RE2006/164, Transcript of Proceedings [2006] AIRCTrans 1175 (30 October 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15949-1

SENIOR DEPUTY PRESIDENT LACY

RE2006/164

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
AND
AUSTRALIAN TAXATION OFFICE
s.772(2) - Appl’n for orders by Commission about operation of Part 15
(RE2006/164)

MELBOURNE

11.49AM, WEDNESDAY, 18 OCTOBER 2006

Continued from 17/10/2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

Reserved for Decision

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning. Any change to appearances?

PN2

MR R MCPHEE: There is one, your Honour. I appear along with
MR J LAPIDOS for the ASU.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, Mr McPhee. Could I just indicate to the parties that there’s no necessity to stand because of the video so if you just remain seated that would be helpful for me and for the other parties.

PN4

MR J LAPIDOS: I also wanted to advise you that Mr Korovin who did appear yesterday afternoon is no longer appearing.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, fair enough thank you.
Mr Gaffney, is it?

PN6

MR M GAFFNEY: Yes, good morning, your Honour. I appear with
MS J THOMPSON representing the Tax Office.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Gaffney.
Mr Lapidos, have you had an opportunity to have any further discussions with
Mr Gaffney about this matter?

PN8

MR LAPIDOS: There’ve been no discussions, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes. Have you seen the material that Mr Gaffney has provided to me this morning?

PN10

MR LAPIDOS: Pretty much attachments to one of the emails, but I think the material that I have - where there weren’t attachments I think I was aware of the attachments and I’m generally aware of the material, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. Well, what is your position? Do you still press your application?

PN12

MR LAPIDOS: Yes, your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Well, perhaps you’d better make your application now and we’ll see what we do. I'll hear what
Mr Gaffney has to say in response in due course.

PN14

MR LAPIDOS: Thank you, your Honour. My understanding is that the Tax Office will not allow me to approach their staff at their desk to advise them of my invitation to interview them as part of my investigation of suspected breaches of the agreement and without that opportunity that will frustrate my investigation. The other issue is - - -

PN15

THE SENIOR DEPUTY PRESIDENT: But just before you go any further - all right, you’re just outlining at the moment. The other issue is sorry?

PN16

MR LAPIDOS: The Tax Office says that any release that does take place of its employees is limited to 30 minutes and is subject to operational requirements. The ATO’s call centres generally are very busy and one of our concerns is that they are under staffed to their commitment in our agreement to ensure there’s adequate staffing and so one of our concerns is that the restriction of operational requirements may be used by the office to hinder the investigation. In the past we have reached agreement about the Tax Office notifying the staff themselves in a way that was acceptable to us and we did not press our need to approach staff at their individual work point.

PN17

But given the Tax Office is not prepared to make that facility available at all we believe it’s necessary for us to be able to approach the staff at their work point, but we also believe it’s also necessary for the office to provide some advice to their staff that they should take notice of the fact that they are being invited and that there is official sanction for it.

PN18

THE SENIOR DEPUTY PRESIDENT: All right. Well, where abouts under the Act does it actually give you the right to visit staff or eligible employees or members at their desk? Where does that right arise?

PN19

MR LAPIDOS: Well, it doesn’t specifically say that, your Honour. What it does say is that I can interview the staff and Mr McPhee might assist me, but my understanding is that it needs to be read in a positive fashion so that the right that I have and the obligation which the Tax Office has is made effective and that in the absence of any practical way of letting the staff know of what’s going on in fact we believe that there would be a breach of section 767 by effectively the Tax Office insisting that we not approach their staff.

PN20

THE SENIOR DEPUTY PRESIDENT: Which section are you actually seeking to deal with the staff under?

PN21

MR LAPIDOS: Well, in terms of hindering or obstruction I’m referring to section 767(7).

PN22

THE SENIOR DEPUTY PRESIDENT: Yes I follow that, but are you - - -

PN23

MR LAPIDOS: This is exercising rights or powers under section 747 of the Act, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN25

MR LAPIDOS: And we have attached a copy of the notice that was issued. This is a notice made in accordance with the form that’s published by the Registrar.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes.

