C2006/2838, Transcript of Proceedings [2006] AIRCTrans 988 (22 August 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15542-1

COMMISSIONER GRAINGER

C2006/2838

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
AND
VICTORIAN WORKCOVER AUTHORITY
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2838)

MELBOURNE

10.00AM, WEDNESDAY, 09 AUGUST 2006

PN1

MS D HILL: I appear on behalf of the CPSU and with me today is MR C STYLES.

PN2

MR S JAMESON: I am from the VWA and I have with me MS M GALBALLY and MS M ELLIOTT.

PN3

THE COMMISSIONER: Yes thank you very much. Yes Ms Hill?

PN4

MS HILL: Thank you Commissioner. Commissioner, thank you for hearing this matter that's before you today. As you are aware this matter has been listed and relisted.

PN5

THE COMMISSIONER: Yes.

PN6

MS HILL: A number of times which I believe has been to the detriment of Mr Styles. You might recall, and it is worth mentioning that whilst the CPSU did not have a problem with adjourning the last scheduled hearing, you particularly asked me to ask Mr Styles and he did want the matter to go ahead.

PN7

THE COMMISSIONER: Yes.

PN8

MS HILL: But the VWA informed us that they would not be attending. I hope they're here for the duration today because I'd like to get this matter sorted out. Mr Styles health is - - -

PN9

THE COMMISSIONER: Well perhaps if you get right into it, Ms Hill - - -

PN10

MS HILL: Yes. Commissioner, Colin Styles has been an employee at VWA for 20 years, such a great deal longer than anybody in this court room today. Colin Styles has had an unblemished employment record after 20 years of service. Colin has performed a number of roles at the VWA and more recently finds himself performing the role as a VWA inspector in the Construction and Utilities Division located at Mulgrave. Mr Styles' group leader is Mr Mark Drury.

PN11

Commissioner, I'll let you know from the very outset that Colin has made a series of bullying and harassment allegations against his group leader which is currently the subject of an external investigation. I will provide some commentary on how that investigation is going or some observations on that just later.

PN12

THE COMMISSIONER: Well Ms Hill, I'm just not sure into how much detail you need to go today because I'm not sure where this matter is going today.

PN13

MS HILL: Yes indeed. I had hoped that, to give you a bit of background to formally advise the VWA where we're coming from.

PN14

THE COMMISSIONER: Yes sure. Sure.

PN15

MS HILL: And see if we can't sort it out.

PN16

THE COMMISSIONER: Yes all right. Fine.

PN17

MS HILL: I think it would be fair to say, just to paint the picture, that his, Colin and his group leader don't get on. Colin believes that he's been bullied and harassed which is the subject of the external investigation and he also believes that he's been treated differently, distinctly differently from other employees of the construction team. He feels belittled and bruised at team meetings and in his view is shouted out, threatened and micro managed on an almost daily basis and that doesn't happen to the other employees. In fact Colin's workmates say that this happens to him because he's an easy target because he doesn't fight back.

PN18

There have been a number of incidents and Colin has learned as a result of particular incidents that have occurred that he should not attend any meetings with his group leader without a representative or indeed a witness. So we obviously have a trust issue there. There has been and obviously evidence will be provided on a point of where Colin's group leader openly said in an office plan how their director was "Going to get Colin".

PN19

We don't know why but we have many people that are happy to verify that outrageous statement and just to set the scene for you there is currently votes of no confidence in that director of Construction and Utilities Division and also in HR by the construction employees and those votes of no confidence are going to a wider group of the membership today and I have no doubt that they'll be overwhelmingly supported.

PN20

In May of this year, Colin was asked to attend a meeting with his group leader Mark Drury. As previously mentioned they don't enjoy a wholesome relationship so Colin took one of the other CPSU delegates or executive members with him. At this meeting Colin was accused of fraudulent behaviour and asked to please explain.

PN21

THE COMMISSIONER: Now when did this occur?

PN22

MS HILL: I do have the dates. I think that's Monday 15 May.

PN23

THE COMMISSIONER: Yes.

