C2002/3285, Transcript of Proceedings [2002] AIRCTrans 2692 (16 July 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT04718
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2002/3285

SWINBURNE STUDENT UNION INC

and

NATIONAL TERTIARY EDUCATION
INDUSTRY UNION

Notification pursuant to section 99 of the Act
of a dispute re work bans placed on officers of
SSU, alleged threats of escalating industrial action
from 28/6/02 and alleged breaches of the grievance
procedure in the SSU Enterprise Agreement

MELBOURNE

10.10 AM, MONDAY, 1 JULY 2002

PN1

MR R. MILLAR: I seek leave to appear on behalf of Swinburne Student Union Incorporated.

PN2

MR M. PEGG: I appear on behalf of the National Tertiary Education Industry Union and appearing with me is MR W. .....

PN3

THE DEPUTY PRESIDENT: Right. Did you all get confused about which end of the table to sit at, seeing we have got two unions?

PN4

MR MILLAR: It was our notification, so I thought I would sit at this end, your Honour.

PN5

THE DEPUTY PRESIDENT: Right. There is no objection to leave, I take it, Mr Pegg?

PN6

MR PEGG: Your Honour, there is just one issue that we do have about the authority of the people here to be representing the Swinburne Student Union, but perhaps that is - I don't know that it is going to be useful for us to have that kind of argument right now. We would be seeking to move into conciliation fairly quickly, if possible.

PN7

THE DEPUTY PRESIDENT: Thanks, Mr Pegg. Yes, Mr Millar.

PN8

MR MILLAR: Your Honour, this is a section 99 notification which arises as a result of various work bans which have been put in place by the NTEU at the Swinburne Student Union. The bans which have been put in place are quite extraordinary in their terms, in that they are directed to - directed at certain specified individual office bearers within the Union. The ban which was communicated to the Union on 18 June was a work ban to apply the President, the Cross-Campus Media Representative and the Croydon Campus Chair; three elected office bearer positions of the Student Union.

PN9

And those work bans were expressed to include, no formal communication with these office bearers via electronic means, including not returning phone calls or responding to electronic mail:

PN10

And staff will not in any way act on requests from these office bearers, either directly or via the executive officer.

PN11

Now, these bans have been put in place against these named individuals in a way which it is, it is submitted, is quite improper, quite irregular, and is not a proper form of industrial action. On top of all of this is the fact that there is in existence an enterprise agreement, which a specified grievance procedure, which has not been followed. The industrial action has been taken in circumstances which are entirely premature, and are quite improper in our submission.

PN12

There has been tension between the officers of the Student Union and those elected office bearers, and the staff of the Student Union over the past few months. One can speculate on the reason for that tension. But it seems likely that the tension in part arises from the elections which were conducted at the end of last year, which saw certain student office bearers elected who were of a different political bent to those that had occupied those positions previously.

PN13

Be that as it may, it is not for the staff of the Student Union to enter the political fray in the view of the office bearers of the Association. They have been properly elected by the students and are there to implement the policies and views expressed in the course of their election. It is for then the staff of the Student Union to act in accordance with the proper and lawful requests and directions from those office bearers.

PN14

THE DEPUTY PRESIDENT: So what is it that the staff want, besides not to talk to the - - -

PN15

MR MILLAR: Well, that is perhaps something for my friend to address. There has been discussion - or there has been a demand made that a council meeting should be convened, a meeting of the council of the Student Union. That will no doubt occur in due course, but it remains the position of the office bearers that that is a matter for the council and the office bearers, and it is not a matter for the staff of the Union to direct. But the office bearers are seeking the lifting of these bans and a return to proper work as directed forthwith.

PN16

THE DEPUTY PRESIDENT: Thanks, Mr Millar. Yes, Mr Pegg.

