C2003/4495, Transcript of Proceedings [2003] AIRCTrans 3467 (14 August 2003)

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 3888

A 1.8.03

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2003/4495

AUSTRALIAN LIQUOR, HOSPITALITY AND
MISCELLANEOUS WORKERS UNION -
NORTHERN TERRITORY BRANCH

and

DEPARTMENT OF JUSTICE/NT CORRECTIONAL
SERVICES and ANOTHER

Application under section 170LW of the Act
for settlement of dispute re alleged continual
refusal to deal with their alleged disciplinary
matters; alleged differential treatment of an
employee based on race; and alleged condoning
of racial discrimination by disciplining the
victim

MELBOURNE

9.38 AM, TUESDAY, 29 JULY 2003

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN MELBOURNE

PN1

MS D. YALI: I appear on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers Union in this matter. With me today is union delegate, MR M. MIKAELIAN.

PN2

MR P. BRENNAN: I appear for the Commissioner for Public Employment.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, this is a notification pursuant to section 170LW of the Act, and I note the disputes procedure suggests conciliation as the first course of action. Is there anything you wish to place on the record, Ms Yali?

PN4

MS YALI: Your Honour, there are a number of issues I would like to place on the record. The notice that we filed in the Commission was in relation to two alleged disciplinary matters with the Department of Justice/NT Correctional Services. If I could give a brief outline of the two matters and take the matter from there.

PN5

The first matter concerns one of our members, Mr Martin White. There was alleged breaches of discipline and the union provided a response to the Department on 9 May in relation to these allegations, and whilst there were a number of off the record conversations with the Department, to date the matter has neither been resolved nor has the union been provided with a response to our correspondence of 9 May. In fact, there has been a concern that the union has in relation to the lack of response based on the fact that the Department of Justice fails to respond to correspondence which is addressed on behalf of its members from the union.

PN6

And in relation to the second matter, we had to explicitly state, as is outlined in the second paragraph of the correspondence, that we were the representatives and, just as a lawyer would be provided with a response who is writing on behalf of a client, we, too, should be afforded that. In relation to the second matter, it also raises issues of breaches of discipline against one of our members, Mr Condor Tawhai, T-a-w-h-a-i.

PN7

The union provided a response to the Department on 4 July and, whilst the union has contacted the Department on numerous occasions, I contacted the Department on 4 July, 14th, 15th, 23rd, 24th; Mr Mikaelian contacted on the 18th, 22nd, 14th, around the 10th or 11th, and earlier on that week, it has taken the Department three weeks to provide a response to a matter which the Department was alleging was so serious to potentially warrant summary dismissal or suspension without pay. It was only when we contacted the Office of the Commission of Public Employment that we were provided with a response from the Department of Justice that you might have it by tomorrow midday.

PN8

Now, I should note that we received the response at 3.15 on Thursday afternoon which was a couple of hours before a public holiday. It is of paramount relevance and importance, the union maintains, that it took the Department of Justice lawyers three weeks to provide a response and we were advised at the commencement of the disciplinary matters that the matter had been referred to the Department of Justice litigation lawyers; in fact, the head of the Department of Justice litigation, Mr David Lisson.

PN9

We maintain that this is a clear indication that the Department's lawyers did not share the view of the Department in relation to the seriousness of the alleged breach of discipline, otherwise the lawyers would have acted in haste and there is quite clear provision for the Department of Justice to summary dismiss immediately under the Public Sector Management Act.

PN10

So in relation to the first incident or alleged breaches of discipline of Mr White, the Department was alleging that Mr White committed breaches of discipline for what effectively amounted to a private conversation with a friend who had no connection, or was not employed by the public sector. The union responded on behalf of Mr White, as I have stated, on 9 May which is close to three months ago and we are still waiting a response. We note that Mr White has been employed as a prison officer for 16 years and is one of the few remaining indigenous prison officers.

PN11

In relation to the second incident giving rise to this notice, the union was contacted on 3 July in relation to the Department's intention to instigate disciplinary action against our member, Mr Tawhai, and this was in relation to an incident which occurred on early May which was a month and a half previously. The Department at all times had been aware that the incident had occurred and the Department alleges that it occurred in the course of employment or in circumstances having a relevant connection with employment. And, further, that the matter was inconsistent with the principles and code of conduct of the public sector.

