C2002/3066, Transcript of Proceedings [2002] AIRCTrans 3468 (9 September 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT05445
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

C2002/3066

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION

Application under section 127(2) of the
Act by Health Services Union of
Australia-Victorian No 1 Branch
for an order to stop or prevent
industrial action re the employment of
Akindini Stavrianos

MELBOURNE

10.32AM, THURSDAY, 22 AUGUST 2002

Continued from 19.6.02

PN233

THE COMMISSIONER: Is there any change in the appearances?

PN234

MR O'MALLEY: No, Commissioner.

PN235

THE COMMISSIONER: Very well. Now this matter comes back on, I think, at your request, Mr O'Malley. Is that right? It is a report back.

PN236

MR O'MALLEY: Yes, it is a report back, Commissioner.

PN237

THE COMMISSIONER: Yes. Well, report please.

PN238

MR O'MALLEY: Okay. Commissioner, since we were here last on 19 June, Ms Stavrianos has had some limited work back at Thalpori Nursing Home. She has worked a total of 72 hours since the first hearing on 19 June, Commissioner, but as much as she has had 72 hours that has been on a casual basis and it does not go anywhere near meeting the needs, one of Ms Akindini's - I am sorry, Ms Stavrianos' financial requirements or going anywhere near meeting the directions and orders that we were seeking when we were here last.

PN239

And the reason why I say that it doesn't meet those requirements, Commissioner, is that Ms Stavrianos has, as I said, worked on a casual basis. She has been offered work, I would admit, in accordance with the discussion in the conference we had when we were here on 19 June, but the key issue or the key theme that came out of the hearing on 19 June, Commissioner, was that things would be - or hours would be allocated on a fair basis and they would be shared. And we would submit, Commissioner, that the hours haven't been allocated on a fair basis.

PN240

And the reason why we would suggest that is that the substantive issue here is that Ms Stavrianos is allowed to - or is appointed to a permanent part time position. You will probably recall that she was going to apply for a permanent part time position. Her advice to me has been that she did apply for a position In the days after 19 June which unfortunately she did not - or was not the successful applicant in that position. But since that time, there have been other positions that have come up that she has applied for internally. As it stands at the moment, we are waiting on advice from management as to whether or not she has been successful in those positions.

PN241

THE COMMISSIONER: How many of those are there? These are several, more than one permanent part time position, is that right?

PN242

MR O'MALLEY: Certainly, Commissioner, there are four different positions, Commissioner. There are two positions on Thursday, Friday and Saturdays offering seven hours each day, which would be a total of 21 hours each week. There is another position, which is a rotating position, on three days a week which would offer a total of 12 hours a week. And another position which offers about 20 hours a week again. Now, Commissioner, when we were here last we submitted that Ms Stavrianos is a good employee.

PN243

She has, you might recall, taken some time off her studies, she has re-entered or recommenced those studies and has advised me that she will finish those studies and be a qualified personal care worker grade 3, I understand, at the end of September. She has also initiated a pathways to nursing course at Victoria University of Technology. Ms Stavrianos wants a career out of nursing, Commissioner, as I think you will recall from the last time we were here. So in terms of what we say Ms Stavrianos has done since we were here, she has met the commitments that she gave the Commission.

PN244

However management, I might suggest, has not met the fair share deal that I thought we had struck since we were here last. Ms Stavrianos has advised me that she is still the last person to be called in many instances before agency staff are called and she is still being called on occasion by other personal care staff to attend work. And I think that was, you will recall, one of the issues of some concern from management when we were here that Ms Stavrianos was being called and that her hours were, you know, upwards of 70 and 80 per fortnight - which was management's concern in the first place.

