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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 0437
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SIMMONDS
C2001/4396
POA (VICTORIA)
and
AUSTRALIAN GOVERNMENT ANALYTICAL
LABORATORIES
Notification pursuant to section 99 of the Act
of a dispute re alleged failure to apply
procedural fairness
MELBOURNE
2.25 PM, TUESDAY, 25 SEPTEMBER 2001
PN1
MR P. ILTON: I appear for the Professional Officers' Association Victoria and appearing with me is DR E. GIBSON.
PN2
MR D. HEANEY: I seek leave to represent the Australian Government Analytical Laboratory and with me is MR V. MADGE, the HR Manager.
PN3
THE COMMISSIONER: Is there any objection?
PN4
MR ILTON: Pardon, Commissioner?
PN5
THE COMMISSIONER: Is there any objection to the application for leave?
PN6
MR ILTON: No, Commissioner.
PN7
THE COMMISSIONER: Then leave is granted, thank you. Yes, Mr Ilton.
PN8
MR ILTON: Thank you, Commissioner. This dispute in our notification we listed two things that we felt that AGAL had not applied appropriate procedural fairness. That refers to matters of the processes regarding Dr Gibson's performance assessment and that it also breached the AGAL certified agreement 2001/2002 with regard to processes with regard to Dr Gibson's performance assessment. Commissioner, I would just say at the outset we don't believe that this is the appropriate forum for a performance assessment of Dr Gibson to be made and I am sure the Commission would agree with us on that as well.
PN9
We brought this dispute here because it is about the question of processes with regards to her performance assessment rather than the pros and cons or merits, if you like, of the actual assessment itself. With regard to - I think I will deal, Commissioner, with the issues of breaches of the certified agreement first and in that regard the AGAL has refused to give Dr Gibson her salary increment as per the provisions of the certified agreement. And I would like to refer, Commissioner, to the certified agreement and you will recall that we earlier this year, some two or three months ago, there was a dispute before you with regards to Dr Gibson being removed from her position of Manager, Victoria and that resulted in an order that you gave that Dr Gibson be reinstated.
PN10
Now, that was the actual order you gave. Associated matters with the dispute at that time were performance assessment processes under the AGAL Certified Agreement and I acknowledge you did not make any finding on that, Commissioner, but they were also key issues in that dispute. One of the exhibits that we had at that time, Commissioner - well, there were a number that were extracts from the AGAL Certified Agreement with regards to performance processes and I would like to refer to one of those, Commissioner. I didn't actually bring copies, Commissioner, as they were exhibits in the previous dispute.
PN11
THE COMMISSIONER: Yes. Well, I have got the previous file but I found those clearly unsatisfactory. You really should produce the whole agreement because it means that - which exhibit was it?
PN12
MR ILTON: Exhibit I9, Commissioner.
PN13
MR HEANEY: Commissioner, if I may.
PN14
THE COMMISSIONER: Yes, Mr Heaney.
PN15
MR HEANEY: We didn't think to bring down the file - the full file from the last dispute either. It weighs rather a large amount and we didn't think he would be referring to old exhibits but rather furnishing new ones if he was referring to any documentation.
PN16
THE COMMISSIONER: Yes. Well, maybe if I try and find it first of all. I will try and work my way through it. Now, which exhibits do you want to refer to because I think if we are going to get them photocopied we might as well get them all photocopied Mr - well, have my associate do the work that you should be doing.
PN17
MR ILTON: I beg your pardon, Commissioner, I had understood and obviously was mistaken that given the fact that - - -
PN18
THE COMMISSIONER: Well, why would I have copies of them. I have only brought the file in - only retrieved the file at the last minute. But why would Mr Heaney be expected to have copies of them and indeed why would the Commission. I mean it is only relatively recently that this file was assigned to me, it was initially before Commissioner Smith. But anyhow, what exhibits are you going to refer to so that we can get them?
PN19
MR ILTON: I9, I11, I5.
PN20
MR HEANEY: I5 is it?
PN21
MR ILTON: I5, I10. I will just make sure that they are the only previous exhibits. I will just go through my notes quickly. I1. I do have two copies of that with me. Actually with the extracts from the certified agreement, which is I5 - I9 and I11 I do have one spare copy of each because I have the complete agreement with me as well, Commissioner.
PN22
THE COMMISSIONER: Right, so which one is the - that was I1 you have got copies of or not?
PN23
MR ILTON: Well, I have got two copies of that. Yes.
PN24
THE COMMISSIONER: Right. I5, I11 and I9 are the ones that are made up. So if you provide those - - -
PN25
MR ILTON: I have got two copies of those, yes.
PN26
THE COMMISSIONER: So if you provide a copy of those to Mr Heaney I am sure there will be enough. We only need I10, is that right?
PN27
MR ILTON: Yes, Commissioner. And also, Commissioner, I was going to refer to the transcript in the previous dispute including the hearing before Commissioner Smith.
PN28
THE COMMISSIONER: Well, if you don't need to go to I10 just yet let us proceed on.
PN29
MR ILTON: Okay. Commissioner, can I just say that - I mean I acknowledge my error, Commissioner, I wasn't aware that I needed to provide copies but in our dispute notification we did refer to the previous dispute so I thought that that was sufficient but clearly I was mistaken so I beg your pardon on that. In I9 - - -
PN30
THE COMMISSIONER: Where in the notification of dispute - - -
PN31
MR ILTON: Notification of dispute for this dispute. The Commission, at the bottom line there, Commissioner, just above the date the Commission is asked to deal with this matter on the basis of an earlier finding of dispute in matter C2001/2161.
PN32
THE COMMISSIONER: That relates to the finding it doesn't relate to anything else. I mean goodness, gracious me, some people ask us to rely on findings and disputes 10 years ago and we don't bring the file in for that.
PN33
MR ILTON: Well, I understand that now, Commissioner. So that was my rationale anyway, Commissioner, I do apologise.
PN34
THE COMMISSIONER: Yes, okay. Well, your apology is accepted but press on.
PN35
MR ILTON: In I9, Commissioner, it is provided there - - -
PN36
MR HEANEY: Can we have a copy?
PN37
MR ILTON: Yes. I beg your pardon. I will get out my copy of the agreement. Clause 52.5(f) it says:
PN38
Salary advancement will be determined through effective performance under the PPD program at the time of the salary advancement.
PN39
PPD, Commissioner, refers to the performance - Professional Performance Development Program of AGAL which has its head of power with the certified agreement. Clause 52.1 of the certified agreement says:
PN40
The Professional Performance and Development program PPD was developed in consultation with staff and management and was implemented in February 2000.
PN41
And then this clause 52 has a number of references to the PPD program. So this is like the over arching clause which then the PPD provides more detail than what is in this clause. So 52.5(f) provides t hat there be salary advancement and 52.5(h):
PN42
The annual assessment will result in one of the following ratings being determined, unsatisfactory or effective.
PN43
And it also provides that the salary advancement - that the rating will be done on the anniversary of the employee's commencement with AGAL and that if - - -
PN44
THE COMMISSIONER: Where does it do that?
PN45
MR ILTON: I am just looking for that, Commissioner. I thought it was in the same clause.
PN46
THE COMMISSIONER: Well, that seems to suggest it is done in January.
PN47
MR ILTON: That is the assessment, Commissioner, and the actual salary advancement is done on the anniversary of the person's - - -
PN48
THE COMMISSIONER: Yes, that is in (f) and I thought you were talking about the rating.
PN49
MR ILTON: I beg your pardon, yes.
PN50
THE COMMISSIONER: You were talking about the rating not the advancement and I presume the rating is the assessment - is the rating they get from the annual assessment.
PN51
MR ILTON: Yes, I beg your pardon, Commissioner. That is right, (f) says that the anniversary date will be where the salary advancement occurs and then (h) just shows that if - - -
PN52
THE COMMISSIONER: No, (g) says that the assessment will be completed by the first available date in January each year.
PN53
MR ILTON: Yes. Yes, that's right.
PN54
THE COMMISSIONER: And that provided:
PN55
And the annual assessment will result in one of the following ratings being determined.
PN56
So I would expect that by some time in January an employee would get a rating of unsatisfactory or effective as a consequence of the assessment that is done in January. Is that right?
PN57
MR ILTON: Yes, that is correct, Commissioner.
PN58
THE COMMISSIONER: Yes, okay.
PN59
MR ILTON: Then the - in 52.6(e) it says:
PN60
If a supervisor fails to complete an employee's assessment within two months of the assessment being due through no fault of the employee the employee's salary advancement will proceed with effect from the original due date.
PN61
THE COMMISSIONER: So what is the original due date for Dr Gibson?
PN62
MR ILTON: 1 May this year, Commissioner.
PN63
THE COMMISSIONER: Now, the assessment was due back in January.
PN64
MR ILTON: Well, the assessment - I don't know whether this might be a bit contradictory because in the PPD itself the assessment is done six months after commencement, there is a formal assessment, and then 12 months after. And that was one of the documents I was also going to refer to, Commissioner.
PN65
THE COMMISSIONER: Do you want to take me to that so that I can follow it. I mean I don't mind. What is your submission, when should it have been done on your submission, leave aside what I read it to be.
PN66
MR ILTON: That the assessment should have been done by 30 April 2001 and that if it wasn't done within two months of that date, that being 30 June, that under clause 52.6(e) that the employee automatically gets their salary advancement. The assessment wasn't done, Commissioner, and that was established in the previous dispute and AGAL acknowledged that. I would like to now table a letter, Commissioner.
PN67
THE COMMISSIONER: You will have to approach the bench.
PN68
MR ILTON: Here is your associate now, Commissioner.
PN69
PN70
MR ILTON: Well, Commissioner, this letter I wrote to Dr Hart, the General Manager of AGAL on 8 August this year and we indicated in the letter that given the fact that Dr Gibson's assessment wasn't completed within the required two months that her salary advancement or increment should be granted. I would like to table another document, Commissioner.
PN71
MR ILTON: In this letter, Commissioner, in which you can see our request - this is from Mr Madge, Manager of Human Resources at AGAL - and he refers to my letter to Dr Hart requesting the increment be paid and that is rejected and he gives a number of reasons here.
PN72
THE COMMISSIONER: Just bear with me for a minute. But back in - on 27 April Dr Hart was saying it is not her intention to provide her with an unsatisfactory rating so what is all this about?
PN73
MR ILTON: Yes. I would certainly agree with you there, Commissioner.
PN74
THE COMMISSIONER: What changed between 27 April and 1 May or 30 April?
PN75
MR ILTON: Well, that is one of the things that puzzles us. That is another aspect of this dispute that I was going to raise later, Commissioner.
PN76
MR HEANEY: Commissioner, if I - do you want clarification on that?
PN77
THE COMMISSIONER: Well, now or later on, I don't mind. I mean it just seems to me that this letter is just full of post facto rationalisation or something.
PN78
MR HEANEY: Well, in fact it was the letter of 27 April by Dr Hart that gave rise to the section 99 dispute in the first instance.
PN79
THE COMMISSIONER: Yes, I understand that but that - - -
PN80
MR HEANEY: So the whole process of going - - -
PN81
THE COMMISSIONER: But that wasn't lodged until 4 May.
PN82
MR HEANEY: Yes, but the notification was notified to us on the 27th - on the 28th. We were informed that was going to be the case.
