C2001/2403, Transcript of Proceedings [2001] AIRCTrans 1329 (29 June 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

C2001/2403

CPSU, THE COMMUNITY AND PUBLIC SECTOR
UNION-PSU GROUP, TAX SECTION

AND

CHILD SUPPORT AGENCY

NOTIFICATION PURSUANT TO SECTION 99
OF THE ACT OF A DISPUTE RE ALLEGED CLOSURE
OF HURSTVILLE SITE AND RELOCATION OF
EMPLOYEES IN CONTRAVENTION OF CLAUSE 6
OF THE AGREEMENT

SYDNEY

11.00 AM, THURSDAY, 7 JUNE 2001

CONTINUED FROM 23.5.01

RESERVED FOR DECISION

PN296

THE SENIOR DEPUTY PRESIDENT: Yes?

PN297

MR B. GIRDLER: The same appearances for the CPSU, your Honour.

PN298

MS C. ARGALL: I appear for the Child Support Agency.

PN299

THE SENIOR DEPUTY PRESIDENT: Have the parties had some further discussions?

PN300

MR GIRDLER: We have your Honour and the CPSU has also been in contact with its local delegate at the Hurstville site and I've instructions that our members wish us to pursue this matter.

PN301

THE SENIOR DEPUTY PRESIDENT: So what do you perceive us doing today?

PN302

MR GIRDLER: Your Honour, from the CPSU perspective there has already been amount of arguments around the issues involved around the application of clause 6 of the CSA General Employees Agreement. We would submit that we have a few further points to make in closing and that after doing so and after the CSA management has had a chance to respond that indeed there is very little more to be done in relation to this matter and we would be seeking an order that the Hurstville site remain open.

PN303

THE SENIOR DEPUTY PRESIDENT: Ms Argall, do you intend to call some evidence about this matter?

PN304

MS ARGALL: Your Honour, I would like to submit some evidence in relation to the offer that has been put to staff in an attempt to resolve the issues and come to an amicable solution. But I would also like to submit some further evidence in relation to our interpretation of clause 6 of the agreement to demonstrate that we are not in breach of the agreement as proposed by the CPSU.

PN305

THE SENIOR DEPUTY PRESIDENT: In relation to the matters that you say the CSA has been prepared to offer to resolve the impasse you find yourself in are they open offers or if they are simply without prejudice offers made in conciliation between the parties then I don't think it is appropriate they are on the record. However, if there are offers that are open now and remain open then it may be appropriate for you to put them on the record.

PN306

MS ARGALL: Yes, your Honour, and I'm happy to do that so I wouldn't want them to be considered to be without prejudice. In fact your Honour I have met with staff at the Hurstville site last week and had some discussions with them and out of those discussions, and in further discussion with yourself, I've therefore taken a somewhat different shape but not terribly different from some of the open discussions I had at the site last week.

PN307

So in addition to the package that's available to assist staff, associated with relocation, which are outlined in clause 10.1(5) in the agency agreement which goes to relocations, I have in discussions with staff given undertakings to staff that I will make representations on staff's behalf, any staff who wants to seek to transfer to the Australian Taxation Office in Hurstville, that I will write personally to ATO managers in Hurstville putting forward their names and making representations to seek assistance in transfer to the extent that opportunities become available.

PN308

Secondly, we have previously offered at the last hearing your Honour to extend the time available, we talked about an additional month, I think an amount of time up to possibly the end of July would be available to give staff some time to re-arrange their affairs to assist with the relocation, disruption to them personally. In addition to that staff made representations to me about the sort of work that would be available in their relocation to the CBD office.

PN309

I have undertaken to give some consideration to the nature of work that would be available particularly around face to face contact with clients. I think what we've talked about in conference, and I put on the table here that we would be prepared to give priority to staff relocating from Hurstville to CBD in the nature of the work that they undertake and any arrangements that we make for face to face contact and counter services, give priority to existing Hurstville staff, subject to merit in their being able to perform the roles around a revised counter service for clients.

PN310

In addition to that we have available within collection support and our change of assessment processes are different sort of work around issue management or whole case management and I would be prepared to give priority to staff relocating from Hurstville in them having a say as to their preferences in relation to the work that is available in the CBD.