PN245

THE COMMISSIONER: Yes, I don't know whether they would have - my recollection of their position is - wouldn't accord with the way you are putting it in that you say now she is still being called in the same way, I think you want me to recollect, as she was previously being called. That is, not just hours that she was being offered but to take up work that had been offered to other employees, other casuals. And my recollection of - from a different position was that, and I don't necessarily want say too much on the record, but that she was, putting it at the absolute mildest, taking a very firm and active position with other staff to take up any slack that might exist and indeed even to usurp or try and take up work to which she had - been allocated on a shift by shift basis to other people, to which she had no proper call and there being some heartburn about that.

PN246

But you say that she is - can I just make sure I understand this, because I don't want to re-engage in that - one can, but it doesn't seem to be particularly positive.

PN247

MR O'MALLEY: Certainly.

PN248

THE COMMISSIONER: You say two things: That she is the last person to be called in many instances, so she may be the first in some instances, I just don't know quite how that is done, if there is a list, perhaps a seniority-based list. But if it is right that Ms Stavrianos is, for some reason, contacted after all others on many occasions, and it might be that others have a very tiny amount of experience, you bring that to notice. And you also say, do you, that she is also being called by other staff to take up some of their hours that they may not be able to work. Is that right?

PN249

MR O'MALLEY: No. She is being called to fill vacancies, not to take up other peoples' hours per se, Commissioner. But she is being called by other staff to say, "Look, we need somebody to come in, you are the last person on the list, can you come to work?"

PN250

THE COMMISSIONER: I don't understand why you have got two categories there because the first one I had - you said in many instances she is the last person to be called, and I took it to mean that is an authority figure from Fronditha ringing to say that, "We need someone this afternoon, can you do it, can you do it, can you do it?" And she is the last in the - she is always on the bottom of the list so that would affect her hours. It is not in an evenhanded - there is not some mechanism as to evenhandedness. And then you said she is still being called by other staff, and that is what I don't understand.

PN251

MR O'MALLEY: I am sorry, Commissioner. The first half of your understanding is correct. The point I was going to make with regards to the fact that she is being called by other staff is that, of those 72 hours that she has worked since 19 June, the majority of those hours have been because other staff have called her because she is the last person on a list of people to attend for work.

PN252

THE COMMISSIONER: I don't understand, I am sorry, Mr O'Malley. It must be me, I have been on country circuit, perhaps that has an affect. But do you mean - - -

PN253

MR O'MALLEY: Maybe if we could move on - - -

PN254

THE COMMISSIONER: But are they authority figures, are they people with the authority to do it or are they just people saying - some of the 72 hours derives from - not from Fronditha, but from people saying, essentially, "Can you swap? I am meant to come on this afternoon, I can't do it, will you do it for me?"

PN255

MR O'MALLEY: It is not so much - well first of all it is people who are not, one might suggest, in an authority position to ring, but it is not the swapping of shifts, it is because there is a vacancy and they have not been able to fill that vacancy.

PN256

THE COMMISSIONER: Well, that is just a call from Fronditha, isn't it? It is - - -

PN257

MR O'MALLEY: Well, effectively, yes.

PN258

THE COMMISSIONER: You would normally think that a leading hand or a supervisor or a superintendent or someone would do it. But you sort of - it seems to be that you are suggesting staff themselves do it.

PN259

MR O'MALLEY: That is my understanding.

PN260

THE COMMISSIONER: But you don't want me to see it as a shift swap.

PN261

MR O'MALLEY: No, it is not a shift swap.

PN262

THE COMMISSIONER: Or employee B taking up employee As hours.

PN263

MR O'MALLEY: It is not employee A taking up - - -

PN264

THE COMMISSIONER: So then it is the charge nurse or someone there ringing up. No it is not, it is just someone else.

PN265

MR O'MALLEY: It is the personal care staff, not the supervisory staff such as the division 1s or division 2 nurses or the care co-ordinators or whoever the person is calling.

PN266

THE COMMISSIONER: So Fronditha reposes authority in its staff generally, and its casual staff, to call in other casual staff.

PN267

MR O'MALLEY: That is what appears to be taking place, Commissioner.

