C2004/1630, Transcript of Proceedings [2004] AIRCTrans 676 (19 February 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 10803
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2004/1630
C2004/1634
C2004/1636

THE COMMUNITY AND PUBLIC
SECTION UNION

and

STATE TRUSTEES LIMITED

Notification pursuant to section 99 of the Act
of a dispute re alleged failure to consult with
respect to restructure in the workplace

Application under section 170LW of the Act
for settlement of dispute re consultation,
restructure and redundancies

STATE TRUSTEES LIMITED AWARD 2001

Application under section 33 on the Commission's
own motion to suspend the operation of or delete
clause 4 - Exemptions

MELBOURNE

8.37 AM, FRIDAY, 6 FEBRUARY 2004

PN1

MR D. CHEESEMAN: I appear, together with MR W. TOWNSEND, for the CPSU-SPSF Group.

PN2

MR S. PETERS: With leave of the Commission, I am an industrial advocate appearing for State Trustees.

PN3

THE COMMISSIONER: Any objection to the application for leave?

PN4

MR CHEESEMAN: Yes. The Community and Public Sector Union does object to it. We don't believe that there is any jurisdictional questions before us today or any technical legal argument.

PN5

THE COMMISSIONER: Mr Peters.

PN6

MR PETERS: Thank you, Commissioner. Our application to appear is made under section 42(3)(b) and (3)(c) of the Workplace Relations Act on the following grounds, Commissioner, I would elaborate on them. In terms of 42(3)(b), in our submission the facts of the application create a special circumstance. It is my submission that professional advocacy from both sides of the table on this occasion would assist the Commission to reach a far more speedy conclusion to today's proceedings.

PN7

Further, it will be our submission that the factual points of this dispute matter are such that most, if not all, of the current dispute claim before the Commission are only a dispute by technicality. We note that there has been a long-held precedent. I refer the Commission to the Metal Trades Award decision by Drake-Brockman CJ in 1948 and the Waterside Workers Award of 1962 in which the tribunal head - and Commissioner, I can indicate I can hand this submission up if you wish.

PN8

THE COMMISSIONER: No, that is all right, I am familiar with it.

PN9

MR PETERS: The Waterside Workers Award of 1962 in which the tribunal head indicated a preference for legal representation as such representation assisted the Court. In our view, in terms of 42(3)(b), and given what we have said about our argument - or our client's argument will be that this is a technicality of this dispute only, if at all. The alternative would be that if consent was always denied - and then refused, a union or similar body with automatic rights could place an application, even if that application had scant or little factual basis to it, and by doing so force another party to attend the Commission to that other party's disadvantage. So briefly in terms of 42(3)(b), we say there are special circumstances in this particular application.

PN10

In terms of 42(3)(c) - I am sorry, Commissioner, I thought you were going to ask a question. It is my submission that in terms of section 42(3)(c) the Commission is afforded a special discretion beyond that of subsection (b) which refers to the special circumstances, as I said, of the application. That discretion in 42(3)(c) was provided as a result of the recommendations of the Hancock Committee of Inquiry which found that the special circumstances held to justify representation should not be confined to the subject matter of the dispute only.

PN11

42(3) suggests - 42(3)(c), I am sorry, suggests that the Commission should also have regard to the circumstances of the unrepresented party. I submit that the mere nature of an industrial dispute is rather daunting for any employer who does not have an industrial advocacy background or support on staff to adequately consider and understand such a situation. When that alleged dispute involves, as it does here, a number of union members who happen also to be lawyers in the organisation, and who are supported by professional union organisers and advocates, then it is my submission there would be a disparity between the parties in this matter if the union members were afforded the sole opportunity to be represented.

PN12

Clearly those people who are appearing on behalf of the union do so as part of their day to day activities. In terms of the general relationship with jargon, nuances and the intricacies of the Commission, the union is at an advantage and there would be an increased perception, if you like, in the actual interests of justice or fairness if the employer was not similarly represented during these proceedings in our submission, Commissioner.

PN13

THE COMMISSIONER: Thanks, Mr Peters. Mr Cheeseman.

PN14

MR CHEESEMAN: Thank you very much, Commissioner. Look, the heart of this dispute is with respect to failing to consult with the union and its members. As I say, there is no technical legal arguments required today, there is no question of jurisdiction, both myself and my colleague, Mr Townsend, do not hold any legal qualifications at all with respect to IR. State Trustees do have a dedicated people solutions team, they have been at the Commission on a number of occasions, they are aware of the processes required, they do have a certified agreement and an award, and the disputes today go to failing to consult with respect to obligations under the enterprise agreement. So we don't believe that there is any requirements at all for counsel to be granted for them to appear. If the Commission pleases.

