|
|
|
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 61717-1
COMMISSIONER LEWIN
AM2011/31
s.158 - Application to vary or revoke a modern award
Application by Tas Security Services Pty Ltd
(AM2011/31)
Security Services Industry Award 2010
(ODN AM2008/11)
[MA000016 Print PR985126]]
Hobart
10.03AM, FRIDAY, 19 AUGUST 2011
PN1
THE COMMISSIONER: Good morning. I’ll take the appearances, please.
PN2
MR E. HARDING: My name, sir, is Edward Harding. I’m a director of Tas Security Services.
PN3
THE COMMISSIONER: Thank you, Mr Harding.
PN4
MR P. TULLGREN: Commissioner, my name is Tullgren and I appear for United Voice.
PN5
THE COMMISSIONER: Very well, thank you, Mr Tullgren. Well, it’s your application, Mr Harding. How do you wish to proceed?
PN6
MR HARDING: Sir, I’d like to make some statements to start with and just - - -
PN7
THE COMMISSIONER: By all means, go ahead.
PN8
MR HARDING: - - - represent some of my case. Sir, my security company, Tas Security Services, has been in Tasmania operating as a private security company for nearly 40 years, something along that - - -
PN9
THE COMMISSIONER: I should tell you, I’ve read all the papers you’ve filed. There’s no need to - - -
PN10
MR HARDING: So you don’t wish for me to recap?
PN11
THE COMMISSIONER: I’m happy to hear you but there’s no practical necessity for you to repeat what you’ve filed.
PN12
MR HARDING: That’s fine, okay.
PN13
THE COMMISSIONER: I’ve been reading them carefully for the last hour or so. I do have some questions to ask you in due course but if you want to make an opening statement that supplements what you filed, please go ahead.
PN14
MR HARDING: Well, I would, sir, thank you. We as a company have a commitment to the Security Industry Award wages and conditions and have used those as one of our main strong points in this industry. The fact of the matter is that as a consequence of that we will never be successful in obtaining a contract-based tender in this state. Our prices will be such because of the award wages we’ve got to pay that we just don’t give up – we’ve given up tendering forthwith. We won’t seek to obtain tenders. It’s just a waste of time.
PN15
THE COMMISSIONER: So why is it that if you comply with the law you can’t compete, because they’re the minimum wages that must be paid?
PN16
MR HARDING: Because the checks and balances in this industry are such that there are too many operators that operate under the radar, so to speak.
PN17
THE COMMISSIONER: I see. So what you’re saying is that people are tendering for work in the security industry who are not observing the award conditions.
PN18
MR HARDING: I certainly am, sir, yes.
PN19
THE COMMISSIONER: You tender on the basis of the award conditions and your experience is that you simply have not succeeded in any case at all. Is that right?
PN20
MR HARDING: Yes. We operate as preferred supplier to all our client base. The Tasmanian State Government is an example. As soon as it goes out to tender, our pricing will be undercut by operators. We recently lost one of the – we’ve been working at Tasmania Police Headquarters for a good part of 10 years. We were a preferred supplier because we pride ourselves that we can deliver. We have very minimal staff turnover and our main client base is loyal to us because of those sort of traits that we have. Now, under the state treasury requirements and the government requirements they’ve got to tender. As soon as that happens we’re undercut and treasury dictates that the lowest tender is the one that will get the tender or get the contract. Now, I come from a Commonwealth tendering background in my other life and I could see for the last 40 years the consequences of the lowest price takes the job.
THE COMMISSIONER: What’s of interest to the tribunal, I think, is what you referred to as operators operating below the radar. What I’m hearing you say is that there are people who, given your expertise and your knowledge, must be tendering for work on the basis of not observing the award terms and conditions of employment. Would that be right?
PN22
MR HARDING: I’m well aware that that’s the case, sir.
PN23
THE COMMISSIONER: You are? You are well aware of that?
PN24
MR HARDING: Yes, I’m aware of that and I’ve flagged that to the Fair Work Ombudsman on occasions and these people – I guess it’s companies like us that are high profile that have all the documentation and everything that can produce evidence of our compliance with the awards. It’s those companies that use sham agents, cash-in-hand payments and a whole range of methods that you don’t see when you look at them. They are rife, I guess, right throughout Australia.
PN25
THE COMMISSIONER: You say that you’ve mentioned this or referred this to the Fair Work Ombudsman’s office. Has there been any investigation in Tasmania of the facts that you are concerned about?
PN26
MR HARDING: I’ve got no idea, sir. They won’t come back to me - - -
PN27
THE COMMISSIONER: You weren’t notified of whether or not there would be an investigation?
PN28
MR HARDING: No. I’ve flagged names. We’ve just completed a Fair Work Ombudsman audit and we’ve got a clean bill of health in that area but, I mean, it’s well known in the industry and it’s - - -
PN29
THE COMMISSIONER: All right. Well, I’ve taken a note of that and it’s certainly within my remit to correspond with the Ombudsman and I propose to do so, given what you’ve told me. Once the tribunal becomes aware of these facts, they should not be ignored. But, Mr Harding, that doesn’t actually go to the award.
PN30
MR HARDING: No. What I was going to lead on to then say was that the other area of effect that has on us as an employer of people with disabilities, to a large extent, is the minimum hours question, and that’s what this issue is about.
PN31
THE COMMISSIONER: Well, that’s what this application is about.
PN32
MR HARDING: Yes, that’s what it’s all about. I would like to just mention an article, if I may, in last month’s Tasmanian Business Reporter dated July 2011 which refers to the McDonald’s case. Now, the McDonald’s case where the commission in fact agreed on a one and a half hour minimum employment period could just as equally apply, I would put, to people with disabilities and mature age workers. If I can quote from the Reporter?
PN33
THE COMMISSIONER: Yes, go ahead.
PN34
MR HARDING:
PN35
We need to actively encourage the introduction –
PN36
and they use “young people”; I use “mature age people and people with disabilities” –
PN37
into the workforce. The decision will enable more young people to get that initial foot in the door –
PN38
which is exactly what we do in the case of mature age people:
PN39
It’s unfortunate that such a sensible step took three rounds of national arbitration to achieve. That fact alone highlights restrictions imposed by Australia’s workplace relations system and award rules that are yet to become truly modern. Industry tribunals must continue to actively review award conditions, many of which still reflect a time when the Australian economy was based around Monday to Friday, 9.00 to 5.00 style working arrangements. That situation is far removed from the current reality with customer demands requiring a much more diverse and flexible array of business arrangements. This is particularly so in tourism and the hospitality and catering areas.
PN40
That’s from the Tasmanian Business Reporter of last month. Further to that I would like to submit that in front of me I’ve got extracts from the Department of Health and Human Services.
PN41
THE COMMISSIONER: Do you want to actually tender that report?
PN42
MR HARDING: If you - - -
PN43
THE COMMISSIONER: I’m just asking you whether you want to.
PN44
MR HARDING: Well, I certainly can, yes, and I would like to.
PN45
THE COMMISSIONER: All right. We’ll receive that. The only thing about that is we’re going to have to post this up on the web site.
MR HARDING: It’s an article from the TCCI.
EXHIBIT #A1 ARTICLE FROM TCCI IN TASMANIAN BUSINESS REPORTER DATED JULY 2011
PN47
MR HARDING: The other thing I would like to tender is an extract that I’ve got here from a current request for tender that’s put out by the state government by its Department of Health and Human Services for security services at Tasmanian public hospitals and off-site facilities. It’s a contract specification. The three pages I’ve got of that contract specification provide that the state government will only pay for a minimum call-out duration for additional normal security services to two hours. Now, right throughout that tender specification for all the hospitals and facilities for the state government in Tasmania they’re specifying that an additional two hours is all that they will pay for additional attendances.
PN48
THE COMMISSIONER: Do you want to tender that?
MR HARDING: I will tender that, sir, yes.
EXHIBIT #A2 EXTRACT OF CONTRACT SPECIFICATION FROM DEPARTMENT OF HEALTH AND HUMAN SERVICES
PN50
MR TULLGREN: Commissioner, we’ve not provided with a copy of any of these.
PN51
THE COMMISSIONER: This will all be posted on the web site.
PN52
MR TULLGREN: Yes.
PN53
THE COMMISSIONER: It will all be posted on the FWA web site. No decision will be taken until all these matters have been posted and submissions invited from any interested party. This is a national award. It covers people in all states and territories, provided that – well, in the case of Western Australia – they’re employed by a corporate entity. So all those people need to know what the matters being taken into account by the tribunal are and have an opportunity to respond to them.
PN54
MR HARDING: Sir, rather than having printed out 40 pages of that document, I’ve extracted - - -
PN55
THE COMMISSIONER: It’s an extract.
PN56
MR HARDING: An extract of just three pages which identify – and I might say that for every facility that is contained in that tender specification, they all prescribe the minimum of two hours. Now, my point in that case is that if you tender - - -
PN57
THE COMMISSIONER: That’s a call-out though, isn’t it?
PN58
MR HARDING: Well, it’s additional attendance. It’s additional attendance. It’s not a call-back or anything. “If you want another guard, you’ve got to charge us, the state government, for two hours.”
PN59
THE COMMISSIONER: I don’t understand. We’re here concerned with the minimum shift duration, aren’t we?
PN60
MR HARDING: Well, the minimum attendance, I guess, yes.
PN61
THE COMMISSIONER: This deals with what appears to be a call-out which is a different thing, isn’t it?
PN62
MR HARDING: I think that any time you bring someone onto a site, whether it be by call-out – and I read the current award as being four hours if you bring them on the site. That’s certainly what we try to pay, or pay, when we bring someone onto a job. We read the award as requiring you to pay a guard for four hours to attend the job.
PN63
THE COMMISSIONER: All right. Understood. That’s exhibit A2, by the way.
PN64
MR HARDING: Certainly that’s how I read it. Certainly we pay against that where we can. The other thing that, I guess, brings us to this point is that – and I mentioned in my submission – I have great difficulty sacking people who cannot work for four hours for the reasons I’ve provided in my submission.
PN65
THE COMMISSIONER: Sorry, when you say sacking people, are these people employed by you as casual employees?
PN66
MR HARDING: Yes, sir, they are.
PN67
THE COMMISSIONER: All right. Each engagement is a stand-alone engagement, isn’t it, under the terms of the award?
PN68
MR HARDING: There are ongoing amounts of work that we do have. I mean, we work for all the councils, for instance, in the southern area here and a lot of there specs are only for three hours, two hours.
PN69
THE COMMISSIONER: But the fact of the matter is that if you’re employing a casual employee, each engagement stands alone. The employment terminates at the end of the casual engagement.
PN70
MR HARDING: Yes, but - - -
PN71
THE COMMISSIONER: That’s the conception of the award, isn’t it? That’s why a casual employee doesn’t get any notice of termination or redundancy pay or anything of that nature.
PN72
MR HARDING: Yes. The case with ours, our casuals can be ongoing.
PN73
THE COMMISSIONER: I appreciate that there’s often a situation where casual employees regularly and systematically work for the employer but the nature of casual employment and the loading that’s paid for it encompasses the fact that the engagement ceases each time it occurs.
