C2002/2109, Transcript of Proceedings [2004] AIRCTrans 887 (16 March 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 9572
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2002/2109
C2004/2095

LHMU - ACM DETENTION CENTRES OFFICERS
(INTERIM) AWARD 1997

Application under section 113 of the Act
by the Australian Liquor, Hospitality and
Miscellaneous Workers Union to vary the
above award re award simplification

Application under section 113(1) of the Act
by the Australian Liquor, Hospitality and
Miscellaneous Workers Union to set aside the
above award re Australasian Correctional
Management Pty Ltd no longer hold the contract
for provision of detention services in Australia
and no longer employ persons covered by the Award

SYDNEY

10.02 AM, TUESDAY, 24 FEBRUARY 2004

Continued from 23.6.03

PN3878

THE SENIOR DEPUTY PRESIDENT: Yes, good morning, you will notice that I've called on a matter that hadn't been listed that's C2004/2095. That's an application by the LHMU to set aside the award the subject of these proceedings. I've called both matters on so I'll take the appearances again I think.

PN3879

MS S. BENNETT: I appear on behalf of the union and with me is MS J. SCHOFIELD.

PN3880

MR I. DOUGLAS: Your Honour, in both matters, I appear for the GEO Group Australia Pty Limited, there's been a name change, your Honour.

PN3881

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Douglas, leave is granted. Well, these matters have been brought on as a result of correspondence initially from the solicitors for now GEO Australia Pty Limited seeking that I finalise the award making exercise or the award simplification exercise that I've been engaged in for some time and now the application by the LHMU to set aside the ACM - LHMU Detention Officers Award 2002.

PN3882

I listed the matters because I wanted to be updated as to where the parties are at. I'm aware that Group 4 is in the process of taking over the running of detention centres previously run by ACM. My understanding is that there is one detention centre still to be handed over and that will occur on 29 February. I'm aware that Senior Deputy President Harrison has certified another agreement involving ACM and the union in respect of detention centres and I'm also aware that the Senior Deputy President Lacy has certified an agreement in respect of Group 4 relevant to its management of detention centres.

PN3883

I've also received a letter from EMA Consultants indicating that they act for Group 4 and which is more properly referred to as GSL Australia Pty Limited and in a letter dated 23 February of this year EMA advises that discussions between GSL and the LHMU on the subject of having its own award for detention centres are proceeding but they are not appearing today. Now, in light of all of that, where do we go? Mr Douglas or Ms Bennett, who wants to go first?

PN3884

MR DOUGLAS: Well, your Honour, our position is fairly simple. We firstly oppose absolutely the setting aside application that's been recently filed by the union which has been brought on today. Your Honour, the reason why we oppose that is because we say there is still a remaining ongoing need for an award to be in place as between the GEO Group Australia Pty Limited and the union with respect to detention officers.

PN3885

Your Honour, could I refer to the letter of 12 January that was addressed to your associate from Deacons the two main paragraphs, the second and third, are important and I read those:

PN3886

At the hearing ACM will submit that there is now no impediment to his Honour proceeding to make a decision. The impediment was section 170M .....

PN3887

And I don't read the rest of that paragraph, that's no longer a problem, your Honour, because of the certification of the agreement that you referred to by Senior Deputy President Harrison.

PN3888

In the next paragraph, ACM will submit that it has an ongoing need for the award as evidenced by the statutory declaration of Ross Millican. Now, that declaration is attached, your Honour. Does your Honour have a copy of that?

PN3889

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

PN3890

MR DOUGLAS: In paragraph 2 he says that he was involved in the preparation and the tender of the subsequent contract negotiations with the Commonwealth and in the third paragraph he says on 27 February 1998 the Department of Immigration and Multicultural Affairs entered into an agreement with Australasian Correctional Services Pty Limited and of course that's not ACM for provision of a range of services. Pertinent clauses to this agreement include clause 2.1 which states:

PN3891

The Commonwealth wishes to enter into a long relationship with the contractor for the provisions - - -

PN3892

THE SENIOR DEPUTY PRESIDENT: That's Australasian Correctional Services Pty Limited, is it, the contractor?

PN3893

MR DOUGLAS: Yes, that's the contractor, your Honour. ACM was a subcontractor and you'll see that fact referred to in paragraph 4. So, the main contract remains as referred to in clause 2.1 with Australasian Correctional Services Pty Limited. Clause 5.1 which sets out the term of the agreement as being 10 years:

PN3894

Service contracts entered into under this agreement can have varying terms up to 10 years in duration.

PN3895

Now, the main contract which was entered into in February 1998 will remain in place for another four years, your Honour. That's very significant because of what's said by Mr Millican in subsequent paragraphs. In paragraph 4 he says:

PN3896

The recent competitive tendering process related to the delivery of services under specific service contracts and does not absolve ACS or its subcontractor ACM from its long term obligations under the general agreement.

PN3897

So, the general agreement remains in place and it can be called up at any time by the Commonwealth in that the Commonwealth can require ACS to provide services under that general contract as and when it chooses, for what ever reason, your Honour. That calling up could occur because of some default by the present contractor or of course it could occur for reasons of an influx of people into the country.

PN3898

THE SENIOR DEPUTY PRESIDENT: What's the position with the present contractor, is that governed by the contract to which Millican refers?

PN3899

MR DOUGLAS: That I'm not aware of, your Honour.

PN3900

THE SENIOR DEPUTY PRESIDENT: Group 4 or GSL is not a subcontractor to ACS?