PN311

THE SENIOR DEPUTY PRESIDENT: Are there any matters that arise in relation to the offer that is on the table. I'm just wanting to know in relation to those matters that's your submission.

PN312

MR ARGALL: That is my submission, your Honour.

PN313

THE SENIOR DEPUTY PRESIDENT: In relation to the evidentiary matters I understand, Ms Argall, it is your case that the interpretation placed on the agreement is not the one argued for by the CPSU. In that regard do you intend to make submissions only or do you intend to call any witnesses in relation to those matters?

PN314

MS ARGALL: I was intending just to table some evidence, your Honour.

PN315

THE SENIOR DEPUTY PRESIDENT: Then to make submissions?

PN316

MS ARGALL: Well, just as part of the making of a submission.

PN317

THE SENIOR DEPUTY PRESIDENT: All right, well in that case I think that it appropriate for the union to go first, as it is their application, and then whilst you are answering their application and tendering their own evidence you can deal with the matters that arise out of the union's submission. Are you happy with that process, Mr Girdler?

PN318

MR GIRDLER: Yes, that's fine, your Honour.

PN319

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Girdler, I meant before we started to apologise to you for the other day. I was taken ill for some unknown reason over the luncheon break and I don't think anyone would have appreciated my attendance to hear the matter and I am sorry that that inconvenienced you all. Yes, Mr Girdler?

PN320

MR GIRDLER: Your Honour, there has been I suppose from the CPSUs perspective very little further progress in relation to this matter since we were last before you. Ms Argall held a meeting with Hurstville staff at which we requested that our New South Wales organiser be able to attend, that permission was refused despite the fact that at earlier meetings with Hurstville staff around these matters he had been granted permission.

PN321

Also your Honour on 29 May CPSU received an email from one of workplace delegates, actually in the Australian Taxation office in Penrith, and the relevance of this exhibit will become apparent after I've tabled it. Your Honour, one of our delegates, Sue Brasher, had a meeting with the ATO regarding a range of accommodation matters at Penrith on 29 May with John Haywood who is actually the accommodation manager for the entire New South Wales region in relation to accommodation and she asked him as part of that meeting what would happen with Butler Road which is the second ATO site in Hurstville, moving back into the main Hurstville building, if in fact the Commission ruled in the CPSUs favour and CSA were to stay in Hurstville. The response was that CSA would still fit into the building and he also said that at the moment there was no room for them in the Centrepoint building in Sydney as well.

PN322

So in terms of the claims that have been made previously by the Child Support Agency that in fact the ATO was kicking them out at Hurstville and in fact there wasn't any room for them and it would seem that this casts some doubt upon those claims. Commissioner, the CPSU wishes to address some of the claims that were actually made by Ms Argall in her submission of 23 May. One of those was that Ms Argall stated new staff being recruited between April 1999 and October 2000 sign letters of appointment undertaking to relocate, if necessary. Your Honour, this is only partly correct from what we can see and I'd like to table as an exhibit two letters which are basically the contents of offers of employment that were made to staff during this period.

PN323

THE SENIOR DEPUTY PRESIDENT: Do you want to mark them separately or together?

PN324

MR GIRDLER: Together will be fine, your Honour.

PN325

THE SENIOR DEPUTY PRESIDENT: CPSU 10A, document dated 23 August 2000.

EXHIBIT #CPSU 10A DOCUMENT DATED 23/08/2000

PN326

THE SENIOR DEPUTY PRESIDENT: CPSU 10B, document dated 20 September 2000.

EXHIBIT #CPSU 10B DOCUMENT DATED 20/09/2000

PN327

MR GIRDLER: Your Honour, I'd like to take you to, in relation to the first letter, the letter dated 23 August, page 2 of 3 at attachment A or page 4 of the actual document and the last two paragraphs. The document refers to:

PN328

Some relocations may be required over the next 12 months as a result of the consolidation of the collection support stream into Sydney and Parramatta ...(reads)... if required.

PN329

Now, these requirements being placed on staff to move were clearly on the basis of the consolidation of the collection support stream into Sydney and Parramatta, and as we understand it and I'm open to be corrected, that occurred around May or June of last year. So what we would submit, your Honour, that if in fact given that that has taken place that that consolidation of collection support has in fact now taken place in the CPSU that any obligation on staff to move if required under such a contract of employment is now no longer valid.

