C2006/2741, Transcript of Proceedings [2006] AIRCTrans 877 (7 July 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15300-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

C2006/2741

ISS FACILITY SERVICES AUSTRALIA LIMITED
AND
LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
s.496(2) - Appl’n for order against industrial action (non federal system)
(C2006/2741)

ADELAIDE

3.32PM, MONDAY, 26 JUNE 2006

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

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon. I'll take some appearances, perhaps starting in Sydney please.

PN2

MR DIAMOND: Your Honour, is it easier if I stay seated or stand?

PN3

THE SENIOR DEPUTY PRESIDENT: It's easier if you stay seated but you do need to tell me who you are.

PN4

MR DIAMOND: Solicitor and I seek leave to appear for the applicant. Also seeking leave and appearing with me is MS E WINRAM.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Diamond. And in Adelaide?

PN6

MR J LOVE: For the LHMU.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Love. Mr Love, do you have any objection to Mr Diamond's application for leave?

PN8

MR LOVE: No sir.

PN9

THE SENIOR DEPUTY PRESIDENT: Well I grant that application, Mr Diamond.

PN10

MR DIAMOND: Thank you, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Mr Diamond, before I ask you to explain the application I should say that I received that application. On the basis of it I have before me the South Australian Industrial Relations Commission Award known as the Private Contractors Public Hospitals Award and I also have the Tempo Health Support Services Enterprise Agreement 2004 which appears to be an agreement certified in the South Australian Industrial Relations Commission.

PN12

MR DIAMOND: Thanks your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: Beyond that I'm in your hands, Mr Diamond.

PN14

MR DIAMOND: Well your Honour, what has given rise to the situation is this, as we have indicated in the application my client has had the contract to clean the Royal Adelaide Hospital for a number of years. There was a re-tender process which has been going on for some while and my client was advised in April that it had not been successful and that a new contractor, being Spotless, would take over the job effective at the beginning of July. There has been a level of dialogue between my client and the union about the transition process.

PN15

Indeed I was in Adelaide a couple of weeks ago and attended a meeting ..... the relevant union official Mr Snelson and my client's management representative, Ms Jenkins who is present in court in Adelaide today and we indicated to the union that although there was no problem obviously with paying termination pay and accrued entitlements, nevertheless the company took the view that if employees were simply transitional to Spotless that no redundancy arose and therefore there would be no entitlement to redundancy pay. Mr Snelson said at the time that the union had a different view and that would need to be worked out.

PN16

There was then a further meeting last Friday, again in Adelaide, between the union and Ms Jenkins and a senior management representative of my client, Mr John George, who came down from Sydney and on my instructions the understanding from that meeting was that the issue of redundancy would be taken to the Commission and dealt with there. And I should also say that my client had made it clear to the union that if anyone missed out on a job, either with Spotless or indeed with Tempo, if Tempo hadn't anything to offer to them, then they would obviously be paid redundancy.

PN17

Mr George left that meeting, came back to Sydney and I was contacted by Ms Jenkins late Friday afternoon and advised that she'd just been informed that the employees had applied some work bans and there was a relatively extensive list which is contained in the application that is before your Honour. Now with the assistance of management from my client and with the co-operation of the Royal Adelaide Hospital we have managed to get through the weekend and, in an operational sense, keep the place going to a reasonable standard but now that we're into the ordinary working week that is no longer possible and if these bans remain in place then I think there is no doubt that levels of hygiene and the hospital will be compromised.

PN18

Now there is no bargaining period in place and there is no protection for the industrial action that has been imposed and it ..... to us under section 496 that the Commission is in a position where orders are mandatory in the case of such industrial action and that is what has brought us before the Commission today, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: How do you say that Tempo were advised of these bans?

PN20

MR DIAMOND: Late Friday afternoon, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes but how?

PN22

MR DIAMOND: Ms Jenkins was advised verbally and subsequently, after the close of business some documentation was given to her and again on my instructions that documentation is attached to my affidavit. There is a letter of 23 June from Mr Butler in which concern is expressed.