PN3901

MR DOUGLAS: No, it's not. There's no corporate relationship between the two but the ACS is under an obligation with respect to that main contract and if I could read further paragraph 6:

PN3902

Through ACS, through its subcontract to ACM, is required to continue delivering detention services under specific service contracts until 29 February 2004.

PN3903

Villawood is the last place and that will be handed over next Sunday as I understand it. In addition to the continuing operation of various detention facilities until this time, ACS is also obliged to maintain a capacity to effect large scale removal or retrieval operations of unlawful non citizens and to provide a response capability. Now, the main contract which, as I say, will remain in place for another four years or thereabouts obligates ACS to provide those two capacities; the capacity to effect large scale removal or retrieval operations and to provide a response capability.

PN3904

THE SENIOR DEPUTY PRESIDENT: What does that have to do with the operation of detention centres, Mr Douglas?

PN3905

MR DOUGLAS: For instance, ACS may be required under the contract to go into any existing detention centre or a new detention centre to assist Group 4. Yes, as I'm instructed, the agreement between the Commonwealth and Group 4 is with respect to specific centres, detention centres. That agreement - - -

PN3906

THE SENIOR DEPUTY PRESIDENT: That's what the award applies to.

PN3907

MR DOUGLAS: Yes but that agreement is different to the overriding contract which is in place between the Commonwealth and ACS

PN3908

THE SENIOR DEPUTY PRESIDENT: I can understand that. What I'm having difficulty in understanding is how that contract and the ability or the possibility that at some stage ACS or ACM or are now GEO Australia might have to do something pursuant to it, is relevant to the award that is currently in question.

PN3909

MR DOUGLAS: Your Honour, under the main contract - - -

PN3910

THE SENIOR DEPUTY PRESIDENT: Where's the award?

PN3911

MR DOUGLAS: The scope of the award as I understand it your Honour is with respect to detention centre operations throughout the Commonwealth of Australia. It's not limited to named detention centres. Now ACS and therefore the GEO group Pty Ltd can be called upon at any time to open a new centre, at any location within the Commonwealth under the general agreement and/or they can be called upon to go into any existing centre to take over at any time, to take over the operations of that centre or to assist the current contractor in the operations of that centre.

PN3912

Now those things could arise your Honour because of an influx of boat people, for example, or because of specific problems at a particular location, or because there is perceived to be a need by the Government to open a new centre to replace an existing centre and the Woomera Baxter thing is an example of that. For instance, your Honour it may well be within the thinking of the Commonwealth to close down the Villawood Centre within the lifetime of the main contract and open up an alternative facility further away from the centre of the Sydney metropolitan area. I don't know but that's a possibility your Honour.

PN3913

The Darwin Centre, as Mr Sarong reminds me, is in a mothball state at this stage and it can be re-opened at any time and in that re-opening ACS and the GEO Group can be required to conduct operations at that centre without having any impact whatsoever on the existing contracts between the Commonwealth and Group 4 with respect to the centres that they're currently running.

PN3914

THE SENIOR DEPUTY PRESIDENT: The Darwin Centre is currently not operating?

PN3915

MR DOUGLAS: No it's not operating your Honour.

PN3916

THE SENIOR DEPUTY PRESIDENT: For how long has it been closed?

PN3917

MR DOUGLAS: It's never been opened your Honour. It's been standing by, it's located close to the RAAF base as I understand it. There's a centre at Singleton close to the military base there which is in a similar state. Now your Honour we don't know what's over the horizon but it could well be that next month the GEO group could be back involved in actual running of one or two detention centres in a major way.

PN3918

In those circumstances your Honour we submit that it would be totally inappropriate for the Commission to set aside this award and, likewise it would be totally inappropriate for the Commission not to proceed to make a decision on the matters that were dealt with some time ago now by arbitration.

PN3919

But could I make one final point your Honour. The company is concerned that a lot of its money was spent with respect to that arbitration. It went on for a number of days for reasons of where nobody is at fault your Honour but I'm instructed to say to the Commission that the company is concerned that that money should not be wasted. It asks for the Commission to make a decision with respect to those matters that were the subject of arbitration, whatever that decision might be.

PN3920

Your Honour I don't think there's anything else that I need to add. I mean it's a very clear and sure point that I seek to make to you your Honour but I do say that it would be a very dangerous conclusion to reach to say that there will be no need for an award to be in place with respect to this union and the GEO Group as to detention centre operations for the foreseeable future.

PN3921

In fact your Honour, we say there will be a real need and as Mr Murkin points out in paragraph 7 of his statement even without being called upon to open up or to assist in the running of an existing detention centre or open up a new one, the GEO group Australia Pty Ltd will be required to provide transport and escort services to the Commonwealth in an ongoing way and therefore it will continue to employ detention officers within the scope of the award. That's how it stands.

PN3922

THE SENIOR DEPUTY PRESIDENT: Is that right Mr Douglas? That paragraph puzzled me a little because as I understood it, the award wouldn't apply to the operation of people involved in delivering and transporting and providing escort services, even if they are classified as detention officers. I am just chasing a copy of the award, we didn't bring that to Sydney with us funnily enough.

PN3923

MS BENNETT: I do have a copy would you like me to hand it up so you can look at it?

PN3924

THE SENIOR DEPUTY PRESIDENT: Oh my associate is getting one thank you.

PN3925

MR DOUGLAS: Your Honour, I am instructed there is a mixed situation. There will be some people who will be performing work in accordance with paragraph 7 who won't be covered by the award but from time to time there will be other persons performing work who will be covered by the agreement that was recently certified by Senior Deputy President Harrison and therefore performing work that will fall within the scope of the award that we're concerned with. In other words, it's a question of how the employer actually arranges for the work to be done as to whether the persons are actually under the agreement of the award or not.