PN27

MR LAPIDOS: And that notice goes into quite some detail of the provisions of the ATO (General Employees) Agreement 2006 which binds our union and the Tax Office and I’ve gone into quite some detail specifying which particular clauses of the agreement and giving quite some detailed explanation of the reasons for our concerns that the Tax Office may not be complying with the Agreement.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes. Do you want to say anything else in support of the application?

PN29

MR LAPIDOS: Well, I think the only other thing I can add is I refer to a suggestion made by Mr Gaffney which is that I could ask a union representative to put a notice on a Tax Office notice board. I’d just like to make the point that our union doesn’t necessarily have representatives at each area of the Tax Office and to the extent that we do have reps around the place we can’t require them to do anything and the notice boards the Tax Office have are not well distributed around the place. They have a practice of insisting that there are union notice boards and other types of notice boards and I would assume that people who aren’t union members would not generally look at the union notice boards.

PN30

There’s two major unions that cover staff in the Tax Office, the CPSU and the ASU. It’s likely to be the case that CPSU members are more likely to look at CPSU notices than ASU notices and in any case it’s the nature of these notice boards and the fact that they’re not regularly changed in practice that staff often don’t look at them at all. So their suggestion isn’t in any way practical for us.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes.

PN32

MR LAPIDOS: I’d also add, your Honour, that there is an ATO policy which they call a Corporate Management Practice Statement on the proper use of information and communication technology facilities and that policy makes it unacceptable for an ATO employee to use any of the ATO’s information and communication technology facilities for the dissemination of union material unless prior approval has been obtained from the ATO executive in accordance with the ATO access protocol or similar document issued from time to time. And that Corporate Management Practice Statement is expressed in the form of a direction and ATO employees who breach that direction run the risk of having a notice of suspected breach of the APS Code of Conduct issued against them and we are aware of very many ATO employees who have had notices of suspected breach, or who have been determined where it has been determined they have breached the APS Code of Conduct for not complying with this Corporate Management Practice Statement on the proper use of information and communication technology.

PN33

Not necessarily that particular point about the dissemination of union material, but this practice statement covers a whole lot of possible ways that the technology could be used and makes it clear for very many ways it may not be used. That instruction in the Corporate Management Practice Statement refers to an ATO access protocol and I have included in my e-filing a copy of that practice statement and also a copy of the ATO access protocol. And in that access protocol the Tax Office agrees to allow the unions, including the ASU, with limited access to the ATO’s IT facilities and the office has agreed that we can email our representatives, but I understand that their view is that we should not email non-union members even if we knew who they were and if we did bulk email, or mass email people, through say the use of some intelligence that we might have access to of their names and email addresses that would put our relationship at some risk.

PN34

And so, your Honour, in practical terms the Act is their position obstructs us from having access to people who are not ASU members in the Tax Office and in particular in these call centres where we suspect these breaches of the agreement are occurring.

PN35

THE SENIOR DEPUTY PRESIDENT: But I mean, if I look at section 747, 748 there’s nothing there that indicates that you have to notify the employees that you are coming to the premises to investigate, does it? I mean, what you have under the Act is a right to enter the premises to speak with employees who are members, or eligible to become members, in relation to the terms of your investigation.

PN36

MR LAPIDOS: Yes and that’s what we seek to do.

PN37

THE SENIOR DEPUTY PRESIDENT: So why is it necessary for the ATO to notify the employees that you’re coming to do that?

PN38

MR LAPIDOS: The only - the nature of the notification that we seek is so that when I approach them at their work point in order to interview them that they understand that there is sanction from the Tax Office to do that. If there’s no notification from the Tax Office to their staff whatsoever I can go into the premises and with the appropriate order from the Commission approach people at their work points because I have got a clear understanding that the Tax Office position is that I should not. And there have certainly been requests in the past that I do not and I understand that would still be the case.

