C2001/3021, Transcript of Proceedings [2001] AIRCTrans 2233 (4 September 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2001/3021

FINANCE SECTOR UNION OF AUSTRALIA

and

COMMONWEALTH BANK OF AUSTRALIA

Notification pursuant to section 99
of the Workplace Relations Act re
industrial dispute for hearing

ADELAIDE

10.31 AM, FRIDAY, 17 AUGUST 2001

PN1

THE SENIOR DEPUTY PRESIDENT: Can I have some appearances, please?

PN2

MR A. LOGIN: Your Honour, I appear for the Finance Sector Union, with me is our member, MS H. GUZZO.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN4

MR K. MILLER: Sir, I appear for the Commonwealth Bank. On my right is MS S. YATES, also with the Commonwealth Bank.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, this matter has been notified under section 99 of the Workplace Relations Act and I note that it apparently has been notified pursuant to both the award and the Commonwealth Bank Enterprise Bargaining Agreement 2000. Mr Login, perhaps you could explain the issue in dispute and the action that you seek from the Commission in this regard?

PN6

MR LOGIN: Thanks, your Honour. Did you want me to present from a standing position or seated?

PN7

THE SENIOR DEPUTY PRESIDENT: Well, feel free to be seated if you like.

PN8

MR LOGIN: Thanks, it is just the video conference is a little bit unusual for myself. Thank you for agreeing to list this matter on such short notice. As when we did lodge the section 99 on Monday, 13th, we had been informed the previous Thursday at a WorkCover review that the Bank intended to cease sick-leave payments for our member at some stage in to the future prior to the next WorkCover review which is, I believe, 22 October. Now, quite obviously we were not very happy about that and concerned that sick-leave payments should cease. We lodged, and our member subsequently on 14th which was the Tuesday just gone, our member sent a registered letter which I believe your Honour should have before you. I lodged that in Perth when we received it and I think the member faxed it through to him. It is a letter from the Bank dated 13 August.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, I have that letter. It is signed by Mr Wayne Boucher.

PN10

MR LOGIN: That is correct, yes.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN12

MR LOGIN: Now, your Honour, this letter is most unusual to us, as the Bank, in our view, have invented a rather unique clumsy attempt to avoid its responsibilities in relation to clause 31 of the 2000 EBA. Now, this particular clause, clause 31, possibly if your Honour would like to refer to that.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, I should say I have a copy of the relevant agreement before me and I have clause 31 open at this stage.

PN14

MR LOGIN: Thank you, your Honour. If I could take you to clause 31.1. Now, this personal illness clause is not necessarily a new one. It has been around since 1998 in its basic form, and it says:

PN15

Employees will be entitled to continuation of ordinary pay whilst absent from work on account of personal illness or injury unless Workers Compensation is payable.

PN16

I believe that is quite straight forward. Over the page at subclause 31.2:

PN17

The Bank will continue pay during such periods of personal illness or injury until such time as return to work becomes unlikely and other alternatives such as if retirement be appropriate.

PN18

Now, to us, this is also very straight forward. 31.3, but that is a clause basically dealing with genuineness of the illness and sick-leave certification. I believe that that is really the only section of the clause ..... resulted in this point. Referring to the letter that the Bank - dated 13 August, I would take your Honour to half way through the second paragraph and I will read from that where it states:

PN19

However, given the already extensive period of absence from work to date of 6½ months and the recent medical evidence suggesting an imminent return to work is unlikely, not within the next 3 to 6 months, making a total likely absence of 9½ months to over a year. The Bank has determined to review continuation of personal illness payments. Accordingly, as the recent medical evidence indicates little likelihood of return to work within a reasonable period, the Bank has decided to discontinue payment. This approach is consistent with clause 31.

PN20

Now, we don't believe this is true at all. Firstly, they are stating that it is possible that there will be 9½ months to over a year, or where they will be paying sick-leave payments. We believe that question is going to clearly come to finalisation when this WorkCover review is finalised in October.

PN21

THE SENIOR DEPUTY PRESIDENT: Mr Login, I don't like interrupting people but - - -

PN22

MR LOGIN: Yes.

PN23

THE SENIOR DEPUTY PRESIDENT: - - - I just wonder whether you might assist me by giving me a little more background - - -

PN24

MR LOGIN: Okay.

