WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES INDEPENDENT EDUCATION UNION OF WESTERN AUSTRALIA, UNION OF EMPLOYEES APPLICANT -v- CORPUS CHRISTI COLLEGE RESPONDENT CORAM COMMISSIONER J L HARRISON HEARD THURSDAY, 19 OCTOBER 2006, FRIDAY, 20 OCTOBER 2006, FRIDAY 17 NOVEMBER 2006 DELIVERED MONDAY, 12 FEBRUARY 2007 FILE NO. CR 188 OF 2005 CITATION NO. 2007 WAIRC 00089 Catchwords Industrial Law (WA) - Dispute regarding complaint about union delegates and subsequent distress - Claim for order that respondent retract comments and/or apologise - Application upheld - Industrial Relations Act 1979 s 26, s 27 and s 44 Result Upheld and Order issued Representation Applicant Mr G Stubbs (of counsel) Respondent Ms K Wroughton (of counsel) Reasons for Decision 1 On 2 November 2005 the Independent Education Union of Western Australia, Union of Employees (“the applicant”) (“the union”) (formerly the ISSOA) lodged an application in the Commission pursuant to s44 of the Industrial Relations Act 1979 (“the Act”) in relation to a dispute between the union and some of its members with Corpus Christi College (“the respondent”) (“the College”). As conciliation proceedings did not resolve the dispute the matter was referred for hearing and determination. 2 At the commencement of the proceedings the applicant sought leave to amend the respondent’s name. Given the respondent’s consent to this course of action and the Commission’s powers under s27(1) of the Act, and having formed the view that it was appropriate in the circumstances to grant the amendment, I will issue an order that Corpus Christi College be deleted as the named respondent to this application and be substituted with the Roman Catholic Archbishop of Perth. 3 The schedule of the memorandum of matters referred for hearing and determination is as follows: “1. The applicant claims that on behalf of the respondent, the respondent’s Acting Principal Mr Barry Harvie published untrue comments calling into question the industrial behaviour and reputation of the applicant and delegates employed by the respondent. Specifically the applicant and its delegates maintain that Mr Harvie’s claims that the applicant’s delegates bullied and harassed other members of the respondent’s staff when performing their role as the applicant’s delegates were untrue. 554 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. 2. The applicant seeks an order that the respondent retracts the comments made by Mr Harvie about the applicant’s delegates or apologise to the applicant and its delegates for Mr Harvie’s unwarranted actions towards the applicant’s delegates. 3. The respondent denies the claim and opposes the order sought.” Background 4 The following details are not in dispute. At the relevant time the applicant had seven delegates at the College - Mr Philip Petale, Ms Kerry Kowald, Mr Paul Ross, Ms Mary Oliver, Mr Derek Bickford, Ms Ann Nisbet and Mr Russell Scanlon. Mr Scanlon was on long service leave during Term 3, 2004 when the dispute, which is the subject of this application, between the applicant, its delegates and the respondent arose. 5 Part of the dispute involved the attendance of a representative from the union at the College on 26 August 2004 to discuss the issue of workloads with teachers and an attempt by the College’s Acting Principal, Mr Barry Harvie, to move this meeting from the College’s staff room to another venue. 6 Relevant emails are as follows: “From: Phil Petale To: Ann Cook; …. [and other Staff at the College] Date: Wednesday – August 25, 2004 9:04 AM Subject: ISSOA Visit Dear Colleagues, An officer of the ISSOA will be visiting the College tomorrow (Wednesday) to talk to us about the Workloads Survey being carried out as part of the EBA agreement. The talk will be in the Staff Room at lunchtime. Bring your lunch and questions. All welcome. Regards Phil, on behalf of your Delegates From: Vaughan Sadler (sic) To: Phil Petale Date: Wednesday – August 25, 2004 9:37 AM Subject: Re: ISSOA Visit Phil, the staff room is not an appropriate place as it imposes on those who do not want to take part. Can you change to a classroom please. Also I have heard nothing from the ISSOA as yet, which would be proper protocol. Cheers Barry Vaughan Sadler Principal, Corpus Christi College vsadler@corpus.wa.edu.au” (Exhibit A3) “To: Kerry Kowald Date: 26/08/2004 10:17:34 am Subject: Re: Thursday’s ISSOA visit Kerry, Not (sic) all staff wish their lunch to be disturbed by a large meeting. Two staff have requested that the meeting be in another venue. It seems a little inconsiderate to them that their colleagues insist on holding the meeting in the staff room when there are perfectly satisfactory alternatives. If other groups wanted to use the staff room at lunch time I suspect that you might feel it to be an invasion on staff rights to have a relaxing lunch break and rightly so. I hope that you will reconsider. Cheers Barry Principal, Corpus Christi College >>> Kerry Kowald 26/08/2004 9:02:04 am >>> 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 555 Dear Barry Staff wish to be addressed by the ISSOA Representative in the Staff Room today at lunch time. Please contact the ISSOA if you wish to discuss this further. Staff Representatives” (Exhibit A4) 7 On 26 August 2004 Mr Harvie sent the following email to College staff, Terry Wilson at the Catholic Education Commission and the union, about the union meeting