C2004/6152, Transcript of Proceedings [2004] AIRCTrans 4003 (18 October 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 8669

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2004/6152

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by GSL Custodial Services Pty Ltd for an
order to stop or prevent industrial action

MELBOURNE

3.04 PM, THURSDAY, 7 OCTOBER 2004

PN1

MR M. CUSACK: I seek leave to appear on behalf of GSL Custodial Services Pty Ltd and with me is MR J. GOWAN and MS A. ANTICO, both from GSL Port Phillip.

PN2

THE COMMISSIONER: I am not sure I will be able to give you leave to appear but we will consider that later on.

PN3

MR CUSACK: Thanks.

PN4

MR R. BONESS: I appear on behalf of Community And Public Sector Union and appearing with me today is MR A. SINCLAIR, MR C. FOX and MR D. MAJCEN.

PN5

THE COMMISSIONER: Any objection to Mr Cusack appearing, Mr Boness? I take it no.

PN6

MR BONESS: Perhaps there shouldn't be, Commissioner, but it may be appropriate before we make a determination to hear from Mr Cusack the reasons why he believes he should be appearing on behalf of Port Phillip.

PN7

THE COMMISSIONER: I take it Mr Cusack is a consultant and is acting on behalf of the employer to try and assist them through the resolution of the dispute?

PN8

MR BONESS: Yes, that is the case, Commissioner, but we were in a process, with due respect, Commissioner, we were in a process to resolve some matters that had come to our attention only today, earlier this morning and we had entered into a process with the authority to deal with those matters and we were half way through that process in my view and all of a sudden we were presented with this listing here today.

PN9

THE COMMISSIONER: Well, I think you can understand, Mr Boness, if the employer has a genuine concern there was going to be a stop work which in a maximum security or a high security penal establishment which would lead to a lock down of the employees and that stop work was outside the terms of the enterprise agreement, the employer would be endeavouring not only to resolve the matter by conciliation and discussion with the employees but also to make it clear to the employees that the employer has rights in regard to ensuring that no stop work would occur.

PN10

I don't think we should get too bound up with the 127 application at this stage and what I am hoping is we can go into a conciliation at this point and endeavour to look at the reason for the problem, whatever that might be. I don't know what it is at this stage.

PN11

MR BONESS: Yes, thank you, Commissioner. I respect your view and I believe that Mr Cusack may be able to assist in the resolution of these matters and on that basis we will grant leave to appear, or standing to appear and if I may also add, Commissioner, that some of these matters that we have identified today are extremely serious matters and they do give us considerable concern.

PN12

THE COMMISSIONER: No, I have no doubt about that. But before we go into the details of what those matters might be, by the way, I am happy if you wish to put on the record what the matters are before we offer the opportunity for the parties to have some conciliation. But just in regard to Mr Cusack, I will grant leave to Mr Cusack to appear. I will just observe in the process that he used to be an official of the same union you are representing today as I recall.

PN13

MR BONESS: Well, that is news to me. But he would appreciate union processes.

PN14

THE COMMISSIONER: Well, there you go. that is history for you, you see.

PN15

MR BONESS: May I also add, we accept your direction there. We would like to put something on record prior to - - -

PN16

THE COMMISSIONER: Well, that would be helpful to me as well in terms of getting a bit of an understanding about what the problem is that has led to this notification and this hearing here today.

PN17

MR BONESS: Yes. I would also like to just apologise, Commissioner, for my appearance here today. I hadn't intended to be appearing before you so - - -

PN18

THE COMMISSIONER: Mr Boness, you are no different than any other union officials who appear before me regularly in casual attire. Different than the old days, I must say, when we all used to come along with collar and tie and I used to come along with a collar and tie even till the last day I worked in a job not dissimilar to yours. But anyhow, things have changed a bit, so I accept your observation about why you are here in jeans and a casual shirt.

PN19

MR BONESS: Thank you, Commissioner.