PN25

THE SENIOR DEPUTY PRESIDENT: - - - in to the Workers Compensation situation and the antecedents to this particular matter.

PN26

MR LOGIN: Okay. Your Honour, a Workers Compensation claim has been lodged. The Commonwealth Bank are objecting to that Workers Compensation claim. It has been to WorkCover for conciliation and last Thursday, 9th, our member presented herself, or was ready to argue her case at that review. The Bank's previous insurer - the Commonwealth Bank is now a self-insurer, the Bank's previous insurer also appeared and asked that the matter be adjourned. As I said, our member was ready to argue the case. Now, the reason that the insurer asked for the matter to be adjourned was they had not been properly briefed by the Bank's solicitors. That was the first instance. The second thing was that the Bank's solicitors had not advised of what their defence was actually going to be and so therefore an adjournment was requested by the Bank's previous insurer. Now, the - - -

PN27

THE SENIOR DEPUTY PRESIDENT: When is the matter next listed?

PN28

MR LOGIN: 22 October. So about a month's time, or a bit over a month's time from now. Now, as I said, our member was there last Thursday ready to argue her case. The delay is not of our member's doing. So what has happened in the past in many instances with sick-leave, this continuation of sick-leave occurs until the Workers Compensation question has been determined, either in the positive or the negative and it is then taken from there, and that is what the Bank has then relied upon the clause of 31.2 and used - will continue pay during such periods until such time as a return to work becomes unlikely. That is when, in past instances, the Bank has attempted to cease sick-leave payments.

PN29

So at the end of proceedings last Thursday the Bank advised: well, we are going to probably cease sick-leave payments at some stage in the future, and we didn't know when - we tried to pre-empt it by lodging a section 99 as soon as possible, because what we were most concerned about was a settlement had been discussed, in our view, a paltry settlement offer had been made by the Bank's lawyers. Our member's lawyers approached the Bank and said, "Well, we are prepared to discuss a settlement." The Bank came back with a figure. What we believe is, you know, we can't believe that the Bank does not know what the left hand or the left hand does not know what the right hand is doing, because it is all being handed from within one office by the same person basically.

PN30

We are concerned that it may well be a malicious attempt by the Bank to put pressure on our member to accept a paltry settlement by ceasing salary payments. They well may be able to position and manoeuvre her to and accepting something that is not in her best interest to accept. So that is how that inter-relates with why we are here today. We believe that the clause is very clear that there is a - and it is not an infinite period that we are asking them to continue their sick-leave payments. It is a very definite - it is a finite period. We can see whether the question is going to be clearly examined and that is going to be at the WorkCover review. The review has been delayed not by our member's doing.

PN31

What I would refer back to is in the Bank's letter, they say that the likelihood of a return to work within a reasonable period, nowhere in this clause 31, does "reasonable period" come in to it. When the Bank was arguing in 1998 for such a clause, we used to have 15 days per annum cumulate leave to a maximum up to 261 days, but basically a working year. So members knew what they were entitled to in regards to sick-leave. The Bank's argument to the Union was: well, people might not have not accrued enough sufficient sick-leave if they fall seriously ill and so we would like to assist our members. We would also like to be able to manage our sick-leave and we fought very hard to avoid such a clause because we didn't believe the Bank's motivation for it.

PN32

However, as an overall EBA package ..... things done, we accepted the Bank's assertions that it would not use it in a punitive manner, that people would be - where there was genuine illness, would be entitled to receiving sick-leave. There have been many instances of people receiving in excess of 12 months worth of sick-leave in the past year since this has ..... So I think it is very clear from what is in the clause that our member is entitled to continuation of sick-leave. I think I might just leave it at that point, your Honour, unless you have any questions.

PN33

THE SENIOR DEPUTY PRESIDENT: Mr Login, I have two questions, please. If I refer to the letter of 13 August, and in particular to the second paragraph, it refers to advice from a Dr McCarthy.

PN34

MR LOGIN: Yes.

PN35

THE SENIOR DEPUTY PRESIDENT: The letter notes that in that report from Dr McCarthy:

PN36

A return to work on the part of Ms Guzzo -

PN37

have I got the right pronunciation, Ms Guzzo?

PN38

MS GUZZO: Guzzo.

PN39

THE SENIOR DEPUTY PRESIDENT: Guzzo. Right, thank you.

PN40

... appears unlikely within the next 3 to 6 months.

