C2002/3949, Transcript of Proceedings [2002] AIRCTrans 3474 (11 September 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT05456

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2002/3949

JULIE ROLLS

and

INTERGRAPH BEST (VIC) PTY LTD

Application under section 170LW of the Act
for settlement of dispute re alleged breaches
of specific procedures by Julie Rolls

MELBOURNE

11.37 AM, FRIDAY, 23 AUGUST 2002

PN1

MS B. FORBATH: I am representing Ms J. Rolls, together with MR R. MORRIS. We are officials of the Australian Liquor Hospitality and Miscellaneous Workers Union.

PN2

THE COMMISSIONER: Is Ms Rolls present in the Commission?

PN3

MS FORBATH: Yes, she is.

PN4

MR V. GOSTENCNIK: I seek leave to appear with my learned friend MS H. ROBERTS for Intergraph. I assume that Ms Forbath also seeks leave to appear.

PN5

THE COMMISSIONER: Yes. Well, given that both of you do seek leave to appear, the Commission grants leave. Ms Forbath.

PN6

MS FORBATH: Commissioner, I intend to briefly outline the matters between the parties and then seek the Commission's assistance in the form of conciliation to try and see if we can get to a resolution of the matters between Ms Rolls and her employer.

PN7

MR GOSTENCNIK: I don't mean to interrupt, but my client is quite content to go into conference immediately to try and resolve these matters rather than wasting the Commission's time .....

PN8

THE COMMISSIONER: What do you say to that, Ms Forbath?

PN9

MS FORBATH: Can I just put a couple of main points on the record?

PN10

THE COMMISSIONER: Can I make the point, if you are going to put things on the record so you can use against someone later, be careful, they might do the same to you.

PN11

MS FORBATH: Yes.

PN12

THE COMMISSIONER: Secondly, if you want me to conciliate the matter I won't be mucked around.

PN13

MS FORBATH: Yes.

PN14

THE COMMISSIONER: Okay. So put what you want to put on there briefly, otherwise find another member of the Commission.

PN15

MS FORBATH: Commissioner, this matter is as much about the process of dealing with Ms Rolls as it is about the substance about the allegations made against her. As the original letter to the Commission stated, there have been ongoing argument about whether the dispute settling procedures of the enterprise agreement applied or whether the investigation procedures of the enterprise agreement applied. Indeed, Intergraph itself had introduced another process all together, not referred to in the enterprise agreement, called formal counselling sessions. Now, Commissioner - - -

PN16

THE COMMISSIONER: Do you tendering a copy of the enterprise agreement?

PN17

MS FORBATH: I beg your pardon.

PN18

THE COMMISSIONER: Do you tender a copy of the enterprise agreement?

PN19

MS FORBATH: Yes, I have got a copy of the enterprise agreement.

PN20

THE COMMISSIONER: Well, where is my copy?

PN21

MS FORBATH: I haven't brought a spare copy with me today, Commissioner.

PN22

THE COMMISSIONER: Well, what is the Commission going to refer to?

PN23

MS FORBATH: Commissioner, I understood that the Commission would have had a copy of that on its file. It hasn't. I am sorry, I don't - - -

PN24

THE COMMISSIONER: Well, that is a fallacy. When you appear before me in the future, you make sure you have got all information to tender. Don't ever trust someone else to do it for you.

PN25

MS FORBATH: Yes. Well, Commissioner - - -

PN26

THE COMMISSIONER: Mr Gostencnik will lend us a copy.

PN27

MS FORBATH: Thank you. There has been ongoing argument about Julie's right to proper representation at the meetings that have been set up with Intergraph and her representatives and with the employer arguing that the union should only be there as an observer. Argument has ensued about the access to documentation, both by Julie and the union. And there has been a lot of difficulty that we have had obtaining information about just precisely what Ms Rolls is accused of. We have been shown certain documents but it has been claimed documents can't be removed from the premises, can't be photocopied and notes can't be taken from them.