PN23

THE SENIOR DEPUTY PRESIDENT: Let me just stop.

PN24

MR DIAMOND: And there - - -

PN25

THE SENIOR DEPUTY PRESIDENT: Let me just stop you there for a moment, Mr Diamond. What I have before me in this matter is the application. Now the application details the order that is sought and the seven grounds upon which you rely for that order.

PN26

MR DIAMOND: And there should also be an affidavit your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: Well you see I don't have that in front of me. Do you - - -

PN28

MR DIAMOND: I've got it here and it was filed and served in the registry.

PN29

THE SENIOR DEPUTY PRESIDENT: I pride myself on my eyesight but no amount of waving it around on the television screen is going to help me.

PN30

MR DIAMOND: Sorry your Honour. Well I mean it's got the received stamp on it. We did file it. I can't understand why it isn't in your Honour's file.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes well if needs be we'll have to adjourn the matter so that I can access that. Who signed the documentation that was provided to the employer in Adelaide on Friday 23rd?

PN32

MR DIAMOND: Mr Butler from the union signed the letter.

PN33

THE SENIOR DEPUTY PRESIDENT: Perhaps you could read that letter out to me. Is it a long letter?

PN34

MR DIAMOND: No it's about a page and a quarter but there is also attached to it some documents on the union letterhead, headed union news and work bans and they have apparently gone up on the noticeboards and evidence the work bans that are in place. Now I can read those out but essentially what we have done is link the information from those documents and put them in the application.

PN35

THE SENIOR DEPUTY PRESIDENT: All right. No at this stage I won't ask you to read it out to me. I might just get you to pause there and I just want to clarify a couple of issues with Mr Love. Thank you. Mr Love, is there anything that Mr Diamond has told me that you would disagree with?

PN36

MR LOVE: Sir at this stage I'm ..... in this matter.

PN37

THE SENIOR DEPUTY PRESIDENT: Okay.

PN38

MR LOVE: It's just handed to me, a copy of the application about an hour and a half ago when I returned to the office and unfortunately Mr Snelson wasn't in the office. He was actually ..... today ..... addressing a number of people. I understand this is something ..... and so I don't actually have any specific instructions or any knowledge of what Mr Diamond set out so I can't disagree .....

PN39

THE SENIOR DEPUTY PRESIDENT: Okay. Do you have copies of any of the documents to which Mr Diamond has referred?

PN40

MR LOVE: I do sir, I have the affidavit and also the attachments that Mr Diamond read to you including the letter and newsletters that he's made reference to and I'm happy to provide those to your associate - - -

PN41

THE SENIOR DEPUTY PRESIDENT: Well before you do provide them to me are the newsletters authentic LHMU documents?

PN42

MR LOVE: Sir, all I can say about the newsletter is it appears to be our letterhead and, there's no doubt about that and it talks about bans commencing on 27 April 2004 and, but other than that it does look like it is our template letterhead.

PN43

THE SENIOR DEPUTY PRESIDENT: I see and is that a spare copy of the documentation you've got or is that the only copy?

PN44

MR LOVE: Sir this is the only copy that was received now. It was by fax
today. .....

PN45

THE SENIOR DEPUTY PRESIDENT: All right. Yes. Do you mind giving it to my associate. What I'll do then is I'll adjourn the matter for a couple of minutes and we'll take a photocopy of it, that way we can give you back your document. Because I do have some other questions for you. Now before I do adjourn the proceedings, Mr Love, I'm very conscious that it appears from what you've told me that you've been allocated this or responsibility for this matter at fairly short notice.

PN46

MR LOVE: That's right sir.

PN47

THE SENIOR DEPUTY PRESIDENT: Have you had the opportunity to have a look at section 496?

PN48

MR LOVE: I have had a brief look at it before in the office.

PN49

THE SENIOR DEPUTY PRESIDENT: I see. All right. Do you need a copy of that?

PN50

MR LOVE: No sir.