PN330

In relation to the second letter, your Honour, the offer of employment with the date of 20 September these offers in fact make no reference at all to any requirement for staff to move from Hurstville as part of their condition of employment. Now, I can't tell you how many people were issued with each type of letter but it would seem to me that in terms of both of these employment offer documents that neither of them now place an obligation on those staff that received those employment offers to go to Sydney CBD as part of their contract of employment, if you like. Your Honour, the CPSU would also like to point out pretty major inconsistency in the submissions that Mr Madin made on 14 May and Ms Argall made on the 23rd. On 14 May if you look at the transcript at page number 216 Mr Madin stated that:

PN331

We did say that we would provide a statement from the Australian Taxation Office clearly explaining the imperatives ...(reads)... prepared to do that.

PN332

Now, not only have they not produced any of that evidence in relation to those assertions but in fact when you go to page number 270 in the second sentence - and there's actually an error in the transcript here - Ms Argall actually stated page number 270:

PN333

We have not actively sought alternative accommodation in Hurstville, your Honour.

PN334

It actually states:

PN335

We have actually sought alternative accommodation.

PN336

But the quote, and I remember specifically because I wrote it down at the time, was that:

PN337

We have not actively sought alternative accommodation in Hurstville.

PN338

THE SENIOR DEPUTY PRESIDENT: What page number and what date?

PN339

MR GIRDLER: Page number 270 at 23 May hearing.

PN340

MS ARGALL: Your Honour, could I just assist? I was going to ask for the change in the transcript during my evidence.

PN341

THE SENIOR DEPUTY PRESIDENT: So you agree with that?

PN342

MR ARGALL: I agree with that.

PN343

MR GIRDLER: So in fact what we've got is a direct contradiction in relation to the evidence from Mr Madin and the evidence from Ms Argall in relation to CSA hadn't actually sought costings around the Hurstville site and, indeed, given the evidence of Mr Madin earlier on, your Honour, it would be interesting to imagine what perhaps are the documents he was promising to provide to staff might have said given that the general manager has later admitted that in fact there were no specific costings sought in relation to the Child Support Agency looking at other sites in Hurstville. Your Honour, on 14 May you put to Mr Madin that:

PN344

The Agency has not satisfied me that the anticipated closure of the Hurstville site and the movement of all staff to the Sydney office was prompted by ...(reads)... in 4(6).

PN345

I would put it to you that the Child Support Agency has still not done that and they have had ample opportunity to do that, they have also had recommendations to provide material to the union in relation to that matter and they've failed to do so. Further, the CPSU would like to tender as an exhibit the text of a Federal Court of Australia hearing of this year number 335 between the Finance Sector Union of Australia and the Commonwealth Bank of Australia as there is within it a comment by Gyles J which we believe is important in terms of the interpretation of clause 6. It's at paragraph 18, your Honour, where it states that:

PN346

There is a principle of contract law which in my opinion is ...(reads)... alter that state of affairs.

PN347

Your Honour, we would submit that in relation to the Child Support Agency that the undertaking or commitment in clause 6 to the state of affairs which included the retention of sites within CSA including at Hurstville is not one that the Child Support Agency can unilaterally alter.

PN348

In conclusion the CPSU believes that the Child Support Agency Agreement 2000 gives a commitment to the retention of sites and CSA management have been given ample opportunity to demonstrate that there is a legally unavoidable imperative which has forced them to breach this commitment. They have failed to demonstrate this and therefore the CPSU seeks recommendation if that's in order, your Honour, that the Child Support Agency retain a Hurstville site with staffing and functionality for individual case management of new clients and clients with established debts. In the event that no decision is made today we seek a recommendation that no more staff be transferred from Hurstville pending any decision. If the Commission pleases.

PN349

MS ARGALL: Your Honour, in response to the evidence provided by Mr Girdler in relation to the email from Sue Bracker, I would like to tender exchanges of correspondence between the Australian Taxation Office and the Child Support Agency which clearly demonstrate that there is an agreement between the Australian Taxation Office and the Child Support Agency in relation to the Hurstville relocation to CBD and the provision of adequate accommodation in the CBD for that relocation to occur. I am sorry, your Honour, I don't have copies because I wasn't intending to submit that.

