BP2002/4881, Transcript of Proceedings [2002] AIRCTrans 3615 (18 September 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT05533
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

BP2002/4881

APPLICATION FOR TERMINATION
OF BARGAINING PERIOD

Application under section 170MW of the Act
by Salvation Army Eastcare for orders to
suspend or terminate the bargaining period
in BP2002/1842

MELBOURNE

1.20 PM, FRIDAY, 30 AUGUST 2002

PN1

MR P. EBERHARD: I am from the Victorian Employers Chamber of Commerce and Industry and with me is MR T. MATHESON from the Salvation Army.

PN2

MR J. O'MALLEY: I appear for the Health Services Union and with me today is MR M. BALANO.

PN3

THE COMMISSIONER: Thank you, Mr O'Malley; nice shirt. Mr Eberhard.

PN4

MR EBERHARD: I thought that comment would come up. I was going to make something similar but I thought I would defer to a greater power. Firstly, can we thank the Commission for bringing this matter on at this point of time. I know it is inconvenient to the Commission and I say that only because it is normally your lunch hour; sorry about that. Commissioner, this is an application to terminate a bargaining period that has been initiated by the Health Services Union with respect to the Salvation Army.

PN5

I understand that that is matter number BP2002/1842. The application is made under section 170MW(3) of the Act. MW(3) of the Act requires:

PN6

... circumstances to exist which threaten to endanger the life, the personal safety or health or the welfare of the population or a part of it.

PN7

In correspondence dated August 21, 2002 the HSUA notified the Salvation Army that they intend to commence protected industrial action for the purpose of supporting and advancing the claims made by the HSUA in pursuit of an enterprise bargaining agreement with the HSUA. The protected industrial action, which is referred to in the VECCI application itself, and I would take the Commission to that and I trust that the Commission has a copy of that on file:

PN8

...incorporates a range of bans and limitations which include but are not limited to no new referrals, no overtime and no out of hours work, no case discussions or consultations with co-workers, other services or managers, no community access services, outreach or day centres, no shopping for clients, no cooking for clients, no banking for clients, no transfer of clients between houses, day centres and schools, no sleepover duties to be performed between 10 pm and 7 am and, also no assistance with the administration of general medication to clients other than PRN medication.

PN9

It may be appropriate to advise the Commission at this stage that the Salvation Army - it is actually the Salvation Army Eastcare in the sense that there are two separate divisions of Salvation Army. Eastcare has some five houses in total that are being affected by the industrial action. The residential units that they run are 24 hour care units for referrals from the Department of Human Services.

PN10

The individuals who are generally placed in the residential units tend to be in the age group of 14 to 16 and would more than likely appear on what is termed the high risk register, which means that the individuals themselves are in need of protection. Basically, what the fundamental position comes down to with respect to the industrial action is that the individuals in the residential units are not getting the care and attention required under the Children and Young Persons Act, nor are the Salvation Army capable of meeting their duty or care, nor the contractual arrangements which they have with the Department of Human Services which prescribe interactions and processes for the individuals concerned.

PN11

Together with the application, Commission, VECCI did supply a witness statement of Susan Elizabeth Rennie. Now, Ms Rennie, unfortunately, is unable to be with us today. If there are any questions that the Commission has in regards to them or to the impact that the industrial action is having at Salvation Army Eastcare, certainly Mr Matheson is available here today and, should it be required, he could go into the witness box and attest to the circumstances that exist at Salvation Army Eastcare.

PN12

But basically, what Ms Rennie had sworn in her statement was that, and that is found on the second page under the heading of "Residential Care", that:

PN13

At present, approximately 15 staff and 14 clients of the Salvation Army Eastcare are being adversely affected by the current industrial action. At present it has become difficult to provide adequate staffing levels and external recruitment agencies are unable to provide sufficient relief staff due to HSUA bans in place. Essentially, this means the client placements will be significantly disrupted. These work bans have also placed unreasonable work demands on existing staff who are required to work beyond their normal duties and their health, safety and welfare is, therefore, at risk. More to the point, also, the health, safety and welfare of the individuals at Salvation Army Eastcare is required to look after is also at risk.

PN14

We would also submit that in addition to what we have already said, that VECCI would ask that the Commission uses its own knowledge of the harm that can be imposed on an employer and the individuals that they are tasked to care for in this particular sector of the Disability, Early Intervention and Residential industry. The Commission is well aware, having dealt with other terminations of bargaining periods in this particular industry, of the damage that can be done by industrial action to those people who require the care and assistance of the carers that are the employees of the employer subject to the notice of initiation of bargaining period.

PN15

Unless the Commission has any questions, we would ask that the Commission terminate the bargaining period that had been initiated by the HSUA in BP2002/1842. I think it probably appropriate, given that the Commission has also made a declaration that conciliation is at an end and Salvation Army Eastcare is in no different circumstance to those other employers who have previously had their bargaining period terminated, that we would think it probably appropriate that this matter - the Commission make a declaration that conciliation is at an end and that this matter be joined with those other matters that have been referred to SDP Marsh for determination in respect to MX arbitration. If the Commission pleases.