PN12

In essence, your Honour, the incident involved a fight at the prison officers' social club late at night following the heavy consumption of alcohol after a prison officers' golf tournament. In late June our member was charged with assault which is subject to criminal proceedings, and in the union's response to the Department on 4 July the union stated that the matter should be stayed basically until the criminal proceedings had been dealt with. And we gave reasons as to why our member should not be suspended without pay and, if he was suspended, that it should be on pay.

PN13

We also advised the Department that there was more to the story than what had been outlined in the particulars, and that the word "nigger" had been used. I should note at this point that our member is Maori and the mother of his child is Aboriginal. We are not saying, and it is not our place to say or to have a position in relation to the assault in these Industrial Relation Commission proceedings, it is a matter to be dealt with in the criminal courts. But basically the word "nigger" being used, there was quite a bit of heated exchange.

PN14

The CEO provided a response to our letter, dated 4 July, on 24 July and they explicitly failed to take the matter in relation to racial abuse that we were alleging had taken place, and this is outlined in the fax cover sheet that they forwarded to the union on 4 July. Mr Simon Wiese, who is an employment relations consultant within the Department of Justice, stated:

PN15

Please note that I will be sending further correspondence relating to our conversation yesterday regarding your allegation that SPO Tawhai was racially abused prior or during the incident of 13 May.

PN16

And it is a serious concern to the union in terms that correctional services, or the prison population is - has a population of over 80 per cent of indigenous prisoners, a fact that hasn't even been considered in the disciplinary matter amounting to a suspension without pay raises concerns. Pursuant to the Public Sector Management Act, our member was given notice of the Department's intention to summarily dismiss in the Department's notice of intention to suspend without pay.

PN17

Now, pursuant to section 51(6) of this Act, the CEO has the power to suspend an employee, amongst other things. However, employment instruction number 7 which is titled: Discipline, at 7.3 provides quite strict terms in which a suspension or transfer is to be instigated, and I will read from the employment instruction:

PN18

It may be appropriate for the employee to be removed from the workplace by suspension prior to and during an investigation. The suspension or transfer provisions of section 51(6) of PSMA should only be used where a breach is of such a nature that the employee should not continue in the performance of his or her duties. An employee should be invited to make a submission to the CEO in relation to the proposed suspension or transfer before a decision is made.

PN19

A number of issues arise from this, your Honour. Firstly, the power a CEO has to suspend an employee is clearly guided and bound by employment instruction number 7. Secondly, the CEO has no statutory power to stand down an employee. In short, what the Department has done is extend the power to discipline to include stand-down.

PN20

If I can draw the Commission's attention now to the letter from the Department, dated 24 July 2003. The CEO states that:

PN21

For the period between 1 July to 24 July the member was not suspended -

PN22

and this is found at the bottom of page one of the letter, that our member -

PN23

was not suspended but was placed on stand-down and has remained on stand-down for that period.

PN24

Now, it is arguable as to whether stand-down and suspension are the same thing. We maintain at law they are, but there is specific provision only for the use of suspension or transfer or demotion, and a number of other matters, but not to stand down. And we think it is quite clearly a breach of the powers under suspension to say: oh, no, he hasn't been suspended, we are complying with that provision but we are standing your member down instead. The employment instructions are - - -

PN25

THE SENIOR DEPUTY PRESIDENT: Mr Tawhai was paid, was he not, during that period?

PN26

MS YALI: Yes, he was and he was only paid following discussions with Correctional Services because up until Thursday afternoon ..... the correspondence ..... was maintaining that, you know, he might be paid, he might not be. We had actually negotiated that he be paid, given that he had taken three weeks to respond. But Correctional Services quite clearly in the employment instruction must provide submissions before the decision is made. They must provide their submissions, and they must also make an assessment before the decision is made. Now, we were advised we would be provided with a response in a couple of days. It took them three weeks.

PN27

The employment instructions are not just - are actually bound or of a statutory nature, and they arise from section 16 of the Public Sector Employment Act. The essential quality of these employment instructions, and I quote, are that:

PN28

They are rules issued by the Commissioner for Public Employment and generally cover crucial human resource matters where sector-wide consistency is considered necessary.

PN29

So these employment instructions are not just non-binding documents, they are actually statutory in nature. So what the union maintains is that, this quite clearly states is that all employees of the public sector are to be afforded the same treatment in disciplinary matters, amongst other things. And the responsibility of an employee, we maintain, is the same or the duty of care is the same for a prison officer to its prisoners, as a doctor has to its patients, as a teacher has to its students.