PN74
MR HARDING: Very much so, sir, yes. We do employ a number of people in contract-based work that we’ve got where there would be, you know, an attendance of two hours required under that casual arrangement which we believe would be contravening the award.
PN75
THE COMMISSIONER: That will be right. Do you have any evidence of that?
PN76
MR HARDING: What, that I do that? Well, one of my - - -
PN77
THE COMMISSIONER: What evidence do you have in relation to the assertion you’ve just made that there are a number of contracts, I think you said, that only require two hours?
PN78
MR HARDING: Well, the state government one is the one that I’ve submitted there but as a preferred supplier, for instance, we - - -
PN79
THE COMMISSIONER: How many jobs do you have at the moment where the client has only a two-hour requirement?
PN80
MR HARDING: We’ve got one at the moment that’s active.
PN81
THE COMMISSIONER: What’s the nature of that?
PN82
MR HARDING: State education department, libraries.
PN83
THE COMMISSIONER: What’s the nature of it? It’s the State Library?
PN84
MR HARDING: Yes, as a preferred supplier - - -
PN85
THE COMMISSIONER: Is it one library or more than one library?
PN86
MR HARDING: We were doing more than one library. We’re now doing the State Library only here in Hobart and they require a guard to unlock it every morning and to lock it up every night.
PN87
THE COMMISSIONER: How many clients do you have?
PN88
MR HARDING: We would have a couple of dozen clients. We’re a major supplier of guards.
PN89
THE COMMISSIONER: You estimated that you are the dominant supplier. Is that right? Have I got that right?
PN90
MR HARDING: Sorry, sir?
PN91
THE COMMISSIONER: Are you a dominant supplier in the state services area?
PN92
MR HARDING: We believe we are, yes. We’re a major representative of – or a representative of major national companies here in Hobart. We don’t advertise for work. We’re successful and arrive at our strategies from employment of the people that we do.
PN93
THE COMMISSIONER: Good, thank you.
PN94
MR HARDING: Now, I think that I’ve asked Mr David O’Halloran from the CRS to attend this hearing.
PN95
THE COMMISSIONER: Are you going to call Mr O’Halloran as a witness?
PN96
MR HARDING: If I can, sir, yes.
PN97
THE COMMISSIONER: Very well. Mr O’Halloran, you can take the witness stand, please. You can give either the oath or the affirmation, as you choose. Just stand in the witness box for a moment before you a seated and give either the oath or the affirmation, as you prefer.
PN98
THE ASSOCIATE: Please state your name and address.
MR O’HALLORAN: David John O’Halloran, (address supplied).
<DAVID JOHN O'HALLORAN, AFFIRMED [10.19AM]
<EXAMINATION-IN-CHIEF BY MR HARDING [10.19AM]
PN100
MR HARDING: Mr O’Halloran, your role in the CRS is as who?---Regional manager for Southern Tasmania.
PN101
THE COMMISSIONER: You might just explain to us what CRS is?---CRS is a provider of vocational rehabilitation services. We assist people who have disabilities, health conditions or injuries to choose, get and keep a job.
PN102
Is the acronym Commonwealth Rehabilitation Service?---It used to be that but now - - -
PN103
It’s now just CRS, right?---It’s just CRS.
PN104
Go ahead, Mr Harding.
PN105
MR HARDING: Mr O’Halloran, could you give an indication of the amount of time you’ve been associated with my company in relation to its employment of your clients?---I estimate it’s about 10 years.
PN106
You would suggest how many people my company would have assisted in that time?---My estimation is somewhere between 50 to 100.
PN107
Do you deal with other security employment providers at all?---Yes, we do.
PN108
Do they assist your client base in the same way as my company has?---Yes and no. We work with different employers. We work with many employers, approximately 200 employers at any one time, and our role with those employers is to provide potential employees but also to work with the employers to – or have employers work with us to provide positive work experience for people who are returning to work.
**** DAVID O'HALLORAN XN MR HARDING
PN109
Do these people have limitations in their employability?---Our job seekers?
PN110
Your job seekers?---Yes, they do. All of our job seekers are assessed as having some kind of disability or health condition or injury which in some way is impacting on their capacity to choose or to get or to keep a job.
PN111
Do you have particular personal experience of persons who, for instance, are unable to work for hours at a time at any stage?---Yes. We see - I think you saw in my written comment. We see - - -
PN112
THE COMMISSIONER: While we’re on that, I have that on file, this document. I’ll show you in a minute?---I have a copy here. It’s all right.
PN113
You have a copy? I just want you to tell me that what I’m looking at is the statement you made?---Yes, that’s exactly the same.
PN114
Very well. Now, it’s your evidence that the contents are true and correct?---That’s correct.
PN115
You don’t want to change that in any way?---No.
PN116
Very well?---The only thing I probably would add is, when I wrote that I was referring only to southern Tasmania, which is the area I’m responsible for.
PN117
MR TULLGREN: Excuse me, Commissioner. Again, we’ve not seen this document or any of this material that is being apparently provided to you but not provided to any other party - - -
PN118
THE COMMISSIONER: Just a moment. I understand. It’s on the web site, Mr Tullgren.
**** DAVID O'HALLORAN XN MR HARDING
PN119
MR TULLGREN: Commissioner, with the greatest respect, I would have thought the applicant has a responsibility to serve on the parties a copy of this material.
PN120
THE COMMISSIONER: What party?
PN121
MR TULLGREN: Well, in our case because we’re involved in the award. The application to vary the modern award was served on us but we’ve received nothing else.
PN122
THE COMMISSIONER: There is no obligation to serve you.
PN123
MR TULLGREN: I would have thought that the standard provisions in the operation of the commission would require that parties that are going to rely on material provide it to the other so that they’re not ambushed and not to delay proceedings.
PN124
THE COMMISSIONER: Well, with all due respect, Mr Tullgren, this procedure has been adopted in relation to any modern award variation. This is of considerable – have you seen the web site?
PN125
MR TULLGREN: Yes.
PN126
THE COMMISSIONER: Right. Well, you’ll notice, if you have interrogated that web site historically since the award modernisation process has commenced, that that has been the manner in which the tribunal has dealt with the modernisation process generally and any application to vary a modern award. It’s not just in this matter. It is our universal practice to operate the application as an e-hearing through a web site. Your national organisation is well aware of that because they have participated in many circumstances of that kind.
**** DAVID O'HALLORAN XN MR HARDING
PN127
MR TULLGREN: Yes, I’m aware of that. I’m instructed that when the commission has had applications to vary modern awards it has had directions hearings or issued directions, whether it has had a hearing or not, which go to a number of these matters so the parties are at least in the broad aware that there are times for the provision of material and for responses and so on.
PN128
THE COMMISSIONER: Well, there will be time for responses. I stated that earlier. We’re simply taking evidence about the material that’s being filed today.
PN129
MR TULLGREN: Thank you, Commissioner.
PN130
THE COMMISSIONER: I thought I made it clear that the procedure will be governed by the nature of the application and the nature of the instrument that’s sought to be varied. It is a national award. There is very extensive interest in the operation of the terms of the award, both in terms of it is a significant industry with many people employed in it and many employers and the stakeholders in the way of clientele. So we are simply gathering the material, all of which is posted on the web site. The transcript of the proceedings today will be posted on the web site and parties will be invited to file whatever materials they wish in response to the materials that are gathered today.
PN131
MR TULLGREN: Thank you, Commissioner.
PN132
THE COMMISSIONER: Your organisation will have ample opportunity to deal with it, and if you wish to call any evidence I’ll list the matter for that purpose. All right. Can we go back to your statement, please. Now, you say that qualifying this as applicable, as far as your knowledge is concerned, to southern Tasmania?---Yes. Otherwise what I - - -
PN133
**** DAVID O'HALLORAN XN MR HARDING
You would otherwise give evidence to this effect. Is that right?---Yes.
EXHIBIT #A3 STATEMENT OF MR O'HALLORAN
PN134
THE COMMISSIONER: Go ahead, Mr Harding.
PN135
MR HARDING: Mr O’Halloran, you’ve indicated that a number of your clients that are referred to organisations such as mine have incapacities or an inability to work for four hours. Do you have any comment on the sorts of periods that those people, in general terms, may be able to work?---The assessment of someone’s work capacity is a difficult thing to say and it’s difficult to make any blanket statements about individuals’ work capacities but, yes, there would be people who would struggle, particularly initially, with maintaining, say, a four-hour shift.
PN136
Why would that be?---For example, if someone has been away from the workforce for many years or they have a particularly serious illness, returning to full or even part-time work can be a struggle. We’re not in the business of setting people up to fail. We’re in the business of setting people up to succeed and sometimes a very gradual introduction to the workplace is what’s required in order to make someone succeed at work.
PN137
THE COMMISSIONER: Can we take the two things that you’ve mentioned. I think it’s relatively straightforward that it’s quite possible that someone might have a medical certificate that says they shouldn’t work more than a certain number of hours in a day. Are you giving any evidence beyond that about illness where a person is certified as lacking capacity for work of a particular kind or, assuming that they’re capable of working in the security industry, that they might have a certificate that they can’t work for any more than a given number of hours? Are you thinking beyond that or - - -?---I’m not quite sure I understand the - - -
PN138
Let’s start with the question of the person who has an illness and there’s a doctor who has said, “Look, this person shouldn’t work in this industry, that industry or the other.” You’ve probably seen that, I imagine. They shouldn’t do heavy lifting, they’ve got a back injury or something of that nature?---Sure.
**** DAVID O'HALLORAN XN MR HARDING
PN139
They might be able to work as a security guard, for instance, but they might also have some sort of illness which limits their capacity to work for a given number of hours at any one time continuously. That’s the situation we’re talking about. Now, how many of those situations have you seen?---Every one of our job seekers comes to us with a formal assessment of their work capacity. Now, that’s not necessarily a medical assessment. That will be an assessment supported by medical evidence and it’s conducted by a job capacity assessor. The job capacity assessment process is the system where someone is referred to a disability employment service such as ours and that determines, in broad terms, their work capacity. Now, that work capacity can be, broadly speaking, in bands of up to eight hours a week, up to 15 hours a week or 30 and above hours a week but it wouldn’t necessarily specify, say, for example – and I guess the group that we’re most concerned with here is the group who have an eight hour a week work capacity. It wouldn’t specify how that eight hours a week is - - -
PN140
So is it the case that you don’t have job capacity assessment of minimum shifts?---Not normally, no.
PN141
Have you ever seen any?---That would be more common in, say, a workers compensation type situation. The majority of our - - -
PN142
Well, I’m asking about your knowledge?---I don’t see that very often.
PN143
Have you seen it at all?---Certainly in workers compensation situations, yes, you see that all the time but of those 400-odd clients that we have, probably only about 20 per cent come through the workers comp system.
PN144
So in a workers compensation situation I’m imagining this is a person who has been employed by an employer, has an injury and is returning to work. Is that right?---Yes.
**** DAVID O'HALLORAN XN MR HARDING
PN145
Usually with that employer?---Yes.
