C2003/5163, Transcript of Proceedings [2003] AIRCTrans 4079 (16 September 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 4433
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

C2003/5163

THE COMMUNITY AND PUBLIC
SECTOR UNION

and

STATE LIBRARY OF VICTORIA

Notification pursuant to section 99 of the Act
of a dispute re compliance to clause 7.1 of the
agreement - consultation in relation to change

MELBOURNE

2.23 PM, FRIDAY, 29 AUGUST 2003

PN1

MR D. HILL: I appear on behalf of the CPSU and with me today is MS C. KEEF.

PN2

MR J. JOHNSTON: I appear for the State Library of Victoria and I am accompanied by MS HARDY and MS HOPE.

PN3

THE COMMISSIONER: Yes, Ms Hill.

PN4

MS HILL: Thank you, Commissioner. It is unfortunate that we find ourselves before you today. The matter that we have brought to the Commission today in a matter in relation to Vicnet which is a division of the State Library of Victoria. Vicnet employs around 60 people and there have been discussions about shifting Vicnet to another Government department, however we have not been a part of any of those discussions. We have not been consulted. From what I understand, a committee was formed to review the future of Vicnet and we were not part of that committee.

PN5

A brief was developed about the future of Vicnet. We have not seen that brief. Consultants were engaged to develop options for Vicnet's future and no Vicnet managers were included as a part of that and we have certainly not been consulted or asked our views about that. We understood that the board then commissioned a committee, or formed a committee, one of which was the CEO of three people, to explore options with other departments and see where Vicnet might go. They still don't want to talk to us about that.

PN6

I believe they have been having discussions with the Department of Premier and Cabinet, but certainly as I said, we haven't been consulted. All of the information that we have is via the back door, under handed and by means that we shouldn't have to be receiving information. I would like to just hand up, and I am sure the Commission is well versed in the enterprise agreement but I would still like to hand a copy up to you.

PN7

THE COMMISSIONER: It won't be necessary, I have on with me.

PN8

MS HILL: Okay. Commissioner, do you also have the attachment which is the communication consultation about significant change? It refers to 7.1 which is - - -

PN9

THE COMMISSIONER: Is it a page of the document?

PN10

MS HILL: No, what it is, clause 7.1 of the agreement refers to a consultation and significant change agreement which was an agreement - at 7.1:

PN11

Consultation in relation to change. Refer to summary of the terms of AIRC decision of July 2000 listed as appendix 1.

PN12

And it goes on to say:

PN13

In addition the union may submit alternative proposals.

PN14

THE COMMISSIONER: I can't find clause 7.1

PN15

MS HILL: I have that attachment for you. Yes, 7.1.

PN16

THE COMMISSIONER: I will be very pleased now to have the exhibit.

PN17

MS HILL: Great. It is to be read in conjunction with the agreement. I know you have a copy there, Jim.

PN18

MR JOHNSTON: I do.

PN19

THE COMMISSIONER: Yes. Now, on clause 7, consultation in relation to change and there is a chart of some sort.

PN20

MS HILL: By way of background of that charter I have just handed up, that was an agreement that was reached after significant amounts of disputation at the State Library and - - -

PN21

THE COMMISSIONER: I will mark this, Ms Hill.

PN22

MS HILL: Yes, please.

PN23

THE COMMISSIONER: What is it, a three page document?

PN24

MS HILL: Yes.

PN25

THE COMMISSIONER: What is this? I can see it is a three page document but what is that?

PN26

MS HILL: That is the appendix that is supposed to sit in conjunction with the agreement.

PN27

THE COMMISSIONER: All right. And you call it appendix something?

PN28

MS HILL: Appendix 1 of the certified agreement, enterprise partnership agreement.

PN29

THE COMMISSIONER: All right.

EXHIBIT #CPSU1 APPENDIX W OF THE ENTERPRISE PARTNERSHIP AGREEMENT

PN30

MS HILL: Just by way of background, Commissioner, this agreement, as I said, was as a result of a lot of disputation going on in the State Library Victoria. I was part of the committee that was up here in the Commission every other week with Commissioner Simmonds trying to work through what we all felt about communication and consultation about significant change and what processes should be adopted in relation to those sorts of things. If you would just quickly refer to that diagram it has a number of stages.

PN31

THE COMMISSIONER: Ms Hill, I don't understand why the Commission's copy doesn't have this if it is part of the agreement. I am going to give my document which I certified and it maybe that it is there and I will pop CPSU there alongside it and my associate will give that to you in a second. Can you have a look through with your familiarity to see if there are some appendices, calling it appendix 1 as you call it and perhaps there are others.