PN24

MS HILL: At this meeting Colin was accused of the fraudulent behaviour and as the accusation came out of the blue, Colin needed time to think about what he was being accused of, wanted to know the details of what he was being accused of. Apparently on two occasions Colin misrepresented his time sheets, according to the VWA. They believed that Colin signed his time sheet on two occasions as being at work when they believed he was not. It's an interesting office, Commissioner, in fact it's an interesting employment arrangement in that there is a fair bit of work being done to prove that these people are indeed itinerant workers.

PN25

They enjoy flexitime arrangements out of their agreement and they start and often finish in their vehicles. They start their day, they are provided with vehicles, they are provided with laptops, they're provided with mobile phones and hands free sets in the cars and they get their gear ready for the day, they make their calls when they first arrive, sorry when they first get up and they often leave from home and arrive back at home. And that is what most of the inspectors indeed do. Most of them are in and out of the office on an ad hoc and intermittent basis and may not come in for days and that's often a problem for the CPSU in that they don't see their emails.

PN26

THE COMMISSIONER: Sorry Ms Hill, so Mr Styles is an inspector.

PN27

MS HILL: He clearly is, yes.

PN28

THE COMMISSIONER: In the building and construction - - -

PN29

MS HILL: Construction and Utilities Division, yes.

PN30

THE COMMISSIONER: Yes go on.

PN31

MS HILL: It's my understanding that the inspectors fill in their time sheets on a fortnightly basis. Often on memory, sometimes from or probably more often from their diaries. I'm told by my members, particularly out at Mulgrave that there is a great deal of unclaimed overtime which many of my members can attest to and there are also give and take arrangements. People start their day, they start working, you know, making their phone calls - - -

PN32

THE COMMISSIONER: It's all right Ms Hill, I think you've given the picture.

PN33

MS HILL: Okay. On the two occasions that the VWA have been able to dredge up on Colin Styles, on the two allegations and I imagine there's been a great deal of digging to only come to these two, the claim was that Colin indeed had signed his time sheet as being, you know, starting at 7.30 but indeed it's claimed that he took his kids to school or his child to school and that clearly isn't correct and we've been able to demonstrate that the date that they're trying to claim this occurred was school holidays.

PN34

So I don't know why you would want to drop your child off at a school when it's school holidays but we have explained all of this to the VWA. There was another incident where his group leader had said he'd been to Mornington all day. The day before he got back, 6.30, quarter to seven that night. He hasn't claimed overtime for that I might point out. There were some problems down at Mornington, his group leader had said look if you're coming in, in the morning I want to see you.

PN35

It was as vague as that. He had a few things he had to do that morning first thing. He then came in. He had had problems with his mobile phone that were well reported. He had a faulty phone because it had been dropped in water. He had had problems with his phone when he was in Mornington, when he was trying to contact his group leader. Then there was a carry on when he got to the office saying that they'd been trying to ring him, that he was due in and he didn't turn up. Colin was saying well I'm here, what's the problem and - - -

PN36

THE COMMISSIONER: Well I think you're getting into a level of micro details, Ms Hill.

PN37

MS HILL: Okay.

PN38

THE COMMISSIONER: That I think is not necessary to these proceedings today.

PN39

MS HILL: I'll try to skim for you. Okay. Nonetheless at the end of the day we've got two allegations that we say are false and misleading. The way he was treated was particularly bad. He could have, a simple conversation about hey Col, did you drop the kids off this morning because, you know, that's not what your time sheet said or whatever, could have just been in a closed door room with the group leader and he could have explained it and we wouldn't be here.

PN40

But they haven't done that and they've gone and sought advice from HR and HR, Ms Galbally here, I understand has told the group leader, this is the first and final warning effects, even though he can prove that these allegations were not founded and they have stuck to their guns on that. Now the group leader has even confirmed that with me, that that's the advice that they've got from HR and that they should move headlong into making sure that the first and final warning sticks.

PN41

Now we've had a number of meetings since that time where Colin has been able to provide his telephone reports, we've been able to have - conversations have been had with other inspectors, the laptop computer, when he's turned his computer on, when it's active. All of that sort of record has been able to be provided, he's been able to provide evidence that he did in fact report his faulty phone and what have you but no, the VWA have decided to pursue Colin for a disciplinary matter and they are keeping a first and final warning which says that his employment could be terminated if there's any similar or other offence.

