C2005/1599, Transcript of Proceedings [2005] AIRCTrans 1471 (7 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12018-1

COMMISSIONER DANGERFIELD

C2005/1599

LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
AND
BAXTER IMMIGRATION DETENTION FACILITY
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/1599)

ADELAIDE

11.09AM, FRIDAY, 10 JUNE 2005

PN1

MR J LOVE: I appear with MR M HULME, representing the LHMU.

PN2

MR S BAKEWELL: I am seeking leave to appear on behalf of GSL and appearing with me today is MR P FRANKLIN

PN3

THE COMMISSIONER: No objection?

PN4

MR LOVE: No objection sir, not at this point.

PN5

THE COMMISSIONER: Leave is granted, Mr Bakewell.

PN6

MR BAKEWELL: Thank you.

PN7

THE COMMISSIONER: Now, with these matters my general process is to get some basic facts on the record. So, Mr Love if you'd just like to sort of outline briefly for the record what this is all about and I'll get Mr Bakewell to respond and then we'll adjourn into conference.

PN8

MR LOVE: Certainly, sir. Just some of the basics, on 1 June, sir, the LHMU filed this dispute notice pursuant to section 170LW of the federal Act. The parties to this dispute are obviously the LHMU and GSL Australia Pty Ltd. Now, the industrial instrument that governs the party's relationship is the Group 4 Global Solutions LHMU Immigration Detention Centre Certified Agreement 2003. As attached to our dispute notification sir, clause 10 deals with dispute resolution and this dispute is referred to the Commission in accordance with clause 10.2 of that clause.

PN9

I don't intend to take you through in a great deal of detail about the dispute and I think that the correspondence that we've attached to our dispute notification deals with it. Essentially, the point is you can ignore a large amount of information that correspondence will focus on the issue about the conversion from employees going from casual to permanent, that's what the disputes about. I understand there is other information, for example in the LHMU letter and in GSL's letter about different issues but we're certainly not here on those issues it's simply about the conversion.

PN10

If I could just briefly turn to the merits, clause 13.2.4 is the clause of that agreement that allows casuals who meet certain criteria to convert their employment from casual to permanent. Sir, do you have a copy of that agreement?

PN11

THE COMMISSIONER: I've got a copy of that agreement 13.2.4, yes.

PN12

MR LOVE: Now that's contained within a general clause on governing casual employment 13.2 but I don't really need to take you through that but 13.2.4 is the key clause. Basically, what it sets out is that for employees who worked more than 1092 hours in a six month period who have not ..... the employee who's absent for sick leave or workers comp or maternity leave. That employee should be given the right to convert their employment from casual to permanent.

PN13

If I can just read to you 13.2.4.1 which says:

PN14

The employer should give the employee notice in writing of the provisions of this clause ...(reads)... under this clause if the employee fails to comply with this paragraph.

PN15

Now, I will come to the specifics of the employers concerns in a minute, sir, but we say that that clause wasn't complied with, there was then some discussions between the parties, some letters which you've seen and then ultimately this dispute notification was lodged. Now, as I understand it sir, the LHMU has nine members who are employed by GSL to work at GSL's Adelaide operations. That's their location of work and their contracts of employment set out that their location of work is GSL's Adelaide operations.

PN16

Sir, if I could just hand up a copy of an employment contract of one of the members concerned.

PN17

THE COMMISSIONER: Yes.

EXHIBIT #U1 LETTER FROM HR MANAGER GSL TO BELINDA ROBERTS DATED 27/02/2004

PN18

MR LOVE: I'll just give you a moment to read that, sir. Now sir, as I understand it, each of the nine members that were in dispute about have similar contracts which set out that their location of work as you note from the first paragraph of that contract is a position of detention services officer at GSL Australia's Adelaide operations. I'm instruction sir, that the nine LHMU members bar one all wish to exercise their right to convert to permanent employment pursuant to clause 13.2.4. GSL's position sir seeks to frustrate this. GSL have sought to make it condition of these employment voting to permanency that their location of work in Baxter some 350 kilometres from where we say these people are employed which we say are GSL's Adelaide operations.

PN19

We say that GSL's attempt to assert that they need to move to Baxter to become permanent is a creative attempt to avoid its obligations under the certified agreement by attaching that extra condition. You'll note the agreement is quite clear and makes no provision for such conditions to be attached and we say the employment contracts are also similarly clear. So that's all I intended to go into today - well certainly on the record and what we'd be seeking is this matter be conciliated in the first instance.

PN20

Now just by way of some more information sir I understand that from my discussions with Mr Hulme these employees work between 80 to 120 hours a fortnight. They've all been employed for around 12 to 15 months and I also understand that GSL is required to bus in or fly in extra staff to actual meet with the demand of work with the Adelaide operations.

PN21

Sir, unless there's anything further that's our submissions.

PN22

THE COMMISSIONER: Thank you, Mr Bakewell.