PN32

MS HILL: Yes.

PN33

THE COMMISSIONER: I don't understand why it isn't there.

PN34

MS HILL: It should be attached to the back and it is clearly referred to in 7.1 but it doesn't appear to be attached. As I am just told, it wasn't in the copies that originally went to staff. It was a decision that arose over a six month period where we were in really quite extensive negotiations.

PN35

THE COMMISSIONER: Yes. But you say it forms part of the agreement.

PN36

MS HILL: Yes, it does and as the agreement indicates, it does.

PN37

THE COMMISSIONER: Yes, all right. And do you say it was voted on?

PN38

MS HILL: Yes, yes.

PN39

THE COMMISSIONER: Do you have a recollection of the people when they voted on the agreement?

PN40

MS HILL: Well, no, people didn't have it at the time of the agreement. They only got the agreement, but it is referred to in the agreement as being listed as an appendix 1.

PN41

THE COMMISSIONER: Yes, thank you.

PN42

MS HILL: So there is a problem there.

PN43

THE COMMISSIONER: Well, I understand what you are putting.

PN44

MS HILL: The employees - you might like to have your copy back.

PN45

THE COMMISSIONER: Yes.

PN46

MS HILL: The employees are well advised of that agreement because it took a long time to get there and it is also well respected and that is why it is referred to in the current agreement because the employees did not want it to just, with a new agreement, just fall off by the wayside because it is important and the reason for its importance is that there has been a history of disputation at the State Library and this communication and consultation about significant change defines what it is that we expect from the library and what it is the employees expect when there is the introduction of change and it actually defines at the back that the definition of significant change is refers to:

PN47

Any changes or initiatives whether organisational or technological which ordinarily would have significant effects in the workplace if implemented.

PN48

And it says:

PN49

Broadly these include the termination of employment of any employee, changes in the composition, operation and reduction ...(reads)... recollection of a work unit.

PN50

THE COMMISSIONER: Yes.

PN51

MS HILL: Clearly we say that the discussions that have been going on behind our backs without any discussion with us fall within the definition of significant change. If you see from the diagram at the front, and I have lived and breathed this agreement for quite some time so I do know what its intention was when it was struck, there is a concept stage, if I can just take you to that. It then goes down to a preliminary stage and a development stage and that is where all the communication, there is discussions, it was registered, we sit around and we talk about things and then there is obviously a decision making stage and it goes onto the implementation stage and then I understand there is supposed to be a review stage.

PN52

What we say is going on at the moment is that we say that the library without us are already up to the decision making stage. We say they are breaching every rule in the book of an agreement that was struck in this Commission and it needs to be respected. At the end of the day, when we have asked about meetings about what they plan to do with Vicnet, what discussions are going on with other Government departments, will all of Vicnet be transferred, will only part of Vicnet be transferred, what about the employees, what is going to happen to them, what is not going to happen to them, all of these things are things that we need and rightly so have a right to ask and we need answers to them and we are not getting them.

PN53

We have been told these are board decisions and these discussions are in-camera. Well, quite frankly, the employer and the signatory to this agreement and the employer in this case is the board. They have an obligation in accordance with an agreement to consult with us and go through a proper process. In addition to that CPSU1 which I have handed up, in addition it says at 7.1:

PN54

The union may submit alternative proposals which will meet the indicated rationale and benefits of the proposal ...(reads)... of this agreement.

PN55

We have tried to engage the library in discussions and they are saying prerogative, it is in-camera, it is at board, we are not talking to you and quite frankly, we understand they have been talking for six months about the future of Vicnet and nobody at the library has bothered to answer any of our questions and we take umbrage at that. I would be interested to see the response from the library because I don't really know that that they have a good defence for what is going on here and as a result of today I would like a commitment that we go into a process of consultation in all aspects of what is being looked at, all the options, what the consultants came up with, why they are even looking at it, what the brief papers say and have some sort of input into where they might go into the future. If the Commission pleases.

PN56

THE COMMISSIONER: Yes, thank you. Yes, Mr Johnston.

PN57

MR JOHNSTON: Thank you, Commissioner. Commissioner, there are a number of things with which we agree with Ms Hill. First is there has been a review that has been commenced in terms of Vicnet and secondly, that the terms of the attachment 1 clearly outline the processes for effective consultation and involvement of the CPSU. We are absolutely committed to that process. We say that the process has been in operation for some period of time. We acknowledge it and we believe that the procedure is in place to ensure that effective relationships are maintained.