PN41

Can you tell me what the, or whether there is a medical prognosis that puts a definite time period on a return to work?

PN42

MR LOGIN: At this point the matter has no definitive prognosis, however since seeing Dr McCarthy, in the short time since, our member has improved greatly and she has been very clear all along that she wants this job, she wants to work for this employer. She needs the income and fully expects to return to work for this employer. She has been attempting to get over those poor management practices such as this, which seemed to push her back. Now, there is also another report that I think it is from the - yes, it is from a Dr Les Deng, I'm not sure if this report has been provided to - - -

PN43

THE SENIOR DEPUTY PRESIDENT: No. The only material I have to make it quite clear to you is the letter of 13 August. Attached to that is a copy of clauses 30 and 31, and part of 32 of the agreement.

PN44

MR LOGIN: Yes. I'm not sure how I present this document to you maybe if I could just refer to a report that is from the very same doctor that Ms Guzzo attended and he states at .7, and if the bank disagrees with this they should say so. That:

PN45

I consider that Ms Guzzo will make a full recovery and would therefore be able to return to the present position of employment. However, as part of her return to work duties a possibility of a brief period of graduated return might be considered.

PN46

That reports is dated in March of this year. I believe he expected - did he have a time-frame for this?

PN47

MS GUZZO: Yes, in respect to April, that I should be able to return back and that was - - -

PN48

MR LOGIN: That was - - -

PN49

MS GUZZO: Can I carry on, your Honour?

PN50

THE SENIOR DEPUTY PRESIDENT: You may certain do so Ms Guzzo.

PN51

MS GUZZO: At that time Dr Deng indicated that I should be fit for work to return towards the end of late April. During that course I started seeing a psychiatrist of my own persistence and the reason things weren't improving as he had expected I suppose was the medication I was on. My medication was changed to four different types in a period of a month, I suppose. That carried over the duration, that took me a little over April until we had the right balance as to what dosage I should be on, what medication. Even to this day my dosages have been changed, depending on the circumstances that they are at the moment.

PN52

Then there was a - that report from my psychiatrist, Dr McCarthy indicate that another 3 to 6 months basically because my feelings and what I am going through have really not changed because of the way this has been handled. Like, I don't feel they are helping me at all. I have met Mr Miller who is here and my line manager at my general practitioner's officer maybe a month and a half ago would that be right. We then discussed a return, the possibility of a return to work program which I indicated to Mr Miller that I was more than happy to do but my GP said that it would possibly take another month or two before we could look at doing this. Is that correct, Mr Miller?

PN53

MR MILLER: Yes.

PN54

MS GUZZO: This is where we are today. I just still see my psychiatrist every fortnight and what they are proposing to do now is certainly not helping me get better and get back to work. That is all. Sorry, I could go on for hours.

PN55

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Guzzo. Mr Login, see what I'm particularly referring to is that you have referenced clause 31 of the enterprise agreement. I've yet to hear from the bank but if I refer to clause 31(2) then that clause obligates the bank to continue pay during such periods of personal illness or injury until such time as return to work becomes unlikely. Now, if I can just pause there for a moment. What I am anxious to hear from you is whether or not there is any information that goes to the likelihood of a return to work.

PN56

MR LOGIN: We believe that there is, as Ms Guzzo has said, the bank and herself met with her GP some month or so ago. At that meeting it was discussed and it was clearly stated to the bank that a return to work was likely. That same doctor says though he expects a full return to a full recovery and return to work. However, quite obviously our member's own psychiatrist is being cautious in regards to saying, well, we are not at the point, right at this point in time, of formulating a structured return to work. He has given a time frame that he expects 3 to 6 months that that will actually occur.

PN57

THE SENIOR DEPUTY PRESIDENT: Thank you. The second question that I have for you, Mr Login, before we move to the bank goes I guess to the remedy that you are looking for today. Now, as I indicated at the outset the matter has been referred to the Commission pursuant to section 99. The Act provides a very clear emphasis on a process of conciliation normally, as a precursor to the Commission exercising arbitral functions. There are occasions, however when parties appear before the Commission and advise that they have exhausted a conciliation process and they simply seek that the Commission assume an arbitral role. Can I assume just have some confirmation from you as to your position on that question?