scheduled for that day: “From: Di Fisher (sic) To: Admin & Support Staff@corpus.wa.edu.au; Teaching Staff; Terry Wilson; unity@ISSOA.asn.au (sic) Date: 26/08/2004 11:05:16 am Subject: ISSOA Meeting As I have had 2 staff members ask that the ISSOA meeting scheduled for today not be held in the staff room as it is an intrusion into their lunch time, I have requested that they use any other room in the College and offered to set it up with tea/coffee making facilities. It is my hope that they will respect the wishes of some of their colleagues and transfer the meeting elsewhere. A copy of my e-mail to the representatives is attached. Cheers Barry” (Exhibit R5) 8 A representative of the union attended the College on 26 August 2004 at lunch time and spoke to College staff in the staff room notwithstanding Mr Harvie’s request that the discussion be held at another venue. 9 After this meeting took place emails were exchanged between Mr Harvie and Mr Petale about improving the relationship between the College’s administration and the delegates: “From: Vaughan Sadler (sic) To: Phil Petale Date: 30/08/2004 2:02:11pm Subject: Getting together Phil, I would like to discuss how we can progress the working relationship between Leadership and ISSOA reps here at Corpus. Would you make a time with Di to see me sometime soon. Cheers Barry Vaughan Sadler Principal, Corpus Christi College vsadler@corpus.wa.edu.au From: Vaughan Sadler (sic) To: Phil Petale Date: 31/08/2004 3:41:21pm Subject: Re: Getting together Phil, As (sic) I have just 5 and a bit weeks left I was wanting to explore informally with you ways in which the college can progress what has obviously been a difficult period for all. In doing so I am presuming that the reps are looking for ways to improve the working relationship between Leaders and ISSOA and I had hoped some informal discussion might lead to suggestions for improvements. I am not keen to take time away from students in class. If that is not suitable to you or the other reps, then I will have to leave it to others after I have finished. Cheers Barry Vaughan Sadler Principal, Corpus Christi College vsadler@corpus.wa.edu.au >>> Phil Petale 31/08/2004 1:26:01 pm >>> 556 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 87 W.A.I.G. Barry, Corpus ISSOA Representatives are happy to meet with you during teaching time to discuss issues relevant to the working relationship between Leadership and ourselves. Before we make an appointment through Di, could you please provide us with an agenda for this meeting, including any specific questions or proposals you may have, so that we can prepare ourselves and decide if we require an ISSOA Officer to be present. Also, we would require that that (sic) the meeting be recorded and minuted. Regards, ISSOA Representatives” (Exhibit R2) 10 Mr Harvie, who was Acting Principal at the College from the last week of Term 2, 2004 through to the end of the first week of Term 4, 2004, sent the following email with a letter attached (“the email and letter”) dated 31 August 2004 and addressed to Ms Theresa Howe Secretary of the ISSOA and he distributed the email and letter to all College staff, including teaching and non-teaching staff: “From: Di Fisher [dfisher@corpus.wa.edu.au] (sic) Sent: Thursday 2 September 2004 8:36 AM To:..Ann Cook; … [and other Staff at the College] Subject: Correspondence with the ISSOA On the interests of keeping everybody advised of my action regarding last Thursday’s ISSOA visit to the College, (sic) I have attached a copy of my letter to the Secretary of the Association. I welcome your comments either by e-mail or by discussing with me any concern you have. Cheers Barry” (Exhibit A1) The letter attached to the email reads as follows (formal parts omitted): “Dear Theresa Re: ISSOA visit to Corpus Christi College, 26 August 2004 I write to report my concerns regarding the organization of the visit by ISSOA representatives to Corpus Christi last Thursday. The order of events was (sic) 1. An e-mail was sent by Phil Petale to all staff on Wednesday at 9.06am advising staff of the visit and that it would be in the staffroom at lunchtime the following day. I had not been advised by either those representatives or the ISSOA of the visit. 2. I responded by e-mail to Phil advising that the staff room was not an appropriate place as it imposed on staff who did not wish their lunchtime to be interrupted by a meeting and also to advise that appropriate protocol had not been followed in that I had not been advised by ISSOA. I received no response to that e-mail. 3. At 12.02 I received an e-mail advice from Nigel Briggs of the visit at lunchtime the following day. I was later advised that this only happened as a result of my prompt to Phil. 4. A little later Phil was passing my office so I asked to speak with him as he had not replied to my e-mail. I told him that 2 staff that I know of had particularly requested through me that an alterative (sic) venue for the visit be organised as they wanted to enjoy their lunch in the staffroom without interruption of a large meeting. I took the opportunity to inform him also of the harassment some staff felt by some staff representatives of the ISSOA. One in particular who had given, as one of her reasons for leaving the College was the “bullying” she experienced by the staff. I asked again for the venue to be changed and offered any other room in the College, all of which were vacant at lunchtime, and offered to set up with tea/coffee and any other requirements. He advised the (sic) he needed to discuss this with his colleagues and would get a response to me by the end of the day (sic) He checked that I would be late in leaving as he had Parent/Teacher interviews. I was at the College until later than this as I was interviewing prospective families until 7.30pm. When I had not heard from Phil by 5.30 I went to the place of the Parent (sic) Teacher interviews to find out that he had left. 5. It was not until the following morning (9.02a.m.) that I received an e-mail from Kerry Kowald which said “Staff wish to be addressed by the ISSOA in the Staff Room today at lunchtime. Please contact the ISSOA if you wish to discuss this further (sic). 