PN83
THE COMMISSIONER: That they were going to lodge it. But you mean to say that Dr Hart was going to change her mind because someone notified a dispute to the Commission? You had better have a quick look at section 298K and so on of the Act if you - if that is the position. I mean - let us just have a quick look so that you can reflect upon it before you - 298K:
PN84
An employer must not for a prohibited reason or for reasons that include a prohibited reason or for reasons that include a prohibited reason do or threaten to do any of the following:
PN85
The second one will do:
PN86
ie dismiss an employee -
PN87
Well, that is not there:
PN88
(b) injure an employee in his or her employment;
PN89
(c) alter the position of an employee to the employee's prejudice -
PN90
etcetera, etcetera. And then the prohibited reasons include:
PN91
(h) is entitled to the benefit of an industrial instrument or an order of an industrial body.
PN92
Now, what - it will be interesting to hear - you might want to reflect on what it was that occurred to alter Dr Hart's intention because if it was because she was entitled to the benefit of an industrial instrument or an order of the Commission then there would be a fairly clear argument for breach of 298K. Not that it is any of my business, that is for the Federal Court. But you want to be careful what you say because what you say will be no doubt used in evidence in that situation. I alert you to that. Yes, Mr Ilton, press on.
PN93
MR ILTON: Thank you, Commissioner. In this letter of 15 August from Mr Madge to myself a number of our arguments are advanced as to why they will not pay the increment. He initially says there is refusal because POAV notified a dispute.
PN94
THE COMMISSIONER: Well, that is why I have raised 298K.
PN95
MR ILTON: Yes. Will I proceed, Commissioner?
PN96
THE COMMISSIONER: Yes, proceed on.
PN97
MR ILTON: Our view on that - I take your comments on 298 - section 298, Commissioner, but also in addition our view was that the problems that arose that caused that - - -
PN98
THE COMMISSIONER: 298K not 298 just so you can be clear about it. 298 - - -
PN99
MR ILTON: Yes, I am clear.
PN100
THE COMMISSIONER: - - - is consequences of cancellation of registration. I am not talking about that.
PN101
MR ILTON: I note what you are saying, Commissioner. I had a look at the relevant section of the Act as you were reading it. Sorry if I didn't express it correctly.
PN102
THE COMMISSIONER: That is all right.
PN103
MR ILTON: Yes. Well, in addition to concerns there may be there, Commissioner, the original dispute which Mr Madge refers to there came about because of problems caused by AGAL and we would contend - well, they could hardly be considered the fault of Dr Gibson. And although your finding of the order that you gave in that particular case, Commissioner, was with regard to Dr Gibson being reinstated rather than on performance matters certainly nobody could say there was a vexatious dispute when you found in favour of us.
PN104
Mr Madge goes on to say that - another reason he gives is that well, the POAV has said that the performance was not completed and therefore you couldn't pay an increment because the performance was not completed. Well, it is certainly a fact that it wasn't - performance assessment wasn't completed, Commissioner. There were certain steps in the CA and the PPD which AGAL didn't implement and which they acknowledged in a previous dispute they didn't implement. So that is certainly a matter of fact but we never said for a moment that because of that fact suddenly clause 52.6(e) doesn't apply.
PN105
And I don't see whatever AGAL says or whatever AGAL has done in relation to Dr Gibson's performance that that can change clause 52.6(e). Mr Madge goes on to say POAV caused a delay. He says that the POAV told Dr Gibson not to do her self assessment and this delayed the process. Well, that sell assessment that Mr Madge is referring to is the final year assessment - the end of the cycle assessment I think it is called in the PPD - for her performance assessment. At this point in time, Commissioner, they haven't done the six monthly one which is also required in the PPD which is previous exhibit I10 if we need to look at the PPD. And so yes, we did advise Dr Gibson not to complete her self assessment for the 12 month assessment because the six month one hadn't been done.
[2.49pm]
PN106
I would like to refer to that previous exhibit I10, Commissioner.
PN107
THE COMMISSIONER: Just before you do, can I also refer you, Mr Heaney, it may be too late to protect your interests because I suspect the evidence is probably all in what I have marked as POA2, 298L includes as prohibited reasons - - -
PN108
MR HEANEY: Say that again.
PN109
THE COMMISSIONER: 298L includes, apart from the one that I mentioned which was 298L(h), includes at (i):
PN110
Has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek compliance with that law or the observance of a person's right under the industrial instrument; or
PN111
(j):
PN112
Has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law.
PN113
There are some more there, too. It would seem that, at least on its face, and as I said before it is not for me to decide, that the reason is a direct consequence of the POAV dispute notification. If that be so, the POAV dispute notification is pretty much fairly and squarely under (i) and (j) of that 298L prohibited reasons. Anyhow - yes, you were taking me to I10, Mr Ilton.
PN114
MR ILTON: Yes, thank you, Commissioner. In I10 if you go to page - well, first of all, there is a diagram, Commissioner, on page 4 which sets out diagrammatically the performance assessment process, and you will not there is a mid-cycle review there and an end of cycle feedback discussion and assessment rating, and AGAL acknowledged in the previous dispute that they hadn't done the documentation for the mid-cycle review, the actual assessment meeting had occurred. If you look at page 6, there are three dot points near the top there and just under that:
PN115
The methodology used for the first and third quarter discussions will differ depending on the manager and employee agreement. The mid-cycle review second quarter feedback session, however, must be a formal one-on-one meeting between manager and employee.
PN116
And because of that formal requirement, we stated that we believe it should have been documented, and AGAL did eventually provide that written documentation. But at this point in time they haven't provided that, let alone the documentation for the end of cycle review which is referred to on the next page, on page 7, and so we advised Dr Gibson not to do self-assessment for the 12th month review until AGAL had provided the documentation for the six-month review, so - - -
PN117
THE COMMISSIONER: What is the self-assessment all about?
PN118
MR ILTON: That is just part of the process.
PN119
THE COMMISSIONER: Where do I find reference to that?
PN120
MR ILTON: It is in this PPD. It might actually be easiest to look at the form attached to it, Commissioner, there is a pro forma attached to the PPD.
PN121
THE COMMISSIONER: Yes. No, I was just looking for the basis for it, that is all.
PN122
MR ILTON: There is a provision here that - I will see if I can find it. I hadn't noted to specifically comment on that provision in the PPD. The process - while I am looking for it, I will just speak to it and say that the process is that initially when the review is coming up, the six-monthly one and the 12-monthly one, the employee does a self-assessment in writing, using the pro forma. That goes to their supervisor.
PN123
THE COMMISSIONER: Where is this provided for in this document?
PN124
MR ILTON: I will look for it, Commissioner.
PN125
THE COMMISSIONER: I understand you telling me that that is what happens.
PN126
MR ILTON: Yes. Yes, Commissioner, on page 6, the second paragraph, the one that commences: "These review sessions allow", and it goes on:
PN127
...for an opportunity for both employees and managers to discuss progress against key outputs...
PN128
etcetera. Then the next line:
PN129
These review discussions also offer an opportunity for employees to assess their own performance and to discuss how effective feedback and assistance by the manager - - -
PN130
THE COMMISSIONER: Distinction between opportunity and requirement, isn't there?
PN131
MR ILTON: Yes, I agree with you there, Commissioner. I don't think I was actually intending to say that it was specifically required. If I said that, I beg your pardon. But certainly Dr Hart asked for Dr Gibson's self-assessment and there is a letter to that effect.
PN132
THE COMMISSIONER: This is before they carried out their assessment, and you say that you wanted to stop her from doing that before they carried out their assessment, till she saw what their assessment was.
PN133
MR ILTON: Yes.
PN134
THE COMMISSIONER: No, I understand that part.
PN135
MR ILTON: Yes, thank you, Commissioner. I would like to table another letter, Commissioner. So is this an exhibit marked POA3, Commissioner?
PN136
PN137
MR ILTON: This letter refers to, as you see, a meeting that was held on 6 July at which Dr Gibson, Dr Hart and myself were present, and we believe that it was agreed at that point that AGAL would provide in writing the documentation for the discussions that were held for her six-monthly assessment, those discussions being held in January of 2001. We are just explaining why we asked Dr Gibson not to go ahead with the 12-monthly one. When you are ready, Commissioner, I would like - - -
PN138
THE COMMISSIONER: Yes, I am ready.
PN139
MR ILTON: Yes, I would like to table another document.
PN140
PN141
MR ILTON: Commissioner, as you can see, this is a series of e-mail exchanges between myself and Mr Madge, and of course when you print hard copies of e-mails, the most recent one comes out on top. So I actually wish to refer to the page at the back, the last page, and in this fourth paragraph Mr Madge starts:
PN142
Dr Hart will prepare a written statement on the performance assessment of Dr Gibson in respect to the mid-cycle review about which substantive discussions were held in January 2001.
PN143
So in this particular e-mail letter, Mr Madge acknowledged that they would provide that written documentation, and so we thought it was inappropriate that he is then later on criticising and giving as a reason for delay of the - or not paying the increment to say that, well, POAV delayed everything including asking for this documentation which they should have provided according to the PPD processes and they finally acknowledged in that e-mail letter of 24 July which was previous to this letter that Mr Madge sent to me on 15 August where he is denying the increment.
PN144
Mr Madge goes on in his 15 August letter to me to say that another reason he gives as well, you know, POAV requested reasonable response times. Well, we would have thought if they are reasonable response times, they are reasonable, aren't they? We requested that Dr Gibson have seven days to consider documentation put before her and in that e-mail that Mr Madge sent me on 24 July, he agreed to that.
PN145
Another thing that Mr Madge says there is that Dr Gibson signed her self-assessment on 23 July, but submitted it on 8 August, and seemed to say well - tried to make out there was something strange about that, that the reason for that was because we had advised Dr Gibson not to do it until the six-monthly assessment was completed. He then goes on to say that, well, another reason effectively for not giving Dr Gibson her increment was because - I was off sick, Commissioner, about this time for two weeks and Mr Madge seems to complain about that and say, well, you know, that is just not good enough and gives that as a reason as well, denying her increment which we find very strange, indeed.
PN146
I was off for about 12 days, but during that time there was one letter written to AGAL on this matter by my colleague, Mr Parsons, but Mr Madge seems to contradict himself, anyway, because later on he then says something to the effect that it wasn't the POAV fault that I was sick:
PN147
Whilst no fault is attached to your availability problems -
PN148
as he says in the last sentence of the first paragraph on the second page, then Mr Madge complains that part of the problem was the fact that the POAV insisted on being present at all meetings, as he says in the same sentence as though somehow this is a fault of Dr Gibson as well. Well, Commissioner, Dr Gibson requested that she be represented by the POAV. We would maintain that she has an entitlement to be represented by the POAV and I would like to refer to the previous exhibit, I5, Commissioner, and in clause 11 of that, Commissioner, which is on the top of page 9 it says:
PN149
Consistent with the freedom of association provisions of the Workplace Relations Act, an employee or group of employees may be represented at any stage of these procedures by a person or organisation of their choice.
PN150
That is the dispute settling procedures specifically in the certified agreement and this matter was a matter of dispute between us and we would believe that principle would apply whether it formally came under those provisions or not, anyway, but there was a matter of dispute between us.
PN151
THE COMMISSIONER: I might be misapprehending what is going on here, but I took and still take the letter of 15 August to be saying that the reason for non-completion by 30 April is a direct consequence of the dispute notification and then all of the other things are simply just adding to that, that they are explanations, not justifications, but they are explanations of the delay in responding to other things that have been said. Maybe I misapprehend it.
