Jesuits, safety, unions and alleged unfair dismissal

Cam Smith in Crikey writes:

The social welfare organisation Jesuit Social Services, the number one recipient of Victorian government funding in justice service provision, is under fire from union groups following the dismissal of one of their youth workers, Luke M, the winner of the 2008 Australian Services Union Occupational Health & Safety Delegate of the Year award. The union ire stems from a potential breach of section 76 of the Occupational Health and Safety Act (2004), which states that an employer is prohibited from dismissing an employee, discriminating against an employee, or treating an employee less favourably because that employee is or has been a Health/Safety representative.

According to Luke, he was dismissed after raising a potential breach of section 35 of the Act (Duty of employers to consult) relating to lack of consultation surrounding renovation of JSS’ Brosnan youth centre in Brunswick. On the 24th of September, Luke was asked by workers at Brosnan to hold an ad hoc meeting of the Brosnan worker’s OH&S committee, at which it was decided collectively to inform management of their concerns. Following this meeting, Luke raised the issue with Amanda Watkinson, Program Director at the Brosnan Centre.

Watkinson responded to McMahon’s complaint by threatening legal action against McMahon and the other workers involved through the Industrial Relations Commission, and proceeded to dock four hours pay (time in lieu) of those who had attended the meeting, which she classified as illegal industrial action. This represented the first time that the Workchoices laws – laws which prominent Jesuit priest and former head of JSS, Fr. Peter Norden actively campaigned against – had been used in the community services sector. According to minutes from a meeting held on the 12th of November, Watkinson addressed staff and claimed that if JSS did not impose the four hours TIL, the organisation would be open to fines. As such, the imposing of the TIL was considered by Watkinson to be “risk management.”

Unfortunately for Luke, all of this occurred at the same time as he was reapplying for his job. After receiving an offer of re-employment on the 17th of October, Luke noted that his new contract was identical to his previous, bar a new clause requiring him to commence a suitable tertiary course of study within six months and indicated to management that he would seek legal advice before signing. McMahon submitted a complaint on the 24th of October, claiming he had been verbally abused during his meeting with Watkinson, and that he felt he was being discriminated against as a result of his position as an elected OH&S delegate. Subsequently, in a letter dated 24th October 2008, Lisa Maddocks, the Business Support Director of JSS, withdrew the offer of employment stating, “In your email to me today you mention discrimination. On reflection we realise you are correct, in that by offering you this position, we may well have been discriminating against applicants who have met the essential criteria. Accordingly we have decided to withdraw our offer of employment.”

Julie Edwards, CEO of Jesuit Social Services, denies there is a connection between McMahon’s dismissal and his activity as an OH&S rep. In a statement released today, JSS claims that the matter has nothing to do with union issues and everything to do with a disgruntled former employee.

Edwards told Crikey that Amanda Watkinson is a staunch advocate of unions, and that upon first arriving at the organisation she had encouraged people to join, however the notes from the meeting on the 12th indicate that Amanda was previously unaware of who the OH&S or ASU delegates were at the Brosnan Centre, and she acknowledges “that she hasn’t been able to develop individual relationships with workers due to her busy schedule.”

On the issue of workers being docked pay, Edwards said, “We’ve got an email from Luke, my understanding is, setting up that meeting that they’re talking about, and he actually calls it a union meeting, and the people he invites to it are union delegates – not the staff effected by any potential OH&S issue. We would have been quite happy for that to be an OH&S meeting and for that to be the end of it, [however the staff in the meeting on the 12th] have actually decided to call it a union meeting. I don’t know the logic of that.”

McMahon denies that the union meeting he had called for in an email some weeks previous is connected to the disputed OH&S meeting which he was asked to set up by affected workers on the day. The aforementioned minutes state, “Further discussion after Amanda left the meeting related to staff feeling that although it was an OH&S meeting they should support Luke and take the four hours T.I.L. Other staff expressed they would take the TIL so that the matter could be over and done with and staff could move on.”

Lisa Darmanin, assistant branch secretary of the Australian Services Union, told Crikey that the ASU believes McMahon should be reinstated at JSS, “Luke has been an active health and safety rep and union member at the Brosnan Centre, and has advocated for the health and safety of his colleagues, and we are concerned about the situation in which Luke has been dismissed from the workplace. We have impending proceedings in the Industrial Relations Commission, and we will be supporting him in every way we can.” As to whether JSS has violated section 76 of the OH&S Act, Darmanin said, “We have directed Luke to Worksafe to seek to have that matter investigated, and we are also supporting Luke in that process, and we are encouraged by Worksafe’s actions in investigating the matter.”

At a rally organised by the Justice4Luke campaign held outside JSS’ central office on Monday morning, Liz Turner from Union Solidarity told Crikey that the McMahon case is symptomatic of a rising trend amongst employers across all sectors, “With the Workchoices laws, many different types of employers are looking to imitate the more draconian workplace system we see in the building industry, where any form of industrial action on the job can be policed, and you can face all sorts of questioning and interrogation – basically what we’re seeing in Luke’s situation is that Amanda Watkinson has performed a role which is not dissimilar to the ABCC.”

McMahon claims that the action that Jesuit Social Services has taken in his case is representative of a generally blasé attitude within JSS management towards the issue of workplace safety. “[When I arrived at JSS] the organisation’s OH&S policy hasn’t been updated in about 13 years, and of the 15 members of the organisational Occupational Health & Safety committee, 10 hadn’t been working for the organisation for over two years, and one had been dead for over three years. This is a high risk occupation – we shouldn’t have to break out the ouija board to deal with safety issues.”

Since McMahon’s dismissal, there has been at least one alleged OH&S incident at the Brosnan centre, in which brackets installed during the renovations partially dislodged, causing shelving to collapse on a worker’s head.

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