PN28

So there has been, certainly, some difficulties on that front. A meeting was finally held on 26 July with Mr Morris, who is with me today present representing Julie, and in the situation Julie was accused of certain breaches of standard operating procedures. At this meeting it was claimed that she wilfully and neglectfully breached standard operating procedures and, of course, that has been denied by her. Some of the documents relating to the matter were only provided at the meeting itself which, obviously, gave little time to properly examine them.

PN29

From that meeting Mr Morris sought further details and he sought further documentation from the company in correspondence. This documentation was not provided prior to the next planned meeting on 12 August. The meeting was cancelled because of that fact and, also, due to the fact that Ms Rolls was absent on sick leave. Another meeting was finally rescheduled for Wednesday of this week, which is 21 August, at 6 pm but as the documents, again, couldn't be provided to the union prior to the meeting we said that we would require some time at the beginning of the meeting with Julie to go over the documentation.

PN30

Indeed, that occurred. But clearly, the company were unhappy about the amount of time that that took and at approximately 6.50 pm Intergraph management said to us that they couldn't stay any longer, they had to go home and that they wouldn't meet with us. We were there at that time to try and actually resolve the matters.

PN31

THE COMMISSIONER: What time of the day was this?

PN32

MS FORBATH: In the evening, 10 to 7. We had gone there at 6 o'clock for a meeting. This was the only time that we could actually arrange to meet.

PN33

THE COMMISSIONER: I wish I could get home at 10 to 7 ..... Go on.

PN34

MS FORBATH: Commissioner, the issues in dispute are to do with the despatching of codes 2 and 3 cases and the meaning of the words "the despatch of the most appropriate resource". I will come to that when we go into conciliation, Commissioner. This is just by way of an outline. The other issue in dispute is about the referral by Julie and discussion of certain matters with the duty team manager, the clinician, at the Intergraph site, and Julie is alleged inappropriate manner in speaking to duty team managers.

PN35

A fourth point is to do with whether or not mentoring of other employees is properly part of Julie Rolls' job description, whether or not she has been properly trained to do that and the difficulties that she has encountered with it. Commissioner, that is simply by way of an outline. To let you know that the parties have made some attempts to try and resolve this before coming here and we are here today in genuine spirit of trying to get down to tin tacks to say, well, what are the issues between the parties and what is the way forward to get them resolved? So Commissioner, I am at your direction, of course, happy to go into conciliation right now. Thank you.

PN36

THE COMMISSIONER: Yes. Is there anything you want to put on the record, Mr Gostencnik?

PN37

MR GOSTENCNIK: Just a couple of minor matters, sir. First, is that we have not seen a copy of the letter to the Commission so we are not in a position to respond specifically to matters contained therein. As I understand it, sir - - -

PN38

THE COMMISSIONER: Is this the - when you refer to the correspondence, is that the correspondence from Ms Rolls dated 22 July? Is that what you are talking about?

PN39

MS FORBATH: I think that must - yes, that would be what we are talking about.

PN40

MR GOSTENCNIK: Yes, thank you. The position, sir, is this - and very briefly - my client has particular concerns about the performance of Ms Rolls and in an endeavour to discuss those concerns with her there was a meeting arranged - a meeting between representatives of my client and the employee on 18 June this year. At that meeting particulars of the concerns were discussed and it had been understood by my client that Ms Rolls acknowledged at that meeting that her conduct fell outside the standard operating procedures which my clients all employees to perform their duties.

PN41

Subsequently to that, Ms Rolls consulted Ms Forbath's organisation and there ensued a series of discussions and correspondence about, not only the nature of the allegations but requests for particular documents and so forth. We are a bit at a loss as to the nature and purpose of this application since, so far as we are concerned, the process that has been undertaken is yet to be concluded. That is, as Ms Forbath has indicated, there have been meetings. Those meetings have not resolved the issue as such because, for reasons of timing or otherwise, the parties have yet to fully discuss the issues that are of concern to my client.

