C2008/2770, Transcript of Proceedings [2008] AIRCTrans 536 (12 September 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19060-1

COMMISSIONER SMITH

C2008/2770

s.496(1) - Appl’n for order against industrial action (federal system).
Australian Community Support Organisation Inc.
and
Australian Municipal, Administrative, Clerical and Services Union
(C2008/2770)

MELBOURNE

2.16PM, FRIDAY, 29 AUGUST 2008

PN1

MR M DISERIO: I seek leave to appear on behalf of the Australian Community Support Organisation Incorporated.

PN2

MR M RIZZO: I appear on behalf of the ASU and appearing with me is MR L DARMAN.

PN3

MS L SVENDSEN: I appear for the HSU on behalf of Jodie Armstrong.

PN4

THE COMMISSIONER: You appear on behalf of Jodie Armstrong, do you?

PN5

MS SVENDSEN: I do, Commissioner.

PN6

THE COMMISSIONER: Thank you. Any objection to the application for leave? Yes Mr Diserio.

PN7

MR DISERIO: Thank you Commissioner subject to any direction that you might have Commissioner I intend to formally tender a statutory declaration by Katherine Jane Gosson from our office in relation to service.

PN8

THE COMMISSIONER: Thank you.

EXHIBIT #D1 STATUTORY DECLARATION

PN9

MR DISERIO: I also seek leave to tender perhaps at this stage, if we just mark it for identification but it’s a statement of Bernard Francis Hansen on behalf of the applicant.

PN10

THE COMMISSIONER: Yes.

EXHIBIT #D2 STATEMENT OF BERNARD FRANCIS HANSEN

PN11

MR DISERIO: Commissioner if I could just briefly take you to a couple aspects of the MFI I say briefly, because it’s my intention and subject to my friend’s at the bar table to seek for the matter to adjourn into conference and I do so essentially reserving everyone’s rights in respect of the application. But in terms of the basis underlying the application Mr Hansen sets out – if I could make an aside the witness statement looks big because it’s got a number of copies of various legal request forms and so on and so forth, which are only there because they are the basic evidence that essentially the witness statement is three pages and it sets out Mr Hansen’s position, his qualifications and so forth.

PN12

Essentially he is acting manager of a program called the Justice Services Program and within Justice Services includes the community offenders advice and treatment service which goes by the acronym of COATS. I think Commissioner you may well be familiar with that because of the earlier proceedings before you on 18 and 24 July. In terms of the program essentially ACSO employs a number of clinicians, seven are located at ACSO’s head office at 1 Hoddle Street. The office was relocated to those premises on 1 August. Coincident with the move, was a change by management to work practices of seven metropolitan COATS clinicians, that’s set out in paragraph 5.

PN13

Essentially since the implementation of the change to work practices there has been an increase in the absences of the COATS clinicians from work due to a number of reasons. The best way of illustrating the absences is to take you to attachment 2 of Mr Hansen’s statement. This is an analysis that’s been prepared of the original documentation. Essentially the best one – there are three pages of attachment 2.

PN14

THE COMMISSIONER: Yes.

PN15

MR DISERIO: If I could take you to the last on page 3 – I’m sorry they are not numbered – it’s a table entitled Sick Leave Taken 1 January 2007 to 29 August. It sets out essentially the absences of the four named employees each one of them given a different colour and the average as well – I should point out the averages is an average based on the absences of all seven city based COATS clinicians. The point of the exhibit is to indicate that from the changes that were implemented to work practices by management there has been this level of absence in response from the four employees. The effect of that on the program is set out by Mr Hansen in his statement at paragraph 10 and I should point out Mr Hansen’s statement in paragraph 9:

PN16

In my seven years of employment at ACSO I know of no other situation where this current level of absenteeism has occurred.

PN17

Then he sets out the effect that that’s having. Mr Hansen gives a specific example of the effect in paragraph 11 and sets out his grave concerns in paragraph 12 and this is the potential impact of an inadequate and unresponsive service as a result of the extraordinary level of absenteeism. In his view he sets out two major areas of risk, COATS clients being at greater risk of lapsing into drug use which in his experience can lead to overdose and at times death and delays in treatment leading to the compromise of community safety as a result of clients embarking on offending behaviour. No doubt if its necessary to go into evidence those statements can be teased out and no doubt tested.