PN3926

THE SENIOR DEPUTY PRESIDENT: Yes well I do have the - so this is the group 4 certified agreement are you telling me?

PN3927

MR DOUGLAS: No, no.

PN3928

THE SENIOR DEPUTY PRESIDENT: The Harrison, you said Harrison, you mean Lacey do you?

PN3929

MR DOUGLAS: No Lacy certified the group 4 certified agreement.

PN3930

THE SENIOR DEPUTY PRESIDENT: I'm sorry, yes I'm sorry.

PN3931

MR DOUGLAS: Senior Deputy President Harrison - yes the one that applies to my client.

PN3932

THE SENIOR DEPUTY PRESIDENT: Yes I'm just looking at the one certified by Senior Deputy President Harrison and I'm looking at clause 3 of that agreement which is the application of the agreement.

PN3933

MR DOUGLAS: My recollection reads your Honour:

PN3934

With respect to the employment of detention officers throughout Australia by the company.

PN3935

THE SENIOR DEPUTY PRESIDENT: Yes that raises the question what is a detention officer. I'm just having difficulty understanding how the award or the agreement applies, I suppose it's in the lack of any evidence as to what these people do and what their functions are and how it is that they come within the scope of the certified agreement of the award. I would need that explained to me Mr Douglas, I don't understand it.

PN3936

MR DOUGLAS: Your Honour there's no doubt that if a person is, based on practice has been accepted by the Commission and by the union over the last number of years, that a person is employed by what was then ACM and now the GEO Group Pty Ltd, performing escort services of illegal immigrants regarded as being detention officers when they're performing that work. Now they might be classified otherwise when they're not performing that work, when they're employed by the same company or one of the other companies in the group doing other work.

PN3937

A person might be employed by the company as a correctional officer with respect to the Arthur Gorrie facility in Queensland, but that doesn't stop that person being employed under that agreement and therefore within the scope of this award, as a detention office if they're performing detention escort services of illegal immigrants.

PN3938

THE SENIOR DEPUTY PRESIDENT: Do detention escort services fall within the purview of the award Mr Douglas?

PN3939

MR DOUGLAS: Yes your Honour. Yes, it's always been regarded as being so, one of the big issues industrially that's existed over time has been the question of what benefits those people should get when they perform escort services, particularly escort services overseas.

PN3940

THE SENIOR DEPUTY PRESIDENT: They were detention officers performing escort services. You're talking about people, I don't know who, who just perform escort services who aren't employed by GEO in a detention centre.

PN3941

MR DOUGLAS: No, the performance of escort services your Honour derives from the main contract.

PN3942

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3943

MR DOUGLAS: It's the main contract that requires ASC to provide a facility with respect to the escorting of illegal immigrants and its detention officers in an accepted way, your Honour, that perform that work.

PN3944

HIS HONOUR: It is that jump that I do not understand. Where do these detention officers come from? GEO will not be running any detention centres, so, it does not employ, I would not have thought, detention officers as such, if somebody employed by GEO is providing escort services, what does that person - are you suggesting that person does not normally provide escort services, or if that is the sole role of that person, how does that come about? That person is not a detention officer employed in a detention centre by GEO.

PN3945

MR DOUGLAS: No, your Honour. But you do not have to be employed in a detention centre to be a detention officer under the Award or under the agreement.

PN3946

HIS HONOUR: Well, I am at a disadvantage, Mr Douglas, because my files are in Melbourne, I do not have all the relevant documents. Can you point me to the clause in the Award or the agreement, or both, which you say supports that contention.

PN3947

MR DOUGLAS: I do not have them here, but, your Honour - - -

PN3948

HIS HONOUR: Well, we need them.

PN3949

MR DOUGLAS: I go back to the main contract. The main contract allows the Commonwealth to call on ASC to provide escort and detention activities with respect to illegal immigrants.

PN3950

HIS HONOUR: I am following you thus far.

PN3951

MR DOUGLAS: Yes. And persons who perform those functions in a singular or collective way have been regarded for the last four or five years as being detention officers for the purposes of certified agreements, AWAs and the Award.

PN3952

HIS HONOUR: Well, that may be so, and may have been more relevant when GEO or ACM was operating detention centres and employing detention officers who performed those functions, but now that it is not operating in detention centres I find that leap difficult to understand. Perhaps if we wait a few minutes until I turn up the Award in the agreement. Mr Douglas, what I will do is I will stand down for a few minutes and I will just locate a copy of the Award and the 1997 agreement that is incorporated in this last agreement, is it not?

PN3953

MR DOUGLAS: Yes.

PN3954

HIS HONOUR: So, I will just locate copies of those and then I will be - - -

PN3955

MR DOUGLAS: Well, I think you need a copy of the current agreement as well.

PN3956

HIS HONOUR: The one that was just - the current agreement that was certified by Senior Deputy President Harrison?

PN3957

MR DOUGLAS: Yes.

PN3958

HIS HONOUR: I will make sure we have all of those agreements and I will provide a copy to you and I think we might find it easier to have this debate. I will just adjourn briefly.

SHORT ADJOURNMENT [10.24am]

RESUMED [10.26am]

PN3959

HIS HONOUR: Well, I think we have copies of all the relevant documents now Mr Douglas.

PN3960

MR DOUGLAS: Yes. I have not seen the agreement, the current agreement, your Honour, but I have got copies - a copy of the '97 Award and the interim Award made by your Honour.

PN3961

HIS HONOUR: Yes. There is the ACM Detention Centres Officers Interim Award 1997.

