C2006/57, Transcript of Proceedings [2006] AIRCTrans 364 (16 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14319-1

COMMISSIONER RAFFAELLI

C2006/57

NYANGATJATJARA COLLEGE
AND
INDEPENDENT EDUCATION UNION OF AUSTRALIA-NORTHERN TERRITORY BRANCH
s.170LW - Application for settlement of dispute (certification of agreement)
(C2006/57)

DARWIN

9.32AM, THURSDAY, 23 FEBRUARY 2006

PN1

THE COMMISSIONER: Yes could I have the appearances in Darwin please?

PN2

MR M HUMPHREYS: From the Chamber of Commerce Northern Territory on behalf of Nyangatjatjara College.

PN3

THE COMMISSIONER: And I will take appearances in Melbourne.

PN4

MR A ODGERS: I appear today together with MS L ROLLEY, the union's Federal secretary on behalf of the Independent Education Union of Australia.

PN5

THE COMMISSIONER: Yes thank you and do we have people in Yulara?

PN6

MR R FOLDS: Principal of Nyangatjatjara College.

PN7

THE COMMISSIONER: Yes thank you. Yes it's your notification, Mr Humphreys.

PN8

MR HUMPHREYS: Yes thank you, Commissioner. The application is made on the basis of appendix A of the certified agreement. Essentially what the heart of the issue is, Commissioner, that a particular employee by the name of Lyn Spencer has engaged in essentially what is an attack on the principal of the college and I am of the understanding and I may be corrected on this Commissioner that the union is representing Ms Spencer in a termination of employment matter.

PN9

However the issue remains that there seems to be some sort of concerted effort to try and get Mr Folds, who is the principal of the college, terminated from his employment as the principal of the college. I have a number of – in fact it is one letter, Commissioner, that has been circulated both to community members and also to employees that I would like to tender. I didn't put it in the initial submission in the application. I wrongly assumed that there was actually three copies of the same letter but they are actually signed by three different groups of people.

PN10

So if I could tender that just as one document. As one exhibit and that's the letter that had been circulated through various community members. Also to employees. The issue with that letter from the college's point of view, Commissioner, is that a number of people that have signed that particular document have then – the contents and the actual purpose of that letter was not properly explained to the people who signed it. That is one issue that perhaps Mr Folds can expand on and that primarily remains the most significant thing about that particular letter.

PN11

In looking at the certified agreement the college has asked me to raise this as a dispute because it is very clear in the agreement that there are certain approaches to decision making which is outlined in the appendix.

PN12

THE COMMISSIONER: Yes you can take me to that.

PN13

MR HUMPHREYS: Which has been referred to, I think under clause 14 of the certified agreement. The actions of the parties to the agreement and again I may stand corrected but the union - - -

PN14

THE COMMISSIONER: Clause 3 or clause 12?

PN15

MR HUMPHREYS: I will just – won't be a moment. Yes I beg your pardon, Commissioner, I am corrected on that. It is clause 12 of the agreement but certainly if the party to the agreement, that being the union are pursuing this course of action it is inconsistent with the intent of the agreement in terms of the decision making processes that are required to be followed.

PN16

THE COMMISSIONER: Yes well let me ask you this. Notwithstanding the covering page from Ms Dellar, are you saying that the campaign or the circulation of this brochure no this letter to be signed by various people, has that been orchestrated by the union or by Ms Spencer?

PN17

MR HUMPHREYS: I may stand corrected on that, Commissioner, but my information from Mr Folds is that it was in fact initiated by Ms Spencer.

PN18

THE COMMISSIONER: Yes.

PN19

MR HUMPHREYS: But certainly from what Mr Folds and certainly – again I may stand corrected on it – it is also being supported by the union.

PN20

MR FOLDS: Could I comment on that please?

PN21

THE COMMISSIONER: Who's that?

PN22

MR FOLDS: It's Ralph Folds here.

PN23

THE COMMISSIONER: Yes.

PN24

MR HUMPHREYS: If I might make a suggestion Commissioner, I think at this stage because there is some detail with regard to the application because it was made quite quickly. There may be an opportunity to go into perhaps a conference to discuss some of the matters.

PN25

THE COMMISSIONER: Well it might be but yes, I hear that Mr Humphreys. You were going to say something Mr Folds?

PN26

MR FOLDS: Yes I wanted to provide some detail there if I may. Would that be all right?

PN27

THE COMMISSIONER: Yes.

PN28

MR FOLDS: Okay. I had followed up these letters at a community level so recently I travelled to one of the communities, Nyangatjatjara, one of the letters here.

PN29

THE COMMISSIONER: Yes.

PN30

MR FOLDS: I talked to people who attended the meeting and I talked to community advisers and youth workers who were also there and witnessed proceedings and I was consistently informed that Tabatha Dellar, the IEU representative with Lyn Spencer who is pursuing an unfair dismissal held a meeting at this community, Nyangatjatjara, from the perspective which generated this letter which was then signed. It was read – this letter was read to community members in English. Many told me – English is a foreign language – a second language at this ..... community.

PN31

Many of these people – at that community say that they hadn't understood it. That they had actually thought that that meeting regarded Abstudy payments which is something – completely separate issue – something that they had some reason to feel anxious about. They feel they had not received Abstudy payments from the college. So I think there was – the IEU was directly involved in the production of this letters with signatures and there was potential misrepresentation. When I read this letter in language to suggest that - they were shocked.

PN32

Many of them say they had no idea of the content of these letters and I also add that this letter really – and the actions of the IEU – not just directed at me, that is the least of my concerns. These letters encourage indigenous children to not attend Nyangatjatjara College and I think that's a deplorable position for an education union to take. Yes that's what I can say on the involvement of the IEU in this correspondence.

