C2003/519, Transcript of Proceedings [2004] AIRCTrans 287 (20 January 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Suite 25, Trafalgar Centre 108 Collins St HOBART Tas 7000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 0050

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT LEARY

C2003/519

TIWI HEALTH BOARD

and

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

Notification pursuant to section 99 of the Act
of a dispute re an application by THPL to vary
the general severance pay prescription contained
in the certified agreements

HOBART

12.05 PM, THURSDAY, 8 JANUARY 2004

Continued from 17.12.03

THESE PROCEEDINGS WERE CONDUCTED BY TELEPHONE AND RECORDED IN HOBART

PN135

THE DEPUTY PRESIDENT: Did you want to announce a change in appearance?

PN136

MS B. PEACOCKE: I appear on behalf of the applicant being Sam Miles, she is currently on leave.

PN137

THE DEPUTY PRESIDENT: Okay. Half her luck. All right, thank you. Perhaps if I just ask somebody to bring me up to date on what has happened since we last spoke and then we can work out where we need to go if anywhere.

PN138

MS PEACOCKE: Sure. We have been to a vote and it seems that we are nearly there. I received an email from Ms Carrigan yesterday indicating that she is willing to consent to the application in respect of all her members.

PN139

THE DEPUTY PRESIDENT: Right.

PN140

MS PEACOCKE: We have been discussing the matter this morning with Mr McDonald also and I understand that he will consent to the application in respect of all members subject to an issue that has arisen in respect of one member, Josephine Cain, being resolved.

PN141

THE DEPUTY PRESIDENT: Right.

PN142

MS PEACOCKE: So we are in a process of endeavouring to resolve that issue with Mr McDonald.

PN143

THE DEPUTY PRESIDENT: Good.

PN144

MS PEACOCKE: Mr McDonald is withholding his consent in respect of the other employees pending the resolution of the Jo Cain issue.

PN145

THE DEPUTY PRESIDENT: All right.

PN146

MS PEACOCKE: My understanding was that the reason for bringing this application on urgently was that the employees obtain a degree of certainty as to their entitlements as quickly as possible and enable the GEERS claim to be processed properly also, so in those circumstances we would submit that it is inappropriate to hold up the process for all other employees subject to the resolution of Ms Cain's position and rather deal with them now and Ms Cain's separately.

PN147

THE DEPUTY PRESIDENT: All right. What is Mr McDonald's position on Ms Cain? Is it a logistical difficulty? I understand that was one of the problems earlier?

PN148

MR McDONALD: Yes, Deputy President, Didge McDonald. Yes, the situation is that Ms Cain was the manager of the aged care centre.

PN149

THE DEPUTY PRESIDENT: Right.

PN150

MR McDONALD: And that operation has been taken over by a private company called Health Care Services.

PN151

MS PEACOCKE: I think it is Lovell HCS.

PN152

MR McDONALD: Yes, Health Care Services.

PN153

MS PEACOCKE: Health Care.

PN154

THE DEPUTY PRESIDENT: Right.

PN155

MR McDONALD: An Australian Company. Jo was - and ourselves were of the understanding that people would be transferred to the new operation or under the new employer on existing conditions.

PN156

THE DEPUTY PRESIDENT: Right.

PN157

MR McDONALD: Now, you would appreciate that this - a lot of the arrangements have been made basically on the nod, if you like, to give surety of employment for people and we have agreed and waived a whole range of processes in reaching the point that we have and we believe that 99 per cent of the people have been looked after adequately.

PN158

THE DEPUTY PRESIDENT: Right.

PN159

MR McDONALD: So this situation has only arisen in the last two days. Ms Cain has been given a proposal - or was given a letter on the 6th, on Tuesday, who - of an offer of employment which isn't the position that she was in, it is in fact a kitchen and - essentially manager of the kitchen and the cleaners.

PN160

THE DEPUTY PRESIDENT: So is it a new position?

PN161

MR McDONALD: It is a new position.

PN162

THE DEPUTY PRESIDENT: Different to what she was doing prior to the change over?

PN163

MR McDONALD: It is, it is.

PN164

THE DEPUTY PRESIDENT: Right. Is she the only one that is affected?

PN165

MR McDONALD: Sorry?

PN166

THE DEPUTY PRESIDENT: Is she the only one that is affected or are - - -

PN167

MR McDONALD: To my knowledge. Well, the other - I suppose what has brought it about is that the status of that facility has changed.

PN168

THE DEPUTY PRESIDENT: Oh has it; right.