PN30

Your Honour, there is a fundamental lack of consistency in treatment as is further evidenced in the correspondence from the CEO of the Department of Justice. In his second page of the correspondence at the third paragraph the CEO states:

PN31

It is submitted by you that suspending Mr Tawhai without pay is inconsistent treatment, not proportionate to the Department's treatment of other prison officers for similar or worse charges. I am unaware of any NT CS officer being charged with allegations of similar or worse charges, and receiving lesser treatment since the establishment of the Department of Justice.

PN32

We have clear evidence that there is at least one prison officer at the moment who has been charged with, we could say, more serious charges in a dangerous act causing death who was actually encouraged to stay at work for his mental well-being. However, the CEO further states that:

PN33

I am not bound to follow decisions or practices of my predecessor in the former NT Correctional Services. I have power to suspend.

PN34

The union maintains that, yes, the CEO does have power to suspend but the CEO does not have broad power to arbitrarily suspend employees. The power to suspend without pay is a power that is to be used with extreme caution because it goes to the core of the employment relationship; that is the right to wages. The CEO only has power to suspend within statutory constraints; that is he can only suspend lawfully. To do otherwise is ultra vires and we submit amounts to potentially constructive dismissal.

PN35

Your Honour, interestingly, the Public Sector Management Act also expressly states at section 23(2) that:

PN36

A CEO shall comply with all employment instructions applicable.

PN37

And this application of the employment instructions is to be applied consistently throughout the whole of the public sector; the public sector is the employer, not the Department of Justice.

PN38

Other issues that should be brought to the Commission's attention are the Department's acceptance of a disciplinary matter being stayed pending the outcome of our member's criminal proceedings. It is strangely to note that the CEO makes reference to our member exercising a right to silence by not responding to particulars as outlined in the correspondence from the Department. Perhaps this is so, your Honour, because the Department of Justice now incorporates the Officer of the Director for Public Prosecution and has thus confused its role between employer and prosecutor. But the right to silence, your Honour, is a criminal construct; it is not a construct arising from an employment relationship.

PN39

Our member was not exercising a right to silence anyway. We merely stated that our member had not received advice from a criminal lawyer, and that it would be premature and prejudicial to our member's criminal matter to respond on these particulars prior to the criminal matter proceeding.

PN40

THE SENIOR DEPUTY PRESIDENT: So what do you say in relation to that? You are quite happy for the Commission to proceed in relation to the issue of summary dismissal, subject to your member getting the appropriate advice?

PN41

MS YALI: In relation to the issue of summary dismissal, the Department of Justice has said, yes, that matter will be dealt with following the outcome of the criminal matter. What we are saying is that the public sector - - -

PN42

THE SENIOR DEPUTY PRESIDENT: But you are saying you didn't seek that so are you happy for the Commission to proceed with the summary dismissal investigation and outcome, subject to your member receiving appropriate advice?

PN43

MS YALI: Basically, your Honour, we are of the view as with all civil matters, if I could call this a civil matter, that the criminal matter take precedence and that it be dealt with appropriately before there be any steps taken to deal with the actual particulars of this matter. The issue that the union has - - -

PN44

THE SENIOR DEPUTY PRESIDENT: Well, why are you criticising the Department of Justice for taking that course?

PN45

MS YALI: Our criticism is not in the Department taking that course, our criticism is in relation to the fact that they are saying that our member is exercising a right to silence. He is not exercising a right to silence. This isn't a criminal matter. This is an employment matter. The right to silence is a criminal construct, and we don't have an issue with the fact that it is being dealt with, that the Department of Justice have agreed to stay these proceedings. What we are saying is that, given that they have agreed to stay these proceedings, that they should not then say, well, okay, let the criminal matter proceed but we will suspend you without pay for three months, given that we have already adopted a presumption of innocence, and then dealing with it as if they have adopted a presumption of guilt.