PN268

THE COMMISSIONER: Okay. Well thanks, Mr O'Malley.

PN269

MR O'MALLEY: Okay. Where all this is going, Commissioner, is the fact that the organisation is still advertising for positions. And indeed we suggest that there are positions - or there is a permanent position - or permanent hours, I am sorry, Commissioner, I should have said - that could have been made available, and indeed we say should have been made available, to Ms Stavrianos. Especially in light of the discussions of a fair share of hours, so on and so forth, that we had some eight weeks ago.

PN270

Now, I would also suggest, Commissioner, that there are other casuals who have been getting more hours than Ms Stavrianos, on a regular basis. I have got rosters, that I would submit if the Commission requires those rosters, that show two people in particular who received 36 hours in one fortnight and 23 hours in another fortnight at the same time when Ms Stavrianos was - and I should say they were rostered hours, Commissioner - when Ms Stavrianos was on the back bench, so to speak, in the true sense of the casual waiting for a phone call for work.

PN271

Fronditha is, I am advised, Commissioner, advertising in the local newspaper for personal care workers. I am also advised that they are advertising on Greek community radio for Greek-speaking personal care workers to work specifically at Thalpori. Ms Stavrianos is a Greek-speaking personal care worker. We do not understand why Ms Stavrianos is being treated in the fashion that she has when the organisation is desperately seeking for people - that Ms Stavrianos has the qualifications for.

PN272

THE COMMISSIONER: Yes.

PN273

MR O'MALLEY: No further points at this stage.

PN274

THE COMMISSIONER: Who is going to respond?

PN275

MR SCANTSONIHAS: Myself, Commissioner.

PN276

THE COMMISSIONER: Mr Scantsonihas.

PN277

MR SCANTSONIHAS: You will have to bear with my voice, I am on the verge of losing it.

PN278

THE COMMISSIONER: Well, that will be - one would hope - no, I don't want to say that. But many advocates one would - it almost a gift from heaven if we have some of our advocates here lose their voices. But you go right ahead.

PN279

MR SCANTSONIHAS: Okay. Basically I would like to start off with it was our understanding that the staff member and or the union representative were to keep in contact with Fronditha management if there were any issues in regards to the previous hearing we had. There was no contact with myself or with Barbara Hiller up until the time we received the notice to attend this return hearing. I did contact Mr O'Malley just to find out whether it was necessary to proceed because as far as we were concerned there were no issues raised with us in regards to the casual employment.

PN280

The other point I would like to make is that we did, as far as we are concerned, close the issue as far as permanent employment. That we were under no obligation to employ a staff member that didn't meet our selection criteria. And our understanding was that this hearing was to address that issue of fairness as far as casualties were concerned with Ms Stavrianos. Our records show that Ms Stavrianos did complete 72 hours of casual work. They also show, though, that there were five shifts that were offered with the client and cancelled. And we have got those dates as well.

PN281

And if we compare those hours with the staff that are on casual, the maximum amount of shifts that were done after 19 June were 15 shifts. That was the maximum and the minimum was four shifts. So it varies according to the availability of casual staff members. The process is that the staff members who are on duty at the time - if someone calls in late in the evening that they are going to be sick in the morning then they - the person that is working on that shift will contact the permanent staff, then the casual staff, and then if no is available, agency staff to cover the shift.

PN282

So as far as we are concerned that process has been followed. Furthermore, we would like to put closure on this issue, Commissioner, because as far as we are concerned we have followed our part of the bargain. And also, just to add to that, Ms Stavrianos did apply for a position. She was interviewed and was considered under due process. The other applicants presented, according to Barbara Hiller, better and were successful. There is further positions being advertised and she is quite welcome to apply for those.

PN283

That we have got nothing further to add, only to say that we felt today was unnecessary as we had not been made aware of any issues according to the staff member.

PN284

THE COMMISSIONER: Have there been any problems, Mr Scantsonihas, that you are aware of? Is the work coming along satisfactorily with Ms Stavrianos?