PN350

THE SENIOR DEPUTY PRESIDENT: Have you had an opportunity to read them, Mr Girdler?

PN351

MR GIRDLER: No, not at all. I've never seen the documents before, your Honour.

PN352

THE SENIOR DEPUTY PRESIDENT: Well you should read them. Actually perhaps my associate could photocopy them first and then you may read that copy. We'll go off the record while we're waiting for them to be copied, thank you.

OFF THE RECORD [11.21am]Y

RESUMES [11.24am]

PN353

THE SENIOR DEPUTY PRESIDENT: We'll just wait for Mr Girdler to have an opportunity to read those documents. They are a letter or a memo dated 17 April 2001 to Cathy Argall from Glenda Sullivan and a memo dated 18 April 2001 from Catherine Argall to Glenda Sullivan and a letter dated 23 April 2001 from Glenda Sullivan to Cathy Argall. They will be in that order, CSA 3, 4 and 5.

EXHIBIT #CSA3 MEMO DATED 17/04/2001 TO CATHY ARGALL FROM GLENDA SULLIVAN

EXHIBIT #CSA4 MEMO DATED 18/04/2001 FROM CATHERINE ARGALL TO GLENDA SULLIVAN

EXHIBIT #CSA5 LETTER DATED 23/04/2001 FROM GLENDA SULLIVAN TO CATHY ARGALL

PN354

THE SENIOR DEPUTY PRESIDENT: Do you want to get some instructions about those letters or go outside and read them, Mr Girdler? I don't want you to feel obliged to have your conversations about them at the bar table. I haven't read them myself, yet, but whatever they are, if they're matters about which you want to have a discussion you should do so outside.

PN355

MR GIRDLER: Yes, if I could have five minutes that would be appreciated.

PN356

THE SENIOR DEPUTY PRESIDENT: Yes. If you want to take a break and walk around, it's a matter for you. I'll just sit here I think.

OFF THE RECORD [11.27am]

RESUMES [11.32am]

PN357

MS ARGALL: Your Honour, I just want to clarify for the record our position in relation to clause 6. I think there's been a lot of discussion over the two hearings. The application by the CPSU is predicated on CSA being in breach of clause 6. I have commented that I don't believe that we're in breach of clause 6. I think clause 6 has to be read in the context of the entire agreement and as indicated in part 1, the statement of context of the agreement, there is a very clear clause in that statement of context, "the parties to the agreement will work together to support measures in addition to those specified in the agreement which will realise corporate and investment savings to fund the full agency agreement package".

PN358

I think that clause indicated a commitment by the parties to continue to work together to resolve the funding issues. That is, your Honour, you made the observation that there were issues known in advance of entering into the agreement, what I would argue is that the agreement actually embodied the notion that there had to be continuing co-operation to give effect to the agreement. Rather than read through our interpretation, if we just read the plain English meaning of clause 6, could I table, your Honour, our interpretation of clause 6?

PN359

THE SENIOR DEPUTY PRESIDENT: Yes. CSA 6.

EXHIBIT #CSA6 INTERPRETATION OF CLAUSE 6

PN360

THE SENIOR DEPUTY PRESIDENT: That's a summary of your submission on meaning of clause 6, is that correct?

PN361

MS ARGALL: That's correct, your Honour.

PN362

THE SENIOR DEPUTY PRESIDENT: Yes, I'll read that now. Have a seat. Yes, I've read that.

PN363

MS ARGALL: Finally, in relation to interpretation, your Honour, North J, in a Federal court case in AFMEPKIU v Qantas 2001, accepted that where a clause in agreement did not have a clear meaning a party should refer to the objective background facts for the purpose of ascertaining the meaning of the clause.

PN364

In looking at the circumstances surrounding the making of an agreement the purpose was to look not at the actual intentions or expectations of the party but to the objective framework of facts within which the agreement was made and to the parties presumed intentions in the settings. This was in reliance of the Codelfa case in 1992. Your Honour, we have copies of that case.

