C2002/771, Transcript of Proceedings [2002] AIRCTrans 589 (27 February 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 VT02484

A: 18.2.02

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2002/771

COMMUNITY AND PUBLIC
SECTOR UNION

and

SKILLED QUEST PERSONNEL

Notification pursuant to section 99 of the
Act of a dispute re an alleged failure to
comply with undertakings given in the AIRC
on 10 January 2002

MELBOURNE

11.34 AM, FRIDAY, 8 FEBRUARY 2002

PN1

MS K. MATHISON: I appear on behalf of the CPSU.

PN2

MR R. FITZGERALD: I appear, along with MS P. LAUTIER and MS L. LIMMER from Skilled Quest.

PN3

THE COMMISSIONER: Yes, Ms Mathison?

PN4

MS MATHISON: Commissioner, I will refer you back to - for the purposes of the minutes, back to the conference that we previously had here on 10 January, if I might, and just recap some of the undertakings that were given, and arrangements that were made to proceed from that conference. At that conference Skilled Quest agreed to provide a number of documents to the CPSU relating to a disciplinary process being instituted against one of our members, Judith Hayes. At that conference Skilled Quest agreed to provide a copy of their discipline policy to the CPSU, Judith Hayes' personnel file, all documented interviews and record of complaints, which were the subject of the latest disciplinary process.

PN5

They were also to clearly identify which incidents were the subject of the current disciplinary action. And we were to go from there. CPSU, in that conference, Commissioner, reserved the right to challenge the discipline policy if, when it was provided, it appeared not to provide natural justice to our member. Unfortunately, that does appear to be the case. On 18 January, following that conference, the CPSU received Judith Hayes' personnel file. We received documents recording interviews that had been conducted with Judith and with other staff members, concerning allegations made against her about inappropriate behaviour.

PN6

And we also received a copy of Skilled Quest's discipline policy, as per our arrangement. However, no incidents were identified by Skilled Quest as being the subject of the current disciplinary matter, and it appears that they intend to discipline our member regarding her whole file and her whole work history. Following the receipt of that information, Skilled Quest informed our member, Judith Hayes, that she was required to attend a meeting on 24 January to receive a written warning. The CPSU informed Skilled Quest that we would seek some discussions about the disciplinary policy and its contents, as Judith Hayes had concerns that she was not being permitted representation in this process.

PN7

That request was declined, Commissioner. On 24 January Emily Castle from the CPSU attended a meeting with Judith Hayes and Lana Limmer and Pauline Lautier from Skilled Quest. Ms Castle attended the meeting in my place, Commissioner, as Mr Matthews had in the Commission previously indicated his concerns about my particular involvement in the matter. Ms Castle advised Skilled Quest of our concerns about the policy, and we specifically raised with them that step 2 in their process had not been conducted.

PN8

On no prior occasion had a formal counselling session taken with the member, where she was advised that she was subject to any policy, or that she was entitled to a witness to be present. Skilled Quest's own notes of that meeting confirmed the informal nature of the previous discussions. I do have with me, Commissioner, a copy of the policy, which I might provide for you for your information in these discussions.

PN9

THE COMMISSIONER: I think it is actually on file.

PN10

MS MATHISON: Is it? Great.

PN11

THE COMMISSIONER: Anyhow, I - you had better give me that and then I will know we are talking about the same document.

PN12

MS MATHISON: Okay. No problem. It is noted - sorry?

PN13

THE COMMISSIONER: Well, do you want to hand it up?

PN14

MS MATHISON: Now, okay. Yes.

PN15

THE COMMISSIONER: And then we have got the - then we know we are talking about the same document.

PN16

MS MATHISON: I will give you two documents. They are attached, Commissioner. The first is - the top one is a letter that we received from Skilled Quest that I will refer to in a moment, attached to which is a copy of the policy that we received.