PN23

MR BAKEWELL: Thanks, Commissioner. If I could just give you a little bit of background perhaps to those letters of offer that Mr Love has handed to you. They occurred Commissioner initially against the background were GSL was contracted as part of it's wider contract with DIMIA or tasked should I say, to look after one particular family which I think was the Saleme family who was moved from the Baxter Detention Centre to a place of residence in Adelaide which colloquially became known as the Adelaide annex. It could have been anywhere in Adelaide but that was particularly called the Adelaide Annex.

PN24

So, the employees concerned were employed on the basis as casuals because the expected duration of looking after this particular family was unknown. They could be moved back to Baxter at anytime they could have been repatriated to their country of origin at anytime and the people concerned were initially engaged therefore to look after this family doing things such as escorting family members to and from school, to the shops, to appointments, et cetera. Effectively escort duties.

PN25

Commissioner, the need to look after the Saleme family ended this year for reasons we probably don't need to go into but never the less that Adelaide annex work I suppose as you would have referred to ended. Fortunately, shortly there after Commissioner, casual work was still available to be done in Adelaide because at the time a number of detainees at the Baxter centre were sent to Glenside Hospital to undergo - treated presumably for psychological conditions. That necessitated some ongoing work with the casuals concerned to basically do hospital guarding duties and I presume also to do escorting duties to and from Glenside in order to meet the requirements under the contract.

PN26

This particular set up at Glenside, Commissioner, although it is work that is currently on, has no notion of permanency about it at all. The detainees that are held at Glenside may at any minute be sent back to Baxter, they may be sent home. So, it's not necessarily the case that we have any certainty of ongoing work. I understand that the doubt about that work may have increased in recent times which I can't go into right at the minute but there is definitely no certainty of work.

PN27

The certified agreement if I might turn to that - Mr Love has correctly pointed out the agreement that covers the employees and has referred to clause 13.2 of the agreement that deals with casual employment. Clause 13.2.4 states that a casual employee who works more than a pre-requisite number of hours and there is no dispute in this case that the pre-requisite number of hours have been met. Being 1092 hours in a six month period would be offered a full time position, it's says "a full time position", in accordance with following provisions.

PN28

What is proposed by Mr Love is that because the employees were offered casual work in Adelaide they are entitled to a full time position in Adelaide and we reject that. What we say is that GSL are obliged to offer employment under the particular contract they have, it's obliged to offer a full time position. And what they have done Commissioner is they have offered first of all a job consistent with the classification structure in the agreement. There is no delineation between the functions that these casual employees are performing and what other officers are required to perform at Baxter is a generic classification structure that encompasses security escort duties and the likes. So, there's no difference between what the employees are required to do and that is the same at both detention service officer level 1 and the detention service officer level 2, it is a generic position.

PN29

Now, the reason the GSL have offered positions at Baxter is not to frustrate the application at all, it is because that the companies contract with DIMIA is based out of Baxter. In other words, it is a Baxter if you like centric contract. Any work that happens in Adelaide with the exception of what if you like happened with the Saleme family happens as a result of directions that are given ex-Baxter. Mr Love has referred to the fact that what GSL ordinarily do is they actually transport on a fly in fly out basis detention centre officers from the Baxter facility to do the work in Adelaide as in fact as they are doing at the moment.

PN30

What we have at this situation at the moment is a one off situation, Commissioner, where the number of detainees in Glenside is abnormally high, this is not the norm at all. There is something like at the present time, I think its nine detainees in the Glenside centre and this has not ordinarily been the case, it will not be the case in the future. There might be none, there might be one, there might be two but nine is very abnormal and that is the reason why GSL was able to continue offering the hours that it did to the casual employees who were initially engaged to look after the Saleme family.

PN31

This is certainly not expected to continue in the future. I would like to note that GSL have permanent positions at Baxter and what it would intend to do is offer or it has indeed offered those permanent positions at Baxter. It fulfils its Adelaide obligations as it's presently doing on a fly in, fly out basis as they say because the contract is Baxter specific, that is where the full time jobs are. So, what we are saying at the moment, Commissioner, sorry I also wish to note - in terms of the offer that was made to the casual employees to work at Baxter.

PN32

I understand relocation assistance was offered as part of that in terms of some $1000 to each employee and we understand that the employees have rejected the offer on the basis that they wish to only work in Adelaide and effectively that's the point of difference that we have at the moment, Commissioner. It seems to be run around the rights that the employees say they have which they say is to have the casual position that they had in Adelaide converted to a permanent position. Where as GSL are saying we don't have permanent positions in Adelaide, we're a Baxter specific permanent operations. That's where all of our permanent officers are employed and we don't employ permanent employees outside of Baxter and GSL wish to retain the right to organise its work in the way it's meant to work in the contract.

PN33

They are our submission for the moment, I think that probably gives you sufficient background of what this dispute is all about

PN34

THE COMMISSIONER: Yes it does, I think. It's fairly narrowly defined dispute I think. We'll go off the record thanks.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #U1 LETTER FROM HR MANAGER GSL TO BELINDA ROBERTS DATED 27/02/2004 PN17