PN33

MR ODGERS: Commissioner, it's Anthony Odgers for the IEU in Melbourne.

PN34

THE COMMISSIONER: Yes.

PN35

MR ODGERS: We have got a fairly bad line here but we were able to understand the gist of what Mr Folds was saying. I understand there has been an application from the Chamber on behalf of the school to adjourn this matter into conference. Before you consider that application if it is a convenient time I would like to say a couple of things on behalf of the union about this application.

PN36

THE COMMISSIONER: Yes.

PN37

MR ODGERS: Thank you Commissioner. I would say firstly that the first we heard of this application was yesterday. Secondly the agreement outlines at clause 8 the process that's been taken. Leaving aside the question of whether or not there is a staff member who believes they have a grievance. Presuming that that ex-staff member is the principal, the agreement sets out – and I won't go into any detail at clause 8 the sorts of measures that are normally in existence in the dispute and grievance procedures between parties prior to the matter being notified to the Commission and it sets them out quite clearly as conditions.

PN38

Steps that have to be taken to try and resolve the issue before it comes to the Commission. Now we were notified yesterday and we know nothing about the substance of the dispute. My first position is that whilst we are more than happy to talk about it today, the school should have met its obligations pursuant to the dispute and grievance procedures. The second point I want to raise is that this matter is allegedly notified to the Commission on the basis of what one presumably pursuant to section 170LW, there are obligations in listing the agreement that appear not to be met.

PN39

At clause 12 obliges staff to do certain things. It is said that there is a relationship in clause 12 between it and appendix 1 but there's a fairly broad point that we could take there that we won't but even presuming that there is a relationship between – a proper relationship at clause 12 and appendix 1 – one that makes sense, they are obligations from staff and we are baffled to understand how an ex-staff member it is alleged in context with a part-time organiser with the territory are said to be in breach of this agreement.

PN40

The only breach that we can see on its face is a complete failure by the employer to hold meetings pursuant to clause 8 of the dispute and grievance procedures but there are two other issues I wish to raise. The first is that the union doesn't take back what is said when – and has sent the material to you, Commissioner, outlining what is a very widespread community protest against what we have always said are the very negative workplace consequences of the bullying and buggering that forms part of Mr Folds leadership style.

PN41

There have been letters to politicians. Mr Folds himself in response to what is widespread community concern, has written to Sharon Burrow – the ACTU but we do say that we have no part whatsoever in any campaign to turn the students away from the college itself and I think if Mr Folds and the Chamber thought through that proposition they would realise that the ultimate success of any campaign of that sort would be to find all of our members out of a job. Secondly and it goes without saying the foundation for this notification is hearsay.

PN42

So in the face of a document that has been given to the Commission we are in – various people from an aboriginal community so they have no confidence in the principal. The principal says well he has heard them and we are given a secondhand account that the union is involved and a secondhand account of misrepresentation. Now the Commission in the way they would normally deal with these things should expect that the ..... was dealing with this issue and as I say, because we are here we are prepared to talk about it but should take no notice of ..... things because at the end of the day in the face of - the only - document ought be a copy that points to the opposite effect and that is that people don't have any confidence .....

PN43

As a matter of fact I want to say on the record that I don't oppose any application to have the matter proceed into conference in an attempt to try and narrow the differences between the parties. We are still struggling to try and find out what the dispute is insofar as it relates to this agreement.

PN44

THE COMMISSIONER: Are you suggesting that Ms Dellar did not accompany Ms Spencer on her little trip?

PN45

MR ODGERS: No we are not saying that.

PN46

THE COMMISSIONER: No I am sorry.

PN47

MR ODGERS: She did accompany her.

PN48

THE COMMISSIONER: Right. Well the document says we are formally writing to advise you that our children will not be attending the college. Now why shouldn't I take that as a statement encouraging people not to attend the college and secondly the same letter calls on an employee, namely Mr Folds, to be sacked. Which I find extraordinary for a trade union to be part of but anyway, you know, what's your explanation for all of that?

PN49

MR ODGERS: The fact that Ms Dellar provided a lift for someone doesn't mean that the union countenances the proposition that people should be turned away from the school. It doesn't form any part of union policy. As for - - -

PN50

THE COMMISSIONER: No not union policy – it is not union policy, Mr Odgers, but it looks like pretty well union action.

PN51

MR ODGERS: I reject that, Commissioner.

PN52

THE COMMISSIONER: I mean what the – on what's before me it looks like pretty good grounds to remove any right of entry permit to the union's officers.

PN53

MR ODGERS: Well they weren't in a workplace, your Honour.

PN54

THE COMMISSIONER: No but I am talking about when she attempts to go to the workplace.

PN55

MR ODGERS: Well - - -

PN56

THE COMMISSIONER: I mean this is just - - -

PN57

MR ODGERS: Any given future – to the workplace one presumes would have to be in accordance with the Act.

PN58

THE COMMISSIONER: Yes.

PN59

MR ODGERS: I am happy to make it – if the Commission is minded to deal with this matter on the basis of the way it is put before the Commission at the moment then – given that we have received absolutely no notice and the dispute and grievance procedure - - -

PN60

THE COMMISSIONER: But you know about it. Mr Odgers, you know about all of this.

PN61

MR ODGERS: I make application for an order pursuant to section 170LW which is why we are here that the employer comply with section 8 of the agreement.

PN62

THE COMMISSIONER: Yes well you will have to do that application in writing.

PN63

MR ODGERS: Might seek an adjournment for half an hour to do so.

PN64

THE COMMISSIONER: No you are not getting that. We will go into conference.

<NO FURTHER PROCEEDINGS RECORDED