EXHIBIT #M1 LETTER FROM SKILLED QUEST

PN17

MS MATHISON: It is noted in the policy, Commissioner, that the employer has the ability to proceed to step 3 directly of the procedure, in the event of serious breaches of employment conditions. That note is at the base of the page. There is unfortunately no information provided in that document or in any document that has been provided to the member, that actually explains what constitutes a serious breach of employment conditions. And the CPSU finds it difficult to believe that social difficulties being experienced by an individual constitute serious breaches of employment conditions that might warrant that.

PN18

During the discussion on 24 January about the policy Ms Limmer and Ms Lautier indicated their initial dissatisfaction of the handling of the matter in the Commission previously. And they agreed to engage an independent mediator to clarify the matters and to proceed. The parties concluded that meeting with a commitment from Skilled Quest to confirm those arrangements with the CPSU by 4.30 pm that afternoon. No response was received, and we therefore requested the further assistance of the Commission late that afternoon.

PN19

On 25 January, the next day, the CPSU received a letter from Skilled Quest, which is the letter I have provided for you now, Commissioner, withdrawing the offer made the day before in the meeting by Ms Limmer, and requesting that the union now refrain from interfering in the future. That letter was from Ben Matthews. Ben then contacted the CPSU to discuss the matter with Emily Castle, and during that conversation Mr Matthews made his opinion of Judith Hayes quite clear, and denied that any commitment had been given to identify exactly what issues were in question.

PN20

Approximately a week later I received a telephone call from Mr Matthews, who sought clarification of our issues, seeking to understand further, I believe, why we had re-listed the matter in the Commission. I proceeded to inform him that we believed that the discipline policy denies our member natural justice. We believe that Judith has not had the benefit of the knowledge of the process that she has been disciplined under. And it appears that Skilled Quest have actually even in fact breached the policy of their own.

PN21

The CPSU is also concerned that agreements are reached in meetings with management which are then later reneged upon. Those concerns were unfortunately dismissed by Mr Matthews, and I asked the reason for his inquiry, if it was not to discuss those prior to the Commission, and perhaps to avoid coming back to the Commission. I asked about the offer of mediation, and Mr Matthews informed me that he had over-ridden the offer made by Ms Limmer of mediation. And that Ms Limmer and Ms Lautier had no experience in dealing with these matters, and don't know what they are doing with regards to this.

PN22

I therefore continued to suggest to him that perhaps we should be dealing with, perhaps, a more senior level of management, and perhaps the Commission was the best place to come with the matter if there was some confusion. I also attempted to discuss with him our concerns about the policy. Again, in an attempt to perhaps have some discussions prior to coming back to the Commission, in that it does not allow member representation. And Mr Matthews, in line with his earlier comments in conference with the Commission, dismissed the concern and reiterated his opinion that we have no right to question the policy.

PN23

I informed him that we do in fact have that right to question it, and that we tended to do so through the - under the auspices of the Commission. After some further confusion about the nature of his inquiry, Mr Matthews hung up the phone on me and said he would see us in Court. So, Commissioner, I assume that Skilled Quest now agrees that this is the appropriate forum to resolve the matter. Given the difficulties that we have had in following on from our conference, Commissioner, we do seek your further assistance. We believe that the discipline policy denies our member natural justice by refusing her representation in a formal process that can lead to termination of her employment.

PN24

No other area of the public service denies this right, certainly not in Victoria Police, where they have a fairly in-depth counselling procedure and so on, which certainly allows for the involvement and representation of members by the union, or representation of their choice. We seek some discussions about this policy to remedy the situation and we seek your assistance to arrange those and ensure that they are conducted professionally, and that they actually do proceed. We also, as per our earlier request which we, if you recall, Commissioner, had decided not to pursue.

PN25

We do seek the intervention of a third party, in the particular issue of Judith Hayes' matter, as it appears that we are not going to get very far dealing with the level of management that we have been asked to deal with at the moment. We again ask that Skilled Quest clearly identify the issues that are the subject of the current complaint, as we do not believe that it is appropriate to issue a formal warning, or institute a formal disciplinary process about somebody's entire work history when, apparently, it has already been dealt with before. We actually dispute that Judith Hayes has been counselled as per any procedure, and we actually dispute that she should receive a written warning at this instant.