PN15

THE COMMISSIONER: Yes, thanks, Mr Cheeseman. Well, I have considered the application for leave to appear, and whilst not endorsing all of the reasons granted as to why I should grant leave to appear, I propose to do so. Leave is granted, Mr Peters.

PN16

MR PETERS: Thank you, Commissioner.

PN17

THE COMMISSIONER: Now what is this about?

PN18

MR CHEESEMAN: If the Commission pleases - - -

PN19

THE COMMISSIONER: Now let me tell you, at the moment you have got 20 minutes, you will have other time during the day depending upon what you tell me now.

PN20

MR CHEESEMAN: Sure, thanks, Commissioner. Look, several weeks ago Community and Public Sector Union members at State Trustees raised a number of occupational health and safety concerns with management. Those concerns go to having to - - -

PN21

THE COMMISSIONER: No, can you - I am sorry to interrupt you, but your notification says that unless people sign individual contracts by close of business tonight they will be made redundant, is that what you say is going to happen?

PN22

MR CHEESEMAN: Yes, we do say that.

PN23

THE COMMISSIONER: How many people involved?

PN24

MR CHEESEMAN: Four.

PN25

THE COMMISSIONER: Four.

PN26

MR CHEESEMAN: Correct.

PN27

THE COMMISSIONER: Yes, go on.

PN28

MR CHEESEMAN: On Wednesday afternoon, the Community and Public Sector Union received a notification that there was going to be a restructure in the estate planning team.

PN29

THE COMMISSIONER: What they did a spill and fill did they?

PN30

MR CHEESEMAN: That is what they were proposing to do, correct.

PN31

THE COMMISSIONER: Yes.

PN32

MR CHEESEMAN: And as a consequence of that, the union was given until 12 o'clock today to respond to the proposed change.

PN33

THE COMMISSIONER: When were you told?

PN34

MR CHEESEMAN: Wednesday.

PN35

THE COMMISSIONER: Yes.

PN36

MR CHEESEMAN: Now under the enterprise agreement there is consultation clause.

PN37

THE COMMISSIONER: Have you got that?

PN38

MR CHEESEMAN: I do.

PN39

THE COMMISSIONER: Can you hand it up for me please?

PN40

MR CHEESEMAN: Clause 8. Under that particular clause, Commissioner, there is the requirement for State Trustees to provide to the union and to the affected workers the rationale, the background obviously behind it, it is a very similar clause to the Victorian Public Service Enterprise Agreement. Now with providing the union with only two days that didn't provide obviously sufficient opportunity for the union and its members to consult with management with respect to that. The time frame, as I indicated to you, that was provided to us with respect to responding to that provided until Friday to respond, and I can table the document if you would like - - -

PN41

THE COMMISSIONER: Yes please.

PN42

MR CHEESEMAN: - - - with respect to a fax that we received with respect to - - -

PN43

THE COMMISSIONER: And show Mr Peters first.

PN44

MR CHEESEMAN: Sure. We received a fax from State Trustees which outlined the nature of the change in very scant detail. It provided, as I say, if you turn to the last page of that document, until Friday lunchtime today for the union to respond to that proposed change.

PN45

THE COMMISSIONER: Now tell me why somebody has to sign an individual agreement not to be made redundant.

PN46

MR CHEESEMAN: Okay. Sure.

PN47

THE COMMISSIONER: And what sort of individual agreement.

PN48

MR CHEESEMAN: Okay. Firstly that State Trustees were proposing that as the work value had increased, which we dispute - - -

PN49

THE COMMISSIONER: Yes.

PN50

MR CHEESEMAN: - - - that it would take beyond the classification levels as spelt out within the agreement and the award.

PN51

THE COMMISSIONER: Yes.

PN52

MR CHEESEMAN: The award provides for total employment contracts to be provided beyond the scope of the agreement and the award.

PN53

THE COMMISSIONER: Yes.

PN54

MR CHEESEMAN: If my members are unsuccessful in applying for and gaining those positions they will be made redundant, and if they are successful in obviously gaining that position then they will be forced to sign these total cost employment contracts.

PN55

THE COMMISSIONER: Very well.

PN56

MR CHEESEMAN: We say that the appropriate thing to do today is perhaps to adjourn into conference and to put in place a regime to consider and consult with the affected employees, the union, and management.

PN57

THE COMMISSIONER: Yes.

PN58

MR CHEESEMAN: We believe that that period should be somewhere in the vicinity of three to four weeks. Worksafe yesterday met with both the union and also State Trustees on the occupational health and safety matters that we did have concerns with. Those matters that were raised, as I indicated at the commencement of today's proceedings have been included within the total cost employment contract duty statement. So we believe that the Worksafe investigation needs to be conducted first. It needs to be finalised, and also there needs to be adequate time for appropriate consultation, Commissioner.