PN152
MR ILTON: Yes, I agree with your interpretation there, Commissioner. Perhaps I don't need to pursue these. I suppose I was answering the accusations that Mr Madge made, but perhaps that it not necessary given the fact that clearly the main reason is the fact that we lodged the previous dispute. I won't pursue those matters.
PN153
THE COMMISSIONER: But they go on to say that it is their view that the time frame froze from the date of the dispute notification and restarted from the date of the decision, presumably, which is 29 June, giving them until 28 August.
PN154
MR ILTON: Well, Commissioner, we found that a very strange statement on behalf of AGAL insomuch as there was a finding by yourself reinstating Dr Gibson to her position. Admittedly that order didn't involve performance assessment processes, but as you noted in Dr Hart's letter to Dr Gibson on 27 April this year, she stated that - - -
PN155
THE COMMISSIONER: But isn't the issue simpler than that? I mean, it is clear that the performance assessment has to be completed, but the issue of whether she gets the salary progression is the issue, not whether the performance assessment is completed. That is surely the issue.
PN156
MR ILTON: Yes, Commissioner. The two are tied in together in those clauses I referred to before.
PN157
THE COMMISSIONER: Well, only when you determine whether or not the delay is through no fault of the employees.
PN158
MR ILTON: Yes, correct, Commissioner, and after two months if there is no fault according to the employee, then the increment should be paid and we would argue there is no fault on the part of Dr Gibson in this matter.
PN159
THE COMMISSIONER: And you would certainly say it is no fault of the employee that there was a dispute notification and everything else that occurred. Yes, I understand that submission. Does that conclude what you want to say?
PN160
MR ILTON: Well, I had other things to talk to, Commissioner.
PN161
THE COMMISSIONER: Well, what do you want us to do?
PN162
MR ILTON: Well, I do have a draft order. There are some other issues to dispute besides this - - -
PN163
THE COMMISSIONER: Has Mr Heaney been provided with a copy of the draft order?
PN164
MR ILTON: Yes, he has.
PN165
MR HEANEY: Commissioner, as a point of objection on our behalf, I accidentally had to go back to my office at quarter to six last night and I saw the draft order there, so it was purely fortuitous that I saw it and I take umbrage that it was sent to me. I mean, I find this behaviour personally and professionally unacceptable.
PN166
THE COMMISSIONER: Well, Mr Ilton, what do you say?
PN167
MR ILTON: What would you consider would be a reasonable time?
PN168
THE COMMISSIONER: Well, it is not what I consider. I will hear the argument from both sides and make a decision. I am not here to hand out gratuitous advice.
PN169
MR ILTON: Okay.
PN170
THE COMMISSIONER: But I asked had the other side been provided it and you are saying, yes, it was. When was it provided?
PN171
MR ILTON: It was faxed to them. I faxed it at about 5.15 last night.
PN172
THE COMMISSIONER: Right. Well, present the draft order. Your rights in respect to this matter will be preserved, Mr Heaney. If you want an adjournment or something - I am not going to allow you to be prejudiced because of the late arrival of it. If it means we have got to come back to the matter, it means we come back to it, but on that occasion we will come back in Canberra to meet your objection. That is the easy way out of that.
PN173
MR HEANEY: We certainly would appreciate that, Commissioner.
PN174
THE COMMISSIONER: That seems to be the price of it, if there is prejudice.
PN175
MR ILTON: Will I table that?
PN176
PN177
MR ILTON: Commissioner, this proposed draft order has five points to it and what I have been speaking to so far - - -
PN178
THE COMMISSIONER: What until I just read it. Well, you have told us about 1 and 2 and 3, why would I order that? I am obliged to do that. What does an order add to it?
PN179
MR ILTON: Well, Commissioner, they did breach that provision, so we were hoping that the Commission could assist in that regard.
PN180
THE COMMISSIONER: Well, how did they breach it?
PN181
MR ILTON: Rather than have the meeting - I was going to get to that in my submissions, Commissioner, but I will get to it now, if you like. There was a series of letters exchanged between myself and Dr Hart and in some cases Mr Madge.
PN182
THE COMMISSIONER: Well, look, just summarise it. I don't want to go through the letters. What do you say they are not doing? Not holding the meeting?
PN183
MR ILTON: That is correct, Commissioner.
PN184
THE COMMISSIONER: And why are they not holding the meeting, do you say?
PN185
MR ILTON: Dr Hart wrote to Dr Gibson saying that she would hold a meeting on the 22nd - - -
PN186
THE COMMISSIONER: No, I have read that correspondence. You sent multiple copies of it to me. What I am wanting to know is what do you say they are not doing, because I understood from that correspondence that you objected to the meeting being held on that date and are you saying that they haven't arranged another meeting, or that they have suspended the holding of the meeting? Is that what is happening?
PN187
MR ILTON: Yes, they wouldn't have a meeting on another date and we provided them with a number of alternative dates, Commissioner, and after that there was another letter from - - -
PN188
THE COMMISSIONER: What is the current state of play in regard to the holding of a meeting?
PN189
MR ILTON: It hasn't been held and Dr Hart in her letter to Dr Gibson on 23 August stated that she wouldn't now have the meeting, that she would have other arrangements and went on to explain that those other arrangements were to just do it by documentation, not to have a meeting.
PN190
THE COMMISSIONER: Well, that would seem to be not consistent with the requirements, or is it? 10 seems to talk in terms of a face to face meeting, doesn't it, or one on one meetings?
PN191
MR ILTON: Yes, it does, Commissioner.
PN192
THE COMMISSIONER: Yes, well, I understand what you are saying there, so that your concern is that they are not proposing to follow the agreement.
PN193
MR ILTON: That is right.
PN194
THE COMMISSIONER: I understand that. Now, 4 and 5, what is all that about?
PN195
MR ILTON: Well, Commissioner, with regard to communications on Dr Gibson's performance assessment, as I indicated earlier Dr Gibson - - -
PN196
THE COMMISSIONER: Well, if they don't write to you Dr Gibson can pass it on can't she, we are not dealing with people who are illiterate or anything here.
PN197
MR ILTON: No, that is true, Commissioner.
PN198
THE COMMISSIONER: So what is the issue, they won't communicate directly with you. Well, that is - - -
PN199
MR ILTON: Well - - -
PN200
THE COMMISSIONER: I mean if you really want the Commission to direct people to write to people it is getting into a pretty sorry state is what I would say.
PN201
MR ILTON: Well, obviously that is the Commission's decision, Commissioner. The reason why we requested that is that certainly we would submit that it is custom and practice, it is protocol established by custom and practice that where there is a dispute between an employer and an employee, and the employee choose to be represented by the union or a representative, that communications on that particular issue do go through the representative.
PN202
THE COMMISSIONER: I guess it depends on the employer.
PN203
MR ILTON: And I have never had this experience before, Commissioner, in my many years of industrial relations.
PN204
THE COMMISSIONER: You want to go to BHP, they have got a whole bunch of employees they are writing to directly without going through the union, even though they have told them they want to go through the union. I mean it is living in some - - -
PN205
MR ILTON: Well, there was one particular example.
PN206
THE COMMISSIONER: You are talking about custom and practice, I am giving you custom and practice, it depends on the employer. Anyhow, I hear what you say about that.
[3.13pm]
PN207
MR ILTON: Can I just make on further point on that.
PN208
THE COMMISSIONER: Yes.
PN209
MR ILTON: I won't repeat myself, Commissioner. There was one particular example where Dr Hart requested Dr Gibson to provide something, in fact it was that self assessment, and then - that was just before I came back from sick leave and when I did come back I said to her well, I don't think you should provide that. Dr Gibson had agreed with Dr Hart on a particular date to provide it and I said well, I don't think you should provide it because we have got to go through the six month first and we felt that if that communication had come via the POAV we could have given her that advice before Dr Hart had made that commitment.
PN210
THE COMMISSIONER: Yes. Well, I understand all that but - now - - -
PN211
MR ILTON: Well, that was the explanation.
PN212
THE COMMISSIONER: Yes. No, I understand. But what I don't understand is you saying it is custom and practice, that is all.
PN213
MR ILTON: Well, it has certainly been my experience, Commissioner, and it had been my understanding beyond - my experience with other representations but I could be wrong on that. And five is with regards to having meetings. AGAL don't consult with us about the timing and location of meetings.
PN214
THE COMMISSIONER: Sorry. Where do I get - I mean in regard to these matters four and five where do I get any jurisdiction to direct them to do that? I understand I have got direction in - I have got jurisdiction in regard to the application of the agreement where there is a dispute about the application of the agreement but for the life of me I can't see in there where these matters form part of the application of the agreement.
PN215
MR ILTON: No, they don't, Commissioner.
PN216
THE COMMISSIONER: So where do I get the jurisdiction to include these matters in an order?
PN217
MR ILTON: Well, we had felt, and perhaps this is not the case, that you would be able to do so on established protocols through custom and practice procedural fairness.
PN218
THE COMMISSIONER: But where do I get the jurisdiction? I can't interfere with the way people do things just willy nilly because they are not complying with procedural fairness, assuming that is the case. I mean I have got to get some jurisdiction. I mean it is not an allowable matter I don't think under 89A so that if we found a dispute I couldn't arbitrate to make an order that they do these things unless you can show me where under 89A I can, and it is not readily apparent to me that I can do it on that. The other jurisdiction comes via section 170LW and the combination of 170LW and the dispute settlement provisions of the agreement in clause 12.
PN219
But that - in 121.9 - I mean power to settle disputes between the parties over the application of this agreement. Now, I suppose drawing a long bow I could come to a view that in - no, I am not even sure - it would be a very long bow - I am not sure I can go that far even. But anyhow - - -
PN220
MR ILTON: Well, it would be our view that you do have the power to settle disputes between the parties because of that clause, Commissioner, and - - -
PN221
THE COMMISSIONER: Yes, but it is over the application of the agreement isn't it? So you show me in the agreement where those sorts of things are comprehended.
PN222
MR ILTON: They are not stated explicitly, Commissioner.
PN223
THE COMMISSIONER: Well, you know, could I just say I think there is probably the possibility of something there under 52.5 where it talks about the features of the PPD program and transparency but I suspect there is a bit of a gap between transparency and procedural fairness.
PN224
MR ILTON: I would have thought that these principles in clause 52 and the PPD would be based on procedural fairness, Commissioner. It wouldn't make much sense if you had these provisions and procedural fairness wasn't applied.
PN225
THE COMMISSIONER: Well, of course, procedural fairness depends on the circumstances, that much we know. And it is interesting that in the application of the dispute settlement procedures there is an entitlement to representation and all that flows from that - whatever that might be - but there doesn't seem to be a direct reference to that in clause 52 nor in - on a quick reading - in exhibit I10 but it may be. You see, there is a debate going on in the literature in the law about whether procedural fairness of itself gives a right to representation and I think the best I can give you is that it depends on the circumstances.
PN226
Now, it is clear that the agreement gives a right of representation under the dispute settlement procedure. That is an argument that if it is not specified there is none. I mean that is the danger of putting it in that it limits it.
PN227
MR ILTON: Well, we would submit, Commissioner, that it would - if there is a right to representation there but then there is not an opportunity for that representation to be effected then that renders that clause meaningless.