PN26

Skilled Quest have unfortunately made it quite clear that their position on this is predetermined, and we therefore fail to see how the process will allow a member to effectively respond to any allegations made against her. And finally, Commissioner, we do seek assurances from Skilled Quest that any agreements that we do make, either here in the Commission or in meetings in the workplace regarding this matter, between the CPSU and senior staff will be honoured, and that the commitments are made in good faith so that both parties are able to proceed on that basis. I might leave it there, commissioner, and I would be happy to go into further detail regarding the policy if it is necessary.

PN27

THE COMMISSIONER: Mr Fitzgerald?

PN28

MR FITZGERALD: Yes. Thank you, Commissioner. I am not going to engage or attempt to respond to too much of that detail. It is clearly our view that anybody interfering with our process of counselling an employee, it is a position that the company carries out without interference or checking of third parties or mediators, because - - -

PN29

THE COMMISSIONER: Is this throughout the Skilled organisation? Are you saying you don't allow representation of people - - -

PN30

MR FITZGERALD: No, no, no. I think this is where there might have been the problem in the previous discussion, Commissioner.

PN31

THE COMMISSIONER: Well, you are making fish of one, and fowl of the other, are you?

PN32

MR FITZGERALD: We are happy for people to - and it is clearly stated on the procedure, that at that formal warning, then you can have a witness, and it can be the union.

PN33

THE COMMISSIONER: I am not talking about a witness.

PN34

MR FITZGERALD: We have no problem with - - -

PN35

THE COMMISSIONER: Are you saying that when someone goes through the procedure in Skilled, that it is only at the point of final warning they can be represented by the union, or by anyone?

PN36

MR FITZGERALD: Their witnesses.

PN37

THE COMMISSIONER: Are you saying that an organiser - let us not talk about Skilled Quest. Let us talk about Skilled generally.

PN38

MR FITZGERALD: Yes.

PN39

THE COMMISSIONER: Are you telling me that an organiser out there in an engineering area, will not have the right to speak and represent an employee in the course of a disciplinary process, with Skilled?

PN40

MR FITZGERALD: That has not been an issue in the past.

PN41

THE COMMISSIONER: No. Because they have had the right to do it, haven't they?

PN42

MR FITZGERALD: Well, I question - - -

PN43

THE COMMISSIONER: What? The shop steward wouldn't be able to go along and say - and represent the person. And if the shop steward called in the organiser to represent them, that that wouldn't be allowed to happen?

PN44

MR FITZGERALD: So what would happen, then, Commissioner - - -

PN45

THE COMMISSIONER: No. I am asking a question. Are you saying that in the engineering side of Skilled, that if an employee was to be disciplined, (a) they wouldn't know what they were being disciplined about, and be told beforehand, in detail. And it wouldn't be something general like "Your performance with the company and the time you have been employed"; and (b), that if they sought it, that they would not be entitled to representation by the union.

PN46

MR FITZGERALD: What I am saying is that - - -

PN47

THE COMMISSIONER: You would have the blokes walking off.

PN48

MR FITZGERALD: No, we don't. Because the - - -

PN49

THE COMMISSIONER: No. Because you allow it to happen, that is why.

PN50

MR FITZGERALD: Because the - no. Because the issue is - we raise the issue with the individual, and - at a formal process, and the whole idea of the process - - -

PN51

THE COMMISSIONER: Well, the allegation is you didn't.

PN52

MR FITZGERALD: Well, we did.

PN53

THE COMMISSIONER: The allegation is that step 2 - - -

PN54

MR FITZGERALD: We did.

PN55

THE COMMISSIONER: - - - or one of the allegations is that step 2 of the process was never conducted.