PN365

THE SENIOR DEPUTY PRESIDENT: Where is the reference?

PN366

MS ARGALL: Para 21.

PN367

THE SENIOR DEPUTY PRESIDENT: This is a quote from Codelfa, is that where your quote came from?

PN368

MS ARGALL: That's my understanding.

PN369

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN370

MS ARGALL: Your Honour, the objective facts which support a presumed intention that clause 6 did not guarantee retention of a Hurstville site are contained in our submissions to date and in summary they are the existence of job advertisements and contracts that specifically advert to the possibility of a move from Hurstville to Sydney. Secondly, the refusal to agree to the CPSU log of claims to ensure no site movements and instead the drafting of the original clause and subsequently the need for savings in accommodation to be made to fund the pay rises in the agreement and the financial information given to the parties and the associated change to clause 6 as throughout the negotiations of the agreement which we previously tabled.

PN371

Finally, that discussions through out national consultative forum, a consultative forum which given life under our agreement in August 2000 which cited CSAs future accommodation strategy. So your Honour while we believe that the clear meaning and intention of the words at clause 6 are clear and if read in context with the other associated clauses in the agreement we do not believe that the Child Support Agency's action in relation to relocating staff from Hurstville to Sydney CBD constitutes a breach of the CSA agency agreement.

PN372

THE SENIOR DEPUTY PRESIDENT: They're your submissions, Ms Argall?

PN373

MS ARGALL: Your Honour, I would just like to point out that the proposition put by the CPSU is not tenable in the context of the operational viability of Hurstville to retain a site in Hurstville. It's numbers are presently running at 33, even without the relocation of the previous 20 staff who moved earlier to CBD. A site of around 50 staff is not a viable operational site. It had at that time two teams, plus some regional functions. Those two teams can't be sustained in terms of the necessary support for our people, in terms of training and other support necessary to maintain the viability of that site. It poses problems in terms of providing the necessary managerial support for that site.

PN374

So clearly I believe a decision that directs the retention of a Hurstville location for CSA is an unhealthy decision and will not be in the best interests of the staff of CSA, certainly as I've contended. It does not allow us to achieve the necessary financial imperatives that are posed on the agency but regardless of those financial imperatives, the site at the present time is unviable, it is unhealthy to continue to try and maintain that site in its current form.

PN375

THE SENIOR DEPUTY PRESIDENT: Thank you. Do you have anything in reply, Mr Girdler?

PN376

MR GIRDLER: Your Honour, I don't know where to start. The situation with regard to the document that Ms Argall has tabled in relation to accommodation arrangements between the ATO and CSA are documents that the Child Support Agency has clearly had in its possession for quite some time. There was a recommendation from your Honour as a result of the first day of hearing, that in fact:

PN377

There be no further movement in staff until the matter is listed again before the Commission, that any information, correspondence ...(reads)... within four days.

PN378

That didn't happen and they have had plenty of opportunities to provide this material since. Having said that, your Honour, the document that Ms Argall has presented in relation to accommodation arrangements between the Australian Taxation Office and the Child Support Agency would also appear to be in breach of clause 10.4.2 of the CSA Agency Agreement 2000 which states that:

PN379

When new accommodation is to be designed or existing accommodation modified, affected employees and other parties to the agreement will be consulted.

PN380

Clearly it's the intent that in accommodation matters of this sort that indeed employees and indeed their representatives be consulted, that hasn't happened in relation to this matter and in relation to this correspondence. In terms of the documentation themselves, what they would appear to say is that there is a loose agreement between the Taxation Office and the Child Support Agency regarding the Child Support Agency getting out of a range of accommodation around the country and that as part of this agreement, the Tax Office is offering them $2 million if every single part of that agreement is reached.

PN381

What they are really saying to us, your Honour, is that in effect, to not close Hurstville costs them two million bucks. That's the truth and we finally got to it on the third day of hearing. Finally we had the real reason why the Child Support Agency is up before us trying to run this argument. The fact is that if it's expensive for them, that's bad luck. What matters in relation to this issue is whether or not they are in fact in breach of a commitment or an undertaking or whatever strength you wish to place upon the wording of clause 6.