PN58

MR LOGIN: We are hopeful that the Commission may be able to persuade the bank that there is merit in the union's case, that maybe they should look at it further. We have attempted to get the bank to look at this matter further on a local level and also on a national level. However, on a national level they have not been able to fully examine all of the facts of the case. The reason for that quite obviously is that there was a great deal of urgency in coming - the bank was not prepared to hold off on its decision to cease payments from Monday forthcoming whilst the matter was looked at at the national level and so therefore that is why we are here today.

PN59

What we would be seeking is a recommendation if the Commissioner is of the view that the bank continue to make payments to at least the work review period. That is where the question as to liability is going to be resolved once and for all. It is not a lengthy period by any stretch of the imagination. It is only another 5 weeks, if that, at which point the bank could then may well then use our member's psychiatrist report to argue their case. However, it seems to me that they would be using a member's psychiatrist report in this jurisdiction yet before WorkCover will be relying heavily on Dr Deng's assessment that she will be making a full recovery. Does that answer your Honour's question?

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, it does, to the extent that I understand that you are looking to the Commission to assist in a conciliation process initially.

PN61

MR LOGIN: Yes, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: Then your answer thought does raise one further question in my mind, that is if I refer to clause 40 of the enterprise agreement which is the dispute resolution clause. Can I just have some clarification from you as to how far down the path outlined in that dispute resolution clause you believe the parties have got. Specifically I ask whether or not the matter either has or is the subject of discussion between the National Assistant Secretary of the Union and the general manager, group human resources or that person's representative.

PN63

MR LOGIN: Yes, I believe that our national industrial officer, Lisa Thomas, has had discussions only over the phone very briefly with the bank's representative, Ms Sheree, I'm not sure of her surname.

PN64

MR MILLER: Sanderson.

PN65

MR LOGIN: Ms Sheree Sanderson. So it has been discussed at a national level.

PN66

THE SENIOR DEPUTY PRESIDENT: Do you know whether those discussions are continuing and simply put, the reason I'm asking the question is I'm just anxious to know whether there are discussions that are possibly even occurring as we speak that might result in a possible outcome to the matter. I can advise that I will asking the bank a similar question.

PN67

MR LOGIN: I was very hopeful that that would have been the case right up until 7 o'clock this morning our time, Sydney's time, that I would actually be able to inform the Commission that the Commission's assistance was not necessary. Unfortunately, Ms Sanderson, the bank's representative went back to the national industrial officer and told her no, the bank would not be changing its position at this point. I am not aware of how much information the bank has in the Eastern States or indeed the information that I faxed over to our national industrial officer was not complete, was not in its entirety as to the file. I sent over what I believed would be the relevant, the relevant doctors reports to try and get her up to speed as closely as possible. But the whole time that this is all going on these discussions I think that basically they told me about what ..... said by saying: well, this Monday, no more pay.

PN68

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Login. Mr Miller?

PN69

MR MILLER: Thank you, your Honour. I appreciate your assistance to try to resolve the matter this morning, however, for the record, I would just like to place - I would like to place on the record that we would have an issue with the Commission's jurisdiction to arbitrate on this matter. I would just like that placed on the record. To turn to Mr Login's comments, this - - -

PN70

THE SENIOR DEPUTY PRESIDENT: Mr Miller, before you continue, can I take it from that statement though that you are not arguing that the Commission has a potential role in conciliating the matter?

PN71

MR MILLER: No, I very much appreciate your role in this case.

PN72

THE SENIOR DEPUTY PRESIDENT: Thank you, right.

PN73

MR MILLER: Before I go any further, your Honour, I would just like to say that I do know Ms Guzzo and I know how difficult this morning will be for her if it reaches the stage where she would like to leave the room, I have no problem with that whatsoever.

PN74

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN75

MR MILLER: Now this very same issue in connection with clause 31 has been brought by the FSU before Senior Deputy President Duncan in a recent case. In that particular case his Honour, during conciliation confirmed the bank's had already ceased payments under clause 31.2. He said there is implicit an element of within a reasonable period. That needs to be consistent with the medical evidence. Unfortunately in view of the short time I have had I haven't been able to get the transcript of Ms ..... comments.

PN76

THE SENIOR DEPUTY PRESIDENT: Mr Miller, when you say the matter has been before Senior Deputy President Duncan, you refer to another dispute over the operation of that clause?