PN59

THE COMMISSIONER: Yes, well, let us not consult them to death. Do you think three weeks is enough?

PN60

MR CHEESEMAN: Three weeks, hopefully, should be sufficient

PN61

THE COMMISSIONER: Mr Peters, what do you say about that?

PN62

MR PETERS: Thank you, Commissioner, I will be brief, given what you have said. In terms of point - - -

PN63

THE COMMISSIONER: It is all right, we can always re-visit it later on today, but I would like to get a handle on what this is all about.

PN64

MR PETERS: No, I understand. I think - yes, I think it is important to clarify the first point that you did as well, Commissioner. There has been no indication at all that staff have until close of business, as this application of alleged industrial dispute says, until Friday, 6 February, that is today, to be made redundant. That is not the case at all.

PN65

THE COMMISSIONER: Do they have until close of business tonight to be considered for selection for these new positions? Will decisions be made as of close business tonight?

PN66

MR PETERS: No, that will not occur tonight at all, Commissioner.

PN67

THE COMMISSIONER: Yes, thank you.

PN68

MR PETERS: In terms of the document certainly, that Mr Cheeseman handed up, I was going to hand up a similar document so - and I thank Mr Cheeseman for that.

PN69

THE COMMISSIONER: I will mark that CPSU1 just for identification purposes at this stage.

EXHIBIT #CPSU1 DOCUMENT

PN70

MR PETERS: I might also, just briefly, for formality, hand up a document, a similar document, just in terms of the fact that this was also e-mailed to Mr Cheeseman on - certainly prior to this particular dispute being lodged, Wednesday, 4 February at 9.38 am.

PN71

THE COMMISSIONER: Yes.

PN72

MR PETERS: And I might also indicate - I have one copy I can hand it up, if you like, Commissioner, but I can read it to the record. Not the whole document obviously. But the staff involved here have gone through a presentation, if you like. The important parts of this, I suppose are that in terms of background, the bullet point of the Powerpoint slide says:

PN73

In early September 2003 a decision was made to conduct a review of the Estate Planning Wills Team ...

PN74

Which is in fact the team that are being referred to today. This involved analysis of such - analysis of areas such as structure systems, processes, services and people. And as a result of this review a restructure was proposed and in the next week - now this was given this week - in the next week that restructure will actually commence. And also to indicate to you, Commissioner, that feedback only - we are only looking for feedback at this stage, on the proposed structure.

PN75

And of course this document that all the staff got a copy of, had the structure. I will hand it up in a moment. I am hopeful that Mr - it looks as though Mr Cheeseman has it, so I will hand this copy up to you, Commissioner. I will get another copy. I just didn't have time today to photocopy it. Feedback is required today. That is what we have been seeking from the Union and from the employees, our clients have, and in terms of the application made and in terms of the time today, we have no difficulty with the proposal the parties get together to consult. In fact, we welcome it quite frankly.

PN76

The difficulty, however, is the three weeks. Now, Mr Cheeseman may wish to speak to this point again in a moment, so again I will be brief. But there - he commenced with bullet point 3 of his Union's application, which talked about concern regarding OH&S matters. Without getting into the intricacies - too much of that OH&S matter - the situation we have at the moment is that some of this party, if not all, are refusing to comply with a particular component of their contract in terms of going to do their job at clients' houses.

PN77

Now as a result of that, that has impacted even more upon the difficulty that the company is having on an economic basis. It is extraordinary in fact, Commissioner. And we don't have time at the moment to go through it, but the reality is, of course, that State Trustees has an obligation at government level to do certain things, and it is unable to do it efficiently at this stage. So there is a relationship there. I will hand this particular document up, if Mr Cheeseman accepts that it is the same document exactly as the one you have there.

PN78

THE COMMISSIONER: Thank you.

PN79

MR CHEESEMAN: That is it, yes.

PN80

MR PETERS: All we would ask for, Commissioner - I am sorry - all we would ask for, Commissioner, is that we move more quickly than three weeks. We would suggest that Tuesday of next week - in fact our office is available if the CPSU doesn't have a difficulty with that. We have a boardroom. We would be more than happy. We have more than enough room for this group of people. And we would be more than happy to consult off-site, if that was helpful, whatever is required. But we need to do it very quickly because we are not meeting the obligations of, as I say, the government and other specifications.

PN81

THE COMMISSIONER: Yes, I follow. Yes, Mr Cheeseman.

PN82

MR CHEESEMAN: There is just a couple of - Commissioner, firstly there is just a couple of, I guess, differences of opinion between the Community and Public Sector Union and the employer representative. Firstly, as can be seen by the last page of CPSU exhibit 1, the new structure does in fact in take effect as of 9 February. Now without the detail that has been - considering the lack of detail that has been provided to us on Wednesday, we can only draw the conclusion from that that people have until Friday to in fact accept, reject, go through a selection process, or be made redundant, so that they can then be placed into the new structure, or not placed in the new structure.