PN42

THE COMMISSIONER: Would you have a copy of that warning there, Ms Hill?

PN43

MS HILL: Yes I do.

PN44

THE COMMISSIONER: Thanks very much, yes.

PN45

MS HILL: I have a bundle of things here.

PN46

THE COMMISSIONER: Well you're tendering this are you, Ms Hill?

PN47

MS HILL: Yes I am.

EXHIBIT #A1 FIRST & FINAL WARNING MR DRURY TO MR STYLES DATED 19/05/2006

PN48

MS HILL: I would also like to tender a – when the initial allegations were put to Mr Styles, he was given 24 hours to respond, a respond in writing was received by the VWA sent by a CPSU industrial officer by the name of Roger Boness and I'd like to hand that up as well.

EXHIBIT #A2 LETTER FROM MR BONESS TO MR DRURY DATED 17/05/2006

PN49

MS HILL: Thank you.

PN50

THE COMMISSIONER: Just give me a moment to have a look at that, thanks very much.

PN51

MS HILL: Yes.

PN52

THE COMMISSIONER: Yes. Thanks very much.

PN53

MS HILL: Commissioner, as I said, there's been a number of discussions since that time and the VWA have refused to take the first and final warning officially off the table. The proposition that the CPSU put to the VWA was that they take the, withdraw the warning and that we then are happy to enter into discussions about the timekeeping and how vigilant that needs to be et cetera across the whole state because Mulgrave office is no different from any other office in the way it does its timekeeping. There has been a number of phone tagging conversations but nothing official has come back from the VWA as to what they propose to do about this situation.

PN54

THE COMMISSIONER: Yes all right. Well look Ms Hill, is there anything else you really want to say now?

PN55

MS HILL: Perhaps not. Look I have a great deal more and - - -

PN56

THE COMMISSIONER: No well that's if the case is going further.

PN57

MS HILL: Yes.

PN58

THE COMMISSIONER: Beyond today.

PN59

MS HILL: Yes. Okay. I'm happy to leave it at that. There are a couple of other issues that we also would like to see as a result of today and that would also be to stop the behaviour that's being imposed on Mr Styles in that he now has to, according to the group leader, ring the office when he passes by in the morning so that the group leader knows that he is on the job at the right time. And there is a lot of micro managing going on with phone calls, sort of every hour on the hour type arrangement and he does believe that he's being treated distinctly differently from all the others and we'd like that behaviour to cease because it clearly is not good for Mr Styles' health. I might leave it there, Commissioner.

PN60

THE COMMISSIONER: Yes.

PN61

MS HILL: I am happy to go into private conference at any point.

PN62

THE COMMISSIONER: Good. Thanks very much.

PN63

MS HILL: If the Commission pleases.

PN64

THE COMMISSIONER: Yes thanks. Mr Jameson?

PN65

MR JAMESON: Thank you Commissioner. I'd just like to clarify at the moment, the VWAs understanding is that Mr Styles actually isn't at work. He's currently on sick leave as of last week and this week so therefore there haven't been any calls going through on a regular, or request for calls to go through on a regular basis. Just to clarify a few of the matters that Ms Hill has raised around the alleged incidents. I just want to confirm that the two incidents that occurred on 6 March and 5 April identified that Mr Styles did fill in his time sheets incorrectly at that time but in addition to that as well, he had appointments that had been scheduled.

PN66

The first appointment for the meeting on Monday 6 March was with a VWA client. Mr Styles failed to attend at the scheduled time of 10 am, arrived at 11 am and completed a time sheet to say that he commenced at 7.30 and then on Wednesday 5 April similarly had an arrangement to meet with his group, two group leaders who Mr Styles reports to and again he did not turn up at the scheduled time. He arrived at 10.45 to start at 7.30 am so in addition to the discrepancies on the time sheets the matters were Mr Styles failed to attend scheduled meetings and did not give any notice that he would be coming late for those meetings even though he had the ability to do so.

PN67

The first and final warning has been issued. That is in line with the VWAs performance improvement and discipline policy procedure which allows for matters of misconduct to be managed under the VWAs disciplinary procedure in the certified agreement and that we can go to a final warning letter and that letter as you'll see, Commissioner, says that repetition of this behaviour will result in review of your employment and may result in termination of employment. So strictly related to the time sheet matter.

