt was made by Edgarley Home to contact the members in question. Both of the members live within the town, and as I have indicated it is small town, Commissioner, and both members had been rostered for duty on Tuesday and Wednesday of this week. Now, Commissioner, the union contacted the members concerned immediately after the hearing on Tuesday and advised them of the Commissioner's directions, and I know that Ms Pearson at least was waiting for the opportunity to return to work at the earliest opportunity.

PN574

Mr Atkinson also contacted Ms Arnold immediately after the hearing by telephone - we did that from this Commission - and advised her of the outcome of the proceedings, and Ms Arnold responded that she would seek advice from her industrial advisers. And yet, Commissioner, it was only - and this was serendipitous - that the members became aware of the letter from Edgarley Home on Tuesday night.

PN575

And the members at Edgarley Home have responded poorly to this and they have also responded poorly to the tone of the letter sent by Edgarley Home with relation to reserving their rights to pursue disciplinary procedures, particularly given the nature of the discussion that took place at the Commission on Tuesday, and the directions subsequently issued by the Commission as currently constituted.

PN576

Now, Commissioner, this matter was raised with the management of Edgarley at the meeting that took place yesterday, and both the issue of the immediate reinstatement and the issue of reserving the disciplinary matter, and I am also advised that the members concerned regarded this as some further form of harassment in relation to their employment. And I am further advised, Commissioner, that neither Edgarley Home nor their industrial representative, Ms Dewan, responded.

PN577

So, Commissioner, we had a situation where a direction of this Commission was responded to by management in a way which was clearly designed to put as much time as possible between the issuing of those directions and the information being conveyed in a formal sense to the members concerned, and that was a deliberate and conscious act on the part of Edgarley management. And, Commissioner, that I am advised was a factor in the members' thinking in terms of taking industrial action in relation to this matter, that they want to protect their position by taking their action to protect themselves.

PN578

Now, Mr Rahilly has also made reference to the meetings that took place yesterday. The union did table a range of allegations at the meeting that took place from 9.15 yesterday. What I would note about those allegations, Commissioner, is that they are generally new allegations of harassment and bullying at Edgarley Home. There are some older allegations but by and large they are allegations about recent events and Mr Atkinson did ask that management respond by 1 pm on Monday. And, as Mr Rahilly has indicated, I am advised that Edgarley Home indicated that they needed time to respond and that they would possibly need between now and Christmas to respond to those allegations.

PN579

Mr Atkinson subsequently met with the members at 10 o'clock, to report on the outcome of the meeting with management. And I can say, Commissioner, that they indicated that they weren't happy with the outcome. In particular, Commissioner, they were concerned about being - still being approached on an individual basis by the administrator, Ms Arnold, who continued - I am advised - intimidate and harass them. And, in particular, I am advised by Mr Atkinson that one member claims that Ms Arnold is continually following her around the workplace as she performs her duties.

PN580

So the position at the moment, Commissioner, is that industrial action is taking place at Edgarley Home. A further meeting of members is taking place at 10 am today. And the position of the staff, our members at Edgarley Home, is that an independent mediator be appointed by Monday 1 pm and that the manager be stood down while the investigation is being undertaken, with specific dates announced - ie, start and finishing dates - and the staff also resolved that they would not lift any action until this happens, if the Commission pleases.

PN581

THE COMMISSIONER: Thank you. Mr Rahilly?

PN582

MR RAHILLY: Commissioner, this set of circumstances that exist today had absolutely nothing to do with exhibit HSUA7. Exhibit HSUA7 was a response to the Commission's direction issued to my client on the last occasion we were here. The circumstances referred to in - I am sorry, by Mr Haynes, concerning exhibit HSUA7 were that until my client could be provided with the transcript of the proceedings before the Commission on the last occasion, and receive advice as to the affect of the Commission's directions in relation to circumstances of the two employees concerned, that they did not wish to - at that stage - forego their rights to pursue disciplinary action in relation to the matter in hand, or indeed any other matter.

PN583

Circumstances contained - or the circumstances surrounding the delivery of the letter were that it was posted at 1 pm on Monday, not on Tuesday as Mr Haynes suggested.

[9.32am]

PN584

MR RAHILLY: And by my instructions the issues as they have been put to the Commission by Mr Haynes today were not the subject of any discussion in the meeting which occurred at Edgarley in Casterton yesterday. Now, I appreciate Mr Haynes was not in attendance at the meeting but Ms Dewan was. And I am instructed that it was not put in any way, such as Mr Haynes has suggested. The matters contained in the raft of documents that purport to be complaints, Mr Haynes says, are recent - mostly of recent events. The fact of the matter is that they are not. There is a reference - I have just noted one, Thursday 15 March 2001.