PN20

THE COMMISSIONER: Now, Mr Cusack, you are going to tell me what this is all about.

PN21

MR CUSACK: If the Commission please. Well, may I make a couple of observations before I do that, Commissioner. One, I thank the Commission for making available his time at short notice to assist the parties and just to place on record on the company's behalf our appreciation of the Commission's efforts in that regard. Just to reassure, if I may, Mr Boness and the CSPU the fact that EMA seeks leave to appear on behalf of the employer is as precisely as you suggested.

PN22

My organisation is one that plays a role with Port Phillip Prison and other entities within the GSL ranks as advisers in industrial and human resources management. We are not here to unduly prolong any agony associated with a real issue at the present, sir. We are here to facilitate the resolution of the difficulties that have obviously arisen between management and employees at the prison.

PN23

The fact that the application or the notification before you is in the form it is represents I guess the concern of prison management when the issue first arose that there was the prospect of industrial action and the Commission rightly concluded that prison management in that sense had to assess the situation and take into account the prospect that a suggestion of industrial action gave rise to, from a prison management point of view, the prospect of a lock down and that has consequences which are quite serious and on that I don't want to sort of labour the point but I merely make for the record the comment that the prison management and the employees of GSL who provide custodial services have a very significant public responsibilities for the prisoners.

PN24

Sir, the prisoners obviously for their faults and failings are incarcerated and suffering the pleasure of the community, but to add to their woe by a lock down we suggest, sir, is adding a burden to their already existing one and it is one that - - -

PN25

THE COMMISSIONER: How many prisoners are talking bout, Mr Cusack, approximately?

PN26

MR CUSACK: 740 I am informed, sir.

PN27

THE COMMISSIONER: 740 and they are in a maximum security prison?

PN28

MR CUSACK: Yes, sir.

PN29

THE COMMISSIONER: What does that mean? Basically it means that the prison is particularly tight in terms of security and individual prisoners have limits on what they can do in terms of getting out of their cells and things of this nature?

PN30

MR CUSACK: There are significant limitations on what can be done, sir, but we can go into that, sir. I just merely wanted to point out for the force, sir, that to the extent that there needs to be an explanation of the company's actions it is quite significant.

PN31

THE COMMISSIONER: There doesn't need to be, Mr Cusack.

PN32

MR CUSACK: I do need though to put it on the record.

PN33

THE COMMISSIONER: I think the people on the other side of the table are as reluctant as the management of the prison would be in causing any lock down of the prisoners and so forth. So everybody is here today to try and resolve the difficulty which underlies this particular dispute which I am yet to hear about.

PN34

MR CUSACK: And I am coming to that, sir. The process that we were processing really is akin to what you have suggested and that is essentially we would seek to have the opportunity to deal with the matters in conference and hopefully as a consequence of that develop a proposition that will resolve each of the issues and rather than me outline the union's issues I don't want to be put into the position of saying what it is. I would prefer that Mr Boness be given that opportunity.

PN35

But the essence of the issue, sir, is that a series of employees who were engaged on a fixed term basis came to the end of their fixed term period of employment during the course of this week. Some of them have been offered permanent positions where there were vacancies available. Some have had their fixed term period extended and others have not had their employment renewed. Now, as I said, I don't wish to put words into the mouth of the union.

PN36

I will allow the union obviously the opportunity to explain what it is that gives rise specifically to the concerns of the union, but we say the essence of it is that a number of members have not been continued in employment and as a consequence of that the union - or at least there was a suggestion that the union would take industrial action. Now, that in a nutshell is the issue, sir. We have had discussions during the course of the day as to specifically the, I guess, issues that gave rise to the concerns and the propositions that the unions saw as resolving those concerns.