PN58

What we do say however, Commissioner, is that the review of Vicnet has been a review by the board. The board is both entitled to, and indeed has a responsibility, to take undertake a range of analyses and review issues in respect of any and all activities in relation to the library, but that those considerations are at the very least in terms of their strategic nature, captured by the concept and preliminary stages of this particular process.

PN59

The management of the library has not been privy to those discussions or indeed the outcomes of the board's review process, but we remain committed to saying to you and to the union that at the point at which we are provided with an opportunity to move to development stage as anticipated by the attachment, communication and consultation about significant change, then we recognise both the obligations and responsibilities that exist under that process.

PN60

We think and put, Commissioner, that it is one thing to call for consultation and awareness on every and all point of analysis, point of issue, point of thought, point of discussion and debate which might be undertaken across the library, but we think that there is very clear distinction between both strategic issues which are the subject of analysis, debate consideration of options and alternatives which in the terms of this document can be considered as conceptual and preliminary and those issues which emanate from those stages to the point of development and implementation where the implications of those decisions are rightly and properly the subject of consultation with the union.

PN61

Can I take issue, Commissioner, with a couple of matters or points that Ms Hill has raised. One is that their information concerning this review has been via the back door. I would like to point out to the Commission that the chief executive officer attended a meeting of Vicnet staff, as I understand it, on 4 July to talk to Vicnet staff about the general nature of the review, the fact that the board had undertaken the review and to indicate as openly as she was able to at that time that the review was in train.

PN62

Could I also point out, Commissioner, that in response to the union's request at the scheduled meeting between the senior management team of the library and the CPSU which was held on 7 August that we responded to the comments of the union by making the points that the board was undertaking the review, that the management was not in a position to know the outcomes of those reviews or that consideration and that when we were in a position to have anything that we could discuss we were prepared to do so. We still maintain that position, Commissioner.

PN63

In terms of the enterprise agreement itself, Commissioner, we certainly agree that the attachment is considered and can be read as part of that. We believe that the initial stages make it very clear in the procedure that conceptual and preliminary investigation and analysis, whether by the board, whether by the executive, or indeed whether by the management of the library is still an option to determine possibilities and options and it is only at a time where those strategic measures have been translated to the point of development where consultation is absolutely appropriate and which we acknowledge.

PN64

We believe that there has been no breach at all, Commissioner. We maintain our position that when we are in a position as a management team to do so we will certainly consult with the union and are pleased to do so.

PN65

THE COMMISSIONER: Thanks, Mr Johnston. Now, Ms Hill, what do you say about that?

[2.40pm]

PN66

MS HILL: Obviously we disagree submissions that have just been put and we disagree for a couple of reasons. We say that they have bypassed and missed the whole developmental stage, that they say that they are at a different stage than we say they are at and we are aware when you make a decision from the board level you get a consultant and there is a brief that has developed as a result of that. You get consultants in to look at options of your future of Vicnet and where it should comfortably sit in the realms of Government, when you then won't share that information, it goes back to the board and you start having discussions with the Department of Premier and Cabinet about where Vicnet should sit.

PN67

I say it has gone way beyond the preliminary. Now, as far as we are concerned - and that these discussions have been going on for six months and they are saying no, we fully support and we will consult, but we have this agreement because they are particularly bad at consulting and six months of negotiations it took to get this agreement because we couldn't agree on what it is that we wanted consultation about. Now, we finally got this bedded down and we were all supposed to stick with it. We want this put in the register as an item that they need to consult about and they are not doing it and they are saying, well, what will happen as a result.

PN68

We have no doubt in our minds that they are going to come us with a decision has been made and because of that decision this is where we are going to go from here. Now, they have missed the most fundamental and essence of that agreement which is at point 3 and it is where they are supposed to do most of the consulting. They are supposed to do it at the development stage and they are supposed to talk to us. They are supposed to talk to staff. We are supposed to be able to put back our own alternatives. We might have views on this. We have concerns about, you know, how many people might go whether, they are going to split them.

PN69

THE COMMISSIONER: I understand that, Ms Hill.

PN70

MS HILL: Well, at the end of the day it is our understanding and clearly our understanding is of good oil, the mail we have is that they are much at the decision making stage and we are saying hang on a minute, the train is going too fast, you need to back it up a bit and let us get on it so that we can be fully understanding. It may be, Commissioner, it may be that once comfortable with what is being discussed that they might be able to come up - the employees might say, well, one of those options suits us, or the other option might suit us.