PN228
THE COMMISSIONER: That is right because that is under the dispute settlement procedure not under the performance management system. You see the fact that it is actually in there when it comes to dispute settlement suggests that it is not there when it comes to performance management. That is all I am saying.
PN229
MR ILTON: Well, our submission is, Commissioner, that we have a dispute with AGAL about these performance assessment matters and therefore that clause applies.
PN230
THE COMMISSIONER: Yes, but at the time when you were asking for representation and all that sort of stuff you didn't have. I mean you were writing letters and alleging a dispute but - yes. Anyhow, I hear what you are saying. Once you invoke the dispute settlement clause I don't think there is any question that there is a right of representation. When did you invoke the dispute settlement clause in regard to the assessment, if ever?
PN231
MR ILTON: Well not - certainly not before we notified our dispute to the Commission here on 17 August.
PN232
THE COMMISSIONER: Yes.
PN233
MR HEANEY: As a point of clarification, Commissioner, POAV on this occasion and in relation to the last matter have never notified a dispute with AGAL in relation to the certified agreement processes.
PN234
THE COMMISSIONER: Well, they haven't sought to invoke the dispute settlement procedure.
PN235
MR HEANEY: No, never. This is the second breach of that provision.
PN236
THE COMMISSIONER: Yes.
PN237
MR ILTON: Well, Commissioner, we felt that section 99 was the appropriate - - -
PN238
THE COMMISSIONER: Well then if it is section 99 I have got no jurisdiction. I mean that is the problem you have got. I mean that would be foolish of me to take that technical approach and indeed I am enjoying not to by the provisions of the Act and I do with under 170LW. But let me make the point usually if I am dealing with a section 99 dispute and people take the point that they haven't gone through the dispute procedure I will adjourn proceedings to allow them to go away and do it because otherwise people are just jumping immediately to the Commission without going through - now circumstances vary.
PN239
Obviously if people are on the grass and the employer notifies a dispute and they haven't been through the disputes procedure I am not going to keep the employer at bay. But, you know, that is a different sort of circumstance from the one we are talking about here and Mr Heaney is making the point - and it was probably true on the last occasion. Perhaps if he had made it more forcibly I might have been with him on that time but - mind you I suspect we would have ended up doing the same thing given that - - -
PN240
MR ILTON: We did make the point on that occasion, Commissioner, that we felt there was no time given the fact that Dr Gibson had been removed and we needed to act very quickly.
PN241
THE COMMISSIONER: Yes. No, no. There may well be other circumstances but that is not the case on this occasion.
PN242
MR ILTON: The urgency wasn't as great, Commissioner.
PN243
THE COMMISSIONER: Anyhow, I hear what you are saying and I am sure you are hearing what I am saying in regard to four and five. Look, I didn't want to cut you off but I had read the correspondence and I was across most of the issues. My concern with four and five is specifically the jurisdiction of the Commission.
PN244
MR HEANEY: Commissioner, can I have a point of clarification. Do I understand that correspondence has gone straight to you from the POAV?
PN245
THE COMMISSIONER: Copies of the correspondence that has been between you.
PN246
MR HEANEY: Prior to today's hearing?
PN247
THE COMMISSIONER: Yes. There has been some - - -
PN248
MR HEANEY: Without coming to AGAL?
PN249
THE COMMISSIONER: I suspect - I don't know whether it came to AGAL or not but - - -
PN250
MR HEANEY: Well, we haven't - I just pick up from the interchange - - -
PN251
THE COMMISSIONER: Attached to the dispute notification - - -
PN252
MR HEANEY: I am sorry, we never got any of that documentation.
PN253
THE COMMISSIONER: No, I am just letting you know all about it. There are multiple copies. Attached to the dispute notification is the exchange of e-mails that is now POAV4.
PN254
MR HEANEY: Commissioner, if we - can I assure you quite categorically we have none of that information.
PN255
THE COMMISSIONER: No. I want to tell you so that - - -
PN256
MR HEANEY: Sir, if we did get it prior to today's hearing we might have got a clearer idea as to what the dispute was about.
PN257
THE COMMISSIONER: Yes. I understand that. But look, I was going to put on the record just what the Commission does have then I will hear your response. We have the correspondence of 8 August which is POAV1, the correspondence of 15 August which I think is POAV3. No, I don't think that has even been - the correspondence from POA of 15 August.
PN258
MR ILTON: I don't think I have tabled that as yet, Commissioner.
PN259
THE COMMISSIONER: No, it has not been tabled. There is then a couple of e-mails of 17 August and - two e-mails of 17 August between Mr Madge and Mr Ilton.
PN260
MR HEANEY: Can I - - -
PN261
THE COMMISSIONER: And there are - - -
PN262
MR HEANEY: If it is appropriate I would like to formally protest. I think if we had this documentation prior to today we would have got an idea as to what the dispute was about. And if the POAV had actually used the provisions of the certified agreement prior to notifying we also might have got an idea of what this dispute is about. We are at a distinct advantage today as to case preparation and I, in my experience, have only very rarely found any advocate not being professional enough to give both parties copies of documentation they have sent to the Commission. It is certainly not our practice to engage in that sort of behaviour and only supply the Commission and not inform the other party of what they have done and I take professional umbrage at that.
PN263
THE COMMISSIONER: I will have my associate give you a copy of it all. I am not - your comments are noted. I am note sure you want me to make a response to that at this stage or not.
PN264
MR HEANEY: I think I feel better for having said it.
PN265
THE COMMISSIONER: Yes. My associate will provide you with a copy of what was done. My experience is uneven in this matter I have got to say to you. My experience is uneven. I even have some people turning up here asking what is it all about because they haven't even got a copy of the dispute notification.
PN266
MR HEANEY: Yes. Well luckily we are not at that point.
PN267
THE COMMISSIONER: You did get a copy of the dispute notification but not the attached matters. Well, can I just say that if you are in any way prejudiced by it and you want an adjournment I will consider that application after I have heard any opposition to the application.
PN268
MR HEANEY: I understand.
PN269
THE COMMISSIONER: Yes, Mr Ilton, did you conclude your matters?
PN270
MR ILTON: I was just going to refer to that particular matter, Commissioner, about giving an explanation as to why those attachments weren't faxed to AGAL. I didn't understand that that was required, Commissioner. When you look at R4 and in form R4 where you notify a section 99 dispute it does list what documentation you have to provide.
PN271
THE COMMISSIONER: Yes.
PN272
MR ILTON: And we followed that.
PN273
THE COMMISSIONER: Yes.
PN274
MR ILTON: And this correspondence that was attached - - -
PN275
THE COMMISSIONER: The complaint is not that you didn't supply it to the Commission the complaint is that you didn't send a copy of it to the respondent to the notification.
PN276
MR ILTON: I understand that, Commissioner. There is nothing here which says that one is required to do that and because it is their - it is their - - -
PN277
THE COMMISSIONER: Those who claim procedural fairness have got to give procedural fairness and it really is procedurally fair to provide documents to the other side.
PN278
MR ILTON: Well, I have noted that comment you have made, Commissioner.
PN279
THE COMMISSIONER: Yes.
PN280
MR ILTON: Because it was correspondence that had been between the two parties I knew they had that correspondence and because there was nothing here I didn't realise that it was required.
PN281
THE COMMISSIONER: No, there is nothing there and it is not - I make the point - it is not required nor was the objection taken on it being required, I don't think. The objection was taken on the lack of professionalism. Now, I indicate I am not prepared to come to a view one way or the other about that and I am not expressing a view other than my experience is that some do and some don't.
PN282
MR ILTON: Okay. I have noted your comments, Commissioner. We did fax them notification - dispute notification itself to them and that has certainly been my custom and practice that I fax the dispute notification to the employer. I haven't in the past attached correspondence that I have faxed to the Commission to the employer but I - - -
PN283
THE COMMISSIONER: You are probably better off not even faxing the correspondence to the Commission because it just adds to the pile. The chances of it being read beforehand are fairly slim. I did glance at it today.
PN284
MR ILTON: Well, there is a requirement with R4 that you provide your letter of demand and I felt that they were effectively our letters of demand.
PN285
THE COMMISSIONER: Yes, but that is talking - R4 is referable to rules 14 and 15. 14 is notification of industrial dispute relating to a log of claims. And if you look at the note about the matters in there the star says:
PN286
The original and two copies of the notification of an alleged industrial dispute arising from the service of a log of claims should be accompanied by two copies of all those items.
PN287
This was not as I understood it. An alleged industrial dispute arising from the service of a log of claims. It was an industrial dispute arising from the particular circumstances, and thus didn't require all that information.
PN288
MR ILTON: Well, I hear what - - -
PN289
THE COMMISSIONER: Maybe your rules don't have those things in there, but that is - the official rules do.
PN290
MR ILTON: I hear what you say, Commissioner. I agree there wasn't a formal log of claims. In that correspondence that I sent to you, we did - - -
PN291
THE COMMISSIONER: And lots of disputes - lots of notifications of alleged industrial disputes are not about a log of claims.
PN292
MR ILTON: Yes.
PN293
THE COMMISSIONER: So there are separate rules. Rule 14 deals with a notification of a dispute relating to a log of claims, and rule 15 relates to notifications of other industrial disputes. Form R4 covers both, but has a different set of procedures in respect to those made under rule 14 and those made under rule 15. That is all.
PN294
MR ILTON: Well, I note what you say, Commissioner.
PN295
THE COMMISSIONER: So there is no requirement to provide that information in the case of a non-log of claims dispute, to coin a phrase.
PN296
MR ILTON: Yes, I know what you say, Commissioner, and I will follow that in future. My understanding was - that that wasn't formally labelled, log of claims. But in that correspondence, we did make a number of claims and demands on AGAL and - - -
PN297
THE COMMISSIONER: No, but your dispute concerns the failure of them to apply procedural fairness, and a breach of the certified agreement. That is what the dispute about.
PN298
MR ILTON: Well, I have noted what you say, Commissioner. I am just giving an explanation as to why I did what I did.
PN299
THE COMMISSIONER: Yes, sure, I understand that.
PN300
MR ILTON: And certainly, in future, Commissioner, if there is any correspondence that has been faxed to the Commission with a dispute notification, then I will certainly provide it to the employer.
PN301
THE COMMISSIONER: Okay, and can I just make the point, while we are on this question of saving trees, service by facsimile is sufficient. You don't need to all then send a typed copy - you know, a printed copy, you can actually save some money, and save some trees. Anyhow. Had you completed, Mr Ilton?
PN302
MR ILTON: Well, Commissioner, I did have some submissions to make with regard to those other points in the proposed draft order.
PN303
THE COMMISSIONER: Well, it is up to you whether you want to make it or not, in the light of the comments I have made.
PN304
MR ILTON: Well, I think that with regards to points 4 and 5, Commissioner, I mean I have noted your comments, and it might be appropriate if we were to go into conference to discuss those matters, because it may well be that through discussion, with your assistance, we may be able to come to some understanding on those particular points. With regard to - - -
PN305
THE COMMISSIONER: Well, I will reserve your rights in respect to submissions in those points and on that basis.
PN306
MR ILTON: Fine, Commissioner. Now with regard to - you say we have more or less covered points - certainly I have covered point 2. I went to that in some detail. I did have some other comments to make on point 1 but I think perhaps the matter has been adequately covered in the discussion that - - -
PN307
THE COMMISSIONER: Well, you say the commitment - was that contained in the letter of 27 April?