PN39

But in the absence of any agreed way of notifying people all I want to be able to do is to speak to people, invite them to go to the designated room and the people I approach can’t take their direction from me. I’m not their manager. So I’m not in a position to say to them you’ve got permission to do it. They would really need to go to their team manager. Now, if I’ve got the right orders from the Commission where I can approach them at their work point and speak to them I can, I suppose, say to them you can speak to their manager, speak to Joe and say Joe well, I’ve got an order here from the Commission, you can have a look at it, if you speak to your manager your manager may understand that they’re obliged to give you permission to speak to me.

PN40

But if the Tax Office doesn’t even notify its managers of what’s going on their managers won’t know what to do. I say this with a lot of experience with the Tax Office, your Honour. I’ve been secretary of our branch of our union since 1995 and I began working for them in December 1998, though I ceased as an employee a few years ago and I know what the culture is like in the Tax Office and unless there is some clear indication from the management about what staff can do or can’t do they’re certainly not going to listen to me about when I say to them it’s quite okay for you to come to a room with me and talk about this and you’re not going to be at any risk from the Office in doing that.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Did you want to say anything more on it?

PN42

MR LAPIDOS: I think that’s sufficient for the moment, your Honour.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Gaffney?

PN44

MR GAFFNEY: Thank you, your Honour. I just want to give a bit of background to the current situation if I could. I don’t necessarily want to go through the chronology of events that I sent to yourself today, your Honour, and to Mr Lapidos, only to note on them that we had helped Mr Lapidos in the past by advising employees of the investigation. We did say in July when he entered the offices in Parramatta and Penrith. So he’s already held two investigations about these same matters in Parramatta and Penrith and similar matters in May in Parramatta and Penrith.

PN45

In putting out a notice to employees about Mr Lapidos’s investigation we came to an agreement that 30 minutes would be enough time. July was a peak period. The October peak which is as you would appreciate now, your Honour, the end of October is the 31/10 lodgement date for deadlines. The amount of work that we actually run through our call centres at that time equals the combined call capacity that we do in January, February and March each year. So over a two week period we do a significant amount of work. In terms of whether we’re frustrating
Mr Lapidos we’d say that we’ve offered him assistance, we’ve provided a room in both UMG and in the Chermside office, we’ve given a contact name, we’ve advised managers that Mr Lapidos would be visiting and that they should allow employees time, subject to operational requirements and when we say that it’s a matter of the timing of the release, but we would release all employees who ask to speak to Mr Lapidos and we say 30 minutes.

PN46

We say 30 minutes this time because it’s a higher peak period than our July period and we allowed 30 minutes at that time. That appeared to be quite sufficient time at that time for Mr Lapidos to talk to employees. One wonders how it would be any frustrating to have that same time frame. Mr Lapidos referred to the matter of whether employees or representatives, ASU representatives, and employees in the ATO were able to use the email system to forward to, or that the ATO could actually use the email system to forward to their representatives in the office information about Mr Lapidos’s investigation and we’ve allowed him.

PN47

I wrote to him yesterday. You will see the email as the final attachment to the bundle of papers I sent this morning, your Honour, citing that he could use the email system and that’s consistent with the access protocol which is the document which is part of the papers provided to the Commission by Mr Lapidos. At page 7 of that access protocol, your Honour, it talks about the ATO agrees that the unions can email their union delegates who can pass on information to their members through the delegates’ email distribution lists for members that they represent in their work area.

PN48

The unions undertake not to distribute union messages to ATO employees who are not members of their union. But in addition to that there are other facilities. Mr Lapidos mentioned the notice boards. There are plenty of notice boards around the ATO. Some have been designated by union people and we haven’t chosen to disavow them of putting CPSU notice board or ASU notice board on it, but there are plenty of notice boards and indeed if you went to any office in the Tax Office you would see Mr Lapidos’s and Mr McPhee’s picture on most notice boards, or many notice boards, around lift wells and things like that. They’re not cleaned up because we think we need to be very careful about taking things off notice boards where they have been authorised by the relevant union official and they’re not offensive and not contrary to the undertakings in our collective agreement.