PN3962

MR DOUGLAS: Yes.

PN3963

HIS HONOUR: And then the Award 2002 that I made.

PN3964

MR DOUGLAS: Yes.

PN3965

HIS HONOUR: Now, your Honour, could I just put these points to you, it is a little bit disjointed. The contract between the Commonwealth and Group 4, I am instructed, obligates Group 4 to conduct the following seven centres, Perth, Cocos Island, Christmas Island, Port Hedland, Villawood, Baxter and Marybrynong. Under that contract the Commonwealth cannot require Group 4 to operate any other detention centre or to open a new detention centre, in other words, Group 4 under that contract cannot be required to open up, say, the Darwin facility.

PN3966

HIS HONOUR: No, but it could contract to operate the Darwin facility.

PN3967

MR DOUGLAS: It could. The general agreement between the Commonwealth and ACS - - -

PN3968

HIS HONOUR: That is the 1998 agreement?

PN3969

MR DOUGLAS: Yes, your Honour. Under which ACM are now the GEO Group Australia Pty Ltd has and continues to employ persons with respect to that contract. ACS can be required by the Commonwealth to go into any existing centre to assist or take over the totality of the operations of that centre or to open up Darwin and/or Singleton, or to open up a new detention centre. All of those things can be required by the Commonwealth of ASC. And that requirement will remain until 2008 - 2007, whenever the ten year period is up.

PN3970

The response capability that ASC must attend to under that general agreement, general contract, and therefore the response capability resting on the employer is to have the capacity to open up say Darwin and/or Singleton within a period of two weeks, in fact ACM did go through that process with respect to Singleton, but having prepared it for opening and got it to the point where it could open it was not required to do so, that was in the past. Now, each employee who works in or in relation to a detention centre, or with respect to detainees, each employee of the kind that we are concerned with must have the appropriate DIMIA authorisation and that authorisation arises pursuant to the Migration Act. Section 273 of the Migration Act speaks of - - -

PN3971

HIS HONOUR: Two hundred and?

PN3972

MR DOUGLAS: Seventy three.

PN3973

HIS HONOUR: Yes.

PN3974

MR DOUGLAS: Speaks of the conduct and supervision of detainees. Now, in the real world, your Honour, I am instructed to say that my client considers it likely that within he lifetime of the general agreement it will be called, unless this could occur next month, six months, two years from now, that it will be called upon to assist in the existing centre and/or to open Darwin or Singleton and/or to open a new facility anywhere in Australia, and in actual terms under the general agreement it will be required to provide escorts of detainees. The escorting of detainees to and from existing detention centres and to and from any detention centre that might open in the future.

PN3975

Now, persons performing escort work with respect to detainees must have the DIMIA authorisation that I have referred to in the same way as a static detention officer in say, the Villawood centre, is required to have that authorisation. Now, your Honour, the scope clause in the current Award is slightly different to the scope clause in the '97 Award. The scope clause of the '97 Award is clause 2, and it says that the Award shall apply to the employment of all persons employed as detention officers in the operation, conduct and management of integration detention centres.

PN3976

The scope clause in the interim award was made by your Honour, clause 6 and this wording is there by agreement, is that the award applies to the employment of all persons, not detention officers, all persons employed in the classification set out in clause 11 and clause 11 currently relates to security people.

PN3977

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3978

MR DOUGLAS: In the operation, conduct and management of immigration detention centres. Now there is no doubt your Honour, that if the employer is called upon to assist in the existing centre or to open up Darwin or Singleton, or to open up a new centre, then it will be involved with the employment of persons in the relevant classifications in the operation, conduct and management of detention centres. So there's no doubt that the award would have application to that work. Further, your Honour, it's my submission that those words capture the escorting of detainees. You don't have to have a current contract for the running of a detention centre, to have persons employed in the relevant classifications, in the operation, conduct or management of an immigration detention centre. Escort work, the escort of detainees is an essential aspect of the running, is an essential element in the operation, conduct or management of a detention centre. The escort work is the escorting of detainees to and from detention centres, the moving of detainees between one centre to another, or from a non-detention centre location to a detention centre, or from a detention centre to a location, for example, overseas.

PN3979

Mr Serong advises me that the Migration Act refers to persons who are in detention and not to persons who are in detention centres, and it doesn't matter your Honour that there might be one contract with respect to a particular centre where persons are in detention, or a number of contracts in operation within that centre. Persons employed in the escorting of detainees to and from those centres are persons employed in the relevant classifications, in the operation, conduct or management of such centres and therefore your Honour, in my submission the ongoing activities that Mr Millican refers to in paragraph 7 of his statutory declaration is captured by the award. Even though it's not work that is currently performed by employees of Group 4.

PN3980

THE SENIOR DEPUTY PRESIDENT: And it is work that is currently performed by employees of GEO.

PN3981

MR DOUGLAS: It is, some of that, the escorting of detainees is work performed by GEO.

PN3982

THE SENIOR DEPUTY PRESIDENT: However, what's the incidence of the performance of that work, how often is it performed? It's limited to Queensland as I understand it.

PN3983

MR DOUGLAS: Yes, it is. Right at this time your Honour none is being performed, but it's only in Queensland, only in Queensland. But as I say the ongoing main agreement places the obligation on the company on the ACS to provide the ability to meet the two response obligations referred to in paragraph six of Mr Millican's declaration, namely to maintain a capacity to affect large scale removal and retrieval operations, with respect to persons who are in detention under the Migration Act and to provide a response capability, again in respect to persons who are in detention under the Migration Act.

