C2002/1411, Transcript of Proceedings [2002] AIRCTrans 1910 (31 May 2002)

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 VT04051
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

C2002/1411

HEALTH SERVICES UNION
OF AUSTRALIA

and

MAYNE HEALTH DIAGNOSTIC
IMAGING

Notification pursuant to section 99 of the
Act of a dispute re the re-classification
of an employee

MELBOURNE

10.04 AM, WEDNESDAY, 15 MAY 2002

PN1

MR J. O'MALLEY: I appear on behalf of the Health Services Union. With me today is MRS M. CEA.

PN2

MR M. NALLY: I represent Mayne Health in this matter.

PN3

THE COMMISSIONER: And you work for Mayne Health, Mr Nally?

PN4

MR NALLY: Yes, I do.

PN5

THE COMMISSIONER: All right. And whose notification is this? Is it yours Mr - - -

PN6

MR O'MALLEY: Yes, it is, Commissioner.

PN7

THE COMMISSIONER: It looks like yours, Mr O'Malley.

PN8

MR O'MALLEY: Yes, it is. I would like to thank the Commission for the confusion over the initial listing dates for this matter. Commissioner, Melissa Cea commenced work at the South Eastern Private Hospital in July 1999. She was initially engaged as a casual medical receptionist, and at the time of her employment the South Eastern Private was part of the AHC Hospital Group. Melissa's duties - well, she was a medical receptionist, working in the medical imaging section, that is responsible for x-rays, CAT scans, MRI scans, so on and so forth.

PN9

She was initially working approximately three or four days a week. In January of 2001 she was offered a 12 month permanent part-time contract that offered her a guarantee of 25 hours per fortnight. Melissa has advised me that a short time into that contract her hours actually were more in the vicinity of 36 per fortnight. The contract would have notionally expired in January of this year. However, in June 2001 Mayne Health took over the operation of the medical imagine suite at the South Eastern Private, and - - -

PN10

THE COMMISSIONER: When did that happen, Mr O'Malley? I am sorry.

PN11

MR O'MALLEY: That was in June 2001.

PN12

THE COMMISSIONER: Yes.

PN13

MR O'MALLEY: And Mayne Health offered Melissa ongoing employment. And I would actually like to submit a document to that effect, Commissioner.

PN14

THE COMMISSIONER: Thank you.

EXHIBIT #HSUA1 MAYNE HEALTH DOCUMENT OFFERING ONGOING EMPLOYMENT TO MS CEA

PN15

MR O'MALLEY: Commissioner, there are actually two letters attached, together. The first one is a general introduction from Mayne Health, welcoming Melissa to the Mayne Group. And, over the page is a letter. They are both actually dated 29 June.

PN16

THE COMMISSIONER: I might just read these, Mr O'Malley.

PN17

MR O'MALLEY: Okay.

PN18

MR NALLY: Mr Commissioner, I only have one of the letters.

PN19

MR O'MALLEY: I am sorry. Which one?

PN20

THE COMMISSIONER: Yes, Mr O'Malley.

PN21

MR O'MALLEY: Thank you, Commissioner. Commissioner, there is two points I would like to draw your attention to in the second of those letters. The first one is in the first sentence. It says:

PN22

I have pleasure in confirming your ongoing position with Mayne.

PN23

And then, if you go down to the area (a) Hours of work and commencement date, it says:

PN24

Your current position will be maintained.

PN25

Commissioner, we are of the view that this letter forms a new contract of employment for Melissa Cea and Mayne Health. On 15 February this year, however, Commissioner, Melissa was informed by her office supervisor that as from the following week she was going to be re-classified as a casual employee. We say that this is - this re-classification is a demotion, if not a constructive dismissal. At the time this took place there was no formal notice given of the demotion. And the officer supervisor indicated that there might be some casual work at the South Eastern Private facility around Easter, but there was no guarantee of hours.

PN26

I should also highlight the fact that this actually took place in February, some seven weeks after the - what might have been called the initial 12 month permanent part-time contract expired. However, as I said before, we say that this is a new contract of employment between Mayne's and Melissa. Now since the demotion took place, back in February, Melissa has worked intermittent shifts across two different sites. Some hours at the South Eastern Private, and some at the Mitcham Private Hospital. She has worked approximately 104 hours since February, but based on the hours that she had been working prior to the notice from her office supervisor, she should have worked 216. So there is a discrepancy of around 110 - 112 hours.

PN27

What we are actually seeking this morning, Commissioner, are two things. First of all we are seeking some assistance from the Commission, possibly in the form of directions to Mayne Health that Ms Cea is returned to a permanent part-time position with a guarantee of hours similar to those worked prior to February.

PN28

THE COMMISSIONER: Do you mean 25 or 36?

PN29

MR O'MALLEY: We would be suggesting 36, Commissioner. Melissa has advised me that she was aware that there is a vacancy that has recently come up at the Mitcham Private Hospital, that she believes, with a small amount of further training in terms of picking up some knowledge about medical terminology, she believes she would be more than capable of fulfilling. And secondly, we would be seeking some sort of sign of good faith from Mayne that they might be prepared to compensate Melissa for the loss of hours that has taken place as a result of the office supervisor's directions in February. At this point the HSUA rests, Commissioner.

PN30

THE COMMISSIONER: Yes. Thank you. Yes, Mr Nally?