PN83

With respect to the functions of work that have at this stage not been performed over the last few weeks, Worksafe are involved with that, Commissioner, because of the occupational health and safety issues that our members are faced almost on a daily occurrence. They could be occupational violence, dealing with hazardous biological substances, or being exposed to them, coming across alcoholics and people who have drug dependencies, these are the reasons why CPSU members have involved Worksafe in looking at it.

PN84

Currently they are expected to go one up to clients homes which is placing them in a very vulnerable situation. We got Worksafe involved, as I have alluded to, to have a look at it. We believe that the health and safety of our members is very very important. Our members have refused to perform certain functions of work under the Occupational Health and Safety Act because of the serious concerns that we do have. The new proposed duty statements include all of the functions that our members under the Occupational Health and Safety Act have refused to perform.

PN85

Worksafe indicated to us yesterday that they were looking at section 54 of the Occupational Health and Safety Act because there was concerns that the members of the Community and Public Sector Union, their employment is being put at risk because of legitimate occupational health and safety issues that have been raised.

PN86

THE COMMISSIONER: Yes, all right thanks, Mr Cheeseman. What I am going to do is this: I am going to refer the parties into conference now, where you meet I don't mind; you can take up Mr Peters' offer to meet in his boardroom if you want, or somewhere else, or we can find a room here for you. Mr Cheeseman, you will put in by 11.30 today an application pursuant to section 170LW of the Act for an application to determine the proper application of the agreement. I will reconvene at noon at which time I will call on of my own motion an application to vary the award to remove that part of the award that provides the exemption from the award provisions.

PN87

I raised that - openly raised that with the parties the last time I had a dispute, nothing has happened, I have now got another dispute, it will be called on at my own motion, and I will deal with matters going to that. If that is at the core of this dispute as well, I want to find out about it. I will reconvene at noon, the matter is adjourned until that time.

SHORT ADJOURNMENT [8.55am]

RESUMED [11.59am]

PN88

THE COMMISSIONER: Any change in appearances?

PN89

MR M. PERICA: I now appear with my colleagues for the CPSU.

PN90

THE COMMISSIONER: Thank you, Mr Perica. Now, who wants to report on the discussions? Yes, Mr Cheeseman.

PN91

MR D. CHEESEMAN: Thank you, Commissioner Smith. We have had discussions with the employer, as suggested by the Commission this morning, for a period of about an hour or so. It became fairly clear that there was in fact more issues that needed to be considered by our members. Unfortunately I am not in a position to be able to report good news to the Commission this morning.

PN92

THE COMMISSIONER: Well, go away and come back when you can.

PN93

MR CHEESEMAN: I wish, Commissioner, we would be in a position to do that but this matter is very urgent. Clearly the new structure, as proposed by the employer will take effect as of 9 February. That was detailed within the exhibit I think marked CPSU1 this morning - the last page which I referred you to a little earlier. So, as I say, we are - the parties perhaps are even further apart than what we thought this morning when we initially lodged the section 99 before you.

PN94

THE COMMISSIONER: All right. Mr Peters.

PN95

MR S. PETERS: Thank you, Commissioner. We disagree slightly with what Mr Cheeseman has said and perhaps that - - -

PN96

THE COMMISSIONER: It is not as depressing as he paints it, is it?

PN97

MR PETERS: That is correct. Well, perhaps it reflects the fact that he was not party to those hour and a half discussions - his colleague Carl Marsich was. In terms of 9 February, we have said it before in the Commission and we have said it before the group in the private consultation, or the group consultation, this does not occur on 9 February as Mr Cheeseman has said on a couple of occasions. In other words the structure does not occur at that time. The purpose of today's consultation was to gain some further information as to the concerns of the four employees.

PN98

We can report that in fact that was, in our view at least, a fruitful discussion insofar as there were a number of issues that were brought forward that required further clarification. We take that on board. They clearly do and it is our intention to provide that further clarification in totality by no later than 5 pm, on Monday of next week. Now again that will be for their consideration. It is not - and I stress it because it seems to be being missed somewhere, but it is not so that it will occur on 9/2, it is just some relevant questions were asked by the four people and their representative, Carl, the OH and S officer - - -

PN99

THE COMMISSIONER: Are you able to give me an undertaking that it will not occur earlier than 13 February?

PN100

MR PETERS: The - - -

PN101

THE COMMISSIONER: The restructuring?

PN102

MR PETERS: I will get some instructions. The actual restructuring?