PN146
And there’s a limit on their capacity to - - -?---Often the medical certificate is quite specific there.
PN147
- - - give a number of hours per day?---But for the majority of our job seekers who are Centrelink beneficiaries it won’t be that detailed.
PN148
Good, thank you. Go ahead, Mr Harding.
PN149
MR HARDING: Mr O’Halloran, would you be able to make a judgment on the success or otherwise of the staged return to work of your client base in relation to when they’ve been referred to my company in terms of case management or their return to work strategies and support that your organisation provides to them through that return to work period? In other words - - -
PN150
THE COMMISSIONER: Mr Harding, with all due respect, this is becoming a very, very long and complex question. Perhaps we could just break it down into the various stages. Would you like to start at the beginning and ask the witness to answer step by step?
PN151
MR HARDING: Yes, thanks, sir. What sort of success have we achieved in the efforts that we have done with working with your clients?---Look, when we’ve referred our job seekers through Tas Security the majority of them would obtain work through Tas Security. I think in my submission I’ve pointed out we get approximately between five and 10 of our job seekers into work with Tas Security per year out of the 400 or so job seekers here. So that might not sound like a lot but for us that’s a reasonable size single employer. Most of our job seekers would get work - - -
**** DAVID O'HALLORAN XN MR HARDING
PN152
THE COMMISSIONER: I think Mr Harding is putting to you what’s your knowledge of what happens to them?---The majority would end up in employment.
PN153
MR HARDING: Using the strategies that we’ve put in place?---Sure.
PN154
In conjunction with you as a provider?---Yes. Our strategy that is used from time to time for the needs of a particular job seeker may be that we need to look at very, very part-time work or a very graduated return to work, and that graduated return to work may take a period of months or even possibly years, depending on the nature. So, for example, if someone has, say, a serious mental illness or so forth, it may be more suitable to look at a very long-term staged return to work.
PN155
Thank you for that. I’ve got no more questions of Mr O’Halloran other than - - -
PN156
THE COMMISSIONER: I’ll ask him a few more and you can ask some further questions if they arise at all.
PN157
What knowledge do you have of the persons that you have referred to the applicant employer, Mr Harding’s company, of how they have been employed apart from their being employed as security guards?---They’ve been mostly – my understanding is they’re employed on a casual basis.
PN158
Do you know anything more about that?---I couldn’t say.
PN159
You have no knowledge as to the hours of work that they perform?---It varies.
PN160
What knowledge do you have?---We’re required to maintain a track of the hours of work that they have obtained over a minimum six-month period once they’ve been placed.
**** DAVID O'HALLORAN XN MR HARDING
PN161
Have you got records of all of this, have you?---Yes.
PN162
And you’ve got records of the five to 10 people that have been referred to the applicant company?---We could get them. That would be a very substantial - - -
PN163
Mr Harding, what do you say those records would show?
PN164
MR HARDING: I think they would show very successful outcomes, as a general comment.
PN165
THE COMMISSIONER: What would they show in relation to the hours of work performed by these people.
PN166
MR HARDING: Well, we’ve got formal rosters of work and their hours are certainly reflected in terms of the hours they work.
PN167
THE COMMISSIONER: What would it show in relation to the application?
PN168
MR HARDING: Very few of them would work less than four hours but this application is about assisting those people who are unable to work for those four hours.
PN169
THE COMMISSIONER: But we will be able to discern from this information the frequency with which people have worked for less than four hours? The people that Mr O’Halloran has referred - - -
PN170
MR HARDING: You’re probably looking at total number of hours against his records, though, in any given pay fortnight.
PN171
**** DAVID O'HALLORAN XN MR HARDING
THE COMMISSIONER: Well, you could provide us with the rosters of those employees.
PN172
MR HARDING: Yes. We have done that in a recent Fair Work – the Ombudsman. So we’ve provided returns of those but I think you’re looking at examples of where people haven’t worked - - -
PN173
THE COMMISSIONER: What I’m looking at is the facts and the detailed facts in order to inform consideration of the application. So what I would appreciate – and I can issue a direction if necessary that you produce the records of the persons that you have given evidence about, hours of work, and, Mr Harding, you produce the rosters. I’ll permit you to make submissions about how that material should be taken into account for the purposes of the application.
PN174
MR HARDING: I think this application that I’ve submitted, amongst everything else, is about our ability to continue the work that we’ve done with CRS with clients that are yet to be identified who are unable to work the four hours.
PN175
THE COMMISSIONER: I appreciate that and that will be taken into account but, of course, this information is essentially the basis of the evidence that has been given by the witness.
PN176
MR HARDING: I do have one witness here in the hearing room that is the exact example of what we’re talking about which I can call.
PN177
THE COMMISSIONER: You appreciate, Mr Harding, this is a national award and the issue that has been raised by Mr O’Halloran’s evidence relates to people with particular disabilities, either physical or psychological, which is alluded to in your application. In order to come to an informed judgment the tribunal must know the facts and the detailed facts. I can’t speculate on these things. I can only proceed on a proper basis of evidence.
**** DAVID O'HALLORAN XN MR HARDING
PN178
MR HARDING: Yes. Just an observation I might make is that I suspect that if Mr O’Halloran provides names and hours of work that have – and we do provide returns to these agencies.
PN179
THE COMMISSIONER: The information will be redacted to the extent necessary for the purposes of publication. So the identity of the employer would be redacted and the identity of the employees would be redacted. What we’re interested in is understanding the facts of the work and the disabilities involved.
PN180
MR HARDING: So understanding the disabilities involved, that’s probably more relevant to anything. The question I might put to Mr O’Halloran is do these people with disabilities – are they able to satisfactorily perform the duties of a security officer?
PN181
THE COMMISSIONER: I think that’s something that you’re probably in a better position to answer than Mr O’Halloran.
PN182
MR HARDING: Except for Mr O’Halloran has been on work sites and seen them working?---But I’m not as - - -
PN183
THE COMMISSIONER: He’s not a security industry expert.
PN184
MR HARDING: No. I can bear witness that they do - - -
PN185
THE COMMISSIONER: But you’ve received no complaints about their work?---No. I would like to clarify that the number of people we’re talking about is very, very small.
PN186
All the more reason why I’d like to see the information?---Sure.
**** DAVID O'HALLORAN XN MR HARDING
PN187
If you were giving evidence that this is a very large, commonly experienced circumstance and is likely to be so in the future, that might not be a matter of any controversy but the scope of the issue is something which is of issue to the tribunal, given, as I have explained, this is a national award. This evidence has to be considered in the context of the whole of the industry throughout Australia. So I would appreciate if you could appreciate that if necessary for your purposes. You’re a Commonwealth public servant, I’m assuming. I will issue a direction that you produce to me the records of the circumstances of the employees about whom you gave evidence in this matter who were referred to Mr Harding’s company?---Sure. The only proviso I would say is that if it’s more than seven years the files will no longer exist.
PN188
Yes, I thought you gave evidence over the last 12 months. Maybe I’m wrong. Was your evidence over a longer time period?---Over a longer time period.
PN189
It was?---Yes.
PN190
What time period?---My comment would be over the last decade that we have had - - -
PN191
Well, any records that you have in archives?---So it may not be someone needing to work less than four hours even every year.
PN192
Sorry, what are you conceiving that I’m actually asking you for? You gave evidence that you would have referred about five or 10 people to Mr Harding’s company?---Yes.
PN193
Would you have the records relevant to those five or 10 people?---Yes.
PN194
**** DAVID O'HALLORAN XN MR HARDING
It’s those people that I’m referring to?---Sure, okay.
PN195
They can be copied. You don’t need to provide the original and you don’t need to provide the whole of the file, just - - -?---I’m assuming you’re just after the relevant - - -
PN196
The relevant facts which relate to their disabilities and any work limitations that are recorded?---Sure. Do you have a time frame for that?
PN197
What time do you need?---That will take probably a few weeks to get files back from our clients.
PN198
Very well. 21 days?---21 days. We’ll do our best.
PN199
Is that sufficient or do you need 28 days?---28 days would be better.
PN200
Very well. It will be 28 days and I direct accordingly. If necessary you can have the direction in writing if you need it for your records?---That would be useful, thanks.
PN201
Yes, very well. My associate will produce the directions in writing. The records will be confidential to the extent that the information relevant to the identity of the company and the employees will be redacted in any publication. I’m really only interested in the statistical profile, not the individuals?---Sure. My suggestion would be the statistical profile will be very small.
PN202
Well, that’s relevant. If you send me 1000 individuals then I’ve got to take into account the scope of the issue. Go ahead, Mr Harding. Do you wish to ask any questions about that?
PN203
**** DAVID O'HALLORAN XN MR HARDING
MR HARDING: No, sir.
PN204
THE COMMISSIONER: Do you wish to cross-examine the witness?
PN205
MR TULLGREN: Not at this time, Commissioner.
PN206
THE COMMISSIONER: Not at this time. Are you anticipating that you might wish the witness to return?
PN207
MR TULLGREN: Yes.
PN208
THE COMMISSIONER: Very well?---I need to make it clear that I will be overseas throughout September.
You won’t be recalled then because I’ll be overseas in September too. Thank you for your evidence. You’re released from your affirmation, Mr O’Halloran. You can come and go as you please.
<THE WITNESS WITHDREW [10.42AM]
PN210
MR HARDING: Sir, I’d like to call Mr Kim Valentine.
PN211
THE COMMISSIONER: Mr Ballantyne, if you’d be kind enough to step forward and stand in the witness box for a moment and take either the oath or the affirmation. I beg your pardon, I called you Mr Ballantyne. Mr Valentine, isn’t it?
PN212
THE ASSOCIATE: Please state your name and address.
MR VALENTINE: Kim Valentine, (address supplied).
<KIM VALENTINE, SWORN [10.42AM]
<EXAMINATION-IN-CHIEF BY MR HARDING [10.43AM]
PN214
MR HARDING: Mr Valentine, could you describe the nature of your company and your association with Tas Security Services?---Yes. I’m a sole proprietor of a business that I set up about three years ago to predominantly provide redeployment services to workers compensation insurance companies and rehabilitation providers that they might use. I also do a bit of what we call reverse marketing or marketing with clients on behalf of an organisation similar to CRS, Headway, and I have a memorandum of understanding with them to seek employment for clients of them.
PN215
The closeness of your association with your client base is personal or - - -?---Yes. It’s similar to a case manager. I receive details from an insurance company or from the disability employment service, Headway. They give me details of the clients. They provide me with details of their injury or incapacity, whatever barriers they might be facing to employment, and I meet with those clients on a regular basis and assist them with their job seeking.
PN216
What is your knowledge of the limitation of some of those clients that you deal with?---Well, as was mentioned by the previous witness, with regard to Headway clients, they’ve been assessed by a jobs capacity assessor who has stipulated what their limited hours are per week. In the lowest case it’s usually eight hours and there’s no stipulation as to what days of the week or whether they can be consecutive days and so on that those hours are worked. With regard to workers compensation claimants, they have been assessed by a doctor and by the rehab provider and there is a certificate written out, as the Commissioner mentioned, which stipulates the number of hours that they are able to work. Again, there may be a stipulation or may not be regarding how long shifts could be and whether they can be consecutive. They may sometimes be a couple of days in succession or it might be every alternate day that those hours can be worked.