PN169

MR McDONALD: It was a sort of a respite centre and it has now been reclassified and the responsibilities have increased and the classification of patients has become more - not more serious but people with - they need a higher level of care essentially so that the place is going to have to be reorganised. Now, we had no indication of that until yesterday essentially.

PN170

THE DEPUTY PRESIDENT: Right.

PN171

MR McDONALD: And so the ball game has changed as far as those people employed in that area is concerned.

PN172

THE DEPUTY PRESIDENT: How many people are we looking at?

PN173

MR McDONALD: There are - I think there are four permanent employees under the proposal put forward by the administrator and the documentation tabled by them. The - in fact Jo Cain's position is being treated as - she is being treated as a casual at the moment and the - - -

PN174

MS PEACOCKE: Part time, isn't it?

PN175

MR McDONALD: No, casual.

PN176

MS PEACOCKE: Sorry.

PN177

MR McDONALD: And her - the remainder of the employees who were - who worked as top up are also being treated as casual at the moment so you know, the status isn't what we were led to believe of these people, so the principled - and I if mean we can work around the CDP people that is not a drama but certainly in Jo Cain's position her position or her classification as being proposed is radically changed, her wages have been reduced. The housing situation - housing is provided for her and that is now under threat and so the whole ball game has changed.

PN178

THE DEPUTY PRESIDENT: So for her you are saying that the position that she has now been offered is radically different to the one she held before?

PN179

MR McDONALD: It certainly is, yes.

PN180

THE DEPUTY PRESIDENT: But that is not necessarily the case for the other employees although there is some question as to whether they are now casual or not?

PN181

MR McDONALD: That is correct, that is correct. I think the majority - probably all of the remaining employees are okay.

PN182

THE DEPUTY PRESIDENT: Right.

PN183

MR McDONALD: Now, I have put to Clayton Utz that Jo be offered a redundancy.

PN184

THE DEPUTY PRESIDENT: Right.

PN185

MR McDONALD: Her position is clearly redundant.

PN186

THE DEPUTY PRESIDENT: Yes.

PN187

MR McDONALD: The circumstances have changed. She doesn't have the qualifications to be the manager, as I understand it.

PN188

THE DEPUTY PRESIDENT: Doesn't she?

PN189

MR McDONALD: I haven't looked into that.

PN190

THE DEPUTY PRESIDENT: No.

PN191

MR McDONALD: She is a level 3 class C Aboriginal.

PN192

THE DEPUTY PRESIDENT: Right.

PN193

MR McDONALD: So I have put to them that she be offered a redundancy under her existing wage rate before - as a manager.

PN194

THE DEPUTY PRESIDENT: On the basis that the position that she held under the old regime, if we can put it that way, no longer exists?

PN195

MR McDONALD: Correct.

PN196

THE DEPUTY PRESIDENT: And that it is a new position that she has been offered?

PN197

MR McDONALD: That is correct.

PN198

THE DEPUTY PRESIDENT: Is that basically how you are putting it?

PN199

MR McDONALD: That is correct.

PN200

THE DEPUTY PRESIDENT: All right.

PN201

MR McDONALD: I have put that to them and I have spoken to the funding body who is Health and Ageing, the Commonwealth Department.

PN202

THE DEPUTY PRESIDENT: Yes.

PN203

MR McDONALD: They support the offer of redundancy.

PN204

THE DEPUTY PRESIDENT: Right.

PN205

MR McDONALD: I have spoken to the management of HCS, Pauline Lovell, who is the principal of that company.

PN206

THE DEPUTY PRESIDENT: Yes.

PN207

MR McDONALD: She agrees to support a redundancy proposal by the administrator that we are talking about, the administrator of the company.

PN208

THE DEPUTY PRESIDENT: Yes.

PN209

MR McDONALD: Now, there is, as I understand it, there may well be some argy-bargy between HCS and the administrator as to who is liable for any redundancy payment.

PN210

THE DEPUTY PRESIDENT: Right.

PN211

MR McDONALD: Now, for my mind first instance we are saying to the administrator, you know, you should be offering a redundancy payment and that is as far as - it is with Clayton Utz and the administrator right now.

PN212

THE DEPUTY PRESIDENT: Okay. So, why can't all of the other matters be determined, or the issues involving all of the other people be settled and Josephine Cain can be dealt with separately so that the others - I think as Ms Peacocke said, the matter was called on urgently so that people could know what their circumstances were and I presume that hasn't changed.

PN213

MR McDONALD: Yes.

PN214

THE DEPUTY PRESIDENT: Certainly Ms Cain has to be sorted out in some way or other even if it has to end up before the Commission, but while those discussions are taking place certainly her rights are reserved.

PN215

MR McDONALD: I was - or we were quite prepared to come along today and consent.