PN49

So we leave them there and if the union officials who put them there want to take them off that’s fine. Importantly, your Honour, I note that there is provision in our access protocol to allow ASU representatives, or union representatives, who are employees to distribute information about Mr Lapidos’s visit in the workplace and that’s on page 4 of the access protocol, that undertaking. In terms of if I could go to some of the issues raised by the ASU by Mr Lapidos I’ve talked about the question why 30 minutes and subject to operational requirements. As I’ve said we wouldn’t prevent people being interviewed by Mr Lapidos and if he needed more than 30 minutes he could on a case by case basis have the employee talk to the manager to see if it fits the operational requirements.

PN50

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Gaffney, where abouts under the Act do you say you are entitled to pose time constraints on inspections to investigate breaches of the awards or agreements?

PN51

MR GAFFNEY: Yes, your Honour. We don’t say the Act says that we can. We say that that’s the arrangement we had with Mr Lapidos in July, we also had that in May and 30 minutes at that time would seem to be sufficient. We didn’t get any complaints from anybody that it wasn’t sufficient time. So from a business perspective we need to understand when our people in call centres who are on rosters answering tax payer calls, we need to know when they’re going to be back in the workplace so we can at this very busy time ensure that we cover the work load. So I agree, your Honour, there’s nothing in the Act saying that they’re limited.

PN52

The issue of Mr Lapidos walking around and speaking to people we couldn’t agree with. As I said it’s a peak period, it’s the busiest period of the year. We had concerns about the tax payer privacy and employees may not understand the status of Mr Lapidos or any representative around that question of whether they had, for instance, signed any particular secrecy declaration so it might cause concern to employees. It would inhibit the employees while they’re trying to do their business. We think it’s also, as I mentioned, it’s contrary to the access protocol at page 4 and we think importantly, your Honour, that it’s contrary to the intentions of parliament, I think, in terms of when 747 and 760 were constructed.

PN53

They talked about allowing the employer to provide a room that is - sorry - asking the union permit holder to use a room and stating that if they failed to use the room that may be a reason for them to be asked to leave. So for those reasons we’re not very keen on people waking around our business areas, especially an important tax payer interest base such as our contact centres. I think I mentioned just to finish off in relation to the information technology Corporate Management Practice Statement, that practice statement does say that the union officials can use the IT facilities to disseminate information subject to the caveats that are in the access protocol and as I said we’ve allowed people to do that for years so I don’t think that that’s a real concern.

PN54

Employees have never been sacked for sending around union information. Those provisions are mainly around pornography cases or misuse of the information systems by perhaps running their own business or whatever out of the Tax Office. So that’s what those particular provisions are about. The other issue I’d like to bring to your attention, your Honour, is the concern that the issue here that
Mr Lapidos has lodged two notices, a combined notice under 760 and 747 which have different rights and different responsibilities imposed upon the employer and the permit holder. And in fact there is a small difference in the people that the union permit holder can talk to.

PN55

We would be placed in a situation of not knowing whether the employee was talking to the union under 747 or 760 and whether they were doing it on their own time or on work time or in breaks. So I hope your Honour I think I’ve covered most of the issues raised. Mr Lapidos suggests that 747 needs to be read in a positive manner. We believe it needs to be read as it is written. Thank you, your Honour.

PN56

THE SENIOR DEPUTY PRESIDENT: Sorry, what do you mean by that?

PN57

MR GAFFNEY: Well, whatever’s in 747 is what’s in 747, your Honour. Not to read in a right to walk around, for instance.

PN58

THE SENIOR DEPUTY PRESIDENT: No, but 748 spells out what the rights are.

PN59

MR GAFFNEY: Yes. I’m sorry, your Honour, yes. 748.

PN60

THE SENIOR DEPUTY PRESIDENT:

PN61

While on the premises the permit holder may for the purpose of investigating suspected breach during working hours -

PN62

I’m referring to (b) here:

PN63

- interview the following persons about the suspected breach.

PN64

And that says employees or members or employees who are eligible to be members. There is also in (a) of course a right to inspect or view any work, material, machinery or appliance that is relevant to the suspected breach.