PN382

Your Honour, I would just like to quote from your own words in relation to this matter from the second date of transcript where you said:

PN383

I have a concern though that the documents that the Commission certifies means what they say but if people ...(reads)... make the arrangement.

PN384

It would seem to me, your Honour, what that would be suggesting is that even if this is going to cost the Child Support Agency $2 million and it is a large financial matter, that that is not a factor that should be taken into account in the determination of the CPSU case. In terms of the interpretation of clause 6, as Ms Argall has put forward, much is made of the fact that there were discussions between the CPSU and the Child Support Agency, both prior to the agreement being certified and to a lesser extent since and yes, there were commitments about saving money.

PN385

As I've stated before in this hearing, those commitments were around saving members in areas such as travel, such as overtime and such as accommodation but the rationalisation of accommodation at no time, at no time was there any discussion about the closure of sites and the type of saving of money that's referred to in the agency agreement itself in relation to these matters refers in fact to - the reference is basically to accommodation savings that relate to the type of things that CSA did in the Anne Street site in Brisbane, that is where they made the site in such a way that they could cram more people into the building.

PN386

Those sort of accommodation savings we indicated we were quite prepared to live with, as part of those savings that could be used to fund the agreement. We also, of course, have absolutely no objection to CSA moving sites where that in fact makes a saving but we do have an objection to them closing sites. There's a very big difference. For example, in Adelaide they are moving sites just down literally two blocks to make some clear savings in rent. Those are the sorts of undertakings that the CPSU gave in relation to savings. Never at any point in time did we give any undertakings with relation to the closure of sites and that is precisely why clause 6 is there.

PN387

Your Honour, we've gone through what we believe the words mean in relation to clause 6 earlier in this hearing and I don't propose to go and repeat them any further. The only other thing I'd like to add on the record is that this case is being viewed by a range of people right around the Child Support Agency is of course of paramount concern to those of our members in Hurstville but people right around CSA are seeing this as a test of the agreement, a test of whether the commitments that the Child Support Agency undertook when it signed this agreement and the agreement is only eight months old, whether in fact they are going to be abided to by the employer.

PN388

So the case has taken on a significance that is perhaps even greater than it was when we started out. That's about all I have to say at the moment, thank you, your Honour.

PN389

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Argall, did you have something you wanted to add?

PN390

MS ARGALL: There are a couple of items, your Honour, that I need to respond to. Mr Girdler indicated that the information contained in those letters was news, particularly around the issue of the $2 million incentive package. CPSU6, the exhibit submitted by CPSU which was our letter to Mr Girdler in response to the first hearing clearly articulated and I'll just quote the words:

PN391

The relocation package includes a $2 million incentive payment from the ATO if all relocations are effected within the agreed timeframe ...(reads)... per annum.

PN392

That was clearly information that was available to Mr Girdler some time ago, your Honour. In relation to any discussions that there was no contemplation of relocations, your Honour, I'd like to quote from the CSA National Consultative Forum communique. The communique is an agreed staff notice that goes to all staff after the conclusion of a National Consultative Forum meeting. This is consultative forum dated 15 August 2000 and one of the items discussed was new accommodation and if I can quote from the communique:

PN393

CSA accommodation is being co-ordinated nationally through a national co-ordinator with the help of KFPW, a professional property management firm ...(reads)... regional registrars.

PN394

THE SENIOR DEPUTY PRESIDENT: If there's nothing further, I'll reserve my decision. Thank you. The Commission is adjourned.

ADJOURNED INDEFINITELY [11.51am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU 10A DOCUMENT DATED 23/08/2000 PN326
EXHIBIT #CPSU 10B DOCUMENT DATED 20/09/2000 PN327
EXHIBIT #CSA3 MEMO DATED 17/04/2001 TO CATHY ARGALL FROM GLENDA SULLIVAN PN354
EXHIBIT #CSA4 MEMO DATED 18/04/2001 FROM CATHERINE ARGALL TO GLENDA SULLIVAN PN354
EXHIBIT #CSA5 LETTER DATED 23/04/2001 FROM GLENDA SULLIVAN TO CATHY ARGALL PN354
EXHIBIT #CSA6 INTERPRETATION OF CLAUSE 6 PN360