PN16

THE COMMISSIONER: Thank you, Mr Eberhard. Yes, Mr O'Malley.

PN17

MR O'MALLEY: Mr Commissioner, I would just like to say that if I received notice earlier than I did I would probably have worn a less colourful shirt for the Commission this afternoon.

PN18

THE COMMISSIONER: I must say, it brightens up the place.

PN19

MR O'MALLEY: It does, indeed, doesn't it, Commissioner?

PN20

THE COMMISSIONER: It does.

PN21

MR O'MALLEY: Thank you. Commissioner, I can confirm that there is industrial action taking place at the five houses run by the Salvation Army Eastcare. I can also confirm that it commenced on Wednesday, 28 August this year. We have spoken with members in three facilities this morning. We have spoken to people at Kent Close, Ozone Road and Rowson Street this morning and they have advised us of the bans that have been in operation. Does the Commission require us to elaborate on the extent to which those bans are in place?

PN22

THE COMMISSIONER: No, thanks.

PN23

MR O'MALLEY: Okay. In terms of Mr Eberhard's submissions about conciliation or directions that conciliation be at an end and that this matter be joined with previous matters, the HSUA would concur with Mr Eberhard's submission on that matter.

PN24

THE COMMISSIONER: Mr O'Malley, Mr Eberhard has said that, basically, this matter is in the same category in terms of the conciliation process as other previous matters and it would appear that the submission is that there is no likelihood or the prospect of a settlement in regards to conciliation being a reasonable time. Do you concur?

PN25

MR O'MALLEY: Yes, we do, Commissioner.

PN26

THE COMMISSIONER: Okay, thank you. All right. This is an application under 170MW, that is 170MW(3), of the Workplace Relations Act in that circumstances for the purpose of subsection (2) is that:

PN27

Industrial action that is being taken to support or advance claims in respect that proposed agreement is threatening, (a) to endanger the life, the personal safety or health or the welfare of the population or part thereof -

PN28

claims in relation to an application or notification to the Commission under 170MI, which is the notification of initiation of a bargaining period, by the Health Services Union of Australia Number 3 Branch. The Commission with its knowledge of this particular sector notes that the bans that are in place are significant bans that are generally called stage 1 bans. They commenced as of 12.30 pm on Wednesday, 27 August. The Commission also notes that it is expected that stage 2 bans are to commence - - -

PN29

MR O'MALLEY: If I may, Commissioner, the stage 2 bans are due to start - - -

PN30

THE COMMISSIONER: 2 March - 2 September, is that right, or the 4th?

PN31

MR O'MALLEY: 4 September, Commissioner.

PN32

THE COMMISSIONER: I read it somewhere. I am just trying to think where I read it.

PN33

MR EBERHARD: Commissioner, it is in the second page - in point 4.2 on the second page of the application itself and:

PN34

As of Wednesday, September 4, 2002, the introduction of stage 2 bans which incorporate, not only those bans listed in stage 1, but also rolling stoppages.

PN35

THE COMMISSIONER: Yes, thank you. I was looking for that, thank you. I recall that I had read it, I just couldn't find it. It is noted by the Commission that as of Wednesday, September 4, 2002, there will be the introduction of stage 2 bans which would include rolling stoppages. The industrial action in place has immediate impact upon those members of the community who can least afford to have or be affected by such industrial action.

PN36

The Commission would, therefore, terminate the bargaining period. And having heard the parties as part of this submission and, understanding that they are in a similar position as other sectors of the disability sector, is prepared to say that under 170MX(3) that in exercising conciliation powers it is not likely that further conciliation would result in the matters being settled within a reasonable time. Therefore, the Commission will declare conciliation at an end. The Commission will refer the matter to SDP Marsh and ask that the matter be included in the 170MX arbitration process. Mr Eberhard.

PN37

MR EBERHARD: Commissioner, I think just as a point of clarification, I think in your decision there that you actually mentioned that the bargaining period was initiated by the Number 3 Branch.

PN38

THE COMMISSIONER: That is what I have got here. It has got 170MI notice of initiation of bargaining period application by the Health Services Union of Australia - Victoria Number 3 Branch.

PN39

MR EBERHARD: Is that in my application or - - -

PN40

THE COMMISSIONER: No. Actually, the notification is on Victorian Number 1 Branch. On the folder of the Commission it has got Number 3. I don't know - - -

PN41

MR EBERHARD: Just as a technical point, the bargaining period itself, which is dated 3 June 2002, has been signed and authorised by Rob Elliott, the national secretary, and emanates from the Health Services Union of Australia national office. The only reason I raise this is that if the Commission remembers, there was arguments in previous appearances before yourself in regards to the capacity of a branch of the HSUA to initiate a bargaining period and you actually said that under the rules the Number 2 Branch, which had initiated bargaining periods to other agencies in the Disability, Early Intervention and Residential sector did not have standing in that particular matter.