PN31

MR NALLY: Mr Commissioner, it is true to say that the - on the - in January of - in actual fact, in December of 2000 Ms Cea was actually advised that as of January there would be an offer to her of - commencing 2 January, of her to actually change her - her employment status on a temporary basis. She was advised in a letter on 12 December from - - -

PN32

THE COMMISSIONER: I - just understand that, Mr Nally. You said the offer made in December which was to take effect some time in January was for her to change her employment status on a temporary basis. That is, just for a short period. Is that right?

PN33

MR NALLY: Correct. From casual to part-time on a temporary basis, to relieve on Maternity leave. So in - on 12 December I am advised that Ms Cea received a letter, and it was at that time she was advised that commencing 2 January 2001 and concluding on 2 January 2002 her employment would change from that of a casual employee to that of a permanent part-time employee. And she would be actually employed for approximately 24 hours per fortnight. The terms and conditions were actually as per the Health and Allied Services Award, and the AHCL Enterprise Agreement that was in place at that time.

PN34

That continued and - for a period of time. In the intervening period that - Mr O'Malley has outlined that AHC was taken over by Mayne, in approximately June of 2001. And the letters that were actually sent to Ms Cea at that time were confirmatory letters, which were fairly standard to all of our employees at that time. And they really meant that the conditions that were in place would be - would be actually honoured by Mayne going forward as the new owner of that business. It did, indeed, infer that the conditions under which Ms Cea was employed would be honoured by Mayne, and they have actually continued along those lines.

PN35

In January of 2002 Ms Cea herself raised with a Barbara Finlayson, one of the supervisors of the area, the fact that she knew her contract would expire in early January 2002. At that time a copy of the contract was attempted to be obtained from the hospital business office from AHC. With any acquisition, sir, it is often-times difficult to get specific details on specific employees with such a large transfer. There were some 16 hospitals and businesses transferred to Mayne in June 2001. It took some time to obtain a copy of the contract, and in the meantime, Ms Cea was actually maintained in her role, as a sign of good faith.

PN36

Meetings in early February yielded the fact that, in actual fact the contract should have expired on 2 January. And on 15 February Ms Cea was advised that she would revert to casual status, as per her contract, as from 25 February. It was at that time that she was advised that she would be - she was told that we would have work for her, from time to time on a casual basis, and that there was no issue with that. There was no performance issues whatsoever, and that is really not in question here. And that we would also find not only continued work for her at South Eastern, but Tony Eade was advised at Mitcham that he should also feel free and at liberty to utilise Ms Cea's services.

PN37

Such was our review of her performance we were more than happy to recommend her for use in other areas. I am advised, sir, that Ms Cea did not appear at all surprised at that outcome, and according to the information I am given, she was certainly, unlike as has been outlined by Mr O'Malley, she was actually given a couple of weeks notice of the change. And, in no circumstances can this be regarded as a demotion, because of the fact that she was doing similar work. She was paid a higher rate because of the casual loading that would actually apply. And under no circumstances was this a constructive dismissal. I find that bizarre in the extreme that that could even be referred to, because we had actually given Ms Cea confirmation that we were more than happy to continue with her employment, albeit at a different - a different employment classification.

PN38

Since the time that she was advised of that change, it is true to correct - true to state, and I have actually advised Mr O'Malley this morning that there were some 104 hours worked, and that is approximate, up until this time, since she changed in February, at South Eastern, and at Mitcham. And that situation continues. I am advised that South Eastern are more than happy to continue to using Ms Cea as an annual leave cover, so she will be offered continued roles as casuals. It is casual, because the shifts are actually not regular, and we need to - we need to work out a process there. And also, at Mitcham, they may have up to two five hour shifts a week, I am advised, that they may be able to offer her.

PN39

In fact, this week I believe that Ms Cea worked five hours on Monday, 10 to 6 on Tuesday and Wednesday, and then five hours Monday. She was - next Monday, she is rostered on. So there is a continuing situation there. However, they vary and hence the need for it to be casual. All right. We would suggest therefore that in the period of time, although she had worked previously more hours, that is the - that is the case, there really is no obligation on Mayne to actually in any way make up hours for two reasons.

PN40

One, there was no - there was no guarantee of continued employment on a part-time basis beyond 2 January. It did take us some time to resolve the matter, but it was in consultation with Ms Cea. And two, there was a minimum hours of 25 that our contract outlined and we have actually adhered to that. The solution we believe, sir, in this instance is that there is - there was no guarantee of continued employment after 2 January, although there was some expectation that we were more than happy to revert Ms Cea to a casual process.

PN41

Secondly, we were more than happy for Ms Cea to apply for vacancies, and if she is suitably qualified, she is in the box seat to actually gain further employment with Mayne. Thirdly, we are in - we certainly are satisfying our requirement and our commitment to her that she would revert from casual to part-time after a period of time in terms of maternity leave she would revert back to casual. She has done so, and we have offered her as many shifts as we are able, and - in the two locations to actually to continue with a casual employee.

PN42

Discussions with Mr O'Malley have occurred, sir, in this matter. In March we met and outlined that we are more than happy to keep the matter under review. That Ms Cea is well regarded, and as soon as suitable alternative roles are available, we are more than happy for her to apply and to be considered for those roles, suitable to - commensurate with her experience. We would certainly consider her for those roles. And, we believe that we would like to maintain an ongoing relationship with her, via casual status, until such time as we are in a position to actually turn that into part-time status. If it please the Commission.

PN43

THE COMMISSIONER: Yes. Thank you. We had better go off the record.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #HSUA1 MAYNE HEALTH DOCUMENT OFFERING ONGOING EMPLOYMENT TO MS CEA PN15