PN51

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. All right then I'll ask you to provide it to my associate. Thank you. Mr Diamond, what I'm looking at here is correspondence that it appears you wrote to a Mr Snelson on 26 June. I have the full application here together with an affidavit of yours. I have or attached to that is an exhibit marked MD1 which is correspondence to a Maxine Deargent from a Janet Jenkins dated 13 April 2006. Correspondence from the Liquor, Hospitality and Miscellaneous Union dated 23 June to Ms Jenkins signed by Mr Butler. A union news publication dated 27 April 2004 which exists in a couple of different forms. I have a stage 3.

PN52

I have a stage, a document marked stage 2 that's very hard to read. Another stage 3 and again a document that appears to relate to Tempo Theatre Cleaning also dated 27 April. Is that the sum total of the documents that you would have me take notice of?

PN53

MR DIAMOND: That is so, your Honour. Your Honour, I should also point out that Ms Jenkins from the company is present in the court room there in Adelaide and if it would assist the Commission, she might be able to give some brief evidence about the effect of bans at the moment as she's been very much at the forefront of that concern.

PN54

THE SENIOR DEPUTY PRESIDENT: All right. We'll cross that bridge when we get to it meanwhile I'll just ask you to remain in the vicinity. I'll adjourn this hearing for a couple of minutes so that we can copy this before I hand it back to Mr Love. I'll adjourn the matter accordingly.

<SHORT ADJOURNMENT [3.46PM]
<RESUMED [3.59PM]

PN55

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Love, for the opportunity to access the material that you had in this matter. I've had an opportunity to briefly scan through that material. I will mark it simply for reasons or purposes of clarity.

EXHIBIT A1 PACKAGE OF MATERIAL INCLUDING AN AFFIDAVIT

PN56

THE SENIOR DEPUTY PRESIDENT: Mr Diamond, it does give rise to one question. The file in this matter has been made up under, as if the application were made pursuant to section 496(2) of the Act. It does appear to me that section 496(1) might be the more appropriate section.

PN57

MR DIAMOND: Well your Honour, I must say I had the view that 496(1) was appropriate because the employees were operating under a preserved state instrument but I did notice when I got here today that the phrase non Federal was on the list.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes.

PN59

MR DIAMOND: That was not of our doing.

PN60

THE SENIOR DEPUTY PRESIDENT: I see. All right. Thank you well then I'll work on the basis of section 496(1) in accordance with your expectation. Mr Love, having read this material, is there anything that you want to say to me that relates to the extent to which you can persuade me that the, either the bans are either not occurring or were not authorised in one way, shape or form by the union including its officials? Or is that accepted?

PN61

MR LOVE: To reiterate my earlier comments.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes.

PN63

MR LOVE: I don't actually have any instructions on this industrial action or have any knowledge that industrial action is or was taking place other than what I've heard today down here and - - -

PN64

THE SENIOR DEPUTY PRESIDENT: I see.

PN65

MR LOVE: Today and if the Commission's so minded I would appreciate maybe five minutes to try and contact the relevant organiser to find out some, to get some information or instructions on what has been put today and to return and then maybe I could answer that question.

PN66

THE SENIOR DEPUTY PRESIDENT: All right. Well look I'm happy to give you that five minutes or so to make that call. Let me just clarify the situation as I see it though. If there is any doubt about whether the industrial, whether there is industrial action happening or if that's disputed and Mr Diamond's indicated that evidence can be obtained from a local manager. If there's no question that that is happening then I don't see much point in requiring that evidence. Section 496 requires that if it appears to me that action is happening, is threatened, impending or probable or is being organised and that action is not of a protected nature, then there is no discretion under the provisions of the Act.

PN67

I must make an order and I can make an interim order so the questions that you might need to obtain advice on go to the extent to which there is or is not any dispute that industrial action is happening or is threatened, impending or probable. Secondly the issue goes to whether or not that action is being perpetrated, encouraged or arranged by the union and thirdly the extent to which, if indeed those pre-conditions in section 496(1) have been met. To what extent do you say I should make a final order and if so of what duration as distinct from an interim order.