PN65

MR GAFFNEY: We would assist Mr Lapidos in doing that.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes. Well, did you want to say anything more at this stage, Mr Gaffney?

PN67

MR GAFFNEY: Just in relation to that, just that matter about walking around. I would just read if I may, your Honour, the access protocol at page 4 where it says:

PN68

These reciprocal obligations together with security consideration applying in the ATO suggests that it is in the interests of both ATO and unions for discussions to take place in the location where work is not disrupted and security and privacy issues do not arise.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes, because the protocol can’t override the express provision of the Act.

PN70

MR GAFFNEY: Exactly, your Honour, yes.

PN71

THE SENIOR DEPUTY PRESIDENT: Mr Lapidos, what do you say about this issue of walking around?

PN72

MR LAPIDOS: Your Honour, one of the suspected breaches of the agreement that I included in the entry notice is in relation to health and safety and in fact one part of that is in the last page and I’ve said:

PN73

The ASU has received reports of staff suffering from sore throats, achy hands, shoulders, necks and backs. I’m concerned the staff are not sufficiently encouraged to support these symptoms of an unhealthy working environment through the incident reporting system as required under the ATO Rehabilitation Policy.

PN74

And I refer to clause 1.17.1 of the agreement that says:

PN75

All reasonable steps will be taken to provide employees with a healthy and safe workplace.

PN76

Your Honour, I was in a meeting with the Commissioner of Taxation on Friday afternoon where I raised a concern with him that the new software that the Tax Office is implementing called Siebel is causing health and safety problems and it seems to me that one of the things that I should do after entering the premises is to view how people are working and to see how they use the equipment, how they use their keyboard and mouse. And it seems to me that I would need to see that reasonable close to the people. So the other thing that Mr Gaffney raises is a concern in relation to security and a question of whether an appropriate undertaking has been given in relation to confidentiality of tax payer information.

PN77

And the Tax Office protocol makes provision for the issue of a building pass to permit holders on the proviso that an appropriate undertaking on tax payer confidentiality to be given and I gave such an undertaking and if they need it I can give a similar undertaking again. And I don’t see this as an issue at all.

PN78

THE SENIOR DEPUTY PRESIDENT: All right. So what do you say of the limitation - - -

PN79

MR LAPIDOS: Sorry, I just would have thought if I was to be viewing people at close quarters in the workplace it would be very nice if the staff had an explanation from the management of what this chap was doing standing around watching them at work.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes. What do you say is hindering you in conducting your investigation though? What are the elements?

PN81

MR LAPIDOS: Well, the problem is - - -

PN82

THE SENIOR DEPUTY PRESIDENT: The time limitation.

PN83

MR LAPIDOS: The time limitation is one thing.

PN84

THE SENIOR DEPUTY PRESIDENT: The operational requirements.

PN85

MR LAPIDOS: I beg your pardon, your Honour?

PN86

THE SENIOR DEPUTY PRESIDENT: The operational requirements proviso.

PN87

MR LAPIDOS: Yes. The other problem is their request that I not approach individual people at their work points and what I’m saying is the mechanisms the Tax Office make available for us frustrate us from being able to approach members of staff who are not members of our union.

PN88

THE SENIOR DEPUTY PRESIDENT: And eligible to be members you mean?

PN89

MR LAPIDOS: Yes, who are eligible to be members and who are bound by the ATO (General Employees) Agreement 2006.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes. So is there any other restrictions or limitations that you say are hindering you in your quest to conduct an investigation?

PN91

MR LAPIDOS: Well, they are the key things. But I would say that there needs to be some facilitation by the Tax Office even where they agree that I can approach their staff at their work point and invite them to speak at an agreed office and that’s what I’ve put in the draft order, that the interview would take place at an agreed office.

PN92

THE SENIOR DEPUTY PRESIDENT: Yes.