PN3984

THE SENIOR DEPUTY PRESIDENT: I don't have a copy of that 1998 agreement do I? I don't think I've seen it.

PN3985

MR DOUGLAS: No you don't your Honour. Your Honour there's nothing in the legislation that says that this award should be set aside, or that it shouldn't be in place simply because today or tomorrow this employer which is an employer that fits squarely the definition of the employer in the Act. There's no base, nothing in the Act which says it's inappropriate for such an award to remain in place. It can't be said that the provisions of the award in totality are obsolete, because what we're saying your Honour is.

PN3986

THE SENIOR DEPUTY PRESIDENT: Most of it's been simplified. It's not obsolete in that sense.

PN3987

MR DOUGLAS: It's not obsolete in that sense.

PN3988

THE SENIOR DEPUTY PRESIDENT: My concern as I indicated in the decision, in one of the decisions that I handed down was that if an award has no work to do, I need to be persuaded that it should remain on the books.

PN3989

MR DOUGLAS: Yes, well that's what I'm attempting to do your Honour, it mightn't be doing work right at this moment, but we say on the balance of probability in terms that should be satisfactory from the Commission point of view, it is an award that will have work to do. I mean when a current agreement reaches the end of its normal life, the company would expect to renegotiate another agreement, all being the same with the Union, that is if the legislation allows that to occur. If that is so, then that new agreement will be renegotiated, will be made during the life time of the general agreement and there will be a need for an appropriate safety net award to be in place. It's relevant your Honour that the current agreement will displace, effectively displace the operation of the award during its life to the extent of inconsistency at least, and that the Act itself your Honour, squarely places an obligation in my submission on the Commission to make sure that there is an appropriate safety net award in place. I have no other submissions to make your Honour.

PN3990

THE SENIOR DEPUTY PRESIDENT: Ms Bennett I have another hearing at 11.30 in a separate court, is it worthwhile you starting now, or should we wait until after that hearing?

PN3991

MS BENNETT: It's probably best if we wait until after your hearing your Honour.

PN3992

THE SENIOR DEPUTY PRESIDENT: Yes, I imagine that hearing will only go for half an hour or so. Would you mind very much if you're here at 12 and I'll try to be here at the same time.

PN3993

MS BENNETT: Yes, your Honour.

SHORT ADJOURNMENT [11.20am]

RESUMED [12.04pm]

PN3994

MS BENNETT: Your Honour on 27 August 2003 the Department of Immigration and Multicultural and Indigenous Affairs entered into a detention services contract with Group 4 Global Solutions Propriety Limited, which is not known as GSL Propriety Limited. I'm just going to tender a copy of an information page on the department's website in relation to this contract and take your Honour to paragraph 3 of the page.

PN3995

THE SENIOR DEPUTY PRESIDENT: Yes, I'll mark that as Exhibit LHMU1 in C No. 2004/2095 that's your application to set aside the award.

EXHIBIT #LHMU1 INFORMATION PAGE ON THE DEPARTMENT'S WEBSITE IN RELATION TO THE CONTRACT

PN3996

MS BENNETT: Thank you, your Honour.

PN3997

THE SENIOR DEPUTY PRESIDENT: Yes, you're taking me to.

PN3998

MS BENNETT: Paragraph 3, which begins with the contract.

PN3999

THE SENIOR DEPUTY PRESIDENT: Yes.

PN4000

MS BENNETT: The government delivery of detention services in Australia on behalf of the Australian government for the next four years and the next sentence which we contest is probably the most important

PN4001

It will replace the detention services contract entered into with Australasian Correctional Services Propriety Limited in February 1998 while the new contract commences immediately, Australasian Correctional Services will continue to manage the centres until a phased hand over to Group 4 commences later this year.

PN4002

Your Honour this is clearly contrary to the evidence of Ross Millican which we've seen in the statutory declaration tendered by ACM. He asserts that at paragraph 4 the recent competitive tendering process.

PN4003

THE SENIOR DEPUTY PRESIDENT: He doesn't, he swears.

PN4004

MS BENNETT: He swears at paragraph 4 that the recent competitive.

PN4005

THE SENIOR DEPUTY PRESIDENT: He actually declares.

PN4006

MR DOUGLAS: Thank you, you Honour.

PN4007

MS BENNETT: That the recent competitive tendering process related to the delivery of services under specific contracts, and does not absolve ACS or its sub-contractor ACM from its long term obligations under the general agreement.

PN4008

THE SENIOR DEPUTY PRESIDENT: Yes, well this just highlights the difficulty of people making submissions or even, well submissions in the form of statutory declarations about the effect of contracts, when I don't have the documentation in front of me. I have to two competing assertions. Yes.

PN4009

MS BENNETT: Clause 6 of the award as it currently stands provides that the award shall apply to the employment of all persons employed in a classification set out in clause 11 in the operation.

PN4010

THE SENIOR DEPUTY PRESIDENT: This is the 2002 award.

PN4011

MS BENNETT: Yes, in the recently simplified award, in the operation, conduct and management of immigration detention centres throughout Australia. The contention is that the parties intended making the agreement that this award would cover employees employed only in detention centres in the capacity of a detention officer. The award was made by consent, I think it was in 1995, sorry 1997 it must have been as the award was dated 1997.

PN4012

THE SENIOR DEPUTY PRESIDENT: That was the original award.

PN4013

That was the original award. The Department's website provides a list of all detention facilities which I'll hand up.