PN68

Certainly discussions we've had since the issue of that letter, Ms Hill's right, the VWA and CPSU and Mr Styles have met on a number of occasions and we've given assurances that the matter is not regarding all of his employment and in fact that we're actually looking that this matter has been resolved and we would like to have discussion around how do we continue going forward to support Mr Styles in his role.

PN69

THE COMMISSIONER: Good.

PN70

MS HILL: Just a couple of things, Commissioner. Mr Jameson is referring to incidents that occurred on 6 March and yet CPSU1 clearly indicates that Mr Styles is being issued with a first and final warning for a matter that occurred on 14 March so I don't know what they think they're - - -

PN71

THE COMMISSIONER: Well Ms Hill I'm not - we're really at a very early stage. There's no need for you to carry on about that now - - -

PN72

MS HILL: Okay well - - -

PN73

THE COMMISSIONER: I was perfectly capable of picking that up myself I can assure you.

PN74

MS HILL: Right. Okay I'll leave that with you then.

PN75

THE COMMISSIONER: Yes thanks very much. I'm going to adjourn now.

<SHORT ADJOURNMENT [10.18AM]
<RESUMED [11.59AM]

PN76

THE COMMISSIONER: Yes Ms Hill?

PN77

MS HILL: Thank you Commissioner. I am pleased to announce that we have reached an agreement here today which I'd like to read for you. We have reached an agreement on the basis of a memorandum of understanding which will read as follows:

PN78

Notwithstanding the positions advanced by the VWA and the CPSU in the lead up to this morning's conference at the AIRC, the VWA and the CPSU have agreed to enter into the following terms of good faith. One, that the first and final warning be withdrawn and replaced by a verbal warning and counselling in accordance with the performance improvement and disciplinary policy. Two, the CPSU agree to put a newsletter out to all members with the agreed VWA/CPSU wording as follows. Following discussions in relation to the accurate completion of time sheets, the CPSU has agreed to formally remind its members who qualify for flexitime that the VWA regards the accurate completion of time sheets as an essential requirement of their conditions of employment and in particular as essential to their ability to access the flexible working hour arrangements set out in clause 12.3 of the VWA Certified Agreement 2005-2008. The CPSU have also agreed to draw its members' attention to clause 10.4 of the VWA Hours of Work Policy. Clause 10.4 of the Hours of Work Policy states that checking for messages, turning on a mobile phone et cetera does not qualify as commenced duties as their activities could be completed at another time, these activities could be completed at another time. Three, that the Colin Styles bullying and harassment complaint be followed through to completion and four, the VWA and CPSU explore alternative reporting lines for Colin Styles within the performance review process by 31 August 2006.

PN79

That's it Commissioner.

PN80

THE COMMISSIONER: Good. Thank you very much, Ms Hill. Mr Jameson?

PN81

MR JAMESON: Commissioner, the VWA agrees to that.

PN82

THE COMMISSIONER: Yes thank you. Well look I really would like to congratulate the parties on the progress they've made in the conciliation conference and they appear to me to be a very sensible set of outcomes. You are aware of what I've said to the parties in conference about Mr Styles and I simply urge the parties to take into account what I've said in considering the way forward in regard to that specific matter.

PN83

So I congratulate the parties on having reached the agreement which has been reached. I'll order the transcript and place a transcript on the file with a record of the agreement and in fact instruct that a copy also be sent out to the parties. Thank you very much. Ms Hill, I think the appropriate thing is for me to leave the matter adjourned sine die at least for the time being.

PN84

MS HILL: That's fine, thank you.

PN85

THE COMMISSIONER: Yes. Mr Jameson, are you happy with that?

PN86

MR JAMESON: Yes thank you.

PN87

THE COMMISSIONER: Yes thanks very much. Good. I now adjourn.

<ADJOURNED INDEFINITELY [12.03PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 FIRST & FINAL WARNING MR DRURY TO MR STYLES DATED 19/05/2006 PN47
EXHIBIT #A2 LETTER FROM MR BONESS TO MR DRURY DATED 17/05/2006 PN48