PN216

THE DEPUTY PRESIDENT: Yes. Other than for Ms Cain?

PN217

MR McDONALD: This matter has come up two days ago and I mean, given that I haven't been working on the issue full time for two days trying to sort it out - - -

PN218

THE DEPUTY PRESIDENT: Right.

PN219

MR McDONALD: - - - I have got other things to do.

PN220

THE DEPUTY PRESIDENT: Really?

PN221

MR McDONALD: Yeah, just a few, but I mean, my position is I don't want to shut off any avenues that this worker might have to making any claims to you know, a reasonable outcome.

PN222

THE DEPUTY PRESIDENT: Yes.

PN223

MR McDONALD: If was agreeing to this now I would do that, you know, because I haven't been given all the information by the HCS, by the new employer. I have been given verbal assurances that don't satisfy me and I don't - I believe, and I think most of the parties agree,that a redundancy is appropriate.

PN224

THE DEPUTY PRESIDENT: Yes.

PN225

MR McDONALD: Don't see the dramas in reaching agreement and I don't think there will be.

PN226

THE DEPUTY PRESIDENT: So you just want some confirmation of that, basically?

PN227

MR McDONALD: I am not prepared to do it on the nod, so that is probably my position there.

PN228

THE DEPUTY PRESIDENT: All right, so who - - -

PN229

MR McDONALD: Concerns of the urgency - we do want people to get their entitlements as soon as possible.

PN230

THE DEPUTY PRESIDENT: Sure.

PN231

MR McDONALD: We are looking at something like a 12 week lead time in payment through that GEERS system. Another couple of days in resolving this matter isn't huge in the whole scheme of things.

PN232

THE DEPUTY PRESIDENT: Who is it that you are waiting for to come back to you, what information do you need, who do you need to make a decision.

PN233

MR McDONALD: Well, essentially it is the administrator - - -

PN234

THE DEPUTY PRESIDENT: Right.

PN235

MR McDONALD: - - - through Clayton Utz who would be responding as to whether they are prepared to come to the party on a redundancy and what the terms of that redundancy will be.

PN236

THE DEPUTY PRESIDENT: Okay. Well - - -

PN237

MS PEACOCKE: Can I just pop in here and - - -

PN238

THE DEPUTY PRESIDENT: Yes, sure.

PN239

MS PEACOCKE: - - - Didge only the raised this with me yesterday and I have in fact asked for certain information because obviously we are also in the dark with this, we have only - in the dark in respect to this, we have only just found out about it.

PN240

THE DEPUTY PRESIDENT: Sure.

PN241

MS PEACOCKE: So we need to establish the circumstances surrounding the offer of new employment, and my understanding is that Jo actually went over the day after that she - the day after she was terminated by Tiwi Health and commenced employment. Now, there was nothing in writing but clearly there was an oral offer of employment because she worked for the period between that date and the 6th when a formal offer was put in place and I understand - Didge and I spoke about this this morning - both he and Jo were of the view that she was going over on the same basis that she had been with Tiwi Health.

PN242

THE DEPUTY PRESIDENT: But it would appear that the written offer is different to that?

PN243

MS PEACOCKE: Yes, so we need to establish exactly what was said at that time, what was represented to her by Lovell HCS.

PN244

THE DEPUTY PRESIDENT: Sure.

PN245

MS PEACOCKE: The issue that we need to get to the bottom of is a legal issue really, of where the responsibility lies in respect of the change in position.

PN246

THE DEPUTY PRESIDENT: Yes. Okay. Look, can we put some time on it then?

PN247

MS PEACOCKE: Mm hm.

PN248

THE DEPUTY PRESIDENT: If we give - well, you have to make some inquiries obviously as does Didge - - -

PN249

MS PEACOCKE: Yes.

PN250

THE DEPUTY PRESIDENT: - - - if we give you to close of business on Monday to establish what Josephine Cain's position is, whether there is an agreed redundancy payment and someone is going to pay for it - that may be another battle for another place - but I am concerned about all of the other people wanting to access their entitlements and I don't want to leave it for too long. Do you think that by the close of business on Monday you may have some information or may have a position?

PN251

MS PEACOCKE: Yes. Look, certainly that should give us time provided we can get the information needed.

PN252

THE DEPUTY PRESIDENT: Yes.

PN253

MS PEACOCKE: I need to rely on Didge in that respect - - -

PN254

THE DEPUTY PRESIDENT: Yes.

PN255

MS PEACOCKE: - - - largely to - - -

PN256

THE DEPUTY PRESIDENT: Well, I am sure Didge is just as keen to get the thing settled and no doubt Josephine Cain is also. Is that reasonable time for you, Didge, to make some inquiries and have some discussions?