PN42

There had been a meeting arranged for 21 August. That meeting was scheduled for 4 pm which was subsequently rescheduled, as I understand it, at the request of either Ms Rolls or the union, to 6 pm. The union was then provided with certain additional documents which they sought. They spent some time looking at those documents and as things turned out the time my client had allocated for the meeting ran out and they had to attend to other matters. So that meeting didn't conclude. But my client is keen to have further discussions with Ms Rolls to hear her additional responses to the concerns that my client raised.

PN43

But this is really no more than a counselling session that my client is entitled to undertake in relation to concerns that it has about its employer performance.

PN44

THE COMMISSIONER: Can I just stop you there.

PN45

MR GOSTENCNIK: Yes, sir.

PN46

THE COMMISSIONER: If, in fact, you are talking about a counselling session, there should be no objection to Ms Rolls having a representative or a person present.

PN47

MR GOSTENCNIK: We don't object to having a person present.

PN48

THE COMMISSIONER: Person of her nomination.

PN49

MR GOSTENCNIK: Indeed, yes. We - that has never been an issue. I think the issue - - -

PN50

THE COMMISSIONER: Who should be able to assist Ms Rolls properly through that process.

PN51

MR GOSTENCNIK: The issue that has been, I guess, of some agitation is the role that the representative plays. I accept that that has been an issue in dispute.

PN52

THE COMMISSIONER: That is always an issue in dispute, especially in when the law profession gets involved.

PN53

MR GOSTENCNIK: Indeed, sir. But what we say in relation to that is that those matters can be resolved in the course of discussion. We say, at best, this application is premature. If it is an application brought under the dispute settlement procedures then the steps that are required to be taken are yet to occur. So on that basis there is nothing to bring to this Commission. That is, if Ms Rolls is aggrieved by certain matters there is a procedure set out in clause 40 of the agreement which are mandatory. That is, those steps must occur before a matter is referred here.

PN54

Now, we are here and we are happy to have a general discussion with the union and, indeed, with yourself, sir, to try and resolve any concerns that the union or Ms Rolls has. But to bring this matter and, particularly, to bring it on about 22 July where there hadn't even been a meeting yet with the union and my clients, is premature. The application seems to have been received on 6 August. The first meeting was scheduled for 14 August. Neither Ms Rolls nor the union waited for that meeting. The meetings haven't concluded. Now, that said, sir, we are here today and we are happy to try and at least work through the issues of the process.

PN55

The issues of substance, sir, we say are properly determined by my client in accordance with its obligations as an employer. If, after that process, either the union or Ms Rolls has some concern then, of course, her rights under the dispute settlement procedures are preserved and she may take what steps she likes under the procedure. But unless and until my client makes a decision there is not a great deal to complain about. I think that is all I want to say on the record. Sir, I should just say one other matter. We dispute any allegation that the union was not permitted to take notes about that letter. That simply isn't true.

PN56

THE COMMISSIONER: Well, Ms Forbath, what do you say about the process not being completed as per the enterprise bargaining agreement which is in place?

PN57

MS FORBATH: Part of the problem with this, Commissioner, is that the application was certainly lodged within - - -

PN58

THE COMMISSIONER: Well, it was lodged by - - -

PN59

MS FORBATH: The date on the letter is 22 July. Part of the difficulty is this. We had sought to have meetings and there was this ongoing debate about the role of the union, whether we were to be there as a third party observer or whether we were to be there in a representational matter.

PN60

THE COMMISSIONER: Well, we will resolve that now.

PN61

MS FORBATH: And that - at the time we could not get - (a) we couldn't get that clarified with the employer and (b) we could not get access to the documentation that actually enabled us to understand what, indeed, Ms Rolls was being accused of.

PN62

THE COMMISSIONER: Yes, thank you, thank you.

