C2003/652, Transcript of Proceedings [2003] AIRCTrans 627 (25 February 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT1714
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2003/652

HEALTH SERVICES UNION
OF AUSTRALIA

and

YARRAMAR AGED CARE SERVICES

Notification pursuant to section 99 of the Act
of a dispute re consultation and negotiation with
the union regarding proposal of contract out
cleaning and proposed redundancies at Lumeah
Homes for the Aged

MELBOURNE

10.58 AM, WEDNESDAY, 22 JANUARY 2003

PN1

MR C. HEUSTON: I appear on behalf of the Health Services Union of Australia and appearing with me is MR M. MAY.

PN2

MR P. EBERHARD: I am from the Victorian Employers Chamber of Commerce and Industry and I appear on behalf of Lumeah Home for the Aged and appearing with me is MR D. BOYD, who is the Chief Executive Officer of Yarramar Aged Care Services of which Lumeah Home of the Aged is part of.

PN3

THE COMMISSIONER: Thank you. Yes, Mr Heuston.

PN4

MR HEUSTON: Thank you, Commissioner. This notification of industrial dispute comes before the Commission due to a proposal by Yarramar Aged Care to contract out the cleaning and laundry services at Lumeah Home for the Aged. At present, the information provided to the HSUA by Yarramar indicates that there are 17 employees affected by the proposal and at this stage it has been indicated that 15 of these will be made redundant, four of whom are claimed, by the employer, to be casual. I would just like to tender the documentation which has been passed between HSUA and Yarramar to date.

PN5

THE COMMISSIONER: Thank you. You are tendering that are you, Mr Heuston?

PN6

MR HEUSTON: Yes, Commissioner.

PN7

THE COMMISSIONER: Thank you.

EXHIBIT #HSUA1 DOCUMENTATION PASSED BETWEEN HSUA AND YARRAMAR AGED CARE SERVICES

PN8

MR HEUSTON: Commissioner, on 8 January this year the union became aware of the employer's intention to make a number of these positions redundant, and that is by way of a phone call from one of the members affected and as well as the letter, which is on the front of HSUA1, dated 3 January, received 7 January by the Union. Following that, on 8 January, that very same day the HSUA wrote to Mr Dennis Boyd, who is here today, activating the grievance procedures as per the Health and Allied Services Private Sector Award, and also requested some information about the proposal, which is detailed in the bottom part of that letter dated 8 January.

PN9

Following that, a members meeting was held by the HSUA on 10 January and there was subsequently a meeting with Mr Boyd, which was attended by, from the HSUA Mr May, who is here today. Unfortunately, Commissioner, that was a meeting which did not progress matter, from our perspective and following that another meeting was scheduled for 14 January, which was a meeting between Ms Pauline Fegin and Mr Michael May with Mr Dennis Boyd. And that same day at that meeting, no ground was made by the HSUA and there was, what we say is not a genuine consultative process which has occurred at that point, and the matter was referred to the Commission.

PN10

Commissioner, regarding this matter, the HSUA submits that section 170GA of the Act requires where an employer wishes to make 15 or more employees redundant, which is what we say is occurring on this occasion, to include consultation with the union as well as with the employees concerned. Despite the numerous efforts by the HSUA to engage with the employer to consult on the issues to identify measures to avert the termination, or minimise the terminations as well as measures such as finding alternative employment, to mitigate the adverse effects this termination of employment, that did not occur.

PN11

The response which was received by the HSUA from the employer was that a decision had been already made and that there was no opportunity for the HSUA to influence that decision, which was say is a requirement for consultation to occur.

PN12

Having said that, Commissioner, we still wish to engage with the employer to consult over these matters and we believe that the Commission's assistance will be required in this matter as it appears that the parties have not been able to achieve this thus far, despite a number of meetings. Commissioner, we recommend that thus far, that the matter be dealt with more thoroughly and in conference, and pending the success of that conference, the HSUA may wish to apply for orders under 170J of the Act. Those are the HSUAs submissions, Commissioner.

PN13

THE COMMISSIONER: What provision of the Act?

PN14

MR HEUSTON: Section 170GA, Commissioner.

PN15

THE COMMISSIONER: GA(2)?

PN16

MR HEUSTON: Yes, GA(2), that is correct.

PN17

THE COMMISSIONER: Sorry, I thought you said some other provision.

PN18

MR HEUSTON: If there are other provisions that you believe might be assistance to the HSUA, Commissioner, we would be happy to hear your suggestions.

PN19

THE COMMISSIONER: All right, thank you.

PN20

MR HEUSTON: Thank you, Commissioner.

PN21

THE COMMISSIONER: Yes, Mr Eberhard?

PN22

MR EBERHARD: Commissioner, contained within HSUA1, at the third page, is a document that has been produced by Yarramar Aged Care Services that is entitled "Outsource Cleaning Arrangements". That probably puts the background and the process and the impact into a fairly succinct position and I don't think we necessarily need to put anything further on to the record with respect to that. We would be quite happy to go into conference to discuss the HSUAs concerns with regards to the proposal by Lumeah Home for the Aged.