PN103

THE COMMISSIONER: Yes, you know, things will go on and there will be discussion and consultation - - -

PN104

MR PETERS: Well, can I answer the question. I am happy to get an exact answer but can I answer the question that our proposal to the Commission today was that we would put by Monday, as I say, 5 pm, the - can I put it this way, the final package together so that the employees could consider it and certainly our suggestion to the Commission, if accepted, was that they respond back to us by Friday, 13 - - -

PN105

THE COMMISSIONER: I see.

PN106

MR PETERS: And then after that we will know where we are up to at least in terms of the next step.

PN107

THE COMMISSIONER: I see. Is that how you understood it, Mr Cheeseman?

PN108

MR PETERS: Well, he would not know at this point because I have not discussed that point with him yet, so - - -

PN109

THE COMMISSIONER: I see.

PN110

MR CHEESEMAN: I can confirm that we have not had discussions with respect to that time frame.

PN111

THE COMMISSIONER: Well, why do not we adjourn into conference in the first instance and see whether or not there is any misunderstandings that we can clear up as to how this might go. I mean are you content for that course, Mr Peters?

PN112

MR PETERS: Yes certainly, Commissioner. Thank you.

PN113

THE COMMISSIONER: All right. I will adjourn into conference.

SHORT ADJOURNMENT [12.04pm]

RESUMED [2.34pm]

PN114

THE COMMISSIONER: Now I have sought to see whether or not agreement is possible between the parties but alas that eluded us and so it appears under the three files that are listed now that further conciliation would not be necessarily beneficial and I so find. Now, is there any view as to how the parties see this matter proceeding for now? Mr Perica?

PN115

MR PERICA: From - our preference would be, Commissioner, is for us to deal with the section 33 matter first.

PN116

THE COMMISSIONER: Yes.

PN117

MR PERICA: And, subject to that then, I propose to go first on that matter and then deal with the consultation issue.

PN118

THE COMMISSIONER: Thank you. Mr Peters?

PN119

MR PETERS: Yes, that is fine, Commissioner, thanks.

PN120

THE COMMISSIONER: Very well. Thanks, Mr Perica.

PN121

MR PERICA: Your Honour, Commissioner, I of course rely on matters that were put before you on the record in the section 99 this morning.

PN122

THE COMMISSIONER: Yes.

PN123

MR PERICA: In relation to the section 33, it is clear you have the power of your own motion to vary and suspend awards under section 111(1)(f) and section 113(2) of the Act and we would urge you to exercise those powers of your own motion either in the alternative to deleting clause 4 of the award - of the State Trustees Limited Award 2001 altogether - or, in the alternative, suspend the operation of clause 4 for the period of five weeks.

PN124

Now the argument in support of you using your power of your own motion to do that is as follows. Now the first argument is the employer is using the exemption and in these circumstances it is proposed a restructuring in a punitive fashion. It is at least implicit that the proposed restructure is being motivated by a desire to remove award and agreement regulation to punish those who put up their hand on the issue of the home visits. Now the evidence, or the submissions we say, in support of that implication are as follows; early in January 2004 the issue of the home visits was raised as an issue in the Estates Planning Team.

PN125

A series of meetings concerning that issue takes place and a WorkSafe officer are consulted. Within a month of that occurring, on 4 February, giving a time period of three days and on their document it says: "Week commencing 9 February 2004, the statement to discuss change will be implemented on this day". Now, giving a period of four days and that - if that is what is called "consultation" I will go he, but in any event four days for the four of the employees to be taken out - 11 of the employees to be taken outside the regime of award and agreement regulation.

PN126

The agreement - the award regulation is predicated on being covered by the award and of course the classifications "I" and "T" are beyond that. The first duty described in the position descriptions which are the subject of the proposed of the restructuring are:

PN127

Elaborate the existing duties in relation to home visits and expand on that.

PN128

And can I - perhaps I might tender that. This is the proposed position description for an Estate Planning lawyer and - the new and the old are attached to that. And I will - I will seek to tender that.

PN129

THE COMMISSIONER: I will mark that - I think for present purposes unless there is any submission to the contrary I will join the three files.

PN130

MR PERICA: Yes, Commissioner.

EXHIBIT #CPSU2 COPY OF OLD AND PROPOSED NEW POSITION DESCRIPTIONS

PN131

MR PERICA: If you turn to page 2 of the 4 of that position description, the first - the very first key result areas are the one that is subject to the Occupational Health and Safety dispute:

PN132

Meet with client to take instructions, State Trustees Head in Glen Waverley Office, agent locations, client homes and hospitals, hostels and aged care facilities will involve evening and weekend work. Meet with clients and take instructions at rural locations and will involve regular overnight travel.