PN77

MR MILLER: Yes, sorry. Another dispute between the FSU and the Commonwealth bank in connection with clause 31. In that particular case the bank ceased sick-leave payments for somebody on the basis that they wouldn't be returning to work within a reasonable period. So it is nothing in connection with ..... I'm sorry if I didn't make that clear.

PN78

MR LOGIN: Your Honour, could we just have the reference numbers from Mr Miller?

PN79

MR MILLER: I don't have them, sir.

PN80

THE SENIOR DEPUTY PRESIDENT: Mr Login, I will make your request. He can't provide that to you if he does not have it but let us come back to that a little later, if we can, thank you.

PN81

MR MILLER: I have to ask, is this a form of forum shopping by the FSU to try and make a point in connection with 31.2? Mr Login made reference to a report that he said was from a bank doctor, a Dr Deng. That is not true. Dr Deng is an independent psychiatrist in Perth and to help the bank determine whether worker's compensation was payable, refer Ms Guzzo to Dr Deng on around 10 March. In that particular report Dr Deng said in his view Ms Guzzo should be able to return to work by the second week in April. That was a report dated 10 March. Miss Lock in an E-mail to me of 2 May said:

PN82

It is my personal opinion that ...(reads)... work within the next couple of months.

PN83

That was on 2 May. I did meet with Miss Purcell, the treating doctor, Dr Quadrille, and the line manager and I think that was some time in May with a view to Ms Guzzo at least attempting a return to work. That was not successful. So far as the worker's compensation case is concerned, that claim was declined on 21 March. There's been a number of review hearings since to get to the crux of the issue. Mr Login said the bank withdrew last Thursday. That is not true. The bank was ready to proceed and it was on the advice from Ms Guzzo's advocate that the case did not proceed, that it was adjourned.

PN84

Now, the bank is paying Ms Guzzo a full pay. She had use of a fully maintained bank vehicle since 1 February and that was on the basis that we were looking to return Ms Guzzo back to work. The latest report from Dr McCarthy - Ms Guzzo was referred to by her GP and by the FSU, I understand - in his report which is the latest medical report we have, bearing in mind Dr Deng's report was dated 10 March, the latest report from Dr McCarthy states:

PN85

Her current condition will prevent her working for probably the next 6 months ...(reads)... now that she has a sense of grievance.

PN86

It is mischievous of the FSU to claim that the bank is intent on causing Ms Guzzo - and ceasing Ms Guzzo's pay to force her to accept the cash settlement. The Commonwealth Bank has never authorised a cash settlement. The facts are once when Ms Guzzo first went up it was late February, early March. The FSU asked the bank whether they would consider retrenching Ms Guzzo and the bank declined. The applicant's action on behalf of Ms Guzzo in connection with the worker's compensation claim approached our legal advisers last week, Blake Dawson Waldron, and asked if the bank would be prepared to settle for $100,000. Conditional on that would be a resignation from Ms Guzzo. Blake Dawson Waldron had no instructions from the bank and their response was: if you are looking at a settlement look around 20,000, that might be more realistic.

PN87

Now, Blake Dawson had no instructions whatsoever from the bank. The FSU asked me last Friday whether the bank was prepared to make an offer. I said, "No". However, if Ms Guzzo's legal advisers wish to make an offer, as in all these worker's compensation issues, we are prepared to listen. To summarise, Ms Guzzo has been on full pay since 1 February 2001. She has had the full use of a bank-maintained vehicle at no cost to her package. The bank has endeavoured to get her back to work and the bank has continued to pay her her full entitlement even though her claim, worker's compensation claim, was declined on 22 March.

PN88

All medical evidence and the experience to date clearly indicates that return to work for Ms Guzzo is unlikely within a reasonable period. In fact, as your Honour may be aware, with employees once they are away for 6 months, the chance of ever returning back to their previous employment diminished greatly. The bank's actions are consistent with EBA clause 31 and are consistent with what has happened in other cases before. That is the bank's position, your Honour.

PN89

THE SENIOR DEPUTY PRESIDENT: Mr Miller, can I refer you to clause 31.2 and just clarify as I endeavour to relate that clause to the letter of 13 August signed by Mr Boucher. The letter of 13 August talks in the third paragraph of evidence suggesting - the recent medical evidence suggests an imminent return to work is unlikely. It continues in the next paragraph to say:

PN90

Accordingly, as the recent medical evidence indicates little likelihood of a return to work within a reasonable period.