PN56

MR FITZGERALD: Step 2 was never - never conducted, which was the second - which was supposed to be the formal warning.

PN57

THE COMMISSIONER: No. That is step 3.

PN58

MR FITZGERALD: It was stopped by the union. As Ms Mathison said, they went to a meeting where that was supposed to be carried out, and the two Skilled Quest employees with us today got confused and agreed to come along to the Commission. And when that was put to us, we said well hang on. It is just not on. I mean, this is a process of disciplining - a management disciplining an employee to try to get the person to be a better employee. Yes, they can have a witness. But they should not involve themselves into - in the standard procedure of the company.

PN59

THE COMMISSIONER: Well, I thought you were going to issue a warning?

PN60

MR FITZGERALD: I mean, at the end of the day, Commissioner - - -

PN61

THE COMMISSIONER: There is no provision for the issue of a written warning at stage 2.

PN62

MR FITZGERALD: Yes. There is.

PN63

THE COMMISSIONER: Where?

PN64

MR FITZGERALD: You have to - you have got the informal one, where you talk to the person.

PN65

THE COMMISSIONER: Yes.

PN66

MR FITZGERALD: Then the next stage is a written warning. And the - - -

PN67

THE COMMISSIONER: And what is says is:

PN68

Where unacceptable performance conduct is repeated, a formal counselling interview is required. The employee may nominate a witness to be present. The interview must include re-stating specific concerns regarding performance conduct ...

PN69

MR FITZGERALD: That is right.

PN70

THE COMMISSIONER:

PN71

... attempt to reach agreement on the problems caused, develop solutions with the employee, arrange a time to discuss performance conduct again, detail consequences should problems continue. Complete and sign F3(3)(a), which goes on the personnel file ...

PN72

MR FITZGERALD: Which is the form - - -

PN73

THE COMMISSIONER:

PN74

... a record of interview, all parties present.

PN75

No suggestion of a written warning.

PN76

MR FITZGERALD: Well, this is a different on than I - - -

PN77

MS MATHISON: Would you like mine?

PN78

THE COMMISSIONER: Well, it is the one you provided. It is the one you provided to the union.

PN79

MR FITZGERALD: Well, in any case - - -

PN80

THE COMMISSIONER: But there is no provision for a written warning at that stage. So we had better get - we better all be talking from the same song sheet.

PN81

MR FITZGERALD: Yes. Okay. The form - the - - -

PN82

THE COMMISSIONER: You put a record of interview form on the file. But there is no provision for a written warning. And you purported - - -

PN83

MR FITZGERALD: Yes. The formal warning is the written warning - - -

PN84

THE COMMISSIONER: Yes. So you have gone to stage 3.

PN85

MR FITZGERALD: - - - because you go through the formal process - - -

PN86

THE COMMISSIONER: And what they are saying is, there was no stage 2. The employee went straight from 1 to 3. In other words, what you were purporting to do, back last year when the union intervened, was to issue a final written warning. That is, to go to stage 3, without having gone to stage 2.

PN87

MR FITZGERALD: Okay then. So - - -

PN88

THE COMMISSIONER: That is as I understand what their complaint is.

PN89

MR FITZGERALD: Well, okay. So if they are called as a witness, and they query the process about the written warnings, and we then correct the written warnings, does that give the witness, whoever it may be, the right to intervene every time they say "Well, no. That is not right now. And this is not right."

PN90

THE COMMISSIONER: Well, I don't know.

PN91

MR FITZGERALD: My understanding clearly, Commissioner, is that if a company terminates an employee for any reason, they will come before this Commission, and the Commission will see whether there was due process carried out. And at that stage you will - or whoever is sitting and hearing it - sorry?

PN92

THE COMMISSIONER: Well, that is as may be. Mr Fitzgerald, I think that is right. I have no difficulty with that. But see, there is two levels at which I understand Ms Mathison's complaint goes. There is the level at which we just discussed. That is, that you haven't followed your own policy and that they are in dispute with you about that. The second level they are in dispute with you is about your policy altogether. And they are saying that, at least at VicPol, you ought to be following the same sort of process that the direct employees of VicPol have got. Now, I can understand you having a dispute about that.