PN4014

THE SENIOR DEPUTY PRESIDENT: I will mark that LHMU2 in C2004/2095.
EXHIBIT #LHMU2 - LIST OF ALL DETENTION FACILITIES

PN4015

MS BENNETT: The list includes Baxter, Christmas Island, Marybrynong, Perth, Port Hedland and Villawood, which are variously described as immigration detention centres, immigration detention facilities and immigration and reception processing centres. Contingency facilities are also listed. Schedule 1 of the Detention Services Contract with GSL, which is available on the DIMIA website also, and I will hand up a copy of that - - -

EXHIBIT #LHMU3 - SCHEDULE 1 OF GSL DETENTION SERVICES CONTRACT

PN4016

MS BENNETT: This schedule lists the facilities that the contract with GSL covers, and this includes both the operating centres at the moment and the contingency facilities. I think you can draw from this, your Honour, that the contract with GSL is intended to cover the provision of detention services at the contingency facilities, should the need arise. I will also hand up, and I do not have a copy of this - - -

PN4017

MR DOUGLAS: Could I ask where this is from, your Honour?

PN4018

THE SENIOR DEPUTY PRESIDENT: Yes, I think Ms Bennett said it was from the website of the Department. Is that right Ms Bennett?

PN4019

MS BENNETT: That is right.

PN4020

MR DOUGLAS: And what is it supposed to indicate?

PN4021

MS BENNETT: That schedule is the schedule of facilities to which the contract with GSL applies.

PN4022

MR DOUGLAS: Well, your Honour, I object to this going in on the basis if it is suggested there is some link between this and the contract with the company that was Group 4. There is no link can be made in a contractual sense between this document and the obligations of that company. I object to it if it has been put forward on that basis.

PN4023

THE SENIOR DEPUTY PRESIDENT: I take it that it is part of the submission, just as your submission was that the 1998 contract has certain effects in operation without my having a copy of it. This seems to go a little bit further, at least it indicates the facilities that are covered by the contract. Do you have the balance of the contract to which this is a schedule to?

PN4024

MS BENNETT: I do not. I did not download the whole thing. It is in several schedules. It is available on the DIMIA website under detention services and it is in several PDF files, it is quite a large contract.

PN4025

THE SENIOR DEPUTY PRESIDENT: Well, I will receive it as what it is, a schedule to the contract between GSM and the Department in respect of the provision of services by GSM for the operation of detention centres for four years.

PN4026

MS BENNETT: Thank you, your Honour. I do not have a copy of this available for ACM because it was something I had, but I think it is relevant to the discussions here today, and that is page 2/52 of schedule 2 of the same contract relating to detention services and this provides a clause 13.1.21. If your Honour does not mind, I will read this so that ACM has an opportunity to hear it and then I will hand it up to you as an exhibit.

PN4027

The services provider -

PN4028

that being GSL,

PN4029

Is responsible for the transport, escort and detention of detainees outside the detention facility for normal operational purposes, including in the following circumstances

PN4030

And I will just abbreviate these, they basically are attendance at medical facilities, visits to hospitals, school visits, recreational excursions, attendances at Courts or Tribunals, transfers between the Woomera Centre and the Woomera Residential Housing Project, transfers to a detention facility from an initial point of detention, transfers within a metropolitan area from an initial point of detention to a detention facility. Transfers to or from a State or Territory prison or remand centre, and transport to international airports for removal from Australia. I will hand that up.

EXHIBIT #LHMU4 - SCHEDULE 2 OF GSL DETENTION SERVICES CONTRACT

PN4031

MS BENNETT: Your Honour, the other argument that we have seen ACM argue today is the fact that they consider this Award may be used to cover the work of correctional officers at Arthur Gorrie Correctional Centre, who guard a small number of immigration detainees in the correctional centre and who, from time to time, escort immigration detainees as part of their ancillary duties. We were unable to find on the DIMIA website any mention of Arthur Gorrie Correctional Centre being regarded as an immigration facility of any sort. It is news to the union and its members that Arthur Gorrie might be regarded as an immigration detention centre.

PN4032

I will tender the affidavit of union organiser Ron Simon to this effect. Unfortunately Mr Simon is unable to appear for cross-examination today as he is caught up in some industrial action at another correctional centre, but should the need arise, he is available for cross-examination at a later time.

PN4033

THE SENIOR DEPUTY PRESIDENT: Have you provided a copy of this to Mr Douglas?

PN4034

MS BENNETT: I did actually provide a copy by e-mail yesterday to Mr Serong, and I will give you a copy there of the sworn document.

PN4035

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Just give me a moment to read it please. Yes, Mr Douglas, what is your attitude to the tender of this affidavit?

PN4036

MR DOUGLAS: I have no objection to its tender, your Honour, but question cross-examination. I need to get some instructions.

PN4037

THE SENIOR DEPUTY PRESIDENT: Yes. I might receive it as an exhibit at the moment, well, no I will receive it as an exhibit seeing as Mr Douglas does not object to its tender, but it may be that you will need to have Mr Simon available for cross-examination.

PN4038

MS BENNETT: Thank you, your Honour.

PN4039

MR DOUGLAS: I point out, your Honour, that for instance, in paragraph 8 Mr Simon says that

PN4040

During my visit to the centre I have never observed any signage that indicates - identifies Arthur Gorrie as an immigration detention facility.

PN4041

I am instructed that Arthur Gorrie has been gazetted - - -

PN4042

THE SENIOR DEPUTY PRESIDENT: Well, you will be able to deal with that in reply, Mr Douglas.

PN4043

MS BENNETT: Yes. So, I will provide the Commission with information as to that.