PN308
MR ILTON: Yes, that - - -
PN309
THE COMMISSIONER: That sentence I read out earlier?
PN310
MR ILTON: Yes, Commissioner. Actually there is one further comment I would like to make on that, if I can.
PN311
THE COMMISSIONER: Yes, certainly.
PN312
MR ILTON: In the first proceedings, on the previous dispute, which was focussed on the reinstatement of Dr Gibson, as you will recall, the first hearing on that was actually before Commissioner Smith. And in those proceedings, if I can refer to them, starting with paragraph 77 - I beg pardon, Commissioner - 78, Mr Heaney is speaking on behalf of AGAL there. He says:
PN313
We don't think it is appropriate to go down the clause 55 path.
PN314
Now that is a reference to clause 55 of the certified agreement, which provides that if an employee in AGAL has been found to be performing unsatisfactorily, through the performance assessment process, that then there is a clause there, 55, which is about managing that under-performance. And it is what Mr Heaney is saying clearly there, that they didn't wish to go down that path. Paragraph 79, he goes on to say:
PN315
Dr Gibson's performance is not one of under-performance. This is why Dr Gibson has not then had an unsatisfactory assessment.
PN316
Going onto the end of that paragraph:
PN317
AGAL has found her work satisfactory.
PN318
Then in paragraph 82, the last sentence:
PN319
I would point very strongly there has been no loss of salary. In fact, because of the positive assessment Dr Gibson's salary has actually been increased.
PN320
Two comments to make about that, Commissioner. First of all he says, because of the positive assessment. So he is very clearly stating that a positive assessment of Dr Gibson's performance. Actually back in clause 79 he said, on balance, they had a positive assessment. And he goes on in paragraph 82 to say:
PN321
Well, Dr Gibson's salary has actually been increased.
PN322
Well, that is factually incorrect, Commissioner. It wasn't increased. And I have addressed that matter when I was referring to clause 52.6.E before, that we have discussed at some length today, that it should be paid, because of that clause. But I would say that Mr Heaney's comment there really shows an intent - well, it's factually incorrect, it certainly shows an intent to give that salary - increase, because they found her - given her a positive assessment, as he says.
PN323
With regards to item 3 of our draft order, Commissioner, we have had some discussion about that, so again I think that that might be something that is better addressed in conference, if that pleases you. So at this point I think I could suggest that we do that, Commissioner, and obviously we can reserve the right to speak again on transcript if we need.
PN324
THE COMMISSIONER: Yes, thank you, Mr Ilton. Mr Heaney.
PN325
MR HEANEY: Thank you, Commissioner. I don't propose at this point to go into conference. The little we knew from the POAV as to what their position might be, we did have some time to prepare submissions. And given they have had over an hour to put on public record their position, we would like the same right. So if there is no opposition from the Commission we have got possibly 20 minutes of things we would like to talk about. There may well be a possibility after the POAV hears our position as to the benefit of going into conference.
PN326
THE COMMISSIONER: I certainly wasn't going into conference until you had had your opportunity to put what you wanted to on the record.
PN327
MR HEANEY: I am picking up the intonations from the POAV; I am responding to that.
PN328
THE COMMISSIONER: I am giving you my - I am still in charge of the proceedings.
PN329
MR ILTON: Just a point of clarification, Commissioner, I - - -
PN330
MR HEANEY: We are lucky for that, Commissioner.
PN331
MR ILTON: I didn't intend Mr Heaney not to have his right of reply, I beg your pardon.
PN332
THE COMMISSIONER: I didn't think you did, either - - -
PN333
MR HEANEY: Commissioner, what you have got before you today is a continuation of an old matter. It has been referred to in the submissions by the POAV. But to date we have gone through three Commission hearings, one decision and now this is the fourth hearing, and I think last count, including today's draft order, is four draft orders from the POAV.
[3.38pm]
PN334
AGAL wants a resolution to what is fast becoming a dysfunctional situation. It is our view that the only method to fairly and appropriately finalise the ever of widening range of issues between AGAL and Dr Gibson, is for Dr Gibson to decide if she is aggrieved by the performance process. If she is, or if she believes she is, she should subsequently lodge a review of actions through clause 82 of the agreement. I believe that if this is done within seven days it will allow both parties to begin the resolution of an increasingly difficult situation.
PN335
It will also be acting in accordance with the agreements provisions. In reading the documentation to prepare for this case, it is my assessment that this case is characterised by a history of blocking and uncooperative behaviour by the POAV. It seems that every activity, or nearly every activity undertaken by AGAL in attempting to finalise this matter is frustrated by the POAV, either by being unavailable for meetings, instructing its members, and this is quite important Commissioner, I have not often seen this, instructing its member not to co-operate with AGALs internal processes, particularly the performance management system, or sending correspondence with claims that nullify the whole performance process that they were currently undertaking in conjunction with AGAL.
PN336
I have documents to back up the following statements, I may not have time at today's hearing to actually go through them in some detail, but I want to make some reference to some correspondence by the POAV. The major reasons that lead me to make this point are that on 23 July the POAV cancels a pre-set meeting, set for 25 July that would address the very issue of performance assessment. On 24 July the POAV instructs Dr Gibson not to give her self assessment documents to AGAL which are an essential part of AGALs ability to finalise the performance provisions.
PN337
On 1 August AGAL tells the POAV to use clause 82 if you have any concerns about the process, use clause 82, that is the appropriate process within the agreement. On 15 August AGALs letter to the POAV expresses concern about its delay in responding so we can finalise this matter. The POAV cannot attend 22 August meeting, yet that is the very reason for notifying the dispute before you today. On 20 August, the POA advises, and this is quite important given the submissions by Mr Ilton, advises that any meeting that Dr Gibson, by AGAL, without the POAV present, will be void, will be not accepted.
PN338
So how is an employer to sit down with its employee to complete the very important discussions that would lead to the completion of this performance assessment to be taken seriously if the union representing that employee, and one assumes the employee endorses the union's position, is told that any meeting between those parties without the union present will not be taken, is part of the PPD process. Unfortunately, on 22 August the day set to finalise, to finalise this whole process, Dr Gibson is unfortunately, and sometimes some may say fortuitously, she was sick so that meeting was not allowed to go ahead.
PN339
On 24 August the POAV advises Dr Gibson to not respond to any AGAL approaches because a section 99 is put in place. So the union is instructing its member, because they have notified a dispute outside the dispute settling procedures of the agreement, not to respond to any matter concerning PPD if AGAL approaches them, that to me is a quite outrageous situation, particularly when you get a letter of demand or claim saying there has been a breach of the two month rule and the employee is not at fault, or the employee's representative is telling the employee not to respond. It is pretty hard for the employer to then complete the process.
PN340
Now, there is a large amount of correspondence, and we have tabulated it and given you a document map, but quite frankly, Commissioner, it would take me quite some time to go through it and validate the points I have made. I think quite frankly we will not have time today. But rest assured at another hearing we certainly will have the time and the patience to go through it line by line. We do, and I have expressed this earlier, concerns about receiving draft orders for hearings the next day after 5pm. I have raised those concerns and say no more.
PN341
There is a large amount of relevant correspondence that, if necessary, we will talk about later. The use of the PPD system, or the performance system as I call it, an abbreviation, is fast becoming unworkable in relation to Dr Gibson and her industrial representative, in that the POAV demands that all activity on this matter be channelled through the union office. If this is accepted, it would effectively place, some would say God forbid, Mr Ilton in the position of being a de facto employee.
PN342
If we want to talk to the employee about performance we have to go through Mr Ilton, and when we do not, we get tarty letters and tarty phone calls saying we simply will not accept anything that is discussed with our employee without the union being involved. That is an unworkable situation. It has effectively, and I think dangerously, isolated Dr Gibson from contact with her employer, thereby reducing her activity and accountability. That is at total variance, and I stress, total variance to the aims of I10, professional performance and development, total at variance about it.
PN343
The POAV is attempting to create an environment, effectively, in which Dr Gibson is above and beyond the normal processes of the organisation and the obligations created by the certified agreement. In reading the correspondence attached to this case I get the sense that whilst the POAV state they want to participate, and sometimes they state it quite passionately, that they want to participate in the PPD, are doing everything possible to avoid having got Dr Gibson undergo any performance assessment.
PN344
And I stress, and we will make submissions today, she has not undergone the final performance assessment. This is an unworkable situation, and an untenable one. In this context of the AGAL agreement's performance system it is designed to, and states that, it supports ongoing and open communications between the employee and the employer, that has not happened in this case. We seek from the Commission today a very clear and succinct recommendation, that if Dr Gibson and the POAV have concerns arising from the application of the PPD system within the AGAL certified agreement, then within seven days she and the POAV be instructed to use the agreed and appropriate review of actions provisions (clause 82) within the AGAL agreement.
PN345
This will be consistent with the AIRC decision, PR905765, which is the decision, your decision of 29 June. If the certified agreement is to have any meaning and integrity, its provisions must be used and we do not believe they have been today by the POAV. And that is particularly the case in terms of dispute notifications. When reading the agreement you will find that there are specific review mechanisms for specific issues. If you go to the performance management and managing under performance provisions, you will find that the review mechanisms for employees about any aspect, and I stress any aspect, related to performance and the performance system, it is the review process set out in clause 57.1.
PN346
And I am assuming, Commissioner, you have a copy of the agreement there?
PN347
THE COMMISSIONER: Not the full agreement. But I have got all those documents from last time. There is the AGAL procedures for review of action is it, is that the o ne?
PN348
MR HEANEY: I would prefer you to read the actual - - -
PN349
THE COMMISSIONER: I think it is the first time I have actually been given a full copy of the agreement in these proceedings.
PN350
MR HEANEY: I thought you might enjoy the experience.
PN351
THE COMMISSIONER: Yes.
PN352
MR HEANEY: Clause 57.1 of the agreement states, and I quote:
PN353
Request for review of any issue relating to performance and performance management and assessment.
PN354
And that is exactly what this dispute was about, and it is exactly what the dispute before Commissioner Smith, and subsequently before yourself is about. It was breach of process in terms of performance. It will be made to the General Manager - - -
PN355
THE COMMISSIONER: I appreciate you characterise it that way, but I limited my findings in my decision to the action in removing her from office of State Manager.
PN356
MR HEANEY: And I will get to that, I understand that.
PN357
THE COMMISSIONER: I agree with you, generally, without deciding the matter, that the first port of call in respect of performance assessment is other than this Commission. And I am about to narrow this dispute too, well I think I have already done a fair bit of it in discussion in regard to the draft order, and I appreciate that you are not prepared for that because you are much wider, but my concern is that is about 52F and E of the agreement and in particular the failure to grant the salary increment.
PN358
MR HEANEY: Yes, I will address those issues.
PN359
THE COMMISSIONER: That is quite a narrow issue, that the agreement says that certain things shall be done. And they are arguing that they have not been done, and these have got nothing to do with the performance assessment process to do with - - -
PN360
MR HEANEY: They have, they have got everything to do with it.
PN361
THE COMMISSIONER: Well, see 52 - - -
PN362
MR HEANEY: Commissioner, can I complete my submissions before - - -
PN363
THE COMMISSIONER: Yes, hang on, you can, but not before I finish. See 52 provides a requirement that:
PN364
Salary advancement will be determined through effective performance under the PPD program at the time of salary advancement. The salary advancement date will remain the same as the current date that is the anniversary date at commencement of promotion.