PN91

Now, I'm just wondering whether you can assist me as to how the bank argues that the concepts of a return-to-work within a reasonable period are or are not synonymous with the words that are in clause 31.2 which talk of a return to work becoming unlikely. So on the one hand we have an unlikely return to work as a pre-condition for discontinuance of payment and on the other hand we have a return to work within a reasonable period and I'm just anxious to know whether the bank believes those two concepts are the same concept or whether the link between the two is a link that the bank argues was derived from the proceedings that you have referred to before Senior Deputy President Duncan.

PN92

MR MILLER: Yes, your Honour. It didn't derive from the appearance before Senior Deputy President Duncan, it derived from the interpretation and the negotiations that were entered into to include that personal allowance provision within the EBA. Sick-leave is there for people to return to work. It is to get people back to return to work. Clearly there was never any dissent in that EBA that employees would be away for ever and a day without any likelihood of coming back. There has to be some reasonableness and a reasonable period is the view that the bank takes when people are away on sick-leave.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN94

MS GUZZO: Your Honour, may I say something?

PN95

THE SENIOR DEPUTY PRESIDENT: Mr Miller, can I then ask you a question which is very similar to the one that I asked Mr Login, that is can I refer you to clause 40 of the agreement and just seek some advice from you on the status of this matter pursuant to the dispute resolution process outlined in the agreement.

PN96

MR MILLER: Sir, just to recap a little bit, I spoke to the FSU on Friday and they were aware that we were going to cease Ms Guzzo's pay. I also gave the FSU secretary here an undertaking that before a letter went I would ring her so she could put her preposition Ms Guzzo, which she did. I rang her on the Monday but in 5 minutes I had the notice of the dispute on my desk, so they were probably being prepared so the FSU were well aware of that. That had already been lodged 5 May, a couple of hours prior to you receiving it.

PN97

I have had discussions with the bank's industrial relations officer in Sydney, Cherie Sanderson. I had discussions with her at least a couple of months ago concerning this particular case. Before the letter was sent to Ms Guzzo I had a bulk review by Cherie Sanderson and she said discussions with the FSU federal people and she has told them that the situation has the support of the Commonwealth Bank's Industrial Relations Division in Sydney.

PN98

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Login, is there anything that you want to raise with me in the light of having heard Mr Miller?

PN99

MR LOGIN: Yes, your Honour. Mr Miller says you are making - called it a reasonable period is solely up to the bank's judgment on whether or not someone is going to return to work. What are we going to have next, that the Banks are going to determine that the reasonable period is a month, a week, a day? It is going to be completely their judgment. Now, realistically that judgment is going to also depend on what area manager - who the area manager is. It is going to be a matter of bluff as to whether we get sick-leave. It won't be an entitlement. What if the bank decides that they no longer pay maternity leave, long service leave or something like that because the bank is convinced no one will guarantee them back at work.

PN100

Now, the reason I say that sort of thing is, well, you know, the bank may as well say that that is fanciful. During the EBA negotiations, as Mr Miller has referred to, it was very clearly stated that this was not going to be used in any other manner other than to ensure that where people were genuinely ill and they were going to return to work, they would be paid sick-leave and that is just the facts. I have the notes from Mr Matthews in that regard, that sick-leave they wanted to remove it as an entitlement for people taking the sickies but they won't be able to manage their sick-leave. For those that are genuinely ill and that had not accrued possibly enough sick under the 15 days per annum to cover a serious illness, that that was going to ensure that that would be paid in winter.

PN101

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN102

MR LOGIN: There is just one other thing.

PN103

THE SENIOR DEPUTY PRESIDENT: Yes, go on. Mr Login, on the question of the worker's compensation review hearings can you give me a little more information on the timing of those review hearings. It might be that Mr Miller contributes in this regard too. What I'm interested in is that there appears to be a dispute over the basis of the delay in the last review hearing, that is whether the delay was occasioned by a request from Ms Guzzo's lawyers or whether it was occasioned by a request from the bank's advisers.