PN133

Now, we say that leads to at least a strong implication that they are proposing, in the restructuring, to use the exemption in a punitive manner and of course once they are outside of the agreement and award regime they are not subject to the consultation requirements. Now even if you conclude there is no or little connection between the reality of the OH and S issues in the restructuring the fact that they are restructuring the proposal to take employees outside the award purports to the problems with the exemption.

PN134

The terms of the exemption enable award and agreement regulation by employees of the Act. They can restructure at any time and take employees out of the award regulation and the agreement regulation. It is an object as you know, Commissioner, of the Act to ensure maintenance of an effective award safety net of fair and enforceable standards. Now such contingent standards, depending on the Fiat of the employer, do not meet that object. Now the terms of the exemption defeat those object - that object and the proposed restructuring exemplifies the contingent nature of the award and the agreement regulation.

PN135

Now suspension of the - suspension or deletion of the provision would impel the employer to abide by its consultative obligations and promote a level playing field while the consultation takes place. So we would say that it would assist the parties in the good faith resolution of this dispute, given the quite detailed consultation requirements in relation to workplace change in the award - in the agreement, if you were to suspend or delete the provision in the award.

PN136

THE COMMISSIONER: Thanks, Mr Perica. Mr Peters.

PN137

MR PETERS: Thank you, Commissioner. I, too, rely on today's proceedings on the record - that were on the record. Commissioner, I will not add much to what my friend has said except to remind the Commission that of course for the four people involved today consultation is not precluded by anything that you do today insofar as they are. They are not exempted by 4 in the award or by the certified agreement. Now I point your attention, Commissioner, to the appropriate clause in the certified agreement that indicates very clearly that the parties are bound except only those employees governed within the bands I and T and the four people party to this dispute are, of course, in the band R.

PN138

So in fact consultation as I indicated in today's earlier proceedings, and now and certainly in the future, will not be affected by the decision you make or do not make in terms of the application under - on your own motion related to 111F and 113(2) of the Workplace - - -

PN139

THE COMMISSIONER: Do you say that agreement does not apply to the persons?

PN140

MR PETERS: For I and T - I am sorry, Commissioner, I may have not led you properly there. If I take you to the certified agreement - I assume you have a copy?

PN141

THE COMMISSIONER: Yes, I do. Thank you.

PN142

MR PETERS: And if I take you to the agreement and look at clause 3, "parties bound" - - -

PN143

THE COMMISSIONER: Yes.

PN144

MR PETERS: It is clear that the parties that are bound to this agreement shall apply to and be binding on State Trustees Limited and all categories of employees employed by State Trustees Limited and who are eligible for membership of the Community and Public Sector Union.

PN145

THE COMMISSIONER: Yes.

PN146

MR PETERS: Now we assume that these four people are either eligible or members. They are clearly a category of employee and the exception is only there following that comma, which says?

PN147

Except those employees who are in bands I and T and on individual contracts.

PN148

These people are not. They are in R. And I will remind the Commission.

PN149

THE COMMISSIONER: So they are bound by this agreement.

PN150

MR PETERS: That is exactly right.

PN151

THE COMMISSIONER: Yes, I follow you.

PN152

MR PETERS: And the consultation of course is within the agreement.

PN153

THE COMMISSIONER: Yes.

PN154

MR PETERS: Now even if we then go to the award, in terms of clause 4. Of course it talks in more extensive terms, perhaps we could say, it relates in fact to I and T although it does not say that because it says:

PN155

Does not apply to employees who have agreed to enter into total employment cost contracts provided that the employee receives a salary for working ordinary hours that is graded in the minimum rate for that work in this award and for the overall benefits and conditions of the total employment contract cost are not less favourable -

PN156

etcetera, to the award. Now, of course these employees are not governed by clause 4 anyway. They are not on a total employment contract.

PN157

THE COMMISSIONER: No.

PN158

MR PETERS: So the consultation will always be there and I make the point that whatever decision you make in terms of combining the three issues they will not be affected by an adjustment to clause 4. That said, I note that my friend has referred to either deletion or suspension and, clearly, we accept that the Commission has the right obviously to adjust, suspend, delete, etcetera a clause in an award and, if the Commissioner was of a mind to suspend or delete, we would firstly prefer suspension clearly and if that was the case we would remind the Commission as we indicated in conference that the company is faced with some extraordinarily important Management implications insofar as by 1 March there is a specific drive, if I could put it that way, promulgated by the State Government where certain work has to occur and five weeks as a suspension would therefore be too long.

PN159

So, at the very worst if I could put it that way, Commissioner, we would look at two or three weeks' suspension. Now, finally then I would say as follows that the difficulty is that the award is somewhat too inclusive. It talks about all employees of State Trustees and of course that means from the Managing Director down. Now at a point of time we get to R - band R employees. That is fine - M E R are those people that are not on total employments but everyone above including the Managing Director and anyone that is employed between now and whenever this matter is finalised would be placed in a position where well, the Company would be, where a contract would be given to that employee and he or she would also - even though they would be remunerated and rewarded in terms of the total employment contract, would also have rights under the award and some of those are difficult ie overtime, perhaps situations of unfair dismissal and other things that are within the document and I guess I do not need to say anything more on that, Commissioner. I assume I have made my point there.