PN365
There is then the business about the, in 52.6(f):
PN366
If a supervisor fails to complete the assessment within two months of the assessment being due through no fault of the employee, that employee's salary advancement will proceed with effect from the original due date as if the employee had been rated as effect.
PN367
Now, that seems to me to be quite different from whether or not you rate the employee as effective. The issue, and the very narrow issue is whether, because the thing was due on 30 April or 1 May, I am not quite sure which, but one of those two days. We have gone past the two months from that date, the only argument is whether or not it was through no fault of the employee. And - - -
PN368
MR HEANEY: And we will demonstrate that that is the case.
PN369
THE COMMISSIONER: Well, I would ask you to think about that. Because if you say, as seems to be in the correspondence of - well in POAV2, that the fault of the employee was to have her Association notify a dispute, then it would be almost impossible for me to find that that is a fault, given that it is a right. But, you know, there is a real difficulty in you saying that is the reason why you have taken away from her, her rights under the agreement.
PN370
MR HEANEY: Commissioner, I have not finished my submissions to you to - - -
PN371
THE COMMISSIONER: No, no, I understand that.
PN372
MR HEANEY: - - - give explanation to that - - -
PN373
THE COMMISSIONER: I am just drawing your attention to the narrow scope of what I think the dispute is about, that is the non payment of the salary increase within the time prescribed by the agreement. I am not much interested in the assessment at this stage, although - and I have not heard a lot of argument that I should be. I have heard some argument about how I should be interested in the process under items 4 and 5 of the draft order, but I have expressed a view about that.
PN374
And I hear what you are saying in regard to 3, which is following all the steps provided for in a certified agreement. I think that is a two way street that one, you are actually saying the same thing.
PN375
MR HEANEY: I think we are.
PN376
THE COMMISSIONER: Well, the bit that you are not following, or the bit which I see some force in the allegation, without having decided it, is that you have not paid the salary increase within the two month period. That is the very narrow scope and it would seem to me that that is a matter that falls outside the assessment process, it is a question of the automaticity, if you like, of the agreement clicking in if there is no fault of the employee. And there is a debate about that, I know. And now I will cease my interruption, as best I can.
PN377
MR HEANEY: Commissioner, I think, I understand your comments. My response to them specifically now, and I will go into greater depth later, is that, yes, I hear what you say but if you read the agreement, the agreement talks about performance and performance management. If you read the agreement, the actual agreement, if you start at clause 51, people management, that whole system of clause 52 onwards is captured by clause 57. If you have got a concern about the application of that I do not believe we can pick and choose what part of that clause is covered by clause 57.1, I think that is a universal application for the use of the performance system.
PN378
The POAVs claim falls within the province of 57.1. I do not think we - this is not an industrial supermarket, we are not walking down the shelves and say I will have a bit of that clause and a bit of this clause, you take one, you take the lot. I do not believe we have got discretion to pick what are favourites and leave the ones we do not like. If you read that clause it takes you then to clause 82.1.
PN379
THE COMMISSIONER: So are you really saying that if I am half way right about 298K, then they are excluded from going to the Federal Court to prosecute you for breach of the provisions of 298K; or are you saying - - -
PN380
MR HEANEY: The POAV are totally within their rights to test that argument.
PN381
THE COMMISSIONER: Well, that is right. But are you also saying that if they consider that you are in breach of the agreement by not - - -
PN382
MR HEANEY: No, I am saying - - -
PN383
THE COMMISSIONER: No, hang on. If they are in breach of the agreement by not paying the salary assessment in the two month period, assuming that that argument is right, that they cannot go to the Federal Court to prosecute you for breach of the agreement. Because that is what request for review of any issue - - -
PN384
MR HEANEY: I am saying before you go to the Federal Court - what I am saying, before you go to the Federal Court, or before we both go to the Federal Court, they would have to satisfy, because the Federal Court would ask, why haven't you satisfied the obligation under 57.1 by doing a review before you get here? That would be the first question I would ask if I was on the Bench of the Federal Court; what are you doing here without completing clause 82?
PN385
And not only 82, why are you here in front of this Federal Court about this matter when you haven't even fulfilled your obligations under the decision of June 29, by Commissioner Simmonds, which tells you to do exactly that. That is, if I was on the Federal Court, would be the words I would be using. But in relation to clause 82.1, which I take you to now, it says:
PN386
Employees have access to an effective and fair avenue for reviewing employment and related actions including access to independent mediation or enquiry, if necessary through AGALs review of actions and policies.
PN387
Now, Commissioner, this is an observation of mine, and it is, I am not instructed to say this, but I have actually gone through this dispute from its birth right through to young adolescence before you today, but these type of issues, and no offence to the Commission, but I do think these type of issues with their plethora of detail and minutia, would be better handled in the first instance, and I am not talking about jurisdiction, I am talking about in the first instance, by applying clause 82.1.
PN388
It allows an independent mediator, or enquiry officer or investigating officer to go through, it took me three days, it took me literally three days to read this and understand what it says. And I think quite frankly, Commissioner, unless a person is prepared to do that you will not understand exactly what has happened, you will not be giving justice to AGAL, nor to Dr Gibson. The only way to do justice to both of those parties is to do 82.1. And you actually recommend that - - -
PN389
THE COMMISSIONER: That is if you were to review the whole process. But look the dispute has got that narrow compass as to whether or not the assessment - sorry, there is no doubt that a supervisor has failed to complete the employee's assessment within two months of the assessment being due, no doubt about that. The only issue is whether it is through no fault of the employee.
PN390
MR HEANEY: And I will demonstrate that.
PN391
THE COMMISSIONER: And that is the only issue about which I am really - reserving his rights, Mr Ilton's rights, I am not going to be in the process of putting this Commission in place of that review process of the performance assessment.
PN392
MR HEANEY: And my question to you, Commissioner, is how can you decide that you want that particular clause and not the rest?
PN393
THE COMMISSIONER: Hang on, but where I really have the difficulty is that we have got an agreement which has some application, and it says, I mean if you are saying, and I think you are, that the resolution of whether or not it is through no fault of the employee lies in a process that the General Manager sets up and does not lie in this process, well that seems passing strange, because it does not involve a consideration of the detail of the assessment that has been made, it does not involve a consideration of who has done what to whom and when, all it does involve is a consideration of whether or not the failure of the supervisor to complete the assessment was through no fault of the employee, that is all it requires. And that is a very narrow compass.
PN394
MR HEANEY: Well, I am just curious, Commissioner - - -
PN395
THE COMMISSIONER: The sort of thing I would venture to say, the Commission is pretty good at.
PN396
MR HEANEY: I agree, I agree, no denying that at all, absolutely. My query to you, Commissioner, is why do you have a passion for that particular clause and enforcing that one, enforcing that clause, and you will not enforce the other appropriate clauses that relate to that clause, that is what I do not understand by your comments.
PN397
THE COMMISSIONER: Sorry, which other ones that relate to that?
PN398
MR HEANEY: 50 - 57.1.
PN399
THE COMMISSIONER: Look, I would have no difficulty in doing both. It seems to me, to be open to me to say that 52.6(e), and I am not saying it, but it would be open to me to say 52.6(e), gives the employee a right to get the pay increase, but it in no way affects whatever the assessment is going to be.
PN400
MR HEANEY: So, Commissioner, can I get it clear in my mind, because obviously I have got to instruct my client, are you saying that effectively an employee, if you ruled that way - - -
PN401
THE COMMISSIONER: Well, I think 52.6(e) says, that if - - -
PN402
MR HEANEY: An employee can get their satisfactory - a wage increase, then the next pay point; access to the next pay point, and still be deemed unsatisfactory.
PN403
THE COMMISSIONER: I think so.
PN404
MR HEANEY: That is what you are saying.
PN405
THE COMMISSIONER: Because I think if you look at (e) - - -
PN406
MR HEANEY: Is that your interpretation - - -
PN407
THE COMMISSIONER: I think so, I think so. Well, if you look at - - -
PN408
MR HEANEY: It is certainly not mine, but I would be interested to know if that was yours.
PN409
THE COMMISSIONER: Well, have a look at 52.6(e) very clearly:
PN410
If a supervisor fails to complete the employee's -
PN411
Let us assume for the moment that it is through no fault of an employee, then all 52.6(e) goes on to say is that employee's salary advancement will proceed with effect from the original date as if the employee had been rated as effective. It does not say that the employee has thus been rated. In other words, it puts the - - -
PN412
MR HEANEY: But there is a - - -
PN413
THE COMMISSIONER: Hang on, where it is directed is to put the obligation on the employer's supervisor to conduct the assessment within two months. The result of them not doing that is that the employee gets the salary advancement. The employer has still got the right, however, to find that the person is, what is it, not satisfactory I think it is, isn't it?
PN414
MR HEANEY: Yes. Unsatisfactory.
PN415
THE COMMISSIONER: It is a go/stop option.
PN416
MR HEANEY: It is effective and unsatisfactory.
PN417
THE COMMISSIONER: Yes. So they can still find it is unsatisfactory. Because if it wasn't the words would not be there as if the employee had been rated as effective. In fact you would do it much more simply:
PN418
If a supervisor fails to complete an employee's assessment within two months of the assessment being due through no fault of the employee they shall be rated as effective.
PN419
MR HEANEY: Well, I must submit - - -
PN420
THE COMMISSIONER: And it is not saying that.
PN421
MR HEANEY: Well, I must admit, I never took that interpretation. But it does seem to me that if AGAL, and we are not saying this is going to happen, hypothetically, we could pay Dr Gibson her next increment pay point and still find her unsatisfactory.
PN422
THE COMMISSIONER: Unsatisfactory, yes. You might run into a bit of an estoppel problem in regard to the letter of 27 April, but that would be another problem for you.
PN423
MR HEANEY: I do not believe we do. I think your decision nullified that.
PN424
THE COMMISSIONER: You might run into an estoppel problem about that, I did not say you will.
PN425
MR HEANEY: I do not believe I will. But my question to you, Commissioner, is 52.5(f):
PN426
Salary advancement will be determined through the effective performance -
PN427
THE COMMISSIONER: Yes, but I think it is subject to that - - -
PN428
MR HEANEY: So how do you - - -
PN429
THE COMMISSIONER: We are still talking about salary advancement. Yes, but I think 52.6(e) qualifies that, it clearly does, otherwise it would have no work to do at all. If 52.5(f) was to apply - - -
PN430
MR HEANEY: Commissioner, I think we are getting into the realms of interpreting - - -
PN431
THE COMMISSIONER: I think that is what 170LW says, and it is certainly what the High Court said, I can do it, in the case of a dispute about the application and agreement.
PN432
MR HEANEY: Well, I must admit, if we can get clarity - if we can get, and we are not saying today, necessarily today, I mean we have flight problems like you do.
PN433
THE COMMISSIONER: My problem is nowhere near as big as yours.
PN434
MR HEANEY: But if I can just complete it, that is an interesting - and we would love to get the transcript so we can read your comments more closely. The agreement has specific review mechanisms for specific issues and there is general dispute mechanisms for matters covered within the agreement or the application of the agreement. The specified review mechanism for performance management and performance assessment in relation to any assessment of under performance, takes the employee and their representatives, should they wish, to disagree process to clause 82(1). If you like, to a review part, which process - - -
[4.01pm]
PN435
THE COMMISSIONER: Can you just go back a couple of sentences there? You have got it written down.