PN217
**** KIM VALENTINE XN MR HARDING
Have you any indication of limitations on the number of hours at any one time?
PN218
THE COMMISSIONER: I think the witness has said he is aware of it in relation to workers compensation circumstances?---Yes.
PN219
What about other circumstances?---Well, in regard to people from the disability employment service perspective, as was mentioned by the previous witness, when somebody has been out of work for a year, two years, up to five or 10 years they just cannot go straight back into the workforce and work a full day. So if it was eight hours per week, that would normally be spread over a number of days to begin with and there would be what we call a soft start to their working life and then those hours would gradually be built up to whatever they can handle within that certification they’ve been given.
PN220
I think it’s a good idea to actually show the witness his statement that has been filed and he should attest to that. That’s a statement you made, isn’t it?---That is, yes. That’s my signature at the bottom.
PN221
You’re happy with that?---I am, yes.
You don’t want to change anything in it?---No.
EXHIBIT #A4 STATEMENT OF MR VALENTINE
PN223
THE COMMISSIONER: You’re happy to give evidence that that’s true?---Yes. I have two relevant cases at the moment, Commissioner. I have a client in Launceston who was given to me by GIO Western Australia. She relocated from a mining situation back to her home town. I’ve been able to source a work placement for her and I advised - - -
PN224
What sort of work doe she do?---She was driving heavy, rigid trucks and so on transporting ore from the mines to the trains.
**** KIM VALENTINE XN MR HARDING
PN225
She had an injury?---She had an injury to her back. She’s unable to – I should add that clients are given to me when they are required to be redeployed. By “redeployment” I mean not redeployment within the company they used to work for but another employer needs to be found because there’s no suitable redeployment - - -
PN226
So was she on workers compensation when she came - - -?---She’s on workers compensation and I’ve sourced an admin position for her in her home town in the north and she - - -
PN227
What town is that?---That’s Exeter. She’s going to work there. I received an email which I’ve got a copy of on my iPhone at the moment from the rehab provider in Launceston who I work closely with to say that she is to commence her redeployment next Friday and that she will commence with a two-hour shift.
PN228
Is she working part-time or casual?---She’ll be working – it won’t be paid employment. It will be a work placement where the insurance company bears all the costs and it’s simply to give her the routine of getting out of - - -
PN229
So she’s actually not an employee as such?---Not at this point in time. It could happen down the track and often does.
PN230
Very well?---There’s no promise of future employment. I also have a second person on my books at the moment who is in the employ of Mr Harding on a casual basis who has a serious back injury. One point that needs to be made - - -
PN231
That injury was incurred in another company?---That was incurred in another company. He was installing lifts on his own and suffered a back injury. It may have occurred over time but - - -
**** KIM VALENTINE XN MR HARDING
PN232
But that person is being employed by Mr Harding. Is that right?---That person has been employed by Mr Harding and, can I say, Mr Harding has been very tolerant of requests that that particular person has made regarding working conditions that a lot of other employers just wouldn’t put up with.
PN233
What are they?---He needs to be able to sit, walk and stand on a regular basis.
PN234
I understand?---He needs a variety of those three things. If he’s involved in a shift that involves just one of those, he can’t handle it. He recently had to return home after two hours when he was in a position of providing security - - -
PN235
So the restriction is the fitness for work?---Yes. It’s not always the - - -
PN236
And the restriction is that because of the nature of the back injury it’s necessary to vary the work, sit or stand?---That’s right, yes.
PN237
I understand, thank you. Mr Harding.
PN238
MR HARDING: Could I ask, Mr Valentine, from your knowledge of that particular applicant, has he been satisfactorily relocated with us, from your knowledge?---He has. He has been – I think the service you’ve provided has been exemplary. I mean, if he were here today – and he would have been but he had appointments – he would testify to that, I’m sure.
PN239
Mr Valentine, as a general observation, how successful would you rate the client referrals of people with limitations to us?---Well, everybody I’ve referred to you has been employed. The number of the three years I’ve been in existence and that we have been working together, I guess, is probably about five people. So it’s not a huge number but I don’t handle a huge number of clients.
**** KIM VALENTINE XN MR HARDING
PN240
THE COMMISSIONER: Over what period is that?---That’s over a three-year period, Commissioner. I’ve had a guy with a neck fusion who had four vertebrae fused in his neck, worked in a sawmill, is now happily employed by Mr Harding and probably earning more than he did in the sawmill.
PN241
MR HARDING: That’s all I have.
PN242
THE COMMISSIONER: Do you wish to cross-examine?
PN243
MR TULLGREN: Not at this stage.
THE COMMISSIONER: Very well. Thank you very much for your evidence, Mr Valentine.
<THE WITNESS WITHDREW [10.52AM]
PN245
THE COMMISSIONER: I’ll just ask you a question, Mr Harding, while it’s convenient about the person that was last mentioned by Mr Valentine, the man with the neck fusion. What hours is he working?
PN246
MR HARDING: He works, as with all our people, when they are able to. If I can put them on four eight-hour shifts, I will, but in his case he was only able to work two hours the other day on a job. I had to pull him off in the middle of it because of his capacity to continue.
PN247
THE COMMISSIONER: Because of his injury, yes. But what has he actually been working?
PN248
MR HARDING: Well, as and when - - -
PN249
THE COMMISSIONER: Mr Valentine says he’s making more than he was making in the sawmill.
PN250
MR HARDING: No, sorry, that’s a different one again. That was a man who was injured in a sawmill down the Huon and he’s working full time for us. He’s on at least 30 to 40 hours a week, that one. He was badly injured too.
PN251
THE COMMISSIONER: I’m sorry, you’re referring to another employee than the one we’ve just spoken about from the sawmill who Mr Valentine’s company has referred to you. What hours has that person been working?
PN252
MR HARDING: I would have liked for him to work last week but he’s fallen over. I had him working here at the courts, actually. He rushed into work here for a couple of days but his back plays up - - -
PN253
THE COMMISSIONER: On each day that he was rostered to work, what number of hours would he have worked on those days?
PN254
MR HARDING: Two hours on the day that he fell over on me, eight hours on shifts at the Pontville Detention Centre. So it’s varied from - - -
PN255
THE COMMISSIONER: When you say two hours, how would that have worked if you were abiding by the award? You would have paid him for four?
PN256
MR HARDING: Well, I refuse to make them work if they can’t.
PN257
THE COMMISSIONER: I’m sorry, he’s rostered for two hours work at the court. Is that right?
PN258
MR HARDING: Sorry, no, the court was work that he was rostered for eight-hours shifts here.
PN259
THE COMMISSIONER: I see.
PN260
MR HARDING: His essential job and - - -
PN261
THE COMMISSIONER: I see, but he didn’t have the capacity to fulfill the roster?
PN262
MR HARDING: On that occasion, no. That’s right. His back injury is such - - -
PN263
THE COMMISSIONER: Well, that’s a bit like somebody who might have a cold or something.
PN264
MR HARDING: Yes, exactly.
PN265
THE COMMISSIONER: Or become sick at lunchtime and have to go home. Now, what I was interested in his what work was available for that person and, had he been able to do so, what work he would have performed. He would have performed eight hours in the court.
PN266
MR HARDING: In the court, yes, he would have done. His work here enables him to sit, stand, walk. I had him in a Harvey Norman store a few weeks ago where after only two hours he could not continue because it meant him standing up. So in that case he elected to stand down and I had to replace him on a few minutes’ notice. But his back is - - -
PN267
THE COMMISSIONER: But what was the shift roster in the Harvey Norman?
PN268
MR HARDING: Eight hours.
PN269
THE COMMISSIONER: There was work available for eight hours there?
PN270
MR HARDING: There was, sir, yes.
PN271
THE COMMISSIONER: I just make the observation that the source of the restriction is a matter of interest. Is it the award or is it something else? Do you follow what I mean?
PN272
MR HARDING: Yes. This application is about if one person who wants to come into our industry and has limitations, in many respects those limitations may prevent them working for four hours. They are the people I’m trying to accommodate.
PN273
THE COMMISSIONER: I understand that but it has to be understood in the context, I think, and that is if someone can’t work for more than two hours because they are suffering from an illness, for instance, that is the illness is the source of the restriction, isn’t it?
PN274
MR HARDING: That’s right, sir, yes. It may be mental or it may be physical.
PN275
THE COMMISSIONER: All right.
PN276
MR VALENTINE: Could I make a comment, sir?
PN277
THE COMMISSIONER: I don’t think so. I know you’re standing at the moment to do so but you might actually assist Mr Harding. You’re a witness in the matter rather than an advocate, Mr Valentine. Go ahead, Mr Harding.
PN278
MR HARDING: I’ve lost my plot now.
PN279
THE COMMISSIONER: We were talking about the two people that Mr Valentine gave evidence about, one gentleman who had an injury in a sawmill and there was another person; I’m not sure what the background to their injury was. We were talking about the effect of the award on your capacity to roster them for work, and you had explained the hours of work for which they had been rostered and you’d explained the reasons why they didn’t complete those hours.
PN280
MR HARDING: The point there is that we have - - -
PN281
THE COMMISSIONER: I beg your pardon, whilst we’re on that point, from my perspective, you would have only been liable to pay people who didn’t complete their rostered shift for the hours that they worked. You appreciate that, don’t you? And no doubt you did. Would that be right?
PN282
MR HARDING: That’s right, sir, yes.
PN283
THE COMMISSIONER: So you didn’t pay them for four hours. You paid them for two hours because you had actually made the work available to them. They couldn’t complete the shift. Your liability is only to pay them for the time worked.
PN284
MR HARDING: I believe that to be the case too. I’m not sure how someone else would view it.
PN285
THE COMMISSIONER: Well, I think that’s the case at law.
PN286
MR HARDING: I think there’s a general expectation that if you’re going to work you get paid four hours but I would say, look, that’s wrong.
PN287
THE COMMISSIONER: As long as you perform them. The obligation is to perform work for four hours. If they don’t turn up you don’t pay them for four hours.
PN288
MR HARDING: Exactly. But this is about the opportunity that I have to help more people with disabilities but are restricted because of the minimum four hours.
PN289
THE COMMISSIONER: Very well. I take it you now wish to call Mr Harrop.
PN290
MR HARDING: If I may, sir, yes.
PN291
THE COMMISSIONER: Mr Harrop, if you’d be kind enough to stand in that witness box for a moment and give either the oath or the affirmation as you prefer.
PN292
THE ASSOCIATE: Please state your name and address.
MR HARROP: Steven Kenneth Harrop, (address supplied).
<STEVEN KENNETH HARROP, SWORN [10.58AM]
<EXAMINATION-IN-CHIEF BY MR HARDING [10.58AM]
PN294
THE COMMISSIONER: Mr Harding, you should do first to the statement, I think is the best idea. I’ll show it to you, Mr Harrop. You filed a statement in this matter. It’s fairly brief. I need you to look at it and tell me whether you recognise it. It’s the one that’s on the file in the proceedings?---That is correct, sir, yes.