PN23

THE COMMISSIONER: What do you say, Mr Eberhard, that there hasn't been compliance with 170GA(9)(1)?

PN24

MR EBERHARD: Can I say, Commissioner, if you go to HSUA1 on 3 January the organisation wrote to the HSUA to advise them that a definite decision had been made to change the arrangements. There wasn't a response from the correspondence until 8 January.

PN25

THE COMMISSIONER: They say they didn't get it until the 7th.

PN26

MR EBERHARD: Then Mr Boyd had arranged meetings with the staff on 10 January; Mr May was present at those proceedings, however, had advised the staff not to attend those meetings. During those meetings, I think Mr Boyd would have been putting to the various affected staff, the options that were available to them with regards to future employment and/or future opportunities in regards to what was happening in respect to the employment and their possible, or not possible, continued employment.

PN27

So in that sort of respect, certainly GA has been met in the sense that, we would submit, that from the organisation's point of view, once a definite decision had been made that the HSUA were advised of that. There was the opportunity there for the HSUA and for Lumeah to consult, however, under instructions from Mr May the HSUA did not take that opportunity up. There has been some further meetings but they have not really progressed the matters any further.

PN28

THE COMMISSIONER: How can the employer say that they have complied with 170GA when, in that document headed "Outsourced Cleaning Arrangements" they have already entered into a contractual arrangement effective from 31 January 2003. 170GA(b) - (1)(b), sorry, says:

PN29

The employer did not as soon as practicable after so deciding and in any event before terminating ...(reads)... minimise the terminations.

PN30

How can that be done when an employer has already entered into a contractual arrangement?

PN31

MR EBERHARD: There has - it might be a technical argument, but at this stage there has been no contract signed between the organisations. I think 31 January is the intended date, but there has been no actual contract signed that would bind a new contractor, or provide for a new contractor for the cleaning at Lumeah.

PN32

THE COMMISSIONER: That is not what the document says. The document says:

PN33

Negotiations have concluded with the intended contractor, who will commence to provide services effective 1 January.

PN34

It doesn't say "who may" or - - -

PN35

MR EBERHARD: I understand that, and I suppose it is a very minuscule difference, but then - certainly the instructions that I have are that 31 January is the intended date, but it is not a contractual date at this point of time.

PN36

THE COMMISSIONER: And it appears that the decision has been made that redundancies will take effect, and that there will be a contractor in place. Has been any attempt so far, on what has been put the Commission, to indicate that alternative measures have been looked at. The employer simply made a judgment, says, this is what will happen, 15 people will be made redundant and we will outsource the cleaning and so be it.

PN37

MR EBERHARD: Well, can we clarify one thing, and certainly in regards to the position of Lumeah with respect to the number of redundancies, we certainly believe that there would be 11, not 15.

PN38

THE COMMISSIONER: What do you hope to get out of conciliation, Mr Heuston - Mr Eberhard.

PN39

MR HEUSTON: Commissioner, we are seeking a true commitment from the employer to engage in consultation, and we would like to achieve an outcome which minimises the effect on employees. We would like to see a situation where employees was made redundant. And failing that - - -

PN40

THE COMMISSIONER: Have impact statements been provided?

PN41

MR HEUSTON: The only impact statement which has been provided is that that has been - which is found in HSUA1. There are no further documentation to that, Commissioner.

PN42

THE COMMISSIONER: Right. Thank you. Mr Eberhard, is it intended to provide impact statements?

PN43

MR EBERHARD: I think that the document that I referred the Commission to before, which is in the 3rd and 4th pages in regards to HSUA1 is really the impact statement with regards to Lumeah.

PN44

THE COMMISSIONER: Pretty amateurish. Is that it.

PN45

MR EBERHARD: That is - they are my instructions. That is what has been provided with regards to the background in the process.

PN46

THE COMMISSIONER: It is a very amateurish one. I mean, it doesn't provide - I mean, too much detail at all. It says that possibly 11 people will be made redundant. We have outsourced the cleaning arrangements. Wow, you don't have to be too brilliant to write anything like that. That is not a proper impact statement.

PN47

MR EBERHARD: It may not be, but then certainly with regards to the process in regards to look at minimising the effects on the employees, I think that was - the intention of that was that it wasn't to be done in writing, but it was to be done individually with the employees, at the meetings that were scheduled on 10 January. Unfortunately, Mr May, when he attended the facility, said that the staff should not be involved in those proceedings.

PN48

THE COMMISSIONER: All right. The Commission will go into conciliation and then arising from that it will determine whether or not it issues orders. Thank you.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #HSUA1 DOCUMENTATION PASSED BETWEEN HSUA AND YARRAMAR AGED CARE SERVICES PN8