PN17

MR PEGG: Your Honour, the issue really is one of - it is an occupational health and safety issue point of view - - -

PN18

THE DEPUTY PRESIDENT: I am sorry, I didn't get - - -

PN19

MR PEGG: It is an occupational health and safety issue from the point of view of our members. Firstly, if I could just preface, I must apologise for the confusion this morning. The industrial officer who is handling this was in a car accident at the end of last week, and that is part of the reason why there is some confusion about where the listing went. Just for your information.

PN20

THE DEPUTY PRESIDENT: Right, well, as it worked out I had another matter which had dropped off, so you are either lucky or unlucky, depending on which way you look at it, Mr Pegg.

PN21

MR PEGG: The main issues - that with the election of a new leadership and a change in the way that the organisation has been operating, our members have had very serious concerns about the way in which the organisation is being managed on a day to day basis. Concerns of intimidation and bullying of staff. And that is where we have attempted to address this under the Occupational Health and Safety Act, because staff are being, we believe, directly intimidated and bullied, and that was the issue. A provisional improvement notice was served on the Swinburne Student Union. An inspector from Workcover attended to that matter and issued an improvement notice in relation to that.

PN22

And that went to requiring training of office bearers and so forth, to try and remove the hazard that our members were being exposed to in the workplace. So that is the process that we have been going through, and that is the reason it hasn't gone through the disputes procedures in the enterprise agreement. As a part of that circumstance, the response - our response has been to cease work under that process that involves direct contact with the office bearers who are the source of the hazard to our members in the workplace. And so that is the nature of the action that has been taken.

PN23

Work ban is possibly an imprecise term. It is ceasing actions that expose our members to a hazard in the workplace, and that is the process we have been going through. The way that the Student Union operates is that the student office bearers operate at a remove from the staff. The executive officer has the role of doing the day to day management and the day to day direction of staff and student office bearers don't normally have the authority to be dealing directly with staff. And that is a longstanding culture of the organisation.

PN24

THE DEPUTY PRESIDENT: Yes, it has been my good fortune to have student union - from various universities in here for one matter or another, so I have a bit of an understanding of the way it works.

PN25

MR PEGG: And so what has been happening this year has been in conflict with that way of operating, and that has raised some of the concerns as well. The - but ultimately all we are seeking is that that type of behaviour, that direct behaviour from the office bearers cease, so that staff can continue to operate in the normal fashion. And there is no question about following direction - yes, proper directions from the employer.

PN26

The employer is the Swinburne Student Union Council and this is the issue that I mentioned very briefly at the outset. It is not clear to us under what authority we have been called here today. Our advice is that this hasn't been to the Student Union Council at all. There hasn't been a meeting of the Student Union Council since about February. And our advice is that the executive officer was unaware of this matter being listed. So in our minds, there is a question as to the authority of the office bearers to initiate this on behalf of the Student Union. But nevertheless what - - -

PN27

THE DEPUTY PRESIDENT: Well, there is also a provision in the agreement, is there not, requiring the consultative committee to meet on issues in dispute prior to any reference to the Commission?

PN28

MR PEGG: And again, given that the Student Union has brought this matter to the Commission, it hasn't been through that process. And as I said, the reason we haven't been taking it through that process is we have been using the Occupational Health and Safety Act to deal with the matter.

PN29

THE DEPUTY PRESIDENT: Well, is that a bit of a sleight of hand, Mr Pegg or - - -

PN30

MR PEGG: No, no, it is a genuine workplace occupational and health issue from our point of view. Staff were under real stress in the workplace, and it was certainly genuine enough that the Workcover inspector saw fit to issue an improvement notice in response to the provisional improvement notice that the health and safety rep had served. So there is a genuineness to that, we would submit.

PN31

THE DEPUTY PRESIDENT: Right.

PN32

MR PEGG: Nevertheless, it may be that in conference we may be bale to make some progress this morning to resolving things. We would be open to that.

PN33

THE DEPUTY PRESIDENT: Right.

PN34

MR PEGG: Bearing in mind that we do have the slight handicap that the industrial officer from the Union who has been dealing with this is unavailable this morning. But we are open to however you might be able to assist.