PN295
You don’t want to change anything in that, I take it?---No, sir.
So you give evidence that that’s true.?---That is correct, sir.
EXHIBIT #A5 STATEMENT OF MR HARROP
PN297
MR HARDING: Mr Harrop, you’re a police officer of longstanding, retired recently?---That is correct.
PN298
How many years would you have served?---34 years on the police force.
PN299
You were a senior officer at the time of your retirement?---Yes, I was a station sergeant.
PN300
Do you have any physical incapacity at all?---No.
PN301
Mr Harrop, you have made known some particular views that you have, as per your statement. You currently work of a Friday for another company. Is that true?---That is correct. I work for DCM Security at police headquarters from 1 pm to 5 pm on Friday.
PN302
On Friday night you do what?---On Friday night every second weekend I work – after completion of duties at the police headquarters I then proceed to the State Library where I commence duties from quarter to 6 till 8.30 at night.
**** STEVEN HARROP XN MR HARDING
PN303
THE COMMISSIONER: Could I just understand something? Is that for Mr Harding’s company in both cases?---No. DCM for police headquarters and Tas Security for the State Library.
PN304
Understood. Thank you.
PN305
MR HARDING: Mr Harrop, your original arrangement was with Tas Security Services at both sites, was it not?---That is correct, yes.
PN306
Sir, this is when we lost the police tender when they went out to tender. Mr Harrop, you are currently paid for 3.75 hours on a Friday night by Tas Security Services, are you not?---Yes, from quarter to 6 till 8.30.
PN307
THE COMMISSIONER: Presumably you’re paying four hours?
PN308
MR HARDING: Sadly, sir, we’re not. It’s a longstanding arrangement and the client will not pay four hours.
PN309
THE COMMISSIONER: But you may be legally obliged to pay Mr Harrop regardless of the client’s - - -
PN310
MR HARDING: I think morally, sir. That’s another issue but - - -
PN311
THE COMMISSIONER: Well, I was only referring to the legal effect of the modern award.
PN312
MR HARDING: It is of concern and that’s again one of the reasons why this submission is made. If the client won’t pay for four hours, Mr Harrop doesn’t want four hours, he wants to get home at that hour of the night, if the contract hadn’t have changed, this wouldn’t have been an issue. But we are where we are at and it’s only 15 minutes but - - -
**** STEVEN HARROP XN MR HARDING
PN313
THE COMMISSIONER: Why are you paying 3.75?
PN314
MR HARDING: Because that’s all the job is.
PN315
THE COMMISSIONER: That’s what the client pays you?
PN316
MR HARDING: That’s all the job is, sir, yes.
PN317
THE COMMISSIONER: That’s not the hours worked. That’s actually - - -
PN318
MR HARDING: It’s the hours worked too, yes.
PN319
THE COMMISSIONER: Is it? 6.45 to 8.30.
PN320
MR HARDING: It’s 3.75 hours?---5.54.
PN321
The client in this case, the education department, is like the state government. It’s situated across the board now. It’s very tight and stretched with its finances and it haggles with us a little bit when we come to the rates, as it is now. The situation with Mr Harrop is - - -
PN322
THE COMMISSIONER: Sorry, I’m just confused. Maybe I’m having an arithmetic breakdown here but it seems to me that there’s less than 3.75 hours worked at the State Library.
PN323
MR HARDING: Is it 5.45 on Friday night?---Yes, it’s from quarter to 6 or 5.45 - - -
PN324
THE COMMISSIONER: From 5.45. All right?---Till 8.30.
**** STEVEN HARROP XN MR HARDING
PN325
Well, we have to change your statement because you’ve got – I’ll just show you. It says 6.45 in your statement?---Sorry, that is - - -
PN326
So that should be changed?---Yes, sorry. 5.45.
PN327
I’m going to change that in the statement and we’re going to amend that on the web site and make a note that you amended that as your evidence?---Yes.
PN328
Now I understand why it was I was confused, because I was trying to add up the time between 6.45 and 8.30 and your evidence was actually about 5.45?---That is correct, sir, yes.
PN329
Good, thank you. That is 3.75 hours, is it? I haven’t done that?---Two and three-quarter hours.
PN330
Well, that’s right. I was thinking it was less than 3.75. So what I’m trying to get to the bottom of is, given the hours that you actually work, what is the basis of the payment for the hours you receive? Mr Harding is probably going to have to answer that question because he’s doing the paying. But you’re being paid 3.75 hours?---The hours I’m being paid for – yes, 5.45 to 8.30.
PN331
Mr Harding is saying that you’re being paid 3.75 hours. Do you hear that?---Yes, sir.
PN332
Do you know whether that’s true?---I believe I was working the - - -
PN333
So you’re not sure what he’s paying you in reality. You’re just taking the money and you’re not – you’re leaving it to him?---Yes.
PN334
**** STEVEN HARROP XN MR HARDING
All right. Well, he’ll tell us then the basis of what he’s paying you because he’s paying you for more time that you actually work. Is that right, Mr Harding?
PN335
MR HARDING: We quite often do but, I mean - - -
PN336
THE COMMISSIONER: In this case.
PN337
MR HARDING: In this case he’s paid for the time he spends on the site which is on a Friday night 5.45 - - -?---Till 8.30.
PN338
Till 8.30?---I might just clarify that, sir. The library closes at 8 o’clock.
PN339
THE COMMISSIONER: Isn’t that two hours and 45 minutes?
PN340
MR HARDING: I think it is, sir, now, quite frankly. It’s a carry on from our previous arrangement. Is that right?
PN341
THE COMMISSIONER: Mr Harding, the only point of confusion is that you told me that Mr Harrop for this engagement at the library was being paid 3.75 hours, and when I asked you why you were paying him 3.75 hours you said it was because that was what the client paid for that work. I was, in the first instance, basing my inquiry on an understanding that Mr Harrop was working from 6.45 till 8.30 pm and that wasn’t 3.75 hours. Now it’s 5.45 to 8.30 pm which I understand is two forty-five.
PN342
MR HARDING: Sir, I have to apologise. It is - - -
PN343
THE COMMISSIONER: So what are you paying? Do you know - - -
PN344
MR HARDING: We’re only paying for what time he spends there.
**** STEVEN HARROP XN MR HARDING
PN345
THE COMMISSIONER: So you’re paying for two forty-five hours?
PN346
MR HARDING: Yes, we are.
PN347
THE COMMISSIONER: But aren’t you paying contrary to the award in that respect, according to your case?
PN348
MR HARDING: Yes, sir, because that’s all the client pays. That’s the reason for Mr Harrop’s statement. He would be out of a job if I have to pay more than what the client pays. Having said that, the client hours do change quite a bit from time to time. So it is fairly variable.
PN349
THE COMMISSIONER: Look, the effect of this is you’d withdraw from this contract but Mr Harrop may well have a legal entitlement to all this money in any event.
PN350
MR HARDING: Mr Harrop is arguing that it would negatively affect him if he were - - -
PN351
THE COMMISSIONER: Well, if the effect was that you, rather than paying him withdrew from the contract - - -
PN352
MR HARDING: He’d be out of a job.
PN353
THE COMMISSIONER: Well, out of that engagement.
PN354
MR HARDING: Yes, sir.
PN355
THE COMMISSIONER: Now, Mr Harrop, how long have you been doing this library job?---Probably about three years, I think.
**** STEVEN HARROP XN MR HARDING
PN356
So at some point you were doing this for Mr Harding’s company?---Yes.
PN357
When did that change?---What, the - - -
PN358
When did the library engagement change from you performing it for Mr Harding’s company to performing it for another company?---It would be about maybe 12 months now from both Tas Security to DCM.
PN359
MR HARDING: When the state government went out to tender for the contract.
PN360
THE COMMISSIONER: I’m sorry, I’m the source of confusion here. It’s DCM that I was – you’re working for DCM?---DCM is for police headquarters and the State Library is Tas Security.
PN361
I see?---Basically I finish at 5 o’clock on the Friday at headquarters, change into another shirt and then go up to the State Library.
PN362
I understand. All right, Mr Harding, go ahead.
PN363
MR HARDING: What would be your view if we were to have to pay you four hours?---Well, it would affect my partner’s Centrelink payments because she’s on a - - -
PN364
THE COMMISSIONER: Why is that?---My partner is - - -
PN365
Why does it affect her?---Well, the more I work, the less she gets. The less I work, the more she makes. So it would be detrimental to me.
PN366
All right. I understand that fact. I don’t know whether we can use the award system to govern the social security entitlements, though.
**** STEVEN HARROP XN MR HARDING
PN367
MR HARDING: Sir, in line with that, it is a major problem with a number of people that we assist that are on particular benefits.
PN368
THE COMMISSIONER: The tribunal has no control over how the benefits are regulated.
PN369
MR HARDING: No, but I guess the point here is that a lot of those people could be usefully employed as well because they are allowed to earn certain amounts of money, and because of the limitation on the minimum hours - - -
PN370
THE COMMISSIONER: I think what you’re talking about is the benefit rules.
PN371
MR HARDING: Well, yes, but the fact is that they are allowed to work as well under those benefit rules.
PN372
THE COMMISSIONER: Yes, I understand that but you are talking the benefit rules.
PN373
MR HARDING: Well, I’m talking about the minimum hours too because I can work people more hours if they are able to work lesser hours - - -
PN374
THE COMMISSIONER: What if the benefit rules are changed by whoever makes the benefit rules?
PN375
MR HARDING: Yes, and generally they’re the social welfare benefits that we’re talking about.
PN376
THE COMMISSIONER: Exactly. The point is that what you receive as a benefit is not controlled by this tribunal. You receive it for other reasons than for working.
**** STEVEN HARROP XN MR HARDING
PN377
MR HARDING: Yes, and a lot of people won’t work for those – they won’t work.
PN378
THE COMMISSIONER: It seems to be a social security issue. Mr Harrop, what is the nature of your pension? Is it a police pension?---Yes, it’s a superannuation pension.
PN379
Is that a pension provided by the government of Tasmania?---Yes.
PN380
Does that pension impose any limitation on work that you can perform now that you’ve retired?---No.
PN381
So the effect that we’re talking about here is Mr Harding’s company complies with the requirements of the modern award is on your partner’s pension?---Yes.
PN382
What is the nature of that pension?---I’m not - - -
PN383
Who pays the pension?---Centrelink.
PN384
For what reason?---She’s retired. She’s a pensioner.
PN385
So that’s an aged pension?---Yes.
PN386
So that would be paid by the Commonwealth, wouldn’t it?---Yes.
PN387
It’s a Commonwealth aged pension entitlement. So you’re both entitled to pensions and there’s a limit on how much income you can earn without some reduction in your partner’s pension?---That is correct, yes.
PN388
**** STEVEN HARROP XN MR HARDING
Good, thank you. Go ahead, Mr Harding.