PN104

MR LOGIN: Mr Miller correctly said that the bank did not request the delay, it was the bank's previous insurers who had not been properly briefed by the bank's lawyers prior to this review. Because of the timing for this witness complaint, the bank's previous insurers, they would only be partly liable and so obviously they have a vested interest. We did not object to the delay because we felt that it was obviously in the insurer's interests not to be able to come back down the track and say: well, we weren't fully appraised of all the facts. The second thing was the bank's lawyers failed to notify what their defence was actually going to be and so had given Ms Guzzo's representative insufficient time to be able to look at that. Now, Ms Guzzo's representative - lawyers did not object - - -

PN105

THE SENIOR DEPUTY PRESIDENT: Well, the question that I'm, I guess, just interested to explore for one moment and it may simply be a red herring but nevertheless let us just explore it for a moment, is the extent to which the review hearing currently scheduled for 22 October is or is not capable of being brought forward.

PN106

MR LOGIN: - - - that it is a - that will be a 3 day hearing. That is the first available period, that is the very first available period for which it can be - - -

PN107

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Miller, can I just ask you that same question?

PN108

MR MILLER: Yes. It is nonsense of Mr Login to say that the advocate for Ms Guzzo did not object. The advocate for Ms Guzzo, Elaine Bridges, asked that the review hearing be deferred. The bank was prepared to continue that particular area. Now, what has happened with this worker's compensation claim, we are getting sidetracked a little bit here, your Honour.

PN109

THE SENIOR DEPUTY PRESIDENT: I did indicate, Mr Miller, I did accept that it may be a red herring but nevertheless I'm asking you the question.

PN110

MR MILLER: Okay, yes, thank you. The first medical report was received by the bank in February. It related to an incident that occurred on 2 October 2000 and that was the base on which the worker's compensation claim was lodged. The claim was declined on 22 March based on an independent psychiatric report which clearly indicated that the stress was not caused by an incident on 2 October. It went for review on 11 April, it went for review again on 11 June and it was deferred so that a date of the actual incident that caused Ms Guzzo's stress could be determined. The advocate for Ms Guzzo said that the stress related back to 1997 and a number of incidents that had occurred in the meantime.

PN111

The review on 23 July was prepared by the bank's solicitors, Wakefield and Waldron and the bank was prepared to go ahead with that hearing. At that particular hearing, Lorraine Bridges on behalf of Ms Guzzo asked for that to be deferred.

PN112

THE SENIOR DEPUTY PRESIDENT: Mr Miller, what was the position or are you aware of what position was adopted by the bank's previous insurers?

PN113

MR MILLER: The bank's previous insurers were - believed that they had not had enough time to review the case because the bank hadn't believed that on the basis the worker's compensation claim that was lodged related to an incident in October 2000 when the bank was self insured. It was only subsequently outlined that in fact it related back to incidents back to 1997 at which time there was another insurer.

PN114

THE SENIOR DEPUTY PRESIDENT: Very well.

PN115

MR MILLER: The bank has not sought to delay those hearings, in fact the bank is very, very keen to have the worker's compensation claim settled and it is mischievous of Mr Login then to infer that the Commonwealth Bank in any way or shape or form looked to defer those hearings and to place any pressure on Ms Guzzo. I know how much stress this must be causing her.

PN116

MR LOGIN: Your Honour, I've got the matter here, you know, crocodile tears. Our member was present last Thursday and at every previous incident. We reject out of hand what Mr Miller has just - - -

PN117

THE SENIOR DEPUTY PRESIDENT: Okay, Mr Login and indeed Mr Miller, I'm accepting that somewhere in the moras of legal dealings, there's probably scope for both - or quite possibly scope for both perceptions to operate but I'm not quite sure as you quite correctly indicated, Mr Miller, that we are going to get too much further by going down that path. Can I sort of sum up where I think the parties are at in this regard and then put a proposition to you. There is a dispute over the meaning of clause 31.2. Clause 31.2 has apparently been considered or brought to the attention of the Commission in the past.

PN118

I have some difficulty with the suggestion that anyone's forum shopping in that it is fairly clear to me that none of the parties currently have access to the detail that was considered by Senior Deputy President Duncan in the earlier matter and I for one would obviously be interested in looking at that detail. It seems to me that that might conceivably provide us with a background to this particular matter. There is a dispute over the likelihood - and I'm specifically referring to the provisions of clause 31.2. There is a dispute over the likelihood of a return to work on the part of Ms Guzzo.