EXHIBIT #LHMS5 - AFFIDAVIT OF RON SIMON SWORN 20/02/04

PN4044

MS BENNETT: Thank you, your Honour. The evidence as it currently stands, whether it is quite technically evidence or not, of Mr Simon is that the work of guiding immigration detainees is ancillary to their role as correctional officers and that they are actually covered by a correctional officer's EBA. They are employed as correctional officers and are paid as such. There is no specific group of correctional officers who you could identify as detention officers. The union is concerned that ACM might seek to apply the detention officers Award to this group of workers as the union has negotiated an EBA on their behalf, which it considers to cover their pay and conditions in their work at Arthur Gorrie Correctional Centre.

PN4045

Mr Douglas has also raised the argument today that the company need this Award to stay in place as one does not know what might happen in the next 12 to 18 months in the immigration services industry. The union has, in fact, negotiated with the company an EBA to cover just this event. It seems an unnecessary requirement of the company that they also require an Award to remain in place in the hope that the company may again pick up work in this field. Very frequently is a union involved in contract changes and were we to leave in place simple employer Awards where the employer has lost the contract, many Awards would remain in place without any real use.

PN4046

The union submits that the EBA is in place and that gives the company an industrial instrument to use should it again contract with DIMIA to provide immigration detention services again. Furthermore, should ACM again pick up a contract in immigration services, ACM may apply at any time to have an Award made should it become clear that this is a necessity. Prior to December last year there are many factors which meant, from the union's point of view, that an Award with ACM should remain in place. The most significant factor was that an EBA with Group 4 had not yet been certified. In December last year, as your Honour is aware, EBAs were certified with both GSL and GEO Group. Previously no EBA had been in existence between any of the parties except for the existence of the 1999 expired agreement.

PN4047

The Union and Group 4 in March last year commenced discussions in relation to developing a new award. Circumstances meant that the discussions in relation to the award were not given the highest priority and other discussions regarding the EBA, contract change issues and redundancy issues which your Honour was involved in overtook the award discussions. The Union and Group 4 have re-commenced those discussions and are very near to finalising the award. I believe GSL has forwarded to your Honour a letter in similar terms to what I have just said to the same effect.

PN4048

THE SENIOR DEPUTY PRESIDENT: Yes I referred to that earlier this morning.

PN4049

MS BENNETT: Thank you your Honour. With two EBAs in place in the field an award will, in reality, only be useful to the extent that it would be used for the no disadvantage test to certify subsequent agreements. The union submits that the Group 4 award, once put in place, will be able to be used for this purpose.

PN4050

The Group 4 EBA and the 2003 ACM EBA, to the extent that it rolls over the '99 EBA, import this award to the extent of any consistency.

PN4051

THE SENIOR DEPUTY PRESIDENT: Sorry what imports the award?

PN4052

MS BENNETT: Sorry?

PN4053

THE SENIOR DEPUTY PRESIDENT: What did you say imports the award?

PN4054

MS BENNETT: Two EBAs, a Group 4 EBA and also the 2003 ACM EBA do refer to this award.

PN4055

THE SENIOR DEPUTY PRESIDENT: Yes.

PN4056

MS BENNETT: I've prepared a comparison listing the award provisions with the relevant EBA provisions which show that the EBAs in place are in fact comprehensive agreements and as such no award provisions are relevant. I'll hand that up to your Honour.

PN4057

THE SENIOR DEPUTY PRESIDENT: Yes thank you. We'll mark that comparison between the certified agreements and the award

PN4058

as exhibit LHMU6.

EXHIBIT #LHMU6 COMPARISON BETWEEN CERTIFIED AGREEMENTS AND THE AWARD

PN4059

MS BENNETT: Yes thank you your Honour. All transmission issues and redundancy issues have been successfully resolved between the parties during proceedings, both before your Honour and also during certification hearings before STP Lacy and STP Harrison on different occasions.

PN4060

In the circumstances, the union submits that the award is redundant and should be set aside. I've tried to demonstrate before your Honour today that there are no contractual reasons why an award should remain in place. Your Honour has expressed this view in your decision dated 19 May 2003 and the union now concurs with this, given the situation of relative industrial certainty which now exists. Both ACM and Group 4, as your Honour has referred to your decision, do not regard this award as an industry award and Group 4 is now seeking to finalise its own award as the existing ACM award employ a specific and that employer no longer employs anyone at immigration detention centres. As of this Sunday when Villawood is handed over to GSL, the award should be set aside.

PN4061

Your Honour has no obligation to make a decision in the matter and indeed may be bound by section 143(1)(c)(d) of the Act not to make a determination or a decision containing terms which are obsolete. The union submits that a determination on a classification structure would contravene section 143(1)(c)(d) of the Act.

PN4062

THE SENIOR DEPUTY PRESIDENT: Just a minute, I'll return to that. So you're saying that I shouldn't make a decision at all?

PN4063

MS BENNETT: In relation to the classification structure. Not in fact, that you shouldn't make a decision not to set aside the award but in relation to the classification structure.

PN4064

THE SENIOR DEPUTY PRESIDENT: Yes I see. Yes 143(1)(c).

PN4065

MS BENNETT: 1(c)(d).

PN4066

THE SENIOR DEPUTY PRESIDENT: 143 subsection 1 or subsection 1(c)?

PN4067

MS BENNETT: Subsection 1(c).

PN4068

THE SENIOR DEPUTY PRESIDENT: And then sub paragraph (d)?

PN4069

MS BENNETT: That's correct.

PN4070

THE SENIOR DEPUTY PRESIDENT: I'm just not so sure that a decision or a determination covered by sub section 1, which is a decision or determination affecting an award in my opinion, I must ensure that it does not contain provisions that are obsolete or that need updating. Yes thank you.