PN389
MR HARDING: Sir, I’ve got no further questions for Mr Harrop in the sense that he has given evidence along the lines of his statement. He’s not a normal example of the sort of person that is affected by this minimum hours but - - -
PN390
THE COMMISSIONER: Well, I don’t know what’s normal, to be perfectly frank with you. It seems we’re largely talking about exceptions here rather than the norm. The fact of the matter is, though, that, Mr Harrop, there’s no physical limitation on your capacity to work four hours?---None at all, sir.
PN391
There’s no financial limitation on your capacity to work four hours?---No.
PN392
The only consequence of you working for four hours is the operation of the aged pension in respect of your wife’s entitlements under that pension?---That is correct, yes, sir.
PN393
MR HARDING: I guess, sir, the other question I might put to Mr Harrop, given that we’re going along those lines, is that he does have a need to get home on a Friday night when he’s working after tea. So presumably there is a pressure on him to finish his day’s work because he is at the end of his day’s work anyway at that time of night.
PN394
THE COMMISSIONER: Well, I suppose you’re giving evidence on Mr Harrop’s behalf but is that right, Mr Harrop? You’d like to go home?---Yes. It causes quite a bit of inconvenience to my partner. She has to leave home, come and collect me, pick me up and then take me back to - - -
PN395
What difference would it make if you worked for four hours rather than two forty-five?---Well, I’d be at the library with nothing to do because they close - - -
**** STEVEN HARROP XN MR HARDING
PN396
I’m saying if you worked for four hours?---Other than just the fact that it affects her pension.
PN397
If you worked for two hours and 45 minutes and you were paid for four hours, what effect does that have?---That would have the same effect, sir. It would be to her.
PN398
It doesn’t have an effect on her coming to pick you up or anything of that nature?---No. It’s just the inconvenience. That’s all.
PN399
What inconvenience?---The fact that she has to leave home to pick me up at 8.30. That’s all.
PN400
But she has to do that now?---She does that now, yes.
PN401
So is there any change if you were paid for four hours?---No.
PN402
Good, thank you. Mr Harding, do you have any other questions?
PN403
MR HARDING: I was going to say, Mr Harrop, have you knocked back additional work that we’ve offered you at places like the Federal Court here or other sites?---Occasionally I’ve had to do that on the fact of the effect on my - - -
PN404
THE COMMISSIONER: Because of the limitations on the earnings that you can receive without affecting your wife’s pension?---Yes.
PN405
That’s a matter of choice for you, is it not?---Yes, I prefer it that way.
PN406
You prefer it that way?---Yes.
**** STEVEN HARROP XN MR HARDING
PN407
Good, thank you. Mr Tullgren?
PN408
MR TULLGREN: I have no questions at this stage. In relation to all these witnesses we reserve our right to cross-examine.
THE COMMISSIONER: Very well. Thank you very much for your evidence, Mr Harrop. You’re released from your oath and you’re free to come and go as you please.
<THE WITNESS WITHDREW [11.14AM]
PN410
THE COMMISSIONER: I take it you’re calling Mr Bourell.
PN411
MR HARDING: Mr Bourell, sir. Sir, I would put it to Mr Bourell first, do you feel up to giving evidence?
PN412
MR BOURELL: (indistinct) to give evidence at this stage.
PN413
THE COMMISSIONER: Has Mr Bourell made a statement?
PN414
MR HARDING: No.
PN415
THE COMMISSIONER: There’s no statement. You’re not calling Mr Bourell?
PN416
MR HARDING: I don’t want to put him under pressure.
PN417
THE COMMISSIONER: Well, there’s no pressure.
PN418
MR HARDING: Mr Bourell is an employee who is really the subject of what we talk about here but his sensitivities, I guess, are such. He’s a very loyal employee of ours and I have the highest regard for him. He’s in work for us but he’s an example. I don’t want to put him under pressure to come up.
PN419
THE COMMISSIONER: Well, it’s up to you but there’s no evidence that I can take into account.
PN420
MR BOURELL: No, thank you.
PN421
MR HARDING: No.
PN422
THE COMMISSIONER: All right. So is that your evidence?
PN423
MR HARDING: Yes, it is, sir.
PN424
THE COMMISSIONER: Just bear with me for a moment. Do you want to say anything at the moment, Mr Tullgren?
PN425
MR TULLGREN: Only that we reserve our right to respond to all of these matters at the appropriate time, including seeking to cross-examine the witnesses.
PN426
THE COMMISSIONER: Mr Harding, the matter that I raised with you earlier about the people that have been referred from CRS, could you please identify those people and provide me with some more information about their work for you, what they’ve done?
PN427
MR HARDING: I can, yes. As I say, there’s 10s and 10s.
PN428
THE COMMISSIONER: What could you tell me about them?
PN429
MR HARDING: That these are people who in many cases have been out of work for long-term periods. They have suffered from physical disabilities in the main. A lot of them have mental conditions which have created all sorts of problems. Our affiliation with the rehabilitation agencies is such that – there’s no other company like us in Tasmania and there may be no other company like us in Australia but we work very closely with people because there are no losers to what we do for people working with us that have disabilities. We produce outcomes in those people that get them back into the workforce. Had Mr Bourell been prepared to take the stand - - -
PN430
THE COMMISSIONER: I don’t think we can go there, with all due respect.
PN431
MR HARDING: Am I able to comment as an – well, maybe I’ll use the typical example of a man who’s out of work for 20 years that - - -
PN432
THE COMMISSIONER: I understand how this can be constructed in argument but the tribunal can only act on a proper basis of evidence. I must decide any such application as this on the evidence before me.
PN433
MR HARDING: Yes, I understand that, sir.
PN434
THE COMMISSIONER: What I’m interested in is – you’re attempting to prove a case, as I understand it – that there are employees who you’ve employed and possibly work in this industry in other circumstances as well who suffer from incapacities and that these incapacities could be physically based or psychologically based and these incapacities are identifiable. These people have, for instance, a job capacity assessment certificate. That’s why I was interested to see what Mr O’Halloran could show us about that. These things will show that it’s reasonable to vary the award to accommodate these capacities. I understand the assertion. What I’m looking for is the proof.
PN435
MR HARDING: I guess the proof is – well, that’s just producing people in the stand that are prepared to give evidence to that proof.
PN436
THE COMMISSIONER: Well, I’m offering you an opportunity to address it in another way. Now, I don’t necessarily commit to the proposition that the other way will be convincing or sufficient proof but it is an opening for you to provide some information about the people that Mr O’Halloran gave evidence about who have been referred to you. Presumably those people have been rostered for work.
PN437
MR HARDING: Yes, sir.
PN438
THE COMMISSIONER: Presumably they have been rostered for a certain number of hours in a day. They have been rostered for a certain number of days in a week. They have a job capacity assessment and you no doubt have that on your file.
PN439
MR HARDING: Yes, sir.
PN440
THE COMMISSIONER: Now, if you can provide me the person, their job capacity assessment and the work that they have been rostered to perform, I can see what has actually happened as a matter of fact in relation to those referrals and study that for the purposes of my decision.
PN441
MR HARDING: Yes. Certainly there are only a few people we’re dealing with here. I take your point that there is a whole industry at stake here but my submission would be that even if there are only a few people who are prevented from working for less than four hours, that that is very much against anybody’s interest if they are prepared to - - -
PN442
THE COMMISSIONER: I hear what you say. That’s why I’m interested to know what their circumstances are. I’m not making any judgments about the numbers of them at this moment. I’m simply inquiring into what their facts are.
PN443
MR HARDING: Well, certainly that information can be provided.
PN444
THE COMMISSIONER: Well, if you could I’d greatly appreciate that. How long would it take you to do that?
PN445
MR HARDING: Both Mr O’Halloran and Mr Valentine have details of those people.
PN446
THE COMMISSIONER: I’m talking about the information that you hold about those people. You said there are about three of them in your recollection. It’s those three people, their job capacity assessment and the work that they have done for you since they have been referred by the relevant agency, either CRS or Mr Valentine’s company, that I’m interested in knowing about.
PN447
MR HARDING: I can do that. I’m not privy necessarily to the in-depth medical conditions that they have other than - - -
PN448
THE COMMISSIONER: Well, you must have their job capacity assessment certificate, one would think.
PN449
MR HARDING: We work with the agency - - -
PN450
THE COMMISSIONER: We’re going to get it from CRS or from Mr Valentine’s company. Isn’t that right?
PN451
MR HARDING: Yes, that would be the way to go because they - - -
PN452
THE COMMISSIONER: Mr Valentine, can you look at your records and - - -
PN453
MR VALENTINE: Yes. I’m not wanting to complicate things, sir, but I work with rehab providers. The rehab provider keeps the job capacity assessment or the - - -
PN454
THE COMMISSIONER: Well, if you just let me know who they are, who the rehab provider for the people that you referred to Mr Harding actually was.
PN455
MR VALENTINE: Yes, I can do that.
PN456
THE COMMISSIONER: That would be good, if you can forward to my associate. So we’ll get the ones that came from CRS from Mr O’Halloran. I’m assuming you would have got a job capacity certificate.
PN457
MR HARDING: We make sure that they are cleared to work but the providers, CRS and Mr Valentine’s company, go out onto the sites and do assessments on the sites. So, quite personally, I don’t insist on getting those capacities back because they’re case managed by their rehabilitation providers, as a general proposition, suffice that I’m satisfied that the work that we task them to do is within their capabilities.
PN458
THE COMMISSIONER: Could I just ask you, how many people do you think you currently have employed who came to you in these circumstances?
PN459
MR HARDING: Every one that has come through – well, I’d - - -
PN460
THE COMMISSIONER: Currently employed by you.
PN461
MR HARDING: 20 to 30.
PN462
THE COMMISSIONER: Who would have at some point had a job capacity certificate.
PN463
MR HARDING: Yes, from their relative rehabilitation providers.
PN464
THE COMMISSIONER: How many people are on your register of employees?
PN465
MR HARDING: Between 50 and 80.
PN466
THE COMMISSIONER: And about 20 to 30 of those would have a job capacity certificate?
PN467
MR HARDING: Would be referrals.
PN468
THE COMMISSIONER: How many of those have been working four-hour shifts or greater?
PN469
MR HARDING: Most of them.
PN470
THE COMMISSIONER: So how many of them, in your submission, do not have the capacity to work a four-hour shift?
PN471
MR HARDING: Only three or four.
PN472
THE COMMISSIONER: Could you identify those employees and their job capacity certificate? Would their job capacity certificate be indicative or that or not?
PN473
MR HARDING: I don’t think so, sir, because they – we roster a lot of them for full shift periods, eight hours.
PN474
THE COMMISSIONER: And they perform the work?
PN475
MR HARDING: If they fall over on us through that we’ve got to pull them off that.
PN476
THE COMMISSIONER: But then you don’t pay them.
PN477
MR HARDING: Not when they fall over.
PN478
THE COMMISSIONER: The award doesn’t impose upon you a burden in relation to the fact that they can’t complete the shift.
PN479
MR HARDING: No, that’s right. This is about our ability to employ people that come to us with those limitations to give them - - -
PN480
THE COMMISSIONER: But there are only two or three who you think have difficulty completing a four-hour shift?