PN436
MR HEANEY: Sorry, I have got a dry mouth, I am just getting over a cold. The specified review mechanism - - -
PN437
THE COMMISSIONER: It was back a bit before that, I think.
PN438
MR HEANEY: The agreement has specific review mechanisms for specific issues and there is a general dispute mechanisms for matters covered within the agreement and - or the application of the agreement.
PN439
THE COMMISSIONER: Yes.
PN440
MR HEANEY: There is specific review mechanisms for the performance system and the performance assessments in relation to any assessment of under-performance takes the employee, should they wish to disagree with the process to clause 82. If you like, to a review process, which is in two parts. One at the agency level and one at the merit protection, or the PSMPC that - - - now, I do not know how good your memory is, Commissioner, but I still feel the heat from your comments, I am sure Mr Worthy does, when we were talking about this issue last in the larger room.
PN441
This is an issue relating to the application of clauses 52, 55 and 56, i.e. performance, and in that situation there are procedures set out in the agreement which exclude the operation of the dispute settlement procedure in the agreement and direct the employee to the review of actions clause. The whole issue is covered extensively in the previous hearing on this matter on 18 May 2001 in case number C2001/2161 between paragraphs 339 and 353.
PN442
Mr Worthy, for AGAL, placed on record the view that the review of actions provisions is the obligatory route to take for employees whom have a disagreement with a performance assessment and the under-performing processes of the agreement, not the dispute settling procedures. AGAL believes that this matter has already been determined by the Commission's decision, PR905765. The matters in dispute at that time relate to those that are before you today, i.e. Dr Gibson's dissatisfaction with the application of the performance proceedings within the agreement.
PN443
The application, I say again, dissatisfaction with the application of the performance procedures of the agreement, i.e. clauses 52 - 51, really, right through until 57, taking out clause 53 which do not really matter, they are learning and development, but that whole section of the agreement is the sum total of the issues before you. If I can take you to that decision of yours, Commissioner, PR905765, I take you to point 10 where you say:
PN444
In this case it is clear that Dr Hart's decision is related to Dr Gibson's performance and in these circumstances ...(reads)... clauses 55 and 56 -
PN445
i.e. the under-performing clauses -
PN446
have much work to do. They have not - - -
PN447
THE COMMISSIONER: No, no, "must have work to do".
PN448
MR HEANEY: "Must have work to do", there you are, I am running ahead of myself: "must have work to do. They have not been used in this case." Most importantly I would like to conclude this part of my submissions by referring you to point 11 of that decision, halfway down the - really halfway down that paragraph and it begins, the sentence really begins, "Should AGAL continue?" The point I want to refer to particularly there is those words that state that the procedures provided in the agreement should be followed with Dr Gibson having access to the review processes set out. AGAL has now completed the performance assessment, sometimes under the very trying circumstances, but we have completed that process and it is this process that Dr Gibson has problems with.
PN449
Yet the POAV has not followed the above decision of the Commission, nor have they followed the agreement. They would rather forum shop by notifying another dispute to this Commission, rather than going through the agreement processes, even though they were told to do so, both parties were told to do so, if they had concerns. AGAL seeks of the Commission no more than you gave us on 29 June. That is, the adherence to point 12 of your decision meaning that Dr Gibson should take this matter through the review process, this is clause 82, not through this Commission.
PN450
This would be consistent with the AGAL certified agreement and your decision of 29 July - June, sorry. I would point out that we are in a position of putting far greater detail to substantiate a lot of those points and I would hold off from doing that because I want to, quickly given the time, respond to some of the points made by the POAV. I do stress that our opening proposition, that the parties considered to try and limit - try and corral it or quarantine this dispute. It seems to be spreading like foot and mouth disease. We can quarantine this by agreeing between ourselves, hopefully at a short conference, that they make a decision within seven days or not for a review of actions and have that process undertaken and if AGAL has got any control of that, to have that completed expeditiously, and I say that with sincerity, to try and get through the details of what has been put for the parties, because quite, frankly, Commissioner, to do otherwise does mean that we would need quite substantive hearing time to go through the minutiae of what has been done because what you are actually saying is that no, we will not do '82, I will do it. Now, Commissioner, without in the least bit appearing threatening, we would need a great deal of time to go through it.
PN451
THE COMMISSIONER: I do not propose to do that, I assure you. There is clearly - can I just make the point there is clearly a dispute about the application of the agreement, that is whether or not Dr Gibson should in the circumstances access a pay increase. That is the limit of the dispute. It is about the application of the agreement. It is not to do with a review process. I would not have thought that it is any job of the person conducting the review process to decide what the terms of the agreement are, or to interpret the agreement, and it is clearly a dispute about the interpretation of the agreement.
PN452
MR HEANEY: That is right and to make a determination or a decision on that you would have to have rather extensive submission - - -
PN453
THE COMMISSIONER: I would have to be able to come to a view as to whether it was through no fault of the employee. That is all.
PN454
MR HEANEY: Absolutely, absolutely, and that - and that - - -
PN455
THE COMMISSIONER: But I do not think - you know, this is why I think there is a bit of tilting - there is a bit of a straw man in your argument. Maybe there was not, because maybe you perceived that the dispute was wider than it is.
PN456
MR HEANEY: Oh, I think I did. I think I did.
PN457
THE COMMISSIONER: I do not see it being any wider than that. The issue of whether or not there was a commitment to having satisfactorily - there was an assessment, that is an issue that you can fight out somewhere else, it is not for me. That is poor. I agree that that is for the review process of her performance but the issues about the application for the agreement - and I think it is very easily stated that I do not believe, reading the agreement as a whole, as you invite me to, invited me on another occasion to do, that 82.1 goes to or empowers anybody to interpret the agreement in any way at all. What it does is to allow them to review actions in respect of assessment. It does not empower whoever is doing that to decide whether or not the supervisor has failed to complete any employer's assessment within two months through no fault of the employee and thus fail to pass on the increase. I think that clearly is not what it is about, and to the extent the dispute can be narrowed to that, I think there is ample scope, both within my earlier decision, and I do want to take you to paragraph 12 of that decision because I did express the concern that the time lines laid down in the agreement may not be to the advantage of AGAL or of Dr Gibson.
PN458
MR HEANEY: That is right.
PN459
THE COMMISSIONER: But it was not for me to alter the agreement.
PN460
MR HEANEY: I understand.
PN461
THE COMMISSIONER: And I suspect that you are - I was more precise than I thought I was being.
PN462
MR HEANEY: You have been very much the oracle.
PN463
THE COMMISSIONER: But that is where you - anyhow.
PN464
MR HEANEY: Commissioner, what we have got is a situation of an application of an agreement and a disagreement as to how it should apply. I suppose if we are going to go down that argument, interpretation of that agreement, it is a question that I suppose we all should think fairly seriously about. We have made our view quite clear. We believe that 82.1 should be given a run for its money. It has not been used, you have recommended it be used. In terms of - - -
PN465
THE COMMISSIONER: I still do in regard to the assessment of the performance.
PN466
MR HEANEY: Yes. We do not believe it can be segmented or quarantined from the total performance clauses, we do not believe that is possible. But given that - - -
PN467
THE COMMISSIONER: What happens if the person appointed to do it comes to a view that is opposite to the view of the union and the union then takes that - - -
PN468
MR HEANEY: Then they take that to the Federal Court.
PN469
THE COMMISSIONER: - - - back to 170LW, about the application of the terms of the agreement.
PN470
MR HEANEY: They take it back to the Federal Court for an interpretation.
PN471
THE COMMISSIONER: No, they come here. The High Court makes it very clear that the Commission acting as a private arbitrator can interpret the agreement. When it comes to the application of the agreement, it is the Commission that has got the power, you have ceded the power to the Commission to interpret it.
PN472
MR HEANEY: That is true.
PN473
THE COMMISSIONER: They come back here and if I come to the view that the reviewer has come to the wrong decision on that, do you really want that?
PN474
MR HEANEY: It is your call, Commissioner, it is not mine.
PN475
THE COMMISSIONER: Hey, hey, you are at the moment saying that it ought not be segmented.
PN476
MR HEANEY: Mm.
PN477
THE COMMISSIONER: Look, it might be best if we just go off the record for the moment, if I could, please.
OFF THE RECORD
PN478
MR HEANEY: In relation to - I am just trying to think where I was. If I can recap, Commissioner, I am not quite sure where we left off. We re-affirm the fact that we believe that the resolution to this dispute in its immediate sense would be to take the position of, having seven days for the POAV to decide, or particularly Dr Gibson, to decide whether she is aggrieved and if necessary activate actions under the review of actions procedures in clause 82. In doing that we believe that the absolute detail of this dispute can be gone through appropriately and the agreement itself would be adhered to properly.
PN479
In responding to some of the questions raised by the POAV, if I can draw you to a letter, it is 17 August, the POAV, I think it is one of their submissions - no, it is not. One of the letters of 17 August and it is document number 17 of this exhibit.
PN480
THE COMMISSIONER: I will mark that as AGAL1.
PN481
PN482
MR HEANEY: Document 17, it says: "Following receipt of the email this letter is rejecting our request for an alternate date for meeting, the performance assessment of Dr Gibson is before the Commission." Now, when we got that we understood that this dispute would be about meeting dates and terms of the processes of that particular agreement. In terms of the next document numbered 19 dated 20 August by the POAV signed, Phil Ilton:
PN483
With regard to the performance assessment of Dr Gibson, the POAV wishes to advise that any meeting ...(reads)... or Dr Gibson as part of the performance assessment process as determined by the AGAL certified agreement.
PN484
So what that means is, unless Mr Ilton is sitting in the room, and we have got to consult with Mr Ilton to actually get him to sit in the room, the employer is simply not able to completely the process of the performance assessment system.
PN485
Now, in no other circumstances has this happened with any other employee. The performance assessment system itself, under I(10), which is a POAV exhibit, says quite clearly right throughout:
PN486
It is to encourage managers and employees to share communication, to have a closer working relationship, to have informal day to day feedback.
PN487
How is the employer able to complete the PPD process when we get letters from Dr Gibson through the POA that none of that is to happen unless Mr Ilton is sitting in the room? It does not allow us to complete that process. It simply does not allow it.
PN488
In terms of document 23, which is an email from Phil Ilton to Viv Madge, who is the HR manager for the organisation, AGAL, second paragraph:
PN489
I wish to indicate that the POAV has advised Dr Gibson it would be inappropriate for her to respond any further at this stage ...(reads)... and the matter has been placed before the Commission.
PN490
So what you have got, Commissioner, you have got the POAV accusing us of stopping the process because of the section 99 as being invoked, yet on 24 August an email from the industrial office of the organisation representing the employee who says they are aggrieved, making it absolutely clear, do not talk to the employer to finish the PPD system, because I have notified a dispute. The employer's rights, obligations to complete this process has been frustrated simply because a piece of paper under the act has been put into the system, a section 99 has - they are using that justification to cease and desist any action on the completion of the PPD. What is AGAL to do? What AGAL is to do is we get a letter of claim saying: you have not met your two month time line, pay the money. How do you expect us to react to such activity?