PN4071

MS BENNETT: This is in relation to the actual work value application as opposed to the application to set aside an award.

PN4072

THE SENIOR DEPUTY PRESIDENT: Yes.

PN4073

MS BENNETT: There is no obligation on the Commission to maintain this award on the submission of the company that it may at some time in the future have a use for the award. In such circumstances the company may, consistent with the purposes of the Act, seek assistance from the Commission for the establishment of an appropriate safety net award.

PN4074

The union seeks that the LHMU ACM detention officer's award for 2003 be set aside with an effective date of 29 February 2004, being the day that Group 4 begins its management of Villawood Detention Centre which is the last centre to transfer over to Group 4.

PN4075

THE SENIOR DEPUTY PRESIDENT: Yes.

PN4076

MS BENNETT: Thank you your Honour.

PN4077

THE SENIOR DEPUTY PRESIDENT: Yes Mr Douglas.

PN4078

MR DOUGLAS: Your Honour I require an opportunity to call Mr Millican. He's not available today your Honour.

PN4079

THE SENIOR DEPUTY PRESIDENT: Well Mr Douglas, this matter has been listed for some time.

PN4080

MR DOUGLAS: Of course it has your Honour but the union application - - -

PN4081

THE SENIOR DEPUTY PRESIDENT: Although the union application is yes - - -

PN4082

MR DOUGLAS: - - - wasn't on the noticeboard today. I was prepared to deal with it but I didn't anticipate the union submitting that Mr Millican's declaration was incorrect and that's what they've done. I require an opportunity to recall him and I need to give consideration to whether I should cross examine Mr Simon. I haven't received instructions in relation to that. I understand he's not available today if I wish to do that.

PN4083

THE SENIOR DEPUTY PRESIDENT: When is Mr Simon available? He's not available today?

PN4084

MS BENNETT: He's not available today. He is caught up in industrial action, at actually state commission proceedings in relation to that action.

PN4085

THE SENIOR DEPUTY PRESIDENT: Yes, well we'll have to adjourn then. This matter, I thought was going to be resolved today, it's been going on for a long time.

PN4086

MR DOUGLAS: It's not your Honour.

PN4087

THE SENIOR DEPUTY PRESIDENT: No it's not.

PN4088

MR DOUGLAS: Your Honour has made one or two comments to the effect that you are not aware of what's in the general agreement that I've referred to. Mr Millican can give evidence as to that.

PN4089

THE SENIOR DEPUTY PRESIDENT: Well he'd better have the agreement with him I think Mr Douglas. I'm reluctant to have agreements talked about without those agreements being in evidence.

PN4090

MR DOUGLAS: He will have the agreement with him your Honour but I will be seeking a confidentiality order in relation to it if it becomes a matter of debate.

PN4091

THE SENIOR DEPUTY PRESIDENT: Yes, well it seems that there is a matter of debate, especially when one looks at exhibit LHMU1 I think it is, which suggests that that contract has been replaced. Ms Bennett you may want to research how it is that that 1998 contract has been replaced beyond what appears in that - - -

PN4092

MS BENNETT: Your Honour, might I suggest that perhaps the union doesn't really feel it's particularly necessary to call Mr Millican. In fact, a better way to proceed this matter might be that the contract is provided to you for your perusal. We've got no particular need to see it. If your Honour is able to look at it and satisfy yourself as to its terms, probably a better way to proceed is not so much on the assertions of Mr Millican but more of what is actually contained in the contract. That might mean that he's not needed to give any evidence. We are happy to make Mr Simon available as soon as your Honour wishes to list it for cross examination.

PN4093

THE SENIOR DEPUTY PRESIDENT: Yes, well the matter has to be listed anyway.

PN4094

MR DOUGLAS: Your Honour could I indicate that I'm not available till the week I think, beginning 9 March.

PN4095

THE SENIOR DEPUTY PRESIDENT: That's not far away. I doubt that I am. Mr Millican can also give us evidence and you may wish to cross examine him in relation to what he says in paragraph 7 because that seems to be at odds with what Mr Simon is saying.

PN4096

You will have an opportunity between you to talk about the way in which you want to deal with the matter on the next occasion. It looks as though, regrettably, it has to be re-listed and we'll go off the record and do that but you are free to obviously discuss the way in which it should be run and if it can be streamlined well and good. But we'll just go off the record for a moment.

OFF THE RECORD [12.26pm]

RESUMES [12.29pm]

PN4097

THE SENIOR DEPUTY PRESIDENT: The matter will be adjourned until 10.00 a.m. on 25 March 2004 in Sydney. Mr Serong will let Ms Bennett know whether or not Mr Simon is required for cross examination well before that date. Should the 25th not be a day in which Mr Douglas is available, we will have the matter listed on Monday 29th at the same time.

ADJOURNED UNTIL THURSDAY, 25 MARCH 2004 [12.30pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #LHMU1 INFORMATION PAGE ON THE DEPARTMENT'S WEBSITE IN RELATION TO THE CONTRACT PN3996
EXHIBIT #LHMU2 - LIST OF ALL DETENTION FACILITIES PN4015
EXHIBIT #LHMU3 - SCHEDULE 1 OF GSL DETENTION SERVICES CONTRACT PN4016
EXHIBIT #LHMU4 - SCHEDULE 2 OF GSL DETENTION SERVICES CONTRACT PN4031
EXHIBIT #LHMS5 - AFFIDAVIT OF RON SIMON SWORN 20/02/04 PN4044
EXHIBIT #LHMU6 COMPARISON BETWEEN CERTIFIED AGREEMENTS AND THE AWARD PN4059