PN37

Management of the prison is of a mind to come, I think, some ways towards addressing those and addressing them in the union wishes, or we believe, but it may well be that we don't go all the way and I guess that is really where we seek the assistance of the Commission to facilitate the process of fleshing out the real concerns and the mechanisms by which those concerns might be resolved. Resolved one, in the short term, and as I see it, as I am sure will happen when Mr Boness outlines the union's concerns, there are issues that go beyond just the immediate five, I think it is five people who no longer have employment, but go to practice and procedures as a matter of course within the prison. Now, they are issues that are not going to be resolved in a moment.

PN38

THE COMMISSIONER: Yes.

PN39

MR CUSACK: So we see it beneficial to have at least the potential for some ongoing involvement of the Commission in a process of bringing those longer term and perhaps wider implication issues to a satisfactory resolution both to management and the union.

PN40

THE COMMISSIONER: Good.

PN41

MR CUSACK: So at that point, sir, I propose to stand aside and allow Mr Boness to outline the specifics of the union's concerns and then if the opportunity is appropriate, we will address what may or may not be done to resolve them. If the Commission pleases.

PN42

THE COMMISSIONER: Mr Boness. What I would appreciate, Mr Boness, is just a brief outline of where you are and what you are seeking to do.

PN43

MR BONESS: Yes. Well, what the issues are is I got a call this morning from our members at Port Phillip and I am not the usual contact person from the CPSU so I was happy to go and assist in that regard. I went down to the prison and spoke to our members and then we met with the management and with relation to the fixed term employment contracts that Mr Cusack was referring to, they did have a nominal expiry date of 6 October.

PN44

When we started to look at what had occurred we found that the management were in breach of the fixed term contract provisions. They were also in breach of several provisions in the Group 4 Correction Services Enterprise Agreement 2003. We were also extremely concerned about the process that they had initiated because it appeared to us to be arbitrary and it appeared to us not to be consistent and it also appeared to us that it was in contradiction of natural justice and procedural fairness.

PN45

We also spoke about policies that we haven't had the opportunity to view and policies that may have come into play regarding, you know, the matters that are with us today and those policies went to issues like the management of file notes being introduced onto individual files. Also whether the policy regarding disciplinary processes, we haven't had an opportunity to view that and our members suggest that it hasn't been available to them as well.

PN46

We also asked about a policy regarding assessment of individuals and we haven't been able to sight that and what we had started to do was to work through a process which we can take you to when we get into conference to address those matters. There was no clear intention and indeed there had been no decision made at any point in time about, you know, perhaps prisoners being locked down or any industrial action being taken.

PN47

What indeed had occurred is that one of our members had approached the prison management last night and they had indicated that because of all of these issues, the breaches, the policies, the processes, etcetera, that were evident, that some people were incensed and they were considering their options which may also include locking down of the prisoners. But that was on the basis of having a meeting this morning at 10 am with management and that was also on the basis, Commissioner, that we went through industrial processes and union processes with our members before any of those determinations were made.

PN48

So I didn't go out to the prison today even having any inkling that, you know, we would be getting caught up in this listing, or indeed, as I said, our members hadn't relayed to me that a lock down could be an outcome of these matters before us today. So I would say with due respect, Commissioner, that when we have people who have been terminated and terminated not in accordance with legal entitlements and proper severance provisions and if we have also got people who were caught up in processes which are obviously unfair and unjust, then I would suggest to the management that people do get disgruntled and people do consider what action they may take, particularly when their colleagues have been terminated, or some of their colleagues have been terminated, and as I said, all of these issues that we have identified today are left unresolved at this particular point in time.

PN49

But we would be happy to go through a process with the management to see if we can't sort some of this out. We did ask the management for some assurances and those assurances basically went to adhering to due process and also applying award provisions to the process that they were entering into with some individuals. If the Commission pleases.

PN50

THE COMMISSIONER: Good, thank you, Mr Boness. I would propose that we adjourn into conference and see if we could address the issues specifically and resolve the matter. Is that satisfactory? Good. We will go into conference.

NO FURTHER PROCEEDINGS RECORDED