PN160

So the difficulty we have with suspension or deletion is obviously a critical difficulty. Suspension of even a period of time would, in our submission, be something that the Commission should consider very carefully insofar as we would ask if suspension is something the Commission wants to do in terms of these employees, even though we have said that they are not really covered by this anyway because of the consultation issue, that it only reflects a suspension in relation to these employees.

PN161

So, in other words, we should - well, yes, so in other words we should be able to employ someone if we have to - I do not know if we have a reason for that but it may occur, over the next let us say three weeks of suspension or whatever the decision is made, and know that they are not also then covered by the award and of course looking retrospectively or looking backward if you like, there should be some other employees that are not from your decision - if you do make a decision that way, suddenly owed overtime from you know 3 o'clock today or something in terms of that issue or have sudden - certainly have sudden rights which, at the time of the fair contract that was put before them which they agreed, we as the Company did not think they would have. Thank you.

PN162

THE COMMISSIONER: Yes, I follow. Thanks.

PN163

MR PETERS: Thank you.

PN164

THE COMMISSIONER: All right. I do not need to hear from you Mr Perica. I have considered the submissions on this aspect. It is unusual for a member of the Commission to raise a matter of its own motion and I do not do so lightly. There are some general issues in relation to safety net coverage of the award which are important in any consideration of an exemption clause. However, the immediate matter relates to a group of employees who are apprehensive about work that they might be directed to do, or work that might be given to other persons who are employed, in the event that the company has the opportunity to use the exemptions clause.

PN165

I propose to take a cautious approach. I propose to make an interim order varying the State Trustees Limited Award 2001 to provide for a clause - a new clause 4.3. Now that clause will read as follows:

PN166

Clause 4.1 and 4.2 shall not apply from Friday, 6 February until Friday, 20 February 2004, except that clause 4.3 shall continue to - except that clauses 4.1 and 4.2 shall continue to apply to employees who have entered into a total employment cost contract as at today's date.

PN167

The order can be subject to variation upon application prior to 20 February if there is reasons to do so otherwise I shall be putting in place other matters to seek to resolve this dispute. Now, Mr Perica, I will hear you on the LW matter.

PN168

MR PERICA: Your Honour, I will not necessarily ventilate these issues but in my vehicle builder's days I had the ignominy of coming to the Commission on various other disputes in relation to the quality of chicken wings that - and that proved the loss of two days and I got pretty belted by the Commission then but this is not a dispute like that. I only say that as to counterpoint this issue. What we are - - -

PN169

THE COMMISSIONER: I was not the member of the Commission then I do not - I might have been might not I?

PN170

MR PERICA: I think you were. I think you were on the panel - - -

PN171

THE COMMISSIONER: Toyota.

PN172

MR PERICA: Yes.

PN173

THE COMMISSIONER: Yes, I recall. I recall.

PN174

MR PERICA: This is not one of those disputes. There is subject matter of Occupational Health and Safety dispute and this matter could not be more serious. We are talking about assaults, indecent exposure and you know, being exposed to faecal and urine matter - and urine. Now in that context it is a serious matter and a legitimate matter for our members to be concerned about. Now it is, in my submission, laughable that in the context of an ongoing serious issue like that a restructuring is raised and the timetable that is initially set by the employer is four days - not even four days, 4 February until 9 February.

PN175

Now they have, in clause 8 of the agreement - certified agreement 2001, they have a lengthy and extensive consultation part and communication it provides, and they - that produces obligations on the employer in relation to provisions of detailed information; which we say we have not been provided, a series of meetings and an exchange of views with an open mind including the consideration of alternatives. Now none of that has happened. It has been presented to us as a fait accompli. "This is going to happen. We are going to have your input", currently by Friday noon for our input - decision on Monday.

PN176

Is that legitimate consultation? It is not. And it is very telling that in their document to us that depends is not on timing and consultation, it is called "compiling and communication" - we communicate our desire to get rid of these four employees over the next four days. Now in those circumstances we say there has been abject failure on the employer to meet its consultation requirements under the Act and given your previous order - interim order in relation to the section 33 matter we propose that they be directed in such a manner to impel them to consult in a sensible and good faith manner in accordance with the provisions of clause 8.