PN93

MR FITZGERALD: That is right.

PN94

THE COMMISSIONER: And you may say, "No, I am not going to." And that may have consequences for your relationships with your client if you don't. And no doubt, Ms Mathison will make sure that it does have consequences for you and your relationships with that client if you don't. But that is a different - there seem to me to be those two issues. At least from where I sit, from my understanding of the situation. The first is that there is a complaint that you are not following your own policy. And that you have gone straight from the informal counselling to the issue of a formal written warning. And they object to that.

PN95

And you have a complaint about their behaviour at the formal written warning - sorry. At that stage, that they didn't have the right to intervene as a representative. They were only there as a witness. And I understand both of those arguments on both sides. And there is then the second element of the dispute which we - which I am now raising. And that is that they say your policy is deficient, at least insofar as it relates to your operations at VicPol. Because other employees of VicPol have got the right to be represented in - as they go through a disciplinary process they have a right to be told of what the detail of the charges is against them, and they have a right to defend those charges, with a - as I said, with a representative. And you say, "No, we don't provide that." And I understand that position.

PN96

MR FITZGERALD: Yes.

PN97

THE COMMISSIONER: I understand that position. And so there is also a dispute, if you like, not involving the individual, but between the CPSU and Skilled about the dispute settlement procedure. Or the disciplinary procedure. Now, whether the Commission has got jurisdiction on that is a matter that I, you know, I would invite you to address me on if you need to. But I am not sure that we are going to settle a heck of a lot of this by going on like this, anyhow.

PN98

MR FITZGERALD: No.

PN99

THE COMMISSIONER: I think we will have to go into conference and try and find a resolution for it. That is if you want to find a resolution. I mean, if you want to just stand on your dig and say, well, "That is our policy," and, "Go lump it", then I suppose that is where they are.

PN100

MR FITZGERALD: Yes.

PN101

THE COMMISSIONER: And it is also where Skilled will be, because you can bet that they will be one of - I mean, they probably don't like the idea of contractors being in there anyhow, but - - -

PN102

MR FITZGERALD: Well, that is another story.

PN103

THE COMMISSIONER: Yes. No, no. But if they go along to the government and say, "Well, look. This is another problem we have with contractors. That they are able to operate in a way vis a viz their staff that you, the government, would not be able to operate, if it was your own direct staff. And therefore we want them out." And they will have that fight.

PN104

MR FITZGERALD: Yes. Well, basically, that has happened.

PN105

THE COMMISSIONER: I am sure it probably has.

PN106

MR FITZGERALD: We don't have any redress over that.

PN107

THE COMMISSIONER: No, no. I understand that. I am trying to avoid that situation.

PN108

MR FITZGERALD: So, as far as them wanting us to have the policies of VicPol, we will have the VicPol policy as long as we work there as Vicpol - providing people to VicPol. No, we can't do that. "We don't want you there." But they want us to have their policies.

PN109

THE COMMISSIONER: But while you are there - - -

PN110

MR FITZGERALD: Well, Skilled has got policies - sorry.

PN111

THE COMMISSIONER: These people are there, aren't they? At VicPol?

PN112

MR FITZGERALD: Yes, they are.

PN113

THE COMMISSIONER: These people are there.

PN114

MR FITZGERALD: Yes.

PN115

THE COMMISSIONER: And they are saying, "Well okay, while they are there we want you to apply not your" - I mean, this is the dispute between you.

PN116

MR FITZGERALD: Exactly.

PN117

THE COMMISSIONER: Fundamentally. I mean, there is the dispute about the individual, and I think we can work our way through that fairly. But I am not too sure that we can sort out the bigger dispute. But look - - -

PN118

MR FITZGERALD: I mean these - sorry.