87 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 557 6. My response to Kerry at 10.17 was again to repeat that not all staff wished the meeting in the staffroom and I asked her to reconsider. You have a full copy of my response. I received no reply despite the fact that this e-mail was opened at 10.33am. 7. As I had received no response I felt it necessary to advise staff of the request and e-mail the details to them. You have a copy of this e-mail. 8. When Katheryn Barnes arrived, I advised her of the staff request for a change of venue and gave her copies of the e-mail. As time was short for her, we agreed to discuss it after the meeting. The meeting went ahead in the staffroom. 9. It has since been reported to me that a number of staff did not go to the staffroom for lunch and felt disappointed that their request was not respected by their colleagues in the ISSOA. I appreciate that this has been a little long-winded. However, my concerns in summary are: (i) the lack of courtesy of local representatives to discuss this matter with me and in fact even to get back to me when they said they would; (ii) the harassment and “bullying” felt by staff from the local representatives. This occasion serves as an example of this. (iii) the lateness of the advice of the visit and the fact that I would have received no advice had I not taken the action I did. This is the second occasion in my 7 weeks here at Corpus Christi this has occurred. To her credit, Katheryn has apologised on both occasions. Theresa, it is in the interest of trying to create an environment in which all parties can work together on the important issues, that I write to you. I have been disappointed with the manner in which the ISSOA and its representative had (sic) handled this recent situation. This has not only been a lack of protocol but an extreme lack of courtesy and professionalism. I would be very pleased to discuss this matter with you, should you desire. I would be happy to attend any meeting or invite you to meet me at the College.” (Exhibit A1) 11 After reading this email Mr Petale, Ms Kowald, Mr Ross, Ms Oliver, Mr Bickford and Ms Nisbet sent the following letter to Mr Harvie on 7 September 2004 (formal parts omitted): “We write in relation to your letter of 31 August 2004 regarding the ISSOA visit to the College on 26 August 2004. In your summary of concerns you state at (i) that there was a “….lack of courtesy of local representatives.…”. Could you please specify exactly which staff members you are referring to and what their particular lack of courtesy was so that they can respond to the accusation? At (ii) you refer to “the harassment and ‘bullying’ felt by staff from local representatives.” (sic) Could you please specify exactly to which representatives you refer? As this is a very serious matter we wish to avail ourselves of the facts so that we can respond in a more informed manner and take the appropriate action. Delegates are unaware of any claims having been made against them by other staff members. This is of major concern as the College’s HARASSMENT POLICY states very clearly in PART B: COMPLAINTS PROCEDURES that the “alleged harasser” will be informed of the complaint in both informal and formal complaint procedures. Indeed, point 2 (d) clearly sets out the procedure for the documentation of a complaint and the information and opportunities that are to be given to the alleged harasser. Point 3 (b) specifies that “the rights of the individuals will be respected and confidentiality maintained wherever possible.” (sic) Publishing your letter to all Corpus Staff appears to have gone against this and does not seem (sic) allow for the application of the principles of natural justice. We note that in PART A: PRINCIPLES, point 5 urges that all staff have a responsibility to maintain complete confidentiality and warns that the “spreading of gossip or rumours may expose them to a defamation action.” (sic) Could you please supply us with the requested information as soon as possible so that we can decide on how to best respond to the allegations.” (Exhibit A2) 12 The union’s secretary Ms Howe also responded to Mr Harvie’s letter of 31 August 2004 on 7 September 2004 as follows (formal parts omitted): “The ISSOA maintains a protocol in relation to notifying schools of union visits. It is a matter of courtesy, rather than a legal requirement, that the ISSOA office provides more than 24 hours notice to the employer. Unfortunately on the dates concerned our system failed and as you note, Ms Barnes apologised. The use of the staffroom has been fully explored in an ISSOA case before the