C2006/2591, Transcript of Proceedings [2006] AIRCTrans 822 (16 June 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15169-1

SENIOR DEPUTY PRESIDENT KAUFMAN

C2006/2591

LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
AND
INSTITUTE FOR ABORIGINAL DEVELOPMENT
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2591)

MELBOURNE

2.26PM, MONDAY, 05 JUNE 2006

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

PN1

THE SENIOR DEPUTY PRESIDENT: Yes there are no changes in appearance I notice. This matter has been brought on because Mr Hull alleges that the recommendation I made has not been complied with. Is that the case Mr Hull?

PN2

MR HULL: That's correct your Honour. The recommendation has not been complied with. No monies have been forthcoming from Ms Peckham. The institute has, in our opinion, has treated your recommendation and our member with contempt and your Honour, today we'd be asking that you issue an order and strongly urge the institute to obey that order. Senior Deputy President, we would be also asking that the order contain payment for interest on monies owed.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Riely what's the story? On 12 April in conference you indicated that the institute would accept my recommendation.

PN4

MR RIELY: I'm sorry to say sir that I misrepresented the institute in that the organisation do not believe that Eileen has been made redundant. I mean in simple terms Eileen's been dismissed from that position and I did not understand that when I was here before you at that time sir.

PN5

THE SENIOR DEPUTY PRESIDENT: I think you might have understood that but I took a different view didn't I?

PN6

MR RIELY: Well, on reading the transcript sir I feel that I made the claim out to be that Elaine was redundant and I therefore felt that you based your decision on that. When I went back to work and my director read the transcript she said that I'd misrepresented the organisation, that Elaine wasn't redundant, she was dismissed from that position.

PN7

THE SENIOR DEPUTY PRESIDENT: Why wasn't she made redundant from that portion of the position that no longer existed?

PN8

MR RIELY: That's the position that she's been made redundant from sir, dismissed from. She hasn't been dismissed sorry, she hadn't been dismissed from that .5 position but she's been dismissed from the ….. officer's position.

PN9

THE SENIOR DEPUTY PRESIDENT: Well that's right and she's been dismissed from that position because the institute doesn't require that job to be done by anybody, hasn't she?

PN10

MR RIELY: No that's not correct sir. We want to grow that part of our business and unfortunately Elaine's just been unable to do that and so it's not a case of redundancy in that position, we're keen for this position to operate.

PN11

THE SENIOR DEPUTY PRESIDENT: Is it operating?

PN12

MR RIELY: Currently no. We're – well it is, yes. It is operating sir. It's being part managed by the manager of the department and consultants from outside.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes. How much money did my recommendation add up to?

PN14

MR RIELY: Approximately $2000 sir.

PN15

THE SENIOR DEPUTY PRESIDENT: Hardly a fortune is it?

PN16

MR RIELY: I have my orders sir.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes. You're just the messenger.

PN18

MR RIELY: Unfortunately in this instance that's correct sir.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes well - - -

PN20

MR HULL: Excuse me Senior Deputy President.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes.

PN22

MR HULL: Nowhere in any of the correspondence from the institute to Ms Peckham or to the union has indicated anything to do with the termination from a certain position. Nowhere at all has that been claimed or indicated in any way, shape or form. In fact all of the discussions up until now have centred around her redeployment. She's an acceptable staff member ….. She's clearly been made redundant from that position.

PN23

The LHMU tends to use all available means to ….. Ms Peckham's right for payment and of course if we're unsuccessful here today, your Honour, we'll be briefing legal counsel in following that through the Federal Court where we'll seek prosecution for IAD for breach of the, not only the enterprise agreement but also the Federal award and we'd be seeking costs for that as well. The whole situation is quite extraordinary in the sense that IAD appears to, wish to run one line and when they lose that argument they come back with another line about termination.

PN24

I think it's quite clear to everyone here today that Ms Peckham hasn't been terminated from her position, she's been made redundant from that position. My understanding is that that position has not been filled, is not, the job is not being done by anyone else. It's a clear case of a redundancy or partial redundancy and we will take it to the Federal Court if need be where of course IAD could be up for a lot more than $2000.

PN25

THE SENIOR DEPUTY PRESIDENT: Well that's a matter for you and for IAD as to what each of you does. I'm not in a position today to make an order. I haven't heard evidence, I haven't formed a view other than on the basis of what I was told on the last occasion. What I think I'm inclined to do is to adjourn this to the next time that a member of the Commission is in Alice Springs and direct, and have the matter heard then and direct that – who is your principal, Mr Riely? Who do you take your instructions from?

PN26

MR RIELY: Mrs Eileen Shaw.

PN27

THE SENIOR DEPUTY PRESIDENT: Mrs Eileen?

PN28

MR RIELY: Shaw.

PN29

THE SENIOR DEPUTY PRESIDENT: S-h-a-w?

PN30

MR RIELY: That's correct sir.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes well she can make herself available at the next hearing and we can hear directly from her rather than having the messenger being criticised. So that's what I'll do. I think Deputy President Hampton might be in Alice Springs within the next few weeks. What I'll do is I'll have this file referred to him or to whoever is going to be in Alice Springs next. The matter can be listed then and if needs be, Mr Hull, you can issue a summons to have Mrs Shaw attend.

PN32

MR HULL: Very good your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: Because unfortunately I don't think I can do anymore today. I think it's regrettable that, and I would ask you to convey this to Mrs Shaw, that when a party appears before the Commission, by an officer of that organisation – are you employed by the institute, Mr Riely?

PN34

MR RIELY: That's correct sir.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes and you were instructed to appear and when the Commission is told that an undertaking will be, a recommendation will be accepted, that that is not done. I think that's regrettable and I say no more about it than that. The matter will be adjourned to be relisted in Alice Springs the next time a member of the Commission is in Alice Springs. Is there anything else either of you want to say? Well we'll adjourn on that basis. If Mrs Shaw changes her mind in the meantime and decides to accept my recommendation, I suggest that that would be an appropriate course for the institute to take. Thank you.

<ADJOURNED INDEFINITELY [2.34PM]