PN585

15 March 2001. At the beginning of the year. August 20th and 21st, no year. So, with respect, this industrial action is entirely unreasonable, it is entirely unjustified. It is, as a matter of fact, unprotected. As a matter of law, unprotected industrial action. And my client seeks the assistance of the Commission to bring it to an end, and pending the resolution of the issues by way of mediation, over a reasonable timeframe. As I said, my client is under other pressures in relation to Departmental and Standards Agency activity and has particular deadline requirements in relation to those matters.

PN586

Other distractions can only impact adversely on my client if it is required to do what is demanded of it by the union. Not all of the employees of Edgarley Home share the view of the union and that is clear from the document that I provided to the Commission which I indeed seek to get marked. If the Commission pleases.

PN587

THE COMMISSIONER: Thank you.

EXHIBIT #EDGARLEY 1 DOCUMENT

PN588

MR RAHILLY: So, Commissioner, we would seek the Commission's assistance as I requested earlier by way of direction to the union to - and to its members to cease the industrial action presently being undertaken and that that industrial action cease forthwith. If the Commission pleases.

PN589

THE COMMISSIONER: Mr Rahilly, is the administrator the DON?

PN590

MR RAHILLY: I am sorry, Commissioner.

PN591

THE COMMISSIONER: Is the administrator the DON?

PN592

MR RAHILLY: The - - -

PN593

THE COMMISSIONER: Director of Nursing.

PN594

MR RAHILLY: They don't have a Director of Nursing, Commissioner. It is a low care - - -

PN595

THE COMMISSIONER: What is the next level then?

PN596

MR RAHILLY: Supervisor.

PN597

THE COMMISSIONER: What is the next person under.

PN598

MR RAHILLY: Supervisor.

PN599

THE COMMISSIONER: Supervisor.

PN600

MR RAHILLY: Yes.

PN601

THE COMMISSIONER: So does the administrator have the responsibility of the day to day contact with staff or is that done through the supervisor?

PN602

MR RAHILLY: Presently it is being done through the supervisor, Commissioner.

PN603

THE COMMISSIONER: Right.

PN604

MR RAHILLY: And I think through some considerable time that is being engaged.

PN605

THE COMMISSIONER: Right.

PN606

MR RAHILLY: Any suggestion that the administrator is following the staff member around during her working time is just ludicrous. And it just defies belief that such a proposition would be put. And we haven't been told who the staff member allegedly is so we simply discount that submission.

PN607

THE COMMISSIONER: Thank you. Mr Haynes, do you wish to make any comment?

PN608

MR HAYNES: No, not at this stage, Commissioner.

PN609

THE COMMISSIONER: Thank you. The Commission would have to say, and it is not a reflection upon the parties that are currently at the Bar table, for the Commission understands that they simply convey the views expressed to them by their respective members or client, but the Commission is totally dismayed at the lack of professionalism and willingness at a local level to deal with what are complex issues, not only in relation to the operation of Edgarley Home, but also issues that go to personal relationships.

PN610

The Commission is constantly bombarded with this, "They did this. They did that. They said that. They did that." And it does not do anything to resolve the issues that are at hand. The two demands for the union, that is, that a mediator must be appointed by 1 pm, I think it is Monday, 3 December, is nonsensical. Absolutely ridiculous. And to demand that the administrator be stood down is also nonsensical.

PN611

If the administrator under her own will chooses to stand aside, that is her business. But to demand that that be an outcome is not within the realms of responsibility, in the Commission's view. The Commission does not have jurisdiction to deal with that anyway. But to place such a demand is unrealistic. And simply is an excuse to have some form of industrial action.

PN612

The Commission has made its position clear before in terms of industrial action. It does not accept industrial action being put in place. Therefore, in terms of a mediator the Commission believes that that is an appropriate way to go. Somebody who can devote the necessary time to try and bring the parties together to resolve, as the Commission says, what are complex and personal issues seems to the Commission to be the only appropriate avenue.