PN93

MR LAPIDOS: They need to know. I mean, why should someone take my word for it? There needs to be some positive facilitation from the management otherwise what are they to do? They’re approached by a fellow who claims to be a union official and says it’s okay for you to come, leave your desk and come with him to this office down the way and talk to him to help him investigate whether the Tax Office is in breach of their agreement and they’ve heard nothing from the management at all. I can’t see how that is anything but an attempt to frustrate and hinder my investigation.

PN94

THE SENIOR DEPUTY PRESIDENT: But I can’t see anything in the Act either that requires the employer to take some positive step to assist you in investigating what might be breaches made by the Taxation Office itself. In other words - - -

PN95

MR LAPIDOS: I agree. I’m not asking the Tax Office to encourage people to speak with me. All I’m saying is that I believe that you can read into the Act the fact that there must be a sufficient minimum facilitation by the Tax Office. If I can put a slight analogy perhaps. I expect when I go into the Tax Office to investigate suspected breaches of the agreement that I would be allowed to use the bathroom facilities there if I need to, but there’s nothing in the Act that says that there’s any obligation to do that. The Tax Office has always allowed me to do that. I’m not saying that they haven’t.

PN96

But if they said to me you can come to this room, but you can’t leave the room. And I'll give you an example that happened in real life in the Tax Office in 2001 when I went to Upper Mount Gravatt and I wanted to go into the call centre there to view work, the Tax Office actively prevented me from doing that and called the Queensland State Police and insisted they remove me from the building. So when this lack of cooperation came from the Tax Office I was very concerned that the same thing would happen again. That I would leave the room that they appointed for me and go and view the work and that they would then insist that I leave and that when I refuse to leave on the basis that I’m upholding rights that I have and insisting that they meet obligations that they have under the Act that they call the police on me again.

PN97

And after that episode they tried to persuade the Commission to revoke my permit. And that is why I’ve come to the Commission before going into the premises to make it clear exactly what the conditions are under which I can go in and actually interview staff.

PN98

THE SENIOR DEPUTY PRESIDENT: All right. So what do you want from the Commission?

PN99

MR LAPIDOS: Well, I’ve set out a draft order, your Honour.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes, I have that before me now.

PN101

MR LAPIDOS: I’m content with that draft order. It may be that because the dates that we would need to make some changes necessarily because of the effluxion of time.

PN102

THE SENIOR DEPUTY PRESIDENT: And you say that I have the power to make those orders under section 772, do you?

PN103

MR LAPIDOS: Well, subject to anything that Mr McPhee says I thought so. What it says is that you can make orders that don’t confer rights additional to or inconsistent with the rights exercisable under this part and also having regard to fairness between the parties.

PN104

THE SENIOR DEPUTY PRESIDENT: Yes.

PN105

MR LAPIDOS: I’m not trying to hijack the Tax Office, your Honour. I mean, our branch of our union only looks after employees who work in the Tax Office, nowhere else. We have a very long relationship which has its hiccups along the way. Why this particular hiccup has arisen I don’t know, but I can only assume it’s because they don’t wish this investigation to continue.

PN106

THE SENIOR DEPUTY PRESIDENT: All right. Is there anything else you want to say at this stage?

PN107

MR LAPIDOS: Mr McPhee, do you have anything to add?

PN108

MR MCPHEE: Your Honour, in relation to question of has the employer got obligation to notify employees that an investigation is being undertaken, there is of course no statement of that in the new Act. It’s complicated by the provision in the Act which now says that a person may no longer remain on premises if the occupier or employee reasonably requests the permit holder to hold the interviews in a designated office or to take a particular route to that office.

PN109

THE SENIOR DEPUTY PRESIDENT: What section are you referring to there?

PN110

MR MCPHEE: I’m looking particularly at section 751(3) which the section’s headed Limitation on Rights. In fact that limitation is not actually even saying that an occupier hinders a permit holder by requiring the permit holder to hold interviews in a particular place. It’s really just saying that if the permit holder fails to comply with that request they’re no longer entitled to be on the premises at all. The problem that then arises is if no one knows about the investigation being undertaken by a permit holder then the reality will be that the permit holder can not exercise their powers and their powers are set out in section 741 and one of those powers is to interview eligible employees, another power is of course to observe work.