PN285

MR SCANTSONIHAS: According to Barbara Hiller there haven't been any issues during the times of - Ms Stavrianos has been on duty. Likewise with the other casual staff members.

PN286

THE SENIOR DEPUTY PRESIDENT: I beg your pardon?

PN287

MR SCANTSONIHAS: Likewise with the other casual staff members.

PN288

THE COMMISSIONER: Yes. Well, at this stage I have no interest in them but I want to understand - we had a - maybe it will be that we will have a conference again shortly. But we had a conference about which I said, as I closed for the record at 5.17 on 19 June, I said that:

PN289

There had been a lengthy conference in this matter and that there had been some frank discussion.

PN290

And my recollection is that there was some frank discussion.

PN291

MR SCANTSONIHAS: Yes.

PN292

THE COMMISSIONER: So, when I asked you how she was going, on the record, I was really looking for you to tell me whether there had been any difficulties. It is pleasing, perhaps, to hear that she is progressing as well as the others but that really wasn't - it was - I am interested to know whether there are any - - -

PN293

MR SCANTSONIHAS: Well, the - - -

PN294

THE COMMISSIONER: First of all, whether there had been any problems and then - that is one way of looking at someone: is that employee a problem employee; but also I go further and say: is the work coming along satisfactorily in the context that Ms Stavrianos seems - and this is how I have been taking it from Mr O'Malley, and I might be wrong - but she is - she wants to, if possible - and this might be an objectionable term - rehabilitate herself in the eyes of her employer given that she wants to improve her training, improve her standards and work with you on a much more regular basis as a permanent employee and wants to go through the pathway into nursing.

PN295

Now, it is in that broader context that I ask you have things been coming along smoothly because I urge Ms Hiller and Ms Stavrianos to cautiously and carefully try and engage with each other to make sure that the ambitions of this woman could be hopefully met in the same way as Fronditha was entitled to maintain its standards and run its business in a fair and reasonable way. Because if Ms Stavrianos isn't a comfortable fit in some way - what a terrible form of words. But if she is not going to cut the mustard I wonder whether at some stage Ms Hiller - it wouldn't be fairer for both sides of them to say, "Look, there is a profile and it is of this sort."

PN296

That is what I was hoping, that there could be a genuine engagement. Of course you have to be careful when you say to someone "you don't fit my - you didn't go to the right school" or "you are too small" or something, I don't know. We know that you can't do that. But in this case we had a very, I seem to recall, detailed discussion about an employee who was swimming against the tide a bit and you, for your part, said, "Well, she hasn't been a particularly good swimmer. She wasn't an ideal employee and there were some complaints and they were frankly brought to notice."

PN297

Now, if it is a futile exercise - and on a fair ground it can't be a futile exercise for Ms Stavrianos on a ground which is not available to you because that is against the law. But if it is futile to her on some reasonably held ground of yours, rather than her waste six months fiddling around with you it would seem to me to be fairer that you would tell her that. So they are the sorts of ideas that I had in my mind when I posed the question to you about how it was going. If you would rather respond to me in conference then I will give you that opportunity.

PN298

MR SCANTSONIHAS: Well, speaking with Barbara, she still has concerns about the past performance. And as far as the casual shifts that were offered, since 19 June there were some cancellations of at least one an hour before she was to start. So we have some concerns in from that aspect. And according to Barbara, the other applicants presented better and that is the basis we treat all our applications. So as far as we are concerned I think we have followed all the recommended process, yes.

PN299

THE COMMISSIONER: Thank you, Mr Scantsonihas.

PN300

MR SCANTSONIHAS: Thanks, thanks.

PN301

THE COMMISSIONER: Well, Mr O'Malley, I think we will have a conference.

PN302

MR O'MALLEY: Yes, sir.

PN303

THE COMMISSIONER: We will go off the record.

NO FURTHER PROCEEDINGS RECORDED