PN18

But just by way of very brief background the history of the COATS program arose out of a government obligation and charter to keep people safe. It was set up because of the number of people dying in Victoria from heroin overdose and there is a concern at least from Mr Hansen in that the inability of the service to meet it’s KPI’s in terms and the effect that that might have on the people whom the service deals with. But essentially Commissioner as you will no doubt indicate at the end of the day what I’ve said is merely a symptom and there’s clearly an underlying issue between ACSOP and the seven clinicians and its for that reason that I seek to go into conference to really get to the bottom of the statistics if I could put it that way, and see whether or not there is some opportunity today to perhaps move forward on that.

PN19

THE COMMISSIONER: That’s Mr Diserio. Mr Rizzo?

PN20

MR RIZZO: Commissioner I make a number of points, firstly there was a hearing before you some time ago, and we gave – not some time ago, just a few weeks ago, and we gave – who ever was at that hearing on behalf of my organisation that we would not engage in any unprotected action and as far as I’m concerned and as far as I know, the ASU as an organisation has not conducted any unprotected action. Secondly, on behalf of the members that we represent, we’re certainly not aware, and neither are they as far as we can discern that they are engaged in any unauthorised or unprotected industrial action and I think the company has expressed to do that there’s a spate in sick leave which they draw a nexus with the relocation on 1 August of a change of work practices.

PN21

A couple of things about that Commissioner one, the change in work practices were initiated unilaterally and with little or not consultation by the company and in fact they’ve changed at least a dozen work practices to my mind, including that you can’t work from home any more. That RDO policies have been changed, that people have to report and work to a particular site as opposed to leaving from home. That there’s been a relocation of the office from one place to another. Now we think that it’s stretching the imagination to say that people’s legitimate sick leave is somehow to be construed as industrial action as a result of the work changes.

PN22

As you see in the exhibition, in the exhibit temporarily called D2 there are a hell of a lot of sick leave that these employees have submitted for their sick leave over that time and my understanding is that virtually all days that these employees have been on sick leave have been accounted for and certification has been provided to the employer be it through stat dec, or through an actual medical certificate from the Doctor. I do note Commissioner that if we refer to the diagram that Mr Desiro drew our attention to towards the back of the statement for example on the Mark Tatty, the diagram says he’s had three sick days in the month of August.

PN23

Now I wouldn’t have thought that was an outstanding matter of sick days to have in one month. In fact if one looks back over Mark Tatty, he had a couple of days in March and he had seven days back in December 2007. So I’m not sure that that qualifies as some sort of action by Mr Tatty. Similarly, with Julie Walters, she’s had five days off in August again not an extraordinary amount of days given that we’re in winter, colds are abound, and flu et cetera and before that she had a couple of days back in April. It is true that Jodie Armstrong has had some sick leave over July and August but I do note that a lot of this was in July before the relocation took place and therefore before the nexus that the employer draws.

PN24

While she has had 14 days in August, my understanding is that over that time, she’s had three days carer’s leave to care for her sick partner. She’s had five days carer’s leave to care for her son, and she’s also pregnant and therefore that necessitates some sick leave or some rest or what have you if the woman is not feeling particularly well. Some of these people are off today as we speak on sick leave. For example, Ms Armstrong is on sick leave at the moment and is not expected back at work I think until early next week. I simply draw the point to the Commission that it doesn’t strike me as a lot of sick leave and to make the nexus between this sick leave which we say is legitimate and industrial action I think is drawing a long bow.

PN25

But Commissioner, we have an agreement with Mr Diserio, that we will keep our submissions short at this point adjourn to conference and perhaps look at the causes versus the symptoms of this dispute between us and at this point I’ll simply rest with it.

PN26

THE COMMISSIONER: Thanks Mr Rizzo, Ms Svendsen.

