C2004/5899, Transcript of Proceedings [2004] AIRCTrans 3823 (30 September 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 13848

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

C2004/5899

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

and

KIRINARI COMMUNITY SERVICES LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re alleged failure of
management to comply with clause 31, 32 and 33
of the agreement

SYDNEY

2.43 PM, TUESDAY, 21 SEPTEMBER 2004

PN1

THE SENIOR DEPUTY PRESIDENT: Can I have appearances please?

PN2

MS J. THOMPSON: I appear for the Australian Services Union.

PN3

MR B. WILLIAMSON: From Workplace Law, with the permission of the Commission I appear for Kirinari, with me is MR G. ROBERTS who is the CEO of Kirinari and he has come from Wodonga to be here today and MS L. EVANS who is the Inverell manager. She has come from Inverell to be here today.

PN4

THE SENIOR DEPUTY PRESIDENT: Let's hope it was worth it. At least we have put on nice weather for you.

PN5

MR WILLIAMSON: True, good flying weather.

PN6

THE SENIOR DEPUTY PRESIDENT: Have you had some conversation about this matter and made some plans?

PN7

MS THOMPSON: We have your Honour.

PN8

MR WILLIAMSON: Yes.

PN9

THE SENIOR DEPUTY PRESIDENT: Good, one or other of you put them on the record for me.

PN10

MR WILLIAMSON: Thank you, Senior Deputy President. My friend can interrupt if I have made a mistake or has a view of a different flavour of what I'm saying. The unions argument is that we haven't complied with clause 33 of the enterprise agreement which talks about the escalation of a performance matter to a first formal warning stage. We disagree with that and we say that we have properly given a warning to a Mr Shane Risby who is a supervisor with Kirinari and that document is dated 6 July.

PN11

The position is this. We say that Mr Risby has been a supervisor at Kirinari for the last four years and has had some periods of good performance and some periods of bad performance. In June last year we confronted him and issued a warning and his performance improved after that, improved pretty well. In February this year he started to go into a downward spike again and ultimately this led to the warning that we issued on 6 July which covered a broad range of issues. The dispute has arisen as to whether that's a valid warning or not.

PN12

I've had some discussions with Ms Thompson and we have reached a point where we think we have got a way to move forward and that is that the warning will stand, but if there are any points that Mr Risby wishes to put to convince us that a particular issue was the wrong basis of a warning, we will look at that. But, using a legal term, it is a reverse onus of proof. He's got to show us we were wrong about the conclusion we reached. We are prepared to give him what documentation he wants to enable that to happen and we will facilitate that over the next couple of weeks. So if he tells us what he wants on a particular point we will give it to him. If he has got a different view of that we will look at that but until that happens the warning will stand.

PN13

We are quite happy to say on record that in 6 July letter, I believe the Commission has got a copy of that, the dispute notification - - -

PN14

THE SENIOR DEPUTY PRESIDENT: Yes, I've seen that.

PN15

MR WILLIAMSON: - - - that there is a performance review next Thursday, 30 September. We are happy to say that we believe that he has lifted his game and that he is in an upward performance environment. We would say that there is only one issue that isn't in that framework at the moment. That concerns the matters involving TAFE.

PN16

Now what's happened with TAFE is that he has been studying a certificate four level TAFE matter for the last approximately 12 months. In Victoria certificate four has become compulsory to be a supervisor and that's been a funding requirement from the Victorian funding body and Kirinari is funded from Victoria as well as New South Wales. We say that certificate four may well be imposed upon us by DADHC by NSW or it may be something that Kirinari moves to. We say to our supervisors you have got to do it.

PN17

We aren't in a position to give them days off that are paid, but we are in a position to say to them, if you are attending this course you have the flexibility to move your hours around so that you can attend courses. First of all we heard from him, he said he was studying the TAFE course by correspondence course. We contacted TAFE and they say they don't run it by correspondence. On further interview with the TAFE lecturer we find that he has said to TAFE that Kirinari wouldn't give him the time off to study. I have a letter from TAFE to that effect, I would like to just put that on record. I have given my friend a copy of that and we say that that's the only issue outstanding from 6 July that he hasn't dealt with or answered satisfactorily.

PN18

THE SENIOR DEPUTY PRESIDENT: Others matters are on the improve?

PN19

MR WILLIAMSON: That's correct, Senior Deputy President. The salient points are the last couple of paragraphs of that letter.

PN20

THE SENIOR DEPUTY PRESIDENT: I'll just put that letter in the file for now I think.

PN21

MR WILLIAMSON: Sure. We say to him we need you to be a certificate four and we have given you a fair go at attending those courses. We say to him that in respect of these performance issues and some of them are quite critical to us because our funding will be dependent upon appropriate management of them. Some of them relate to drugs on premises and proper documentation of drugs. Some relate to the individual plans for each client because Kirinari is a disability provider and if we are not looking after our clients properly we will be the subject of criticism by the client or their legal representatives or the Guardianship Tribunal, because some of them are state guardians, and above all we could lose our funding. So we have to keep on our guard and keep that high level of performance. This is why the mark is set pretty high.

PN22

THE SENIOR DEPUTY PRESIDENT: Right, do you intend to confer with your Melbourne colleague?

PN23

MS THOMPSON: Yes.

PN24

THE SENIOR DEPUTY PRESIDENT: And get some instructions?

PN25

MS THOMPSON: That's correct.

PN26

THE SENIOR DEPUTY PRESIDENT: Well, I might stand the matter out generally and I'll restore it at the request of either party. Actually that's not such a practical way to do it, I'll stand it over generally and restore it at the request of either party. If you do need it relisted I'll refer the file back to Vice President Lawler. I will be on leave as from Friday for some time.

PN27

MR WILLIAMSON: Thank you. Can I say that I would like to see that if Mr Risby has got documents that he wants that this not be an open-ended environment, that he should ask for those particular documents, say, by the end of this week and we would supply them to him within seven days of that. We certainly don't want this dragging on for two or three months and having an argument about it.

PN28

THE SENIOR DEPUTY PRESIDENT: No, I think you can probably rely on the efficiency of the ASU representative for that purpose Mr Williamson.

PN29

MR WILLIAMSON: Thank you.

PN30

THE SENIOR DEPUTY PRESIDENT: The Commission is adjourned.

ADJOURNED INDEFINITELY [2.52pm]