C2001/3680, Transcript of Proceedings [2002] AIRCTrans 298 (5 February 2002)

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 VTO2102

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

10.07 AM, MONDAY, 21 JANUARY 2002

Continued from 30.11.01

PN627

MR D. EDEN: I appear on behalf of the Health Services Union.

PN628

MR M. RAHILLY: I seek leave to appear for Edgarley Home, the notifier in the matter.

PN629

THE COMMISSIONER: Leave was granted last time, wasn't it, Mr Rahilly?

PN630

MR RAHILLY: It was, Commissioner, yes.

PN631

THE COMMISSIONER: Okay, that continues. Who would like to lead off please.

PN632

MR RAHILLY: Commissioner, as I understand it since the matter was last before you the major outstanding issues seem to be the question of the under-payments. The Commission issued an order on 15 November extending time for the HSUA to scrutinise material provided by my client to 16 November, and subsequent to that my client has received a demand relating to under-payments for certain employees, a copy of which I received from my client last week but seemed to have misplaced. I am sure Mr Eden has a copy available that the Commission can see if it becomes necessary.

PN633

The other issues concerning the administrator,and the difficulties with the staff and so on, were the subject of mediation which was arranged by the parties. At this stage there appears to be no report available from the mediator, and I am not quite sure in the circumstances whether it was intended that one be made available. But at this stage that issue is not of great significance to my client, at least. Just going back then, Commissioner, to the question of the alleged under-payments. The Commission may recall that during the course of these proceedings it has been variously suggested that there are under-payments in relation to a range of issues. Some related, I think, to inappropriate classification; some related to change of shift under-payments; and there may have been others.

PN634

The letter of demand which has been received by my client names a number of employees and lists beside each of those an amount of money. The difficulty of course with that, as the Commission would readily appreciate, is that my client is not in a position to make an assessment of that claim, or each of those claims, as to whether it relates to under-classification or whether it relates to change of shift, or whether it relates to anything else. In other words the demand is unable to be properly assessed by my client in respect of the matters to which the amounts of money relate.

PN635

So it would seem that the nature of the amounts of money, as they have been expressed, would be capable of being itemised because they are specific amounts. It is not as if it is a claim for $5000 for one, and 3000 for another, and so on. They are specific amounts of money. What we would seek from the Commission, if it is minded to do so, is a direction to the HSUA to provide my client with a detailed statement of claim, if you like, itemising each alleged breach of the award, when it occurred, and what the particular amount claimed in respect of that breach is.

PN636

I might say, if the Commission pleases, that were this matter before the Federal Court it would be necessary for the claimant to provide that sort of information in order that the respondent is in a position to determine what, if any, liability it accepts or denies. So that, I think, Commissioner, is the position that we are at at the present time. If the Commission pleases.

PN637

THE COMMISSIONER: Thank you. Yes, Mr Eden.

PN638

MR EDEN: Yes, Commissioner. As you are aware you did extend the time for us to complete the audit process at Edgarley and serve the claim upon the employer upon 16 November, which we did so. We are under the impression that SIAG were acting on behalf of the employer at that stage, and a letter was hand delivered on 16 November to SIAG. And as we had received no response we gave the employer the benefit of the doubt, they never received such a claim, so we further submitted the letter on 9 January directly to the manager at Edgarley Homes.

PN639

I take Mr Rahilly's point that it certainly hasn't broken down exactly what the claim is, as in the entitlements, and this is a standard letter the HSUA serves on most of its respondents. However, we are quite happy to produce that information for Mr Rahilly and the organisation that he represents. Moving on to the - - -

PN640

THE COMMISSIONER: That includes - sorry - that includes the each alleged breach for the individual when it occurred and how the money was actually calculated.

PN641

MR EDEN: We can pretty much come down to those specifics now that it is on the computer program.

PN642

THE COMMISSIONER: Yes, okay, thanks. Yes.

PN643

MR EDEN: The mediation conference. David Haynes contacted Mr Robert Vile who conducted the mediation shortly after that took place. And as you may or may not be aware that everybody who participated in that conference signed confidentiality agreements, including myself and Mr Robert Vile. Mr Haynes asked if Mr Vile was able to provide an overview of what took place to the Commission, and he indicated at that time that he was unable to do so due to the constraints of the agreement. However, I suppose I might be able to go as far as to say the members have reported to me that many of the issues that were concerned and were raised and openly discussed at the mediation process. If the Commission pleases.

PN644

THE COMMISSIONER: Is there ongoing mediation or was there only the one.

PN645

MR EDEN: There was only the one meeting, Commissioner, and I believe there was recommendations for monthly meetings to take place between the employees and management at Edgarley Homes.

PN646

THE COMMISSIONER: Okay, and is that happening, do you know?

PN647

MR EDEN: I think Sandra Arnold, who is the administrator at the facility, is currently on leave, but I do believe that they will commence shortly after her arrival back at work.

PN648

THE COMMISSIONER: Okay.

PN649

MR RAHILLY: I do understand that is the case, Commissioner, that that recommendation is accepted by my client.

PN650

THE COMMISSIONER: Okay.

PN651

MR RAHILLY: Yes.

PN652

THE COMMISSIONER: Well, hopefully some progress will be made out of that.

PN653

MR RAHILLY: One would hope so.

PN654

THE COMMISSIONER: Yes. So the issue of - Mr Eden has addressed the issue of the breakdown of the material that is required in order for Edgarley to be able to do a proper assessment. Is that sufficient?

PN655

MR RAHILLY: Yes, I think it is, Commissioner. I think that meets the request.

PN656

THE COMMISSIONER: Okay. All right.

PN657

MR EDEN: One more thing, Commissioner. Part of your recommendations at a previous hearing was that the employer provide all pay details to its employees on a fortnightly basis, and I don't believe that has been complied to. If the Commission pleases.

PN658

THE COMMISSIONER: Well, there is the requirement under the Act of course.

PN659

MR RAHILLY: Well, there is, Commissioner, yes. I will take that suggestion on board and seek some instructions about it and provide some advice.

PN660

THE COMMISSIONER: Okay, thank you very much.

PN661

MR RAHILLY: If the Commission pleases.

PN662

THE COMMISSIONER: All right, well, thanks. At least some progress the Commission believes is being made. The Commission will simply maintain the file and if for some reason or either party believes it appropriate for the matter to be brought on they will contact the Commission. The Commission stands adjourned.

ADJOURNED INDEFINITELY [10.17am]