PN111

The question then is would a permit holder be hindering or obstructing the operation of the employer’s business by going to eligible employees and saying to them I’m conducting an investigation, you can refuse to participate in an interview, but if you do want to participate then there’s a branch for that to occur in such an office, but you first need to notify your team leader to get release in due course and get a scheduled time when that can occur given the nature of what happens in the call centres. So that’s all I really add in that sense, that we’re really seeking the assistance of the Commission to facilitate the exercise of our rights under these provisions.

PN112

And section 772 - sorry. The section, anyway, in terms of resolving disputes about the operation of the part talks about the Commission making orders having regard to the fairness between the parties and, I mean, we’re asking for those kind of facilities more just to assist us to be able to exercise those rights that we have, legislative rights.

PN113

THE SENIOR DEPUTY PRESIDENT: Anything else, Mr McPhee?

PN114

MR MCPHEE: No, your Honour.

PN115

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Gaffney, do you want to say something in response?

PN116

MR GAFFNEY: Just very quickly, your Honour. Mr Lapidos has asked why is it the ATO is not providing the service or the facility we had in the past. Mainly, your Honour, because this is the fifth and sixth investigation that has been launched by the ASU in respect of these same matters. These were matters that were discussed in negotiations, or negotiated during the recent collective agreement rounds and didn’t make the agreement. We believe that some of these issues actually amount to additional training and are contrary to clause 134 of our agreement.

PN117

The issue here around - I think I just want to differentiate between the occasions where Mr Lapidos is seeking to go to talk to people in their workplace. One is where he’s seeking to inspect the work of the employee in the workplace. That’s clearly an entitlement or a right that he has under section 748 and we would assist in facilitating that and we would advise the employee what was happening so the employee may not feel threatened by what’s happening to them. The other one is he’s seeking an order that he be able to approach people at their workplace and ask them to go into an interview room to talk to him about suspected breaches of the agreement.

PN118

We would submit, your Honour, that that could well be threatening and stressful to an employee who may not know what he can and can’t do and again I go back to the question of what Parliament is putting to the Act in terms of the employer being required to provide a room, or if they do provide a room the person being required to do so to use it. But I just have a look very quickly, your Honour, at the question of Mr Lapidos saying he’s investigating health and safety issues. Yes we’ve been underway in a rather large change program in the Taxation Office for the last few years.

PN119

We expect that it will finally roll out in the early to mid 2008, the last parts of that change program. The staff in the call centre environment have been using the Siebel program and Mr Lapidos reports injuries and illnesses. I can tell you there have been no extra or no occupational overuse claims in relation to no additional claims in relation to the use of the Siebel software. We have a broad range of health and safety representatives in the office. These change programs are considered and overseen by occupational health and safety committees in each of our business lines, about 20 of them and their job is to keep an eye on that as well.

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Our manager’s job is to ensure a safe and healthily workplace. Finally, your Honour, these issues as I said, they have been raised with the ATO in May, again in July. Mr Lapidos had a three hour discussion with a consultative forum in the operations subplant which is one of the five major areas in the Tax Office and the operations area, it makes up for around I think about 40 per cent of the office. He had those discussions in August. We responded to him in a letter in September - that’s in the papers we sent you this morning, your Honour - and tomorrow there’s a three hour segment in the operation subplant consultative forum again about client contact issues.

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So we think one wonders why he’s actually having his fifth and sixth investigation and it’s a little wonder that management said in this peak time we’re prepared to facilitate his investigation in accordance with the legislation and he has facilities in which he can inform employees. Thank you, your Honour.

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THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Gaffney. Mr Lapidos, what do you say by the way about Mr Gaffney’s point that you have two right of entry matters, or have lodged two notices one under 760 and one under 747?