PN613

Therefore the parties will meet, that is, next week beginning 3 December to try and reach an understanding by Friday, 7 November, on an agreed mediator. Failure to agree on a mediator, and independent mediator, the Commission will appoint one. Secondly, the industrial action is to cease immediately, and the demand that the administrator stand aside or be stood down is to be withdrawn. If the Commission is advised, following the meeting of members at 10 this morning, that those two points are not agreed to or are not being implemented, the Commission will reconvene at 11.30 today and Mr Rahilly with draft an application under section 127 of the Workplace Relations Act.

PN614

The other issue that the Commission would make comment on, and maybe it didn't make its position clear in regards to the disciplinary procedure arising out of the quality assurance forms. If a person puts a comment on a quality assurance form and they have the option of that comment being anonymous, or they can sign it, and the administrator or somebody else choses not to like that comment, bad luck. The objective of what the Commission said the other day is that you may not like the comment, but the standing down of those two employees, in the Commission's view, is still and was unlawful.

PN615

And the mere fact that they have put a comment on the quality assurance form does not lend itself to a disciplinary process. And therefore the disciplinary process shall not apply to these two employees because they put a comment on the quality assurance form that Edgarley Homes did not like. In fact the Commission would go so far as to say that if Edgarley Home tried to implement the disciplinary process arising from the comments on the quality assurance form, the two employees are to ignore it. It is a nonsense. Absolute nonsense.

PN616

So Edgarley Home will not pursue the disciplinary process arising from the comments on the quality assurance forms. The industrial action shall cease immediately. The parties will meet next week, and try and agree upon a private mediator to address the issues over what will be a long term period, because they are complex. The demand that the administrator be stood aside is to be withdrawn, and the industrial action is to cease immediately. Now, Mr Haynes, you will advise this Commission by 10.30 this morning, after the meeting of your members, whether the industrial action has ceased. If it hasn't, we will reconvene at 11.30. Mr Rahilly, you will draft a section 127 for the Commission to consider whether or not it applies the 127. Ms Dewan.

PN617

MS DEWAN: Commissioner, I would just like to say something. In relation to the issue over the complaints. When I took the transcript up there yesterday and had a meeting with the board members and Sandra, they agreed with me that the issue would not be pursued. I did need to speak to them, because they were not here when you made those statements. I didn't have the transcript. Your association was good enough to send it to me by email so I could take it with me. I took it with me. I went through the reasons and I explained to them what you have just explained, and they agreed that they would not pursue the matter. And in fact I drafted a letter just to be sent to the staff members concerned that it would not be pursued.

PN618

THE COMMISSIONER: Okay, that clarifies that.

PN619

MS DEWAN: So I agree with you, that is not an issue now. In relation to the mediator. Because of the time of year, we contacted Varheggs, as Mr Rahilly said. They gave us the name of a person called Robin Vale. I have never heard of the person. Anyway I left a message on his phone yesterday afternoon and I still haven't got an answer back. If the Commission does have mediators available, it may be that would save us argument. I don't know that we would have an argument, but time at least if there would be one could be appointed, because I think it might be a bit difficult to find one at this - - -

PN620

THE COMMISSIONER: Before Christmas.

PN621

MS DEWAN: To go up to Casterton, yes, I do.

PN622

THE COMMISSIONER: The Commission is happy to try and get the parties to reach some understanding on a private mediator. It is only as a last resort that the Commission would impose somebody. It would use the professional mediators, a group, to draw upon its advisers as to who would be appropriate. If it is somebody with a background in aged care it is far more appropriate to have that person. I don't know who this Robin Vale is. I don't know you, Mr Haynes, know of the person.

PN623

MR HAYNES: I do not know Mr Vale, Commissioner. However, I would raise to in general terms support that last submission of Ms Dewan in that we may, in fact, be close to a position of last resorts as it stands, and it may be that one of the mediators that can be called upon by the Commission does have some history or knowledge of aged care matters. If the Commission pleases.

PN624

THE COMMISSIONER: Have your chat and see how you go. If you can agree, fine. See what the availability of Mr Vale is. If he has got some background in aged care that is far more appropriate. If you can't, then give us a yell and we will see what we can do. The Commission will stand adjourned. Mr Haynes, I will expect a call from you this morning.

PN625

MR HAYNES: Commissioner, I may well make phone calls up here in the Commission so I may contact your associate to - just to see you at 10.30.

PN626

THE COMMISSIONER: Thank you. The Commission stands adjourned.

ADJOURNED INDEFINITELY [9.57am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #HSUA7 LETTERS FROM EDGARLEY HOME TO C. PEARSON AND B. THOMPSON PN572
EXHIBIT #EDGARLEY 1 DOCUMENT PN588