PN119

THE COMMISSIONER: I am not sure that we are going to get very far going - on the record, that is all.

PN120

MR FITZGERALD: No. Commissioner, the fundamental issue we have is someone interfering with a policy. Now, if - I mean, you have an informal counselling. Then you have a formal counselling. Well, what is the difference between informal counselling and a formal counselling?

PN121

THE COMMISSIONER: One has a record placed on the - a record of interview form - - -

PN122

MR FITZGERALD: Yes.

PN123

THE COMMISSIONER: - - - placed on there, and the - and they are entitled to a witness, it would seem.

PN124

MR FITZGERALD: Yes. And there is the record of interview.

PN125

THE COMMISSIONER: Under your policy. And then - - -

PN126

MR FITZGERALD: And that is the form. Record of Interview Form 533A, which is that one.

PN127

THE COMMISSIONER: Yes. But not a warning. But not a written warning letter.

PN128

MR FITZGERALD: Well, that has it. That explains it all.

PN129

THE COMMISSIONER: No. But there is no written warning. And I understand that there was a proposal to issue a written warning, arising out of a counselling interview.

PN130

MR FITZGERALD: Yes. They - what they do, they fill that out, and the person signs it and says it can go onto - - -

PN131

THE COMMISSIONER: Well, if that is all it was, then I have got no difficulty. I mean, I can't imagine what the union is - I mean, I understand what the union's difficulty is in the wider sense. But they can't be complaining about you not following your policy.

PN132

MS MATHISON: Commissioner, may I make a comment?

PN133

THE COMMISSIONER: Well, is that all you are complaining about, in terms of the written warning, or is their a - - -

PN134

MS MATHISON: No. No, it is not, Commissioner. And I think your suggestion that we do, perhaps, go into conference might be more productive, and I would be happy to do that. But the letter that I actually provided to you earlier, Commissioner, outlines exactly what they were and are proposing to with the member. And it states quite clearly that they intend to issue a written warning as per the procedure, without having identified what the issues are, without having provided this policy to the member prior for discussion.

PN135

We then got the policy, said we had a problem with it, wanted to talk about it. They don't want to talk. Happy to go into conference, Commissioner, but I would ask that we - because of the confusing nature of the matter, and because we seem to go away from these meetings with, obviously, different ideas, perhaps if needs be, any agreements that are made, we do confirm in transcript. That would be all.

PN136

THE COMMISSIONER: Well, that is if you make any agreements. We will sort that out. I mean, it may be that you are not going to agree.

PN137

MS MATHISON: It may be. Probably will be.

PN138

THE COMMISSIONER: Well, it is said that they propose to issue a written warning.

PN139

MR FITZGERALD: Yes, we tried to do that.

PN140

THE COMMISSIONER: Yes. In other words, you were going to do it, and you weren't following your own policy.

PN141

MR FITZGERALD: No, what - what - - -

PN142

THE COMMISSIONER: That is what the union - I am not saying you are.

PN143

MR FITZGERALD: What I have been informed, Commissioner, is that we wanted to issue a formal warning, but not a written warning. That was the meeting on the 20th. Yes.

PN144

MS MATHISON: Commissioner, it says in the last paragraph of the first page of that letter:

PN145

This is incorrect, and a written warning should have been issued as per the procedure.

PN146

We dispute, Commissioner, that the step 2 of that - and that is step 3. Issuing the written warning. Step 2 would come before that, one would assume. And step 2, Commissioner, has not been followed. That is our issue.

PN147

THE COMMISSIONER: Yes. I understand that.

PN148

MR FITZGERALD: Well, we believe - - -

PN149

MS MATHISON: Well, I do too, but - - -

PN150

MR FITZGERALD: We believe that the person involved was clearly aware of what the issues were, at the informal. And that it became - was to become formal.

PN151

THE COMMISSIONER: I understand that. And we will go into conference and we will see if we can sort it out. The proceedings are adjourned into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 LETTER FROM SKILLED QUEST PN17