PN491
Now, in terms of this whole detail we strongly suggest that we go back to 82.1 and try and solve it that way. The reason we want to go back to that is because right throughout the transcript, right throughout the transcript, and if I can, Commissioner, is it okay to take you to the transcript? We talk about - sorry - the POAV has talked about AGAL not assessing this person and therefore appropriately and being in breach.
PN492
When we talked about the very original dispute notification and before Commissioner Smith on 9 May the issues were exactly the same, and I understand, and I am not walking away from the fine points you made about the two month rule, I am not saying that, I understand that and I have not forgotten it. I am talking about the total process, because it is the total process that affects the clause you are particularly worried about. We are saying we have not had the ability to complete the process because of the activities. On 9 May Mr Ilton on paragraph 10 goes on to say: "We do not believe that due process was followed and this is why we've notified the dispute," i.e. the very reason we are here again today.
PN493
It goes on to say at paragraphs 153 on 7 June before yourself:
PN494
We believe for Dr Gibson to be appropriate assessed in her role as manager, Victoria, she needs to be in a position ...(reads)... in another position.
PN495
It is that very submission, and the dates between these submissions, that has frustrated AGAL in assessing it. We would have ended up - we could not have won that argument if we assessed her in the - when she was caught between the universes, I - what we thought was in the principal research officer's position, we have the advocate and the Commission hearing - putting argument that do not assess her in that position. The employee's representative is saying: do not assess her. Now, either Phil Ilton is giving submissions and argument without Dr Gibson's authority or they are with her full authority. If they are will her full authority you cannot get much plainer then: do not assess me until I am back as manager of Victoria. She was not back in that position until your decision. How can we satisfy those requirements?
PN496
THE COMMISSIONER: That is a bit artificial, is it not? I mean, she had been in - - -
PN497
MR HEANEY: Not in the least.
PN498
THE COMMISSIONER: No, she had been in the - the assessment was meant to commence a month beforehand. The assessment - let me put it this way, and I note from the correspondence that Dr Hart was able to assess her in the position before she was in it, that is the position that she was going to put her in when - well, the position she put her in when she took her away from the position as manager of Victoria. On 27 April she was not in whatever that position was, but she was prepared to assess her as satisfactory, so she was prepared - - -
PN499
MR HEANEY: She intended to.
PN500
THE COMMISSIONER: Hang on, yes, but that does not cover much ice with me. She was going to assess her as satisfactory. Now, if she could do that without observing how she performed she would certainly be able to assess her at that date as if she was in the Victorian manager's position because she had been in the Victoria manager's position for 12 months.
PN501
MR HEANEY: I do not think so, I do not think so.
PN502
THE COMMISSIONER: You know, and that is just artificial, that whole argument. But look, the rest of it is that we make the - without - I do not know how I can make this point without deciding the matter, but you know, we are under some time pressure. There is no application before me as I see it that I should conduct the review of the assessment and if there were, I would not be party to it because there is a procedure laid down in the agreement and that is where it has got to go and I note from the papers, from a quick reading of Exhibit AGAL1 that an assessment has been carried out - - -
PN503
MR HEANEY: It has not been finished.
PN504
THE COMMISSIONER: Well, there is an assessment - - -
PN505
MR HEANEY: It has not been - it has been finished - - -
PN506
THE COMMISSIONER: There is an assessment been made.
PN507
MR HEANEY: Of unsatisfactory.
PN508
THE COMMISSIONER: Yes. Now, if there is a problem with that they had better get on doing whatever they have got to do about that because this Commission is not going to judge that one way or the other. But there is a dispute about what pay rate Dr Gibson should be getting and that dispute - - -
PN509
MR HEANEY: Commissioner, if we are going to go into submissions about that, I think we certainly would not want to think about the arguments.
PN510
THE COMMISSIONER: And I put - because I think there is an interpretation of that clause that you need to consider. I am not asking anyone to resolve that, but I am making the point because the time is ticking on. There is no application before me that I hear that I should review the assessment decision, none whatsoever. There is a process contained in the agreement for review of those decisions and I have heard what is being said about that and there may or may not be time limits to that, I have not looked at the detail, but if there are, people get winding, it seems to me.
PN511
MR HEANEY: I do not think there is - I do not think the agreement has a time limit on the review process.
PN512
THE COMMISSIONER: Well, then I would encourage people to get winding on that as quickly as possible.
PN513
MR HEANEY: If they were going to do so.
PN514
THE COMMISSIONER: Issues about process would clearly be amongst the issues that would be taken up in that review of the action.
PN515
MR HEANEY: Commissioner, I - - -
PN516
THE COMMISSIONER: Whether or not people have been notified, whether or not people have been properly represented would be matters for the reviewer to take into account in coming to a judgment about whether the assessment was correct or not.
PN517
MR HEANEY: But Commissioner, what - I understand what you are saying, but there is one point I want to actually get clear in my mind because I do not think either Mr Madge or I or Dave Worthy who is involved in this case, understands your interpretation. That is, that Dr Gibson can be found to be unsatisfactory and still get her - because that is what you are saying.
PN518
THE COMMISSIONER: Well, because - - -
PN519
MR HEANEY: I am not arguing the toss with you. I am just saying is that what you were saying?
PN520
THE COMMISSIONER: No, I think - I will take you through it again because it seems to be making a - 52(6)(e) is making a distinction between getting the salary advancement and getting the assessment. If the assessment is not done, they would get the salary increase. But that in no way prevents the laboratory from conducting and concluding the assessment.
PN521
MR HEANEY: I understand that. Commissioner - - -
PN522
THE COMMISSIONER: It goes back to what I said before, that if it all hung on 55(5)(f), then you would not need - and that is really what your argument is - then 52(6)(e) would have no work to do and would not be there, but 56(e) does have something to do and the bit I say it has to do is: is the assessment is not carried out, the penalty on the employer is they have got to pay whichever way the assessment goes.
PN523
MR HEANEY: Okay. Can I cut to the quick, as you say?
PN524
THE COMMISSIONER: Yes.
PN525
MR HEANEY: We do not have much time. We have got aeroplanes to catch, as do you, I understand.
PN526
THE COMMISSIONER: Yes.
PN527
MR HEANEY: If you are going to cogitate on which way to move on this issue, I want to paraphrase one or two more points.
PN528
THE COMMISSIONER: I am not going to make any decision now. I was going to give you the opportunity to - but, look, that was why I said what I just said a minute ago.
PN529
MR HEANEY: Well, if that is the case, can I just finish one or two points, then I will - - -
PN530
THE COMMISSIONER: Because I am concerned that Dr Gibson or Mr Ilton might see the other words I might have said today as encouragement for the belief that the Commission is going to consider the process or the results of the assessment.
[4.33pm]
PN531
MR HEANEY: You're saying you are not?
PN532
THE COMMISSIONER: Beyond the mere application of the agreement. Because I don't think that there - and I want to be very clear about this, I've said it, and there's been nothing said so far. I don't want to finally determine it, I want to reserve everybody's right. But I'm conscious that Dr Gibson's got some rights in this whole process that I don't want to see lost. And I wasn't sure whether there was a time limit or not.
PN533
MR HEANEY: No, no, no.
PN534
THE COMMISSIONER: But ultimately you don't want to have the whole thing hanging over you. It seems to me that the scope for the Commission is relatively narrow, it does not go to the process of the assessment, except where it is specifically provided for in the clauses of the agreement. Now, the question of whether they are paid the increment, where there is no fault of the employee, is one such thing. There is an argument about whether natural justice, procedural fairness, call it what you will, should be afforded.
PN535
I incline to the view that the only time that happens is where there is a dispute - you know, the question of representation is where there is a dispute settlement procedure invoked, and it is quite clear that the dispute settlement procedure has not been invoked on this case. And there would seem to me to be little scope to invoke it, because there is another procedure laid down in the agreement for dealing with it. It would be a matter for the reviewer to give whatever regard the reviewer felt obliged to, about whether or not there had been appropriate procedure.
PN536
MR HEANEY: Can I make - I understand that.
PN537
THE COMMISSIONER: And all of those points about them saying that - - -
PN538
MR HEANEY: To enable to you to sort - some time to sort of give us directions at the end, I have just got one or two points to make. To make it very clear about your concerns about our letter that go to the not reviewing it because of the section 99 - - -
PN539
THE COMMISSIONER: That was in - - -
PN540
MR HEANEY: We didn't do that because quite frankly, when we gave advice to AGAL, we looked at the transcript, and it says here at paragraph 153, Dr Gibson is saying through Mr Ilton:
PN541
Do not review me until I'm back in that position.
PN542
THE COMMISSIONER: Yes.
PN543
MR HEANEY: We go on to say at 154:
PN544
Mr Ilton says, she needs to be doing the duties of the job before you review her. She wasn't in that job until you put her back in there.
PN545
THE COMMISSIONER: I am conscious of those arguments and I am not going to be deciding the matter - I am certainly not going to be deciding the matter as to whether it was through no fault of the employee today, on the basis of what has been put. I am sorry, I didn't make that clear.
PN546
MR HEANEY: No. No, I thought you were.
PN547
THE COMMISSIONER: I was drawing your attention to the interpretation so that you could - no, no, no, no, no.
PN548
MR HEANEY: I am sorry, I got the impression you were.
PN549
THE COMMISSIONER: I am attempting to direct the parties' thoughts. I keep saying, I'm not deciding the matter. The issue of whether it is through no fault of the employee is an issue of fact, and there is not enough before me to come to that view.
PN550
MR HEANEY: No, I didn't think so.
PN551
THE COMMISSIONER: Not enough to come to that view at all. I simply noted on the way through, that there was the assertion POAV2, that the sole reason, the reason was that. Now, I hear what you are saying about it being other causes, and I'm not going to cut you off to allow that argument. But that argument, I think, properly belongs with me. The other arguments don't.
PN552
MR HEANEY: I understand that, Commissioner. I understand what you say. In relation to our time - - -
PN553
THE COMMISSIONER: In relation to going into conference, we are out of time, I think.
PN554
MR HEANEY: I think - I'm sure we are. We are certainly not interested in going into conference today. We actually have to be out of the building by about five.
PN555
THE COMMISSIONER: I will get you out of there by then.
PN556
MR HEANEY: If there is to be another hearing, and I think there might well be, unless the POAV and AGAL can sit down and nut this through.
PN557
THE COMMISSIONER: Well I am going to go off record for a moment to talk about those things.
PN558
MR HEANEY: Yes, if there are hearings, can we have the next one in Canberra?
PN559
THE COMMISSIONER: Yes, I said that. I will go off record.
OFF THE RECORD
PN560
THE COMMISSIONER: The proceedings will adjourn until 10.00 am on Wednesday, 17 October in Canberra.
ADJOURNED UNTIL WEDNESDAY, 17 OCTOBER 2001 [4.46pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #PI1 LETTER PN70
EXHIBIT #PI2 LETTER FROM MANAGER OF HUMAN RESOURCES AT AGAL PN71
EXHIBIT #POAV3 LETTER REFERRING TO MEETING HELD ON 06/07/2001 PN137
EXHIBIT #POAV4 SERIES OF E-MAIL EXCHANGES BETWEEN MR ILTON AND MR MADGE PN141
EXHIBIT #POAV5 DRAFT ORDER PN177
EXHIBIT #AGAL1 LETTER DATED 17 AUGUST PN482
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