PN46

We also note that the Department, whilst acknowledging the submissions in relation to financial hardship detrimental to mental well-being and premature to seeking legal advice, they have failed to take this into account in reaching the decision to decide whether to suspend on pay or without pay. Further, the Department has failed to also take into account the fact that our member in the eight years that he has been employed as a prison officer has no history of disciplinary matters. And I note in particular their comments in - - -

PN47

THE SENIOR DEPUTY PRESIDENT: Ms Yali, can I ask you a question. There is a right of appeal against a decision under section 59 of the Public Sector Employment Management Act. Has that right been exercised, or is there an intention to exercise that right in respect to the decision to suspend?

PN48

MS YALI: That right has not been exercised at the moment, your Honour. The union was of the view that, given that this matter relates to the withholding of wages which is a matter arising out of the agreement and award, that this is the most appropriate forum for it to be dealt with.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes. Well, that is obviously subject potentially to some jurisdictional debate as to the scope of the dispute settling procedure.

PN50

MS YALI: Yes. Yes, your Honour, and should the matter proceed, obviously we would be making submissions in relation to that scope. And there is recent Full Bench authority in relation to what constitutes within the scope of the settlement of dispute procedure, but we would be reserving our right at this present moment to make submissions on that. And if the matter was to go further, we would submit that directions be made for written submissions in relation to that.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes.

PN52

MS YALI: At the second page of the correspondence from the Department of Justice in relation to the issue we raised of no previous history of disciplinary matters, Correctional Services say it doesn't detract from the seriousness of the criminal charges. At no time have we said that it does. We are basically saying, and have I thought quite clearly outlined in our correspondence, dated 4 July, that they should take this matter, the no previous history of disciplinary matter, into account along with other matters in considering whether to suspend on pay or off pay.

PN53

The second, or one other reason that Correctional Services have said that they had made the decision to suspend our member without pay for three months is that the Department has to take into account the duties and obligations owed to incarcerated persons in a prison and their welfare. The Department also makes reference to the Prisons Correctional Services Act concerning the director's responsibilities and maintenance for the security and good order of the prison. These issues we maintain, your Honour, are irrelevant to our member's matter for two significant reasons. The first is that, as I have - - -

PN54

THE SENIOR DEPUTY PRESIDENT: Ms Yali, are we going to get to conciliation? You seem to be putting submissions directed to convincing the Commission to do something, but we are not at that point as yet.

PN55

MS YALI: No, your Honour. When I am at that point, I will be actually supporting what I am saying with law. I would just like to paint a picture of what has actually happened to facilitate the resolution of this matter.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes.

PN57

MS YALI: And I am coming - I don't have long to go, your Honour.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN59

MS YALI: One of the - the issues in relation to the maintenance of security and good order is that in eight years that our member has been employed by Correctional Services he has never breached his duties or obligations owed to incarcerated persons. In fact, the bail conditions acknowledge that our member will still be working at the prison, he is just not to directly approach other prison officers involved in relation to this matter: and that is outlined in the bail conditions as attached to our correspondence, dated 4 July. And, further, your Honour, the incident was, in essence, a pub brawl fuelled by alcohol and racist taunts after a golf game which will have to be further explored in the criminal matter.

PN60

The second reason, the purpose of the Prisons Correctional Services Act is to provide for the control and conduct of prisons and prisoners, and for related purposes. In essence, the Act deals with how prisoners are managed, not the conduct of prison officers. Prison officers are dealt with under the Public Sector Employment Act; prisoners are dealt with under the Prisons Correctional Services Act. The CEO states that:

PN61

To continue to roster Mr Tawhai on duty will adversely affect maintenance of the security and good order of the prison.

PN62

There is clearly no evidence of this and, interesting though, we note that there currently is a situation within the prison that would raise serious concerns in relation to the security and good order. The Department has recently employed a lawyer who was convicted and imprisoned while working at the prison to work at prisons. So it is, we say, interesting how they say the matter we have before us is in relation, or can be classed in the same category.

PN63

One of the last issues, your Honour, is in relation to the duty of care the Department has on its employees. The duty arises in this matter from both work health and discrimination legislation. If the incident in question arose in connection with the workplace, and we reserve our position on this issue, the Department must be liable for the amount of alcohol that was being served at the social club, and the racial taunts that our member was exposed to.

PN64

Just lastly, in relation to the differential treatment based on race and the allegation that the Department is condoning racial discrimination, we note that we made the Department aware of the use of the word "nigger" yet they expressly failed to take this into account in assessing whether to suspend on pay or off pay.