PN257

MR McDONALD: It is enough time for me. I mean, I am quite clear on what is needed.

PN258

THE DEPUTY PRESIDENT: Yes.

PN259

MR McDONALD: And - - -

PN260

THE DEPUTY PRESIDENT: But for you to have some discussions with Belinda or the administrator.

PN261

MR McDONALD: Yes, yes, no drama.

PN262

THE DEPUTY PRESIDENT: All right, so what I would be suggesting is that by close of business on Monday next week, if you - we don't need to do a telephone hook-up but if one of you could just indicate whether you have reached a position that can settle Josephine Cain which would then settle all of the others, or if Josephine Cain needs to be dealt with separately there may need to be some decision made as to whether all of the others should be settled and hers be dealt with separately and I understand Didge's reasons why - for not wanting to do that at this stage and I appreciate that.

PN263

MR McDONALD: Okay.

PN264

THE DEPUTY PRESIDENT: So if we leave it until then and that gives you all of today - well, what is left of today and Monday and Friday to see what you can work out. Is today Friday? No, it is all right, Thursday, it has been one of those weeks. Yes, so you have got two and a half days by my calculations unless you want to include the weekend which gives you four and a half days to work your way through that. Jane, what is your position; are you seeking leave to disappear, are you?

PN265

MS CARRIGAN: I was just sitting here thinking how I had shattered my previous record of silence, your Honour.

PN266

THE DEPUTY PRESIDENT: Oh, you were not going to get away with it.

PN267

MS CARRIGAN: Yes, we have consented to the application, we no longer have any objections and I guess that ends our role in this matter.

PN268

THE DEPUTY PRESIDENT: All right, so you are satisfied with the outcome as it has been achieved then?

PN269

MS CARRIGAN: Yes.

PN270

THE DEPUTY PRESIDENT: That is good.

PN271

MS CARRIGAN: We are undertaking to put that in letters and what have you so - - -

PN272

THE DEPUTY PRESIDENT: Okay. All right, well, I don't need to hear from you again on this matter.

PN273

MS CARRIGAN: Thank you.

PN274

THE DEPUTY PRESIDENT: And it remains that Ms Peacocke and Mr McDonald have some discussions to see whether they can sort out what may well be quite a complex issue and to advise the Commission by close of business Monday, the 12th I am told is Monday, January, as to their position and it may be that we then need to decide how we deal with it if it hasn't been resolved. Does anyone want to add anything else?

PN275

MS PEACOCKE: No, that is it from me.

PN276

MR McDONALD: No, I think that is probably enough from me.

PN277

THE DEPUTY PRESIDENT: Okay. As you are possibly aware we are up there the following week. If we need to do anything in a formal sense or even in an informal sense we have got some time that we can put to it but hopefully it can be resolved between you. You certainly achieved a lot anyway and there is just the one outstanding issue by the looks of it.

PN278

MR McDONALD: Yes.

PN279

MS PEACOCKE: Deputy President, one other thing just the week that you are up here, Sam Miles is returning home from leave on evening or quite late on the 19th, she has children. If - I notice it was originally listed I think it was the 20th, wasn't it, the time? I am not sure but - - -

PN280

THE DEPUTY PRESIDENT: I don't think we ever listed it, we may have indicated a day.

PN281

MS PEACOCKE: Oh okay. If it is - if the 20th does pop up Sam has just asked if possible it could be heard on the - or listed in the afternoon as she is going to have to arrange child care for the morning?

PN282

THE DEPUTY PRESIDENT: Sure. We will let you know - well, first of all if you let us know whether we need to list anything - - -

PN283

MS PEACOCKE: Yes.

PN284

THE DEPUTY PRESIDENT: - - - we will talk to you about the timing because between the last time we spoke about dates and now the diary is rather jam packed but we will certainly find some time if necessary and we will take into account her requirements.

PN285

MS PEACOCKE: Thank you.

PN286

THE DEPUTY PRESIDENT: Okay?

PN287

MS PEACOCKE: Thank you.

PN288

MS CARRIGAN: Thank you.

PN289

THE DEPUTY PRESIDENT: All right, if that is all we will adjourn this telephone conference and I will wait to hear from one or both of you on Monday.

PN290

MS PEACOCKE: Thank you.

PN291

MR McDONALD: Thank you.

PN292

THE DEPUTY PRESIDENT: Okay, thanks.

PN293

MR McDONALD: Bye.

PN294

THE DEPUTY PRESIDENT: Bye.

ADJOURNED INDEFINITELY [12.24pm]