PN71

So we have a real concern with where they say they are and where we say we are at and to say, well, these are board decisions, and you know, we can't really share them. They are the employer. They are the employer and they are the legal employer and they are the other party of this agreement that is supposed to consult with us, so we have a real concern once again with the State Library about consultation here today.

PN72

THE COMMISSIONER: What do you want me to do now, Ms Hill?

PN73

MS HILL: Well, Commissioner, you know, I would really like to get some commitments out of the library, that one, no decision will be made, that before any decisions are made that they will come back and start consulting in accordance with an agreement that they have reached with us in good faith. I am sick of all the bad faith that goes on down there and, you know, the things that come by my desk, Commissioner, I was only down there for an unfair dismissal last Monday.

PN74

Some of the things are appalling that go on there and Mr Johnston who is new at the job, and I understand that, he said to me prior to this hearing today he wants to get these things fixed. Well, here is a beautiful opportunity to start getting some of these fixed and that is about sitting down like reasonable people and talking about the reasonable things and seeing where we might go with them. So quite frankly I am hoping, Commissioner, that you can turn everyone's minds today reminding people about their obligations and to make sure that they know exactly what they have to do and make sure they do it. If the Commission pleases.

PN75

THE COMMISSIONER: Yes, thanks, Ms Hill. We are going to go off the record and have a conference but I think we may have to go back on the record at the end of the conference and I will indicate now that I will give you the opportunity if you wish to avail of it, Ms Hill or Mr Johnston, at the end of the conference of putting something on the record. We will go off the record

OFF THE RECORD

PN76

THE COMMISSIONER: Now, Ms Hill, we have had a lengthy conference and it has been in some respects difficult because you are advancing a proposition that in the finally .... detail of CPSU1 the library have, I think your submission would be knowingly, but possibly inadvertently erred, by straying over the line of the developmental feasibility notional evaluation of an idea, particularly as it affects this body of people called Vicnet, in a way which has mean they should have come to you and started the consultative process.

PN77

Your concern is of course that if they have got too far down into those activities they were, even though as a natural consequence of the operation of reasoning, they will have started to favour a particular position and they may not be as amenable as you think they should be at that very early stage of consideration, to hear another view without having had a fixed view formed in your own mind. Now, these aren't concepts that easy, are they? I think they are not that hard to understand, you have just got to have a clear head about them. But they are not matters of any great science.

PN78

They are difficult matters that relate to the parties being able to abstract to a large extent and consider where they are and what point they are in their decision making. It is clear what you say and I am going to give you the opportunity to put what you wish to now. But in our conference, which is very, I think, robustly torn around or endeavoured to distil some of these thoughts, Mr Johnston has once again said what he said on the record and that is they are acutely conscious of when they should consult.

PN79

They have not emerged from the preliminary evaluation of feasibility and including the capacity to look at other resources to come to a decision as to whether they will proceed with an investigation. Not a decision as to what they will finally do but to investigate perhaps a preferred one or two options, and that is where I think a twilight zone, it is very difficult with any great precision to say where someone is, particularly if they say I am aware of what happens 5 degrees further down the path and I am not there yet, but we will take great care now we are alert to your concerns, we know what our obligations are and we don't want to be placed in the position where we can be criticised or even prosecuted under the agreement for having breached it and not given proper effect to it.

PN80

Ms Keef has given some examples of areas where is very concerned, that the feasibility study has gone beyond that point and of course we see from the chart that some of these capacities and various staging points as they are, are replicated and it makes it difficult with any total certainty and certainly in an empirical sense decide where one was. But that is what we have considered in our conference. I don't know how lucid that summary of our conference will be. I hope I never had to trawl through the transcript and read it. I recommend others not to do so.

PN81

But I have said to you, Ms Hill, and Mr Johnston, that you can put something on the record and I will ask you to do that if you wish to and then I will say something to the State Library about these matters. Now, do you want to take up the option of putting something on the record?

PN82

MS HILL: Commissioner, I just want to reinforce that the CPSU wants to put the library on notice that we are fully committed to the communication, consultation about significant change agreement and we expect them to do the same and if there is any evidence that that isn't the case then we will be very concerned and we will bring the matter straight back to this Industrial Relations Commission because what is occurring is, as we understand it, is going to have quite an effect on a large group of people and, you know, we enter into these agreements with good faith and we do expect people that sit down and sign off on these agreements in good faith to actually uphold their part of the bargain.