PN481
MR HARDING: Yes.
PN482
THE COMMISSIONER: Or who you’ve got a record that they have been unable to complete the four hours?
PN483
MR HARDING: The other side of the coin is our ability to fit them into positions where those are the only shifts that are available.
PN484
THE COMMISSIONER: What do you mean by that?
PN485
MR HARDING: Well, I use the example of the state education department, libraries as an example. They want someone to lock and unlock the place.
PN486
THE COMMISSIONER: That’s the employer requirement.
PN487
MR HARDING: Yes, the employer requirement.
PN488
THE COMMISSIONER: Not the employer; the client requirement.
PN489
MR HARDING: Yes, the client requirement.
PN490
THE COMMISSIONER: That’s a different thing. I understand that. A client might say to you, “I want a security guard for 30 minutes because I’m going to open the door, go in and out, and I want someone to be there.” I understand that. The other issue is the person who’s going to perform the work. They’re two different things. So if the client says, “I need a guard continuously for eight hours,” and you’ve got a person who can’t work for eight hours, that’s the capacity issue of the employee, isn’t it?
PN491
MR HARDING: Yes, sir, in which case I split it into two four-hour shifts.
PN492
THE COMMISSIONER: Right. Now, what I’m interested in is how many people do you say can’t work four hours?
PN493
MR HARDING: It varies from almost day to day in the case of those people with particular difficulties.
PN494
THE COMMISSIONER: How often do they not complete their shifts?
PN495
MR HARDING: Over the years a very small percentage.
PN496
THE COMMISSIONER: That’s what I’m interested in. I’m trying to understand what this capacity limitation actually is in practice.
PN497
MR HARDING: It’s very, very small. In reality, you know, we are moving away from those jobs where I could employ people for less than four hours, simply because the award doesn’t allow us to do that.
PN498
THE COMMISSIONER: I understand that. That’s the cost of employing them. My focus in our discussion at this instant is about their capacity for that employment. What I’m hearing you tell me is that there are very few people in your employ who cannot complete a four-hour shift.
PN499
MR HARDING: That’s right, sir, exactly.
PN500
THE COMMISSIONER: Good, thank you. Is there anything further you want to put to me, bearing in mind you will have the opportunity to file a further written submission?
PN501
MR HARDING: No, sir. I think we’re giving it our best shot in the interests of these people, and that’s what this is all about. My application – again I repeat, if only one person is compromised by the award conditions, let’s have a go and see if we can fix it. We’re successful because of what we’ve done to help these people and that goes both ways. They repay us 10-fold. But it’s very difficult for us to accommodate client needs, as we’ve seen from the DHHS contract, to be able to place these people and I’m becoming less able to place them with conditions like that.
PN502
THE COMMISSIONER: All right. I just want to ask you a few questions about your submission. You say that you’re possibly the largest security company in Tasmania. Is that right?
PN503
MR HARDING: I believe so, sir, in terms of hours worked.
PN504
THE COMMISSIONER: You say that some persons that you’ve assisted to gain employment had physical and psychological incapacities. Is that right?
PN505
MR HARDING: Yes.
PN506
THE COMMISSIONER: What has been the nature of those that you’re aware of?
PN507
MR HARDING: Schizophrenia, muscular injury and just about everything you can point at, I think, in terms of problems.
PN508
THE COMMISSIONER: So quite a diverse range.
PN509
MR HARDING: A very diverse range, very diverse - - -
PN510
AUDIO MALFUNCTION
PN511
MR HARDING: - - - useless. He’s a fitter and turner by trade, a young fellow that was injured in a motorcycle accident who we’ve been able to place in one of our factory sites.
PN512
THE COMMISSIONER: That’s good. Now, is there any reason why he can’t work for four hours?
PN513
MR HARDING: None whatsoever, and he does. He works eight hours every shift.
PN514
THE COMMISSIONER: Do you have any documentary evidence from a rehabilitation provider or a job placement service in respect of any employees not subject to a workers compensation claim that they can only work for a certain number of hours a day?
PN515
MR HARDING: Documentary evidence, yes, there certainly is in terms of the evidence provided by Mr Valentine, for example.
PN516
THE COMMISSIONER: That’s a week. That evidence is about weekly limitations.
PN517
MR HARDING: That’s right but that’s evidence today that - - -
PN518
THE COMMISSIONER: I understand that as a matter of fact if it’s an eight-hour week you would break it into two four-hour shifts.
PN519
MR HARDING: Well - - -
PN520
THE COMMISSIONER: In some cases. The point that I’m making is do you have any documentary evidence from an appropriate agency or service provider which instructs that the person that has been assessed has a capacity of less than four hours?
PN521
MR HARDING: I don’t think so, sir. In fact, that’s never the intention when they start off in this industry. The intention is to give them more work from that but - - -
PN522
THE COMMISSIONER: Per day, I meant.
PN523
MR HARDING: Sorry?
PN524
THE COMMISSIONER: Per day for a continuous number of hours per shift.
PN525
MR HARDING: They don’t come to us in those terms.
PN526
THE COMMISSIONER: With any such certificates?
PN527
MR HARDING: No. In fact, if they did we’d say, “Under the award we can’t really employ you because you’ve got an incapacity that is outside the scope of the award.”
PN528
THE COMMISSIONER: I understand that. My interest is in the facts. The fact is that you’ve not ever received such a certificate or anything from an agency that’s a competence prescribed accordingly.
PN529
MR HARDING: Only in lump sum hours worked. Eight hours, they might only go - - -
PN530
THE COMMISSIONER: That’s per week.
PN531
MR HARDING: That’s right, sir. A lot of them have those restrictions. Many of them who come to us have got those restrictions but they’re never broken down into - - -
PN532
THE COMMISSIONER: Into continuous hours.
PN533
MR HARDING: - - - two hours here, although we’re aware of it at times, that they’re just not going to last a shift.
PN534
THE COMMISSIONER: Could I ask you to have a look at paragraph of your submission.
PN535
MR HARDING: On page 2?
PN536
THE COMMISSIONER: Yes. I don’t understand that terribly well. You might help me. Elaborate that a bit more.
PN537
MR HARDING: Okay:
PN538
Staff employed by the company work in a broad range of variety of employment options available - - -
PN539
Okay. Because of our size we’ve got a big range of options. I’ve got industrial sites, retail sites, court sites, general reception sites. When people come to us we try to fit them into those jobs that we think they can survive in. As an example, the fellow with the one arm that’s strapped to his body would be no good doing crowd control or working at a site where he’s got to handle the sort of screening equipment as here but at the factory site, the Ingham’s processing centre at Sorrell, we need someone with a technical background that understands machinery that can function – you know, he’s the last person you’d ever put into a guard uniform in more cases than not but, in fact, he’s one of our best employees as a security officer at the site of the factory because of his technical background.
PN540
The hardest thing that he found with one hand was opening a door that you had to work the lever and the key at the same time. He mastered it, as they do, and he will work non-stop for us. I mean, we gain and he’s gained and the community has gained, as far as I’m concerned.
PN541
THE COMMISSIONER: I gather that the award really – the minimum shift requirements don’t affect him.
PN542
MR HARDING: No, sir, not at all in that case.
PN543
THE COMMISSIONER: This paragraph deals with something at a remote mining site, I think, doesn’t it?
PN544
MR HARDING: Sorry?
PN545
THE COMMISSIONER: “Choosing to travel to remote or sensitive areas”.
PN546
MR HARDING: Sorry, you’re looking at the reasons - - -
PN547
THE COMMISSIONER: Yes, your submission.
PN548
MR HARDING: I was looking at a different paragraph there.
PN549
THE COMMISSIONER: I see.
PN550
MR HARDING: I was looking at page 2.
PN551
THE COMMISSIONER: This is your submission of 9 August.
PN552
MR HARDING: Yes. We are contracted - - -
PN553
THE COMMISSIONER: On page 3.
PN554
MR HARDING: Yes, sir. I’ve got that now. I was talking about the original one. Our people work where they want to, when they want to, for how long they want to. That was the second page referred to. In this case we’re contracted from time to time by building companies or developers to put guards on sites in areas that are fairly – in bushland or they are in lower socioeconomic areas where the risk of damage or assault or a whole range of things is more high a profile than it might be in a high visibility spot. So when we send people to those sites quite often – and I’ve done it myself. It helps the time pass. It’s better to go with someone that you’re associated with, if they’re licensed, and it’s not unusual for our guards to go to sites to work together. One of them sleeps part of the time while the other one takes it in turn to work. We’ve got a particular father and son team who are both licensed security guards that work for us. I’m quite happy to send them to those sites so that when the client only wants one guard – and then break the shifts down so that they share the money that comes in from the client.
PN555
THE COMMISSIONER: How does the award affect that?
PN556
MR HARDING: Well, as an example, if there’s a six-hour shift and someone is not too comfortable working by themselves on a job, it may be that between them they decide they’re each going to work three hours on that site.
PN557
THE COMMISSIONER: So the client can get two guards for the price of one. Is that right?
PN558
MR HARDING: Well, that’s not the intention.
PN559
THE COMMISSIONER: No, but that’s the effect.
PN560
MR HARDING: But by their choice - - -
PN561
THE COMMISSIONER: By the choice of the guards in question - - -
PN562
MR HARDING: - - - of the guards they decide that. Now, under the award I should pay both of them four hours for that - - -
PN563
THE COMMISSIONER: But you could cover the shift with one guard because the client only wants one. Isn’t that right?
PN564
MR HARDING: That’s right, sir, yes, exactly.
PN565
THE COMMISSIONER: So the award actually doesn’t affect the capacity for you to provide the guard to the client.
PN566
MR HARDING: No, sir.
PN567
THE COMMISSIONER: This is really just a question of preference amongst certain individuals.
PN568
MR HARDING: But on the payroll, if you were to look at our payroll it might, for instance, show two three-hour payments. That would be deemed as being contrary to the award, wouldn’t it?
PN569
THE COMMISSIONER: Well, it might be a couple who are sort of anticipating their honeymoon. I don’t know whether the tribunal is going to get into that.
PN570
MR HARDING: No, it’s just another anomaly that does exist and that’s something I put in there. In other cases we’ve got some of our retail guards that don’t want to work four hours by their own choice. Don’t want to work four hours, so they go - - -
PN571
THE COMMISSIONER: Why is that?
PN572
MR HARDING: Why is it? Retail work is the worst of the work you can get in this sort of industry. You’re dealing with the shoplifters and your risk of assault is tremendous all the time.
PN573
THE COMMISSIONER: That’s the work, isn’t it?
PN574
MR HARDING: It is the work, yes, and it’s very difficult to get retail guards.
PN575
THE COMMISSIONER: That’s the work that the award covers.
PN576
MR HARDING: Yes, but then again - - -
PN577
THE COMMISSIONER: I don’t know whether we can let the shoplifters determine the outcome either, with all due respect, Mr Harding.
PN578
MR HARDING: They will, though, if you’ve got the wrong person there, I can tell you.