PN63

MS FORBATH: Now, and that was when it was notified.

PN64

THE COMMISSIONER: Thank you, thank you. Well, I am not satisfied the proper procedures have been followed either. I won't point the bone at anyone. However, within seven days of today's date the firm or the employer will provide to Ms Forbath any documentation or materials to be used in any discussions about the performance of Ms Rolls. No later than seven days after that date, in other words if, for example, you extend right out and don't supply the documents until Friday of next week, within Friday the following week you will have had a meeting with Ms Rolls and her representatives.

PN65

Those persons will be allowed and availed of the courtesies normal to all persons representing employees. In other words, they will be allowed to view documents in a timely manner. They will be allowed to take notes and assist in the resolution of the matter because that is what dispute procedures are all about. They are not for some person to say, well, we have given you the documents, it is a bit late, I am going home now because I have got to go to the pictures or something. That is not how life works. It might work that way within some government departments. It doesn't work that way in real life and people had better get their minds around it.

PN66

And by the same token, Ms Rolls' representatives had better get their minds around the fact that they can't put meetings off, arrive late or doing anything else. If they make an appointment to have a meeting they get there on time. I am sure Mr Morris understands what I am saying, if no one else. I don't intend to poke my nose into this matter at this stage. I don't believe it is a matter that is properly before the Commission at this stage because the proper procedures have not been followed.

PN67

The parties, in particular Ms Rolls' representatives, will inform the Commission by no later than Friday, 5 [sic] September as to whether or not the matter is resolved. If the matter is resolved, well, that is the end of the matter and you sought it out yourselves because that is what enterprise agreements are supposed to do. However, if there is still some dispute about what is going on between the parties the Commission will list the matter as a matter of urgency after that. The Commission will not consult with the parties as to their availability. You will be ruled by the Commission's calendar. Anything to say, Ms Forbath? Mr Gostencnik?

PN68

MR GOSTENCNIK: Yes, Commissioner. Can I just make an application in relation to the documents. Perhaps I could just explain the content. There are some documents which are already - - -

PN69

THE COMMISSIONER: Can I cut you short?

PN70

MR GOSTENCNIK: Yes.

PN71

THE COMMISSIONER: Is your concern that some documents may be want to be removed from the premises and those premises should stay on the - documents should stay on the premises?

PN72

MR GOSTENCNIK: There is that and the - sort of, the contents, because some of them contain sensitive - - -

PN73

THE COMMISSIONER: Well, if they are privileged they can't be divulged to persons - except the persons directly involved.

PN74

MR GOSTENCNIK: It is not a question of privilege so much, sir, it is a question of sensitive operational material because some of the issues that are of concern arise in the context of data about the organisation as a whole. What we don't want to occur, sir, is that information be used for purposes other than for the purposes of investigating this matter. So either, Commissioner, you make some direction under section 111 or, alternatively, section 355 which deals with trade secrets and the like. I simply raise that concern. It is a matter of abundant caution because we would be concerned that the documents are used for purposes other than legitimate representation of Ms Rolls' interest.

PN75

THE COMMISSIONER: Well, I am sure Ms Forbath wouldn't be in that sort of performance nor neither would Mr Morris. But to cover everyone's back, so to speak, I will make directions under 355 of the Act and under section 111(1)(t) as well. Any documents supplied are to be used only to assist the parties to understand the alleged complaints about Ms Rolls. They are not to be divulged to any other persons except those persons directly involved in the discussions about Ms Rolls. If the documents - and some documents would be of a nature that they would not necessarily want to be removed from the premises, arrangements are to be made for the documents to be properly viewed at the premises and some notes can be taken. But those notes are to be considered as being privileged.

PN76

MR GOSTENCNIK: That is satisfactory, sir.

PN77

THE COMMISSIONER: All right. I wish you good luck. The Commission is adjourned.

ADJOURNED INDEFINITELY [12noon]