PN177

And we would see the following directions; that no restructuring was to take place in the Estate Planning Team on or before a report back before the Commission in four weeks' time. Prior to the next report back the parties confer, meet and exchange information concerning the proposed restructuring, and liberty to apply. Now your Honour, I have also - should you be interested in doing so we seek a direction that on or before the close of business on Tuesday, 10 February, that a discussion take place between officers of the union and the employer to seek to discuss the possible resumption of workplace visits subject to the report back of the Occupational Health and Safety issue.

PN178

THE COMMISSIONER: Thanks. Mr Peters?

PN179

MR PETERS: Thank you, Commissioner. I, too, will not ventilate that this matter any than it needs to. I understand my friend was not privy to today's communication - today's hearing in the earlier hours of the day. I have indicated that we stand by the matter on record and I note that we have said, and I am lucky to have my office here of course that I have already seen the transcript of that and we certainly have said, very clearly in terms of that situation, that no decision was going to be made by today and in fact I said that the application of the alleged industrial dispute does not - and we do not say that we will make anyone redundant by today and we certainly did not intend any and if so we have certainly withdrawn it. That is the way it has been read - withdrawn that - that will occur on Monday.

PN180

Now I appreciate my friend has a particular view on what the words, "timing and communication" mean, but of course we have handed documentation forward to Mr Cheeseman of the union by e-mail and by fax. We have sought consultation, we have taken part in consultation today at the suggestion or the direction of the Commission next door. We are more than happy to get further consultation. We have said that in a number of ways. We seek, in terms of this matter, a link in to the decision that you just made, Commissioner, if we could.

PN181

We would suggest that the four week situation steps outside of at the very least the suspension of the award and we would suggest that we would be a little bit more explicit that we will undertake, by Monday, as we have in private conference, to indicate to you that we will provide a second version of the documentation based on today's consultation and we would seek a return by no later than Friday from the union, or the members, whichever they prefer for us to reconsider and then by the following week we would be able to provide some further input in terms of that documentation for their consideration.

PN182

We naturally reserve the right, if you like, to - well, we remind I suppose as far as that is necessary at all that Management have lots of other demands upon them as I said earlier by State Government, etcetera, and all that is happened at this stage is that the list of people that are not - clients that are not being serviced is increasing. We have also indicated that we await also the decision of the - the ruling of the Occupational Health and Safety - I am sorry, the WorkSafe officer. We have indicated both in private conference and publicly that the Company understands and wishes to follow its obligations under the Occupational Health and Safety Act and that has never changed at all.

PN183

So we are more than happy to wait for the ruling on that in terms of a number of issues although of course we have made some suggestions in relation to the return to home and similar visits. So, briefly, we ask for two weeks - we ask for a return, if necessary before the Commission or between the parties, two weeks from today. We ask that they either confer on a face to face basis or in writing on our documentation that we will provide by close of business on Monday, and we ask that occur by the following Friday.

PN184

Now we appreciate that it may relate to the Occupational Health and Safety issues but that will be something that the WorkSafe person coordinates or rules on but certainly we should be able to get some return in terms of what the documentation - in terms of structure; in terms of performance description - position descriptions, thank you, say - we should be able to get some return by the following Friday. Thank you.

PN185

THE COMMISSIONER: Thanks, Mr Peters. Well, I have considered what again has been put in this matter and I have examined the clause in the award. I do not propose to make a direction at this stage, but simply to recommend that the parties do confer as a matter of urgency in relation to these matters both as to the new structure and I emphasise observations I have made in relation to consultation in other matters, namely that it is not perfunctory advice it is giving people an opportunity to contribute to the matters over which the decision maker has to finally reach a decision.

PN186

It is not shared decision making but people have to believe that the decision maker has genuinely taken into consideration their concerns. Also what I propose to do is to urge the parties to meet and to use their best endeavours to seek to reach agreement in relation to the return of home visits. Now I make no judgment whatsoever about the concern that employees have expressed about their Occupational Health and Safety. That is a matter that is progressing before a WorkSafe Inspector and by me urging parties to use their best endeavours is not forming a view as to the validity or otherwise of the concerns held by employees.

[3.01pm]

PN187

THE COMMISSIONER: I will list the matter for report back at 9 o'clock on Thursday, 19 February so that I can hear how the parties have been going in their discussions and consultation, and see whether or not any further directions or action by the Commission is needed. Is there anything else?

PN188

MR PETERS: Commissioner, could I impose upon the Commission to provide a transcript of this particular part?

PN189

THE COMMISSIONER: As soon as we can and the order should be issued tonight as well.

PN190

MR PETERS: Thank you.

PN191

THE COMMISSIONER: Thank you very much and thank you for your efforts during the day.

ADJOURNED UNTIL THURSDAY, 19 FEBRUARY 2004 [3.02pm];

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU1 DOCUMENT PN70
EXHIBIT #CPSU2 COPY OF OLD AND PROPOSED NEW POSITION DESCRIPTIONS PN131