PN83

So just for my comments today, we are putting the library on notice that we hope we won't have to come back here, but by golly we will if we have to, and clearly we would ask the library to once again reinforce on the record that they are and only a concept and preliminary stage and they will commit to consulting with us as soon as they make the decision to keep looking at investigation certain options.

PN84

THE COMMISSIONER: Yes, all right. Ms Hill, thank you.

PN85

MS HILL: Commissioner, it might also be useful given the very low morale at the library for, you know, people to start talking down there to say look, you know, yes, the CEO came down here and in very vague terms told people that they were having a look at certain things. But the negativity is a concern to me because if any of this does start to get some legs and it looks like it is going to go forward you don't want people to be looking at it in such a negative way because of what they see as a lack of consultation from the outset. So, you know, there is some bridges to build because certainly there will be push back even if something is viable simply because of the morale. So that is certainly up to the library to try and I would hope that they do that. If the Commission pleases.

PN86

THE COMMISSIONER: Yes, thanks, Ms Hill. Thank you, Ms Keef. Yes, Mr Johnston.

PN87

MR JOHNSTON: Thank you, Commissioner. Firstly can I thank the Commission for the opportunity of being able to explore these issues in conference. We appreciate that opportunity. I really have not much further to add other than to endorse and repeat the undertakings that the library gave in my opening remarks and that is to say that we acknowledge, we respect, we recognise the obligations of the attachment called the Communication and Consultation About Significant Change appendix.

PN88

We maintain our position that the issues that are currently before the library board are in the conceptual and preliminary stage and have not gone beyond them. I certainly acknowledge the grey area that can exist between the definition and determination of what represents the trigger point that moves between the preliminary and the development stage but it is certainly my position and the position of the State Library of Victoria that these issues have not gone beyond the boundaries of the preliminary as envisaged by this document and procedure where, as I say, Commission, we are aware, acknowledge and certainly committed to that procedure as it exists.

PN89

We certainly therefore also acknowledge that we are more than prepared to abide by the obligations and responsibilities that we have under this procedure and undertake as Ms Hill has requested that we will continue to engage in consultation appropriately in these terms and indeed in all terms in trying to ensure that the level of industrial disputation at the library is minimised and that relationships are enhanced and we give that undertaking both to this Commission and to the union. But again I say, Commissioner, that it is our very strong view that the circumstances have not yet triggered where we need to go beyond the terms of the first two stages of this procedure. If it please the Commission.

PN90

THE COMMISSIONER: Yes, thanks, Mr Johnston. Well, I think the somewhat trite position that emerges is that both parties have to continue to reflect on the commitment that they say they have got to giving full effect to the agreement and all these fine words are more than fine words of course because in this case there is, and there is no point in being coy about it, as I think I said in the conference, there is a suggestion that, particularly with all that has gone before, there shouldn't be and it is thought by the CPSU there already has been an error in that contemplation has or is transmogrifying into a determination to take a certain course.

PN91

Now, it seems to me to be a very useful human resources tool at this stage in the life of the agreement and in the really oh so important application of all the brain power that is going to be applied to it for the Vicnet for anyone whose job might be threatened, his or her - did I say his - job might be threatened in a remodelling of whatever Vicnet is, that there be early discussion about these things at the earliest stage which could be reasonably thought to constitute a decision to proceed with the investigation as to a particular option once it has something other than the most vague terms.

PN92

Now, I am not going to once again essay into how the agreement is meant to work. I think it would be - well, I will put that a different way. I think Mr Johnston is fully alive to the need to avoid any potential which has any, a basis that is, for accusations of bad faith dealing and so on and so one way in this case is, subject of course to the direction of the management, would be for advice to come to the CPSU at the very earliest opportunity and I have formed the view that Mr Johnston is well aware of that and will it in a timely and a conscientious way.

PN93

If either party are unhappy and further information comes to light, then of course you can ask for the file to come back on and of course at the bottom of all this are these Vicnet people who will be worried about their futures. We all know this but I will say it, it is a tremendously corrosive problem that a spectre of retrenchment or redeployment or being moved and the uncertainty it has on some people, we all know and you can take a subjective test to this, you would know the terrible debilitating effect it has on some people and soon as that can be replace by, if necessary, fears, disagreement as you go through all those steps of consultation, well, so be it because at least the uncertainty will be gone.

PN94

Anyway, I will adjourn now sine die on the basis that the file can come back on at short notice. Thank you.

ADJOURNED INDEFINITELY [3.37pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU1 APPENDIX W OF THE ENTERPRISE PARTNERSHIP AGREEMENT PN30