PN68

The Act for what it's worth appears to me to be very clearly written around the expectation that industrial action which is not protected action under the terms of the Act, simply won't occur. So that might be an issue that you can also confer with the relevant organiser on. Do you require any further clarification on those issues or are you comfortable with those issues?

PN69

MR LOVE: I'm comfortable ..... instructions.

PN70

THE SENIOR DEPUTY PRESIDENT: All right. Mr Diamond, I'm going to adjourn the matter again. We'll leave the video link open and you can gaze upon an Adelaide court room for about five minutes. I'll adjourn the matter accordingly.

<SHORT ADJOURNMENT [4.05PM]
<RESUMED [4.20PM]

PN71

THE SENIOR DEPUTY PRESIDENT: Mr Love.

PN72

MR LOVE: Your Honour, in relation to the, I think you set out three questions for me to get some instructions on. I think the first one was whether the union disputed whether any industrial action was taking place. I have managed to get through to the relevant union official who has advised me that there is industrial action taking place at the moment by Tempo employees at the RAH. In relation to the second point you asked, I think the language you used was whether that would have been perpetrated by the union.

PN73

Now in the brief time that I had to get some detail as to what's gone on, I've been advised that the union members at the RAH resolve to take industrial action and that that action is supported by the union. Sir, mindful of the language used in section 496 and about the mandatory element involved and in relation to the third component that you asked which is the duration of the order and we would say that any orders shouldn't be made to extend beyond midnight 2 July 2006 which I understand is the time at which the contract between Tempo and the hospital expires for the provision of those services.

PN74

THE SENIOR DEPUTY PRESIDENT: I see. All right. Mr Love, you're not in a position to give me any form of undertaking about actions the union might make or take to stop that action occurring, are you?

PN75

MR LOVE: Sir I didn't actually, given the mandatory nature of 496, that once it becomes clear the Commission - - -

PN76

THE SENIOR DEPUTY PRESIDENT: Yes, probably not an option in any event, yes.

PN77

MR LOVE: No. I think that's right and that is something that my friend discussed with me in the break.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes.

PN79

MR LOVE: ..... mindful of the Act once it becomes clear the Commission has to act.

PN80

THE SENIOR DEPUTY PRESIDENT: And I won't ask whether, on the next occasion Mr Combet comes to town whether or not you're going to ask to go along to that in preference to remaining in the office because I'll guess your answer.

PN81

MR LOVE: Unfortunately sir, I usually don't handle the tribunal matters.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Diamond, when did that contract expire?

PN83

MR DIAMOND: Your Honour, I'm sorry I can barely hear you.

PN84

THE SENIOR DEPUTY PRESIDENT: When did that contract expire?

PN85

MR DIAMOND: It expires on the, I think it's midnight on 2 July your Honour, I think.

PN86

THE SENIOR DEPUTY PRESIDENT: I see.

PN87

MR DIAMOND: .....

PN88

THE SENIOR DEPUTY PRESIDENT: And of what duration did you seek an order?

PN89

MR DIAMOND: Until my client ceases to employ those persons which is midnight on 2 July.

PN90

THE SENIOR DEPUTY PRESIDENT: I see. All right. Section 496(1) deals with orders relating to action by Federal system employees and employers. On the basis of the advice provided to me it appears to me that industrial action by a number of employees currently engaged by ISS Facility Services Australia Limited and engaged at the Royal Adelaide Hospital site is happening and that that action cannot be described as protected industrial action in the terms set out in the Act. Accordingly section 496(1) requires that I make an order that that industrial action stop, not occur and not be organised.

PN91

I will issue an order to that effect and at the conclusion of this hearing I would ask the parties to remain in the vicinity of the court room. The order would then be provided to them within about five minutes. It won't take very long to prepare. The order will be known as the ISS Facility Services Australia Limited Royal Adelaide Hospital Industrial Bans Order of 2006. It will be binding on ISS Facility Services Australia Limited and the Liquor, Hospitality and Miscellaneous Union, its officials and members employed by ISS Facility Services Australia Limited at the Royal Adelaide Hospital site.