PN579
THE COMMISSIONER: More shoplifters mean lesser minimum shifts.
PN580
MR HARDING: But the reality is that by choice – and this is the choice that we give our people. No-one works for us unless they want to and they don’t work where they don’t want to. My philosophy is if you don’t want to be on a job, you shouldn’t be there. Therefore if by cutting down the hours, I submit that it makes life easier for everyone.
PN581
THE COMMISSIONER: Possibly not for the people who would like the minimum shift engagement.
PN582
MR HARDING: I’m sure they would be very much against it but, then again, no-one else works - - -
PN583
THE COMMISSIONER: It’s always hard to please everybody, isn’t it?
PN584
MR HARDING: Well, the company that we’ve got and the people we’ve got in it are very, very happy people. If they’re not happy we – and we’re helping people into the industry. The stumbling block is that four-hour thing, as far as I can see.
PN585
THE COMMISSIONER: The reason why someone might prefer to work three hours rather than four hours in the retail sector is because it means they have less shoplifters to deal with.
PN586
MR HARDING: It could be, sir, it could be.
PN587
THE COMMISSIONER: Or they want to go to footy training or something.
PN588
MR HARDING: In retail you’re on your feet. Not everyone is good on their feet non-stop for those sort of periods. The break doesn’t come along until the fifth hour, I think, for a bit of time out. So walking around – there’s not too many of us that can stand for long periods in a static position.
PN589
THE COMMISSIONER: This is an interesting question because I’m not quite sure what the correct answer is to it but it just crosses my mind that if that person leaves early, you’re only paying them for three hours, aren’t you?
PN590
MR HARDING: Well, that’s right, sir. That’s the point of this one. In other industries it probably is three hours - - -
PN591
THE COMMISSIONER: You’re obliged to offer them the four but if they say, “I’ve had an urgent call from the footy coach. He needs me down here to pump up some footballs. I’m going - - -”
PN592
MR HARDING: “I’ve got to go home and get the kids,” or - - -
PN593
THE COMMISSIONER: You can say, “Well, no, you’ve got to stay there because you’re rostered on for four hours and you need to be ready, willing and able to work,” and then if they leave and they’re a casual employee, well, you’re only going to pay them for the three.
PN594
MR HARDING: Yes.
PN595
THE COMMISSIONER: So that’s their problem, isn’t it, not yours?
PN596
MR HARDING: But it doesn’t look right, though, does it, when you come to do your payroll?
PN597
THE COMMISSIONER: Well, if the person has left the site of the employment and has not been ready, willing and able to complete the shift, you’re hardly liable to pay them for it.
PN598
MR HARDING: Well, I’m happy to be able to quote that.
PN599
THE COMMISSIONER: Just as if they don’t turn up. You don’t pay someone who you’ve rostered on a shift engagement for four hours and they don’t turn up for work. So long as they’re ready, willing and able to work the four hours then they’re to be paid for it, aren’t they?
PN600
MR HARDING: That’s a commonsense observation, isn’t it? I wonder if someone looking at the award would say that that’s the case.
PN601
THE COMMISSIONER: I would have thought that any employer in this industry would not pay someone for their shift engagement unless they presented for it and completed it if the employer required them to complete it.
PN602
MR HARDING: We certainly don’t pay for people to work when they’re not on the site.
PN603
THE COMMISSIONER: Exactly. So it’s not the award that affects that situation, is it?
PN604
MR HARDING: I don’t know. I could interpret that you go to work, you expect some people to – I mean, I’ve had cases where people have come to me and said, “Look, I need to be paid for four hours,” and I say, “But you’re not available for four hours. You’ve gone and worked for someone else - - -”
PN605
THE COMMISSIONER: That’s a matter of interpretation of the award by that individual but surely they don’t think that if they turn up for 30 minutes they’re going to get paid for four hours.
PN606
MR HARDING: Our people don’t but - - -
PN607
THE COMMISSIONER: It’s the minimum shift engagement. It’s not the minimum shift payment. You are engaged for four hours. You’re entitled to work for four hours on that engagement and be paid for four hours on that engagement. If you decide you’re nicking off to go to the races or something, you’re not going to get paid.
PN608
MR HARDING: What about the situation where I’ve got a two-hour job, though, and that’s all that job is going to pay? Do I say, “Go away. We don’t want to know.”
PN609
THE COMMISSIONER: Well, you’re obliged to engage a person for four hours.
PN610
MR HARDING: Or not take the job and not employ them.
PN611
THE COMMISSIONER: As a minimum. I mean, if you’ve employed them for a shift for the day for 10 hours, which I think you can under the award - - -
PN612
MR HARDING: Yes, you can, sir. You can go up to 12.
PN613
THE COMMISSIONER: - - - you can cover any number of jobs during that engagement, can’t you?
PN614
MR HARDING: Yes, but - - -
PN615
THE COMMISSIONER: It’s not dictated by the job. It’s an engagement by the employer to work as a security guard during the course of the day. So if you had jobs at three different locations and you engaged someone to cover all of them during the day and it took eight hours to do it, well, you’ve complied with the minimum engagement provisions, haven’t you?
PN616
MR HARDING: That’s certainly where we - - -
PN617
THE COMMISSIONER: So that’s a rostering question.
PN618
MR HARDING: Mr Harrop was a good example of that where we linked these jobs up, but there are a lot of jobs that come along that aren’t able to be linked.
PN619
THE COMMISSIONER: I’m not suggesting there aren’t.
PN620
MR HARDING: That’s the nature of the problem that I, as someone trying to help people with limitations, come into.
PN621
THE COMMISSIONER: But isn’t the situation that any employer in Tasmania who’s faced with a circumstance where they’re offered a contract by a client to provide a guard for two hours as a matter of law has to pay the guard for four? If the client doesn’t pay for that, that’s a business and commercial issue of whether or not you’re going to accept the contract, isn’t it?
PN622
MR HARDING: The reality, in fact, is that the industry gets around it. It gets around it by not paying the award and using cash-in-hand payments. There are a whole range of - - -
PN623
THE COMMISSIONER: Well, that’s a matter I intend to write to the Ombudsman about. Leaving noncompliance with the law aside, you can see why it’s impractical for the tribunal to be governed by breaches of the law. I mean, there would be no speed limit if that was the case. You have to remove the speed limit in order to allow all the people who are driving faster than it at the present time to avoid fines.
PN624
MR HARDING: My sole want in this and in the submission is to be able to help people that want to come back into the industry be fitted into jobs for which they can start off - - -
PN625
THE COMMISSIONER: Yes, I understand that and I think we’ve probably gone over what I’m looking for in relation to information about those people. Ultimately it may be if there is an employer with a requirement for a security guard for only an hour, that depending upon other work that you have as a commercial supplier of security services you can accommodate that because you may have that person engaged on a 12-hour shift for the day and you could send them over to that site to do that job. It doesn’t prevent you from accepting it.
PN626
MR HARDING: No.
PN627
THE COMMISSIONER: That’s more to do with who you have, their availability, your rostering arrangements.
PN628
MR HARDING: Yes. That’s what we do. That’s the intention but it’s not always possible. They’re the exclusions or the exceptions that I am really trying to get addressed, that we could do more - - -
PN629
THE COMMISSIONER: But it is a rather finely tuned proposition, isn’t it?
PN630
MR HARDING: It’s only those of us that are big enough to be able to move people around. It’s like a big jigsaw puzzle.
PN631
THE COMMISSIONER: Well, in a way the award suits you in a commercial sense, doesn’t it, because your capacity to fulfil that service is probably related to you size and the number of employees on your register?
PN632
MR HARDING: We can probably do it better than anyone else can.
PN633
THE COMMISSIONER: Exactly.
PN634
MR HARDING: But it’s that one person that – I mean, this could be reduced to one person that can’t work those hours.
PN635
THE COMMISSIONER: But your competitive advantage from your size and scale will allow you to roster employees to cover these one and two-hour and three-hour engagements better than smaller service providers. What you’re saying to me is that they just don’t observe the award. If they get a proposition that, you know, “I’ve got a job. It’s a one-hour a day job,” and they will not pay the guard the four hours and the client won’t pay them enough to cover the four hours – but that is wholly predicated on a breach of the award, isn’t it?
PN636
MR HARDING: Yes, it is.
PN637
THE COMMISSIONER: The proposition that I’m putting to you is that we can hardly lower the terms and conditions of employment based on the frequency of breaches of the law.
PN638
MR HARDING: No, but it’s also a reality that that’s the situation.
PN639
THE COMMISSIONER: Isn’t the better result the law is enforced?
PN640
MR HARDING: Well, that’s what we would ask.
PN641
THE COMMISSIONER: And wouldn’t that advantage you even more greatly?
PN642
MR HARDING: It sure would but it’s never happened and I just can’t see it happening.
PN643
THE COMMISSIONER: I understand what you’re saying. Is there anything further you want to put to me?
PN644
MR HARDING: No, sir, I think that’s it.
PN645
THE COMMISSIONER: Very good. I was just asking you some questions on your submission. Mr Tullgren, anything arising from that that you want to comment on today?
PN646
MR TULLGREN: No, nothing.
PN647
THE COMMISSIONER: Very well. What we’ll do is I’ll allow 28 days for you to comply with the provision of the information concerning the three or four people you’ve mentioned to me and their capacities. Mr Harding, do you understand what it is you’re going to provide?
PN648
MR HARDING: I think if we just clarify that, though. So the three or four people we’ve got that have got incapacities - - -
PN649
THE COMMISSIONER: Who are currently employed by you who you believe have incapacities such that they cannot perform four hours of work continuously, physical or mental incapacities that they cannot perform more than four hours’ work continuously.
PN650
MR HARDING: Yes, sir.
PN651
THE COMMISSIONER: If the fact of the matter is you go to your records and you can’t identify any such person, please just let me know.
PN652
MR HARDING: Yes, sir. I’ve got no problem with that.
PN653
THE COMMISSIONER: Good, thank you. Well, the matter is adjourned. further proceedings will be advised via the website.
<ADJOURNED INDEFINITELY [11:47AM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A1 ARTICLE FROM TCCI IN TASMANIAN BUSINESS REPORTER DATED JULY 2011 PN46
EXHIBIT #A2 EXTRACT OF CONTRACT SPECIFICATION FROM DEPARTMENT OF HEALTH AND HUMAN SERVICES PN49
DAVID JOHN O'HALLORAN, AFFIRMED PN99
EXAMINATION-IN-CHIEF BY MR HARDING PN99
EXHIBIT #A3 STATEMENT OF MR O'HALLORAN PN133
THE WITNESS WITHDREW PN209
KIM VALENTINE, SWORN PN213
EXAMINATION-IN-CHIEF BY MR HARDING PN213
EXHIBIT #A4 STATEMENT OF MR VALENTINE PN222
THE WITNESS WITHDREW PN244
STEVEN KENNETH HARROP, SWORN PN293
EXAMINATION-IN-CHIEF BY MR HARDING PN293
EXHIBIT #A5 STATEMENT OF MR HARROP PN296
THE WITNESS WITHDREW PN409