PN42

So I don't have a copy of it. I can provide it to the Commission now, but the bargaining period itself has been initiated by Rob Elliott, the national secretary, and the correspondence dated 3 June 2002 does emanate from the HSUAs national office. So if there is anything there in our application or in any of the other material that we have supplied, I apologise to the Commission and we would seek to vary that and would ask that the Commission, with its powers under the Act, vary that accordingly.

PN43

But certainly, the bargaining period itself has been initiated by the national office and that is the bargaining period that should be terminated as a result of this application.

PN44

THE COMMISSIONER: As a point of clarity, you are correct. The notification that I have actually has Rob Elliott's name on it but has been crossed out and the name Craig Thompson inserted.

PN45

MR EBERHARD: That may well be the actual application with respect to the notification of protected industrial action. Look, it may well be appropriate to make - to confirm what we have said in the final, if we can make available to the Commission a copy of the actual notice and if the Commission could place that on the file, it may well assist the parties in regards to that. It is just - it is a procedural issue that if we get down the track I don't want to be in the situation where we could say that whether or not there is a question as to whether the bargaining period has been terminated or legitimately initiated.

PN46

So as a procedural matter, we can certainly make that available for the Commission. But we can certainly advise the Commission that, as I said, it has been initiated on 3 June 2002 by Rob Elliot, the national secretary, and Mr Elliott has attached to that, not only the notice of initiation of bargaining period and the particulars required under MJ of the Act, but also the HSUA Disability, Early Intervention, Residential Care Salary and Conditions Claim 2002 which, without reading it, looks to be in exactly the same form as, I would submit, that has been served on other employers in this particular industry.

PN47

THE COMMISSIONER: Right. I don't have any of that. I have the claim and it has got notification - a notice of initiation of a bargaining period. Attached to that or under the covering note "Craig Thompson" on a form R59, notice of giving authorisation to engage in industrial action. But that is all I have. I have no letter of authorisation in terms of who is eligible to actually serve the log.

PN48

MR EBERHARD: I am not questioning who is eligible, I am just saying that in a previous matter before you - - -

PN49

THE COMMISSIONER: No, I understand that, I understand that.

PN50

MR EBERHARD: What might well be easier - - -

PN51

THE COMMISSIONER: You are referring to a document that I don't have.

PN52

MR EBERHARD: Yes. What might be easier, if I supply - unfortunately, that is the only copy that we do have, so we would need to take additional copies of that.

PN53

THE COMMISSIONER: Yes.

PN54

MR EBERHARD: That is certainly - that is the notice of initiation of bargaining period itself and, as the Commission would see, it does emanate from the national office and is signed by the national secretary, Mr Rob Elliott. I do have a copy of, I think, the information that the Commission is referring to and that is the actual notice of protected industrial action itself which is - if you look at it, it has got some cross outs and some deletions and some additions in the sense of - in its ..... it looks like it is just a re-hash of another one - - -

PN55

THE COMMISSIONER: Yes.

PN56

MR EBERHARD: - - - that Mr Thompson has signed as the national secretary without effectively using the word processor to put in the appropriate dates and the appropriate times and the appropriate references in the document itself.

PN57

THE COMMISSIONER: Yes, all right. Well, I will take a copy of the document of 3 June and indicate that it is the national office of the HSUA that has served the notice of initiation of a bargaining period, that the respondent in the matter, for the point of clarity, is Salvation Army Eastcare. The Commission would require the HSUA to actually file with it the appropriate documentation and a clean one. Someone had better tell Mr Thompson, is it, that Mr Elliott no longer occupies the seat.

PN58

MR O'MALLEY: That is correct, Commissioner.

PN59

THE COMMISSIONER: Right. I know it is correct. So you had better tell Mr Thompson that so he had better change his word processor because he has got here the authorisation was given by Rob Elliott, National Secretary of the Health Services Union dated 15 August 2002, signed Rob Elliott, crossed out, Craig Thompson something else. So let us get the paperwork right, shall we?

PN60

MR O'MALLEY: Certainly, Commissioner.

PN61

THE COMMISSIONER: All right. Once I get the paperwork I will advise the SDP the matter will be on its way. But I will forward the files once I get the paperwork. Okay?

PN62

MR O'MALLEY: Commissioner, before we adjourn, I would just like to - it is going to take some time to notify delegates in the five houses, it is probably not going to be until 3, 4 o'clock before bans could be lifted.

PN63

THE COMMISSIONER: Right. So termination of bargaining period begins at, what, 4 pm?

PN64

MR O'MALLEY: 4 pm this afternoon?

PN65

THE COMMISSIONER: 4 pm today, 30 August 2002. Okay. Thank you very much, have a good weekend. The Commission stands adjourned.

ADJOURNED INDEFINITELY [1.38pm]