PN92

The order will require that industrial action by the union, its officials and members at the site stop immediately. It will require that the union not direct, procure, advise or authorise its respective officers or members referred to in this regard to take industrial action. For the purposes of this order the expression industrial action will include a failure or refusal to attend for work or a failure or refusal to perform any work as directed at all.

PN93

It will include a ban, a limitation or restriction on the performance of work or an acceptance of or offering for work in accordance with the terms of the Tempo Health Services Enterprise Agreement 2004 and the Private Contractors Public Hospitals Award and it will apply to the performance of work in a manner different from that in which it is customarily performed or the adoption of a practice in relation to work, the result of which is a restriction or a limitation on or a delay in the performance of work.

PN94

Industrial action excludes protected action within the meaning of the Workplace Relations Act and action by an employee that is authorised or agreed to by ISS Facility Services Australia Limited and action by an employee if such action was based upon the employee's reasonable concern about an imminent risk to that employee's health or safety and if the employee did not unreasonably fail to require with directions of ISS Facility Services Australia Limited to perform other available work whether at the same or another workplace that are safe and appropriate for the employee to perform.

PN95

In terms of service of the order ISS Facility Services Australia Limited shall progressively advise all employees covered by this order of its requirements by written individual advice provided at the site for all shifts commencing from 6 pm 26 June 2006. Additionally service of this order on persons bound by the order is to be effected by forwarding a copy of the order by facsimile transmission to the office of the union at 101 Henley Beach Road, Mile End, South Australia and by placing a copy of the order on a noticeboard in prominent places at the site.

PN96

The order will come into effect at 6 pm on 26 June 2006 and shall remain in force until midnight 2 July 2006. As I indicated to the parties the final form of that order in a signed form will be made available within a few minutes time. It remains for me to observe that there are clearly, there is clearly the potential for the parties to have differences that can be resolved by discussions and I realise that is to a large extent out of your hands, Mr Love, but it is clearly in the hands of the relevant organiser and for that matter the State Secretary.

PN97

I'm aware that there is in existence a South Australian Industrial Commission registered agreement and a former South Australian award now a ...... The capacity exists for the parties to utilise persons to assist them in the resolution of that dispute through the model dispute resolution process. One of those options involves access to this Commission. If I can assist the parties in the resolution of that dispute then it would require both parties to want to do so but if that were to occur, I'd be very happy to try to assist the parties.

PN98

For Mr Diamond's benefit were he to seek to be involved in those discussions we could repeat this video facility. So I simply flag that to you particularly, Mr Love and indicate that the ball is in, clearly in both parties courts in that regard. You've both got to want to try to resolve it but if you do and if you want the Commission to help in that regard I'm happy to do so. Mr Diamond, is there anything further?

PN99

MR DIAMOND: Your Honour, for our part three things. Firstly, as far as the suggestion that your Honour has made, I will take some specific instructions from my client about that and we will then be in touch with the union. Secondly we note your Honour's directions in accordance, in respect of service of the order and I will discuss that with Ms Jenkins when the court rises and assist her in that regard and thirdly, I'd like to thank your Honour for putting the matter on as quickly as you did and facilitating us in that regard. It is appreciated.

PN100

THE SENIOR DEPUTY PRESIDENT: All right. Now Mr Love, is there anything further?

PN101

MR LOVE: No sir. I'll pass on your comments about the model dispute procedures to the organiser.

PN102

THE SENIOR DEPUTY PRESIDENT: All right. Very well. Well I'll adjourn the matter on that basis but remind the parties that if they wait in the court room we'll provide the signed order shortly.

<ADJOURNED INDEFINITELY [4.31PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT A1 PACKAGE OF MATERIAL INCLUDING AN AFFIDAVIT PN55