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MR LAPIDOS: Well, it hadn’t occurred to me that it could be a problem and that’s why I’ve done it and I believe I’ve followed the form that the Registrar has published and really it was a matter of convenience, I thought, for everyone to put them together. I don’t think that there is an issue in relation to that. I mean, in terms of Mr Gaffney’s concern about the office not knowing which was which in the sense of which provision applied to people coming to see me, I thought it would have been clear that under section 760 I can only speak to people during their meal and other breaks such as morning tea and afternoon tea.

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THE SENIOR DEPUTY PRESIDENT: And otherwise any time during meeting hours of the other one.

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MR LAPIDOS: Yes. And with 760 it’s effectively not during - well, 747 is clearly during paid working hours. So they’re different things and I’ve done this before, it hasn’t been an issue before. When I did go to Penrith and Parramatta in July I combined it because I was looking, I was investigating the suspected breaches in the call centres, but I knew there were people in other parts of the Tax Office there who would wish to speak to me, for example during their lunch time, and I wanted to make myself available for them.

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THE SENIOR DEPUTY PRESIDENT: Yes, all right. Anything else?
Mr Lapidos, anything else?

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MR LAPIDOS: Well, I think I'll just be repeating myself, your Honour.

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THE SENIOR DEPUTY PRESIDENT: Yes. Did you want to say anything more, Mr McPhee? No. Do you want to say anything more, Mr Gaffney?

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MR GAFFNEY: Only very quickly, your Honour, and that relates to section 772(3) which talks about the orders that the Commission might make and our concern is that, or our submission is, your Honour, that requiring the office to advise employees of Mr Lapidos’ investigation or requiring the office to allow him to attend to or drop in on people at their work station during their working hours, we believe that they would be additional rights which is in our submission, your Honour, the Commission is not entitled to make.

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THE SENIOR DEPUTY PRESIDENT: Yes, very well, thank you. I'll reserve my decision and get something out this afternoon, early this afternoon, in response to the application, Mr Lapidos.

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MR LAPIDOS: There is one thing then, your Honour. Given that it might take a little while I just wonder if I could just say that there is another power that the Commission has in the sense that if, for example, it takes say until 3 o'clock - I don’t mean to bind your Honour to any particular time, but just to give that as an example that you’re decision’s not available until 3 o'clock - and if I collected the decision from the Commission here in Brisbane and the presuming there was something in our favour that I then headed our to Brisbane to Chermside, in practical terms I may not be able to take effect from any order that your Honour may make and I believe that there is some provision for the Commission to alter the orders effectively.

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What I’m getting at is there may be some provision where we could substitute dates so that I could come back. If it’s not practical for me to continue the investigation for much of today that there be something in the order that would allow substituted dates by agreement between the parties. And it does say in section 770 there is something which I hopefully will find it, the Commission isn’t restricted to the particular draft orders that we have applied for and can make alternative orders and I’m sure I saw something that allowed you to - - -

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MR GAFFNEY: I can assist you. Section 776 I think is what Mr Lapidos is referring to.

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THE SENIOR DEPUTY PRESIDENT: Yes.

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MR LAPIDOS: Yes, but there is another provision as well. If I could just have a moment to focus on this. Yes, it’s in section 771(2) where it refers to a specified period and that I understood to mean to cover this type of situation where because of the delay that occurred I’ve only issued notices for yet - well, I obviously can’t go to Upper Mount Gravatt yesterday now no matter what the Commission orders and I think that section 771(2) empowers the Commission to make orders in relation to alternative dates.

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THE SENIOR DEPUTY PRESIDENT: Yes, all right.

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MR LAPIDOS: Thank you, your Honour.

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THE SENIOR DEPUTY PRESIDENT: Thank you. Anything else? Anything else from you, Mr Gaffney?

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MR GAFFNEY: No thank you, your Honour.

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THE SENIOR DEPUTY PRESIDENT: No, very well. I’ll adjourn the matter and I'll reserve my decision and give an indication one way or another this afternoon after lunch.

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MR LAPIDOS: Thank you, your Honour.

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THE SENIOR DEPUTY PRESIDENT: Thank you. The matter is adjourned.

<ADJOURNED INDEFINITELY [12.42PM]