PN65

In conclusion, your Honour, the union seeks out of the conciliation today that the matter involving Mr White be dealt with by the Department expeditiously; in the matter relating to Mr Tawhai, the union would be seeking that the CEO lift the suspension purportedly pursuant to the Public Sector Management Act, and that the Department should acknowledge that it has quite specific statutory powers to suspend an employee, and they should use their statutory powers accordingly. May it please the Commission.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Brennan.

PN67

MR BRENNAN: Yes, thank you, your Honour. Firstly, I would like to apologise for my lateness in appearing. It seems that we didn't - either we have lost the notice of listing for this matter, or for some reason the fax machine was not working, or whatever the case is. We had no knowledge of this matter before 8.45 this morning, your Honour, so I am very limited in what I can say in relation to this matter.

PN68

And what I would be seeking from thee Commission at least is some time to meet with the Department of Justice to speak to them about the particulars of the matter to see if we can gain some understanding of their side of the story. And really I am fairly much limited to that today, your Honour, and I would take your direction.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Ms Yali, what do you say in relation to that? It appears that, for whatever reason, Mr Brennan for the Office of Commissioner does not have any knowledge of the particular matters and, in that context, wouldn't seem to be able to engage usefully in conciliation on behalf of the Department of Justice. It would appear to me that it would be more beneficial to have conciliation with both, following some discussion between the Office of the Commissioner and the Department and, indeed, with the involvement of a representative of the Department.

PN70

What is your position in response, in effect, to an adjournment to allow those discussions to occur? You clearly indicated there are two issues; one, the time of response in respect to Mr White and secondly the issues in relation to Mr Tawhai, so frankly I would think if conciliation is going to be of any benefit, it is not going to occur immediately with Mr Brennan's limited instructions. What is your position in respect to that, Ms Yali?

PN71

MS YALI: Thank you, your Honour. I suppose the union is quite surprised initially to hear that the Office of the Commissioner for Public Employment didn't find out about this matter until 8.40. We know that the Ministers' offices were in touch with the Commissioner, but given that point, I think it is important that the matter be conciliated with the Department of Justice involved. Our only concern is that a pay period is on Thursday. I think the pays go in Wednesday at night, and it is for that reason specifically that we need this matter dealt with as promptly as is possible.

PN72

THE SENIOR DEPUTY PRESIDENT: Well, I can re-list the matter tomorrow morning for conciliation. Presumably there is no difficulty if there is an outcome which involves restoration of payment for some period or otherwise through conciliation of arrangements being made for the money to find itself in the right place. I am not presupposing any outcome, but if that were an outcome, that wouldn't seem to raise any difficulty. There must be some capacity to part from the normal process for payment.

PN73

So I would propose that the matter resume for conciliation at 9.30 Melbourne time, which is 9 o'clock Darwin time, again by video conference with the involvement of obviously the Office of the Commissioner and I think, Mr Brennan, someone from the Department of Justice who has knowledge of the particular matters, and that would obviously require some discussion between the Office of the Commissioner and the Department over the rest of today, at some point over the rest of today. You know what the union is putting, Mr Brennan, you are in a position to convey that to the Department and receive instructions.

PN74

MR BRENNAN: Yes, I have spoken to a representative of the Department this morning, your Honour, and we are able to arrange a meeting this afternoon.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well, in those circumstances I will do that. I will adjourn the matter until - I am presuming there is availability of video facilities. If there is not, then my Associate will contact you both again, but otherwise I will resume here at 9.30 - at 9 o'clock in - actually, I will make that 9.45 in Melbourne, 9.15 in Darwin for conciliation.

PN76

Mr Brennan, I recognise there might be matters you will wish to put on the record, but I propose we simply resume in conference without a reporter, reserving your right at some later point if the matter does get on into hearing again, for you to put any response to what Ms Yali has put, but I think conciliation is plainly what is envisaged by the disputes procedure, and subject obviously again the Commissioner's rights in due course to say what it wants about the applicability of the disputes procedure in the agreement to the current circumstances.

PN77

There are two discrete issues, those involving Mr White and those involving Mr Tawhai, so it may be that following discussions today, it might be possible to deal with some or all of the issues prior to tomorrow directly between the parties in any case. If not, we will deal with all the matters tomorrow morning, 9.15 Darwin time, 9.45 Melbourne time. I will adjourn the proceedings on that basis.

ADJOURNED ACCORDINGLY [10.13am]