PN119

Then there is this other issue which were I to consider the matter in the strict context of clause 31.2, it may or may not become relevant in that there is also a dispute over the future progression and indeed the past dealings of the - of legal advisers in relation to worker's compensation review hearings. Mr Miller, I understand from the hearing this morning and indeed from the letter of 13 August that the bank has proposed to discontinue payments for further periods of personal illness effective from Monday, 20 August. I would like to first of all look at the matter that was before Senior Deputy President Duncan.

PN120

Secondly, I was going to ask the parties whether they could provide me with any further information relating to that dispute over the likelihood of a return to work and in order to do that, I would have a preference to allow a couple of days to progress that. If that were not to be possible, then I would look at - trying to do so this afternoon but I do need to indicate to you that causes me some difficulty in terms of my diary. I might say looking at the schedule for access to these video conference facilities, it also causes us a degree of difficulty.

PN121

MR LOGIN: Your Honour, that is also - I'm actually on a rostered day off today, I've a family matter that I would greatly appreciate attending within the next couple of hours for with my son. So I have difficulty in that regard.

PN122

THE SENIOR DEPUTY PRESIDENT: I understand that. Okay, then, Mr Login. My request to you, Mr Miller, is whether or not the bank would be prepared to extend that date of Monday, 20 August to allow a further discussion on this matter were I to schedule one for the middle of next week. Now, if that is not going to be something that is agreed, then we will reconsider it but I'm simply indicating that I would appreciate your views on whether that was possible?

PN123

MR LOGIN: Sir, I find it all a bit exasperating, we have been paying Ms Guzzo for 6½ months and she is clearly not coming back to work. However, I appreciate your assistance on this and I will defer ceasing Ms Guzzo's pay for a few days. Perhaps your Honour could indicate when you appear able to review this matter again.

PN124

THE SENIOR DEPUTY PRESIDENT: I shall do that. I would propose Mr Miller and Mr Login that we list the matter for 9 o'clock Perth time on Wednesday, 22 August.

PN125

MR LOGIN: Thank you, your Honour.

PN126

THE SENIOR DEPUTY PRESIDENT: Mr Miller?

PN127

MR MILLER: Yes, that is acceptable, your Honour.

PN128

THE SENIOR DEPUTY PRESIDENT: Mr Miller, then could I ask that whether the bank is prepared then to maintain payments and in that regard motor vehicle provision to Ms Guzzo until at least the close of business on 22 August to allow us to discuss the matter?

PN129

MR MILLER: Yes, your Honour.

PN130

THE SENIOR DEPUTY PRESIDENT: Thank you. That takes me then to what information we might be able to exchange and provide to each other. Mr Login and indeed Mr Miller, I'm very happy to search the Commission's records and in the event that we can identify the matter listing that was referred to by Mr Miller, I can advise that we are happy to send a facsimile advice to both groups and invite you that if you are not able to access that transcript, then we can endeavour to make it available to you. If on the other hand you do manage to obtain reference to it, then I would simply ask that you let my staff know.

PN131

MR LOGIN: Yes.

PN132

THE SENIOR DEPUTY PRESIDENT: Secondly, could I ask both the bank and the union to forward to me any medical assessment that refers to the issue of a likelihood of a return of work? I'm not seeking medical details, I'm only seeking extracts from those medical assessments that relate to the likelihood on Ms Guzzo's part of a return to work?

PN133

MR LOGIN: Yes.

PN134

THE SENIOR DEPUTY PRESIDENT: Can I take it that you have both got access to the facsimile numbers here in Adelaide to which that material would be sent?

PN135

MR LOGIN: Yes, your Honour.

PN136

THE SENIOR DEPUTY PRESIDENT: Mr Miller?

PN137

MR MILLER: Yes, your Honour. 83089864.

PN138

THE SENIOR DEPUTY PRESIDENT: That is correct. Very well. Now, is there anything else that we need to consider prior to the conclusion of this matter this morning?

PN139

MR LOGIN: Sorry, your Honour.

PN140

THE SENIOR DEPUTY PRESIDENT: There's nothing else, Mr Login, that we need to consider prior to the conclusion of this matter this morning?

PN141

MR LOGIN: No, your Honour.

PN142

THE SENIOR DEPUTY PRESIDENT: Thank you very much for your assistance so far and I sincerely hope that we might be able to make some progress toward a resolution of the matter next week. I adjourn these proceedings.

ADJOURNED UNTIL WEDNESDAY, 22 AUGUST 2001 [11.30am]