PN27

MS SVENDSEN: Thank you Commissioner, very briefly Ms Armstrong has as Mr Rizzo has pointed out has had more sick leave than others, but has actually had more reason to and one of the reasons that she certainly points to in relation the extension in her sick leave has been her inability to provide care for her son, therefore necessitating carer’s leave where previously she might have actually been able to work from home. That’s a change to the work practice that the employer has initiated the requirement that they be in the office from nine to five. The impact may well have occurred now and has in terms of the timing, but that’s when the change of work practices occurred nothing is sinister in relation to it. Her Doctor is adamant - - -

PN28

THE COMMISSIONER: Correct me if I’m wrong, working from home is not a substitute for carer’s leave was it?

PN29

MS SVENDSEN: No, well in fact but she didn’t actually have to because they had changed – they had work practices that allow that.

PN30

THE COMMISSIONER: No, no I understand - - -

PN31

MS SVENDSEN: She didn’t have to put that - - -

PN32

THE COMMISSIONER: But in all the matters that I’ve been - - -

PN33

MS SVENDSEN: It actually will impact on the number of carer’s leave that somebody might be required to take.

PN34

THE COMMISSIONER: The matters that I’ve been associated with and I introduced home based work in the Australian Public Service it was not to be a substitute for child care.

PN35

MS SVENDSEN: It isn’t a substitute for child care, I’m talking about she actually normally has her child in child care and I’m saying that if her child is sick though, there is no flexibility about her then maybe working from home.

PN36

THE COMMISSIONER: I see.

PN37

MS SVENDSEN: In this case no she doesn’t work from home, because of the flexibility of that and it was because there was different arrangements. It just may have impacted on the ability of her to actually provide that care from home. The majority of sick leave as Mr Rizzo has pointed out is actually certificated sick leave. If the organisation thinks that sick leave is being used as an industrial tool, then they’ll also have to query the medical practitioners who are writing those certificates. It’s really a long bow to draw because people at a time like this actually have an escalation of sick leave because they are sick, that they actually might be engaged in industrial action.

PN38

On another note Mr Diserio has actually indicated that he wants to talk about what he got at, so apparently perceives as the underlying problem. It seems that wielding this sort of a – sword against the employees and holding this kind of threat over them, is tantamount to bullying rather than actually sitting down and having a discussion. No attempts have been made with our member or with our organisation to have any discussions. My understanding is the same is true of ASU, no attempts have been made to have any discussions with us about what may or may not be problems that are perceived by ACSO and we all end up in here with a sword hanging over our heads in relation to an application for a 496 order.

PN39

THE COMMISSIONER: Thanks Ms Svendsen. Very well I’ll adjourn the matter into conference.

<SHORT ADJOURNMENT [2.34PM]
<RESUMED [4.21PM]

PN40

THE COMMISSIONER: Yes, Mr Diserio.

PN41

MR DISERIO: Thank you Commissioner, first of all I’d like to thank you for the time that you’ve made available to the parties in conference. I’m instructed to withdraw the application against the ASU and the individuals and to advise that ACSO will meet with the ASU on Wednesday 3 September 2008 at a time to be communicated or agreed. We’re not able to say what time that will be at this point. In doing so I’ve been instructed to put on the transcript that the COATS program was not sustainable before the apparent changes were implemented by the organisation. The situation that has arisen as a result of the apparent levels of absenteeism, whether genuine or not, has shown up serious issues with the sustainability to deliver the program.

PN42

This will cause ACSO and its board to consider options for the maintenance of service delivery under the parent business model and it has been observed that the situation at least from ACSO’s point of view is a dire one. However, I’m hopeful that progress can be made at the meeting that has been agreed to between the parties.

PN43

THE COMMISSIONER: Thank you, anything you want to add Mr Rizzo, Ms Svendsen?

PN44

MR RIZZO: No, Commissioner.

PN45

MS SVENDSEN: No Commissioner.

PN46

THE COMMISSIONER: Good thank you very much. Thanks for your efforts today, I’ve had the benefit of conference with the parties. I wish them well in their discussions to be held and indicate that if I can assist at all at any stage, I am happy to do so, a phone call to my associate can arrange an appropriate time. The matter is adjourned sine die.

<ADJOURNED ACCORDINGLY [4.28PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 STATUTORY DECLARATION PN8
EXHIBIT #D2 STATEMENT OF BERNARD FRANCIS HANSEN PN10