PN35

THE DEPUTY PRESIDENT: Yes. There are constitutional guidelines, I take it, that set out the authorities of the elected executive vis a vis the staff of the Union?

PN36

MR PEGG: I presume so.

PN37

THE DEPUTY PRESIDENT: Yes, thanks, Mr Pegg. Yes, Mr Millar.

PN38

MR MILLAR: Just a couple of issues there, your Honour. The instructions to proceed here today have come from the President and the Secretary of the Union. It may be that there is an issue which the - on which they will answer to the council in due course, but there seems to be no reason to doubt the ability of the President and secretary of the Student Union to instruct the initiation of a section 99 dispute notification. My friend said that this matter hasn't been through the consultative committee - - -

PN39

THE DEPUTY PRESIDENT: No, I think I said that. Yes. It didn't appear to be, I don't know.

PN40

MR MILLAR: Yes, well, indeed, that is the case. But the Union, in my submission, can't have it both ways, because it is them - it is the Union that has taken the industrial action. It is the union which has precipitated this being here today. It is the Union's actions which have been premature, rather than that of the Student Union office bearers.

PN41

THE DEPUTY PRESIDENT: But there is a let-off provision, if I can put it that way, is there not, in the disputes procedure that says something about, with the exception of a - these procedures shall apply with the exception of a bona fide safety dispute, or words to that effect - safety issue?

PN42

MR MILLAR: Well, that may well be the case. I could look to the precise provision if need be. In our submission, the occupational health and safety issue is not bona fide. It is something which has been used by the Union, in our submission, in a quite improper manner. There is no genuine occupational health and safety issue in the sense that that term usually conveys. There is no immediate danger or threat to employees in the safety of the workplace. The whole occupational health and safety issue seems, with respect, to be a furphy to disguise an issue which is effectively - - -

PN43

THE DEPUTY PRESIDENT: Well, it may not have been if the inspectorate saw fit to issue provisional improvement notices, might it?

PN44

MR MILLAR: Well, we have issues with that as well, but that is being pursued, and I understand that there is to be a further report from the officer due out shortly, as I understand it. I think an inspection was carried out towards the end of last week. But be that as it may, the third issue that my friend referred to was a suggestion that their real concern is that the staff of the Student Union should not be directed by the officers of the Student Union, that everything should go the executive officer. But of course their industrial action goes beyond that.

PN45

They have said that the staff will not in any way act on requests from these office bearers, either directly or via the executive officer. So if they are genuinely seeking some space to be inserted between the office bearers and the staff, if they are genuinely seeking to break the nexus for the ability to make direct orders, then obviously anything should go through the executive officer. and they have, in their industrial action, ruled out that ability for the office bearers of the union to have any work done by the staff of the union.

PN46

It is not just direct orders that have been banned, it is anything going through the executive officer. And it is even things like answering or returning phone calls, and other forms of communication which are perfectly proper and absolutely essential to the work in of this office. So in the submission of the office bearers of the Student Union, the industrial action that has been taken is premature and utterly improper, both as to the nature of the industrial action against specified individuals, and to the motivation that has led to it.

PN47

Having said that, we would be grateful, your Honour, if we could move into conference so that we might explore ways of being able to resolve these difficulties.

PN48

THE DEPUTY PRESIDENT: Yes, just one question before you sit down, Mr Millar. What is the immediate effect of these bans, in a practical sense?

PN49

MR MILLAR: Well, the office of the President and the office of the secretary of the Student Union have become essentially unworkable because they are unable to liaise with and work with the staff of the Union. It has effectively led to the disenfranchising, in our submission, of the students of the Union, because they elected the office bearers to perform a job, and that job is being frustrated by the stance that has been taken by the staff of the Union.

PN50

THE DEPUTY PRESIDENT: Thanks, Mr Millar. Yes, I will adjourn into conference, thank you.

NO FURTHER PROCEEDINGS RECORDED