C2001/5545, Transcript of Proceedings [2001] AIRCTrans 3109 (15 November 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 1104
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2001/5545

NATIONAL TERTIARY EDUCATION
INDUSTRY UNION

and

UNIVERSITY OF NEW ENGLAND

Application under section 170LW of the Act
for settlement of dispute regarding the
alleged failure of the University to comply
with provisions of clauses 62 and 63 of
the agreement

MELBOURNE

4.34 PM, WEDNESDAY, 31 OCTOBER 2001

THIS MATTER WAS HEARD VIA TELECONFERENCE AND RECORDED IN MELBOURNE

PN1

MS M. RANGOTT: I appear on behalf of the National Tertiary Education Industry Union.

PN2

MR C. BURRELL: I appear on behalf of the University of New England with MS K. ADAIR.

PN3

THE SENIOR DEPUTY PRESIDENT: I have received, apart from the notification, a small collection of documents from Ms Rangott. Do you have them, Mr Burrell?

PN4

MR BURRELL: Yes, I received them this morning, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, well, I got them when I arrived in Melbourne this afternoon, but I have had the opportunity to read them. Well, Ms Rangott, what are we doing?

PN6

MS RANGOTT: Thank you, your Honour. Your Honour, as you have probably noted from the documentation, this matter relates to an academic staff member of the NTEU, Dr Nadine Pelling. Just briefly to provide some background to the matter, Dr Pelling has been employed as a lecturer in counselling in the School of Health at the University of New England for a period of 12 months. Dr Pelling has tendered her resignation which takes effect this Friday, 2 November, and obviously this has led to the urgency of the matters in dispute being lodged.

PN7

Dr Pelling has been advised by the University that she is liable to refund part of the expenses which were paid by the University for Dr Pelling's travel and her removal costs from Canada to Armidale. Dr Pelling has been advised that as she tendered her resignation within a two year period of taking up employment, the payment made by the university for the removal and travel costs are now being treated as an over payment. This advice to Dr Pelling was provided in correspondence dated 23 October which was one of the documents that was faxed to your Honour this afternoon.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, I have read that.

PN9

MS RANGOTT: As you will have noted, your Honour, Dr Pelling has been advised that the removal costs and expenses have been calculated at $16,169. The University has then recouped this amount by 50 per cent in recognition of Dr Pelling's 12 months' service and that obviously leaves an amount of approximately $8000. The University initially proposed in this correspondence to withhold Dr Pelling's final salary payment of $2077 to cover part of the amount and then requested that Dr Pelling make other arrangements for repayment of the remaining amount of the debt.

PN10

In doing so the University in withholding - in initially withholding this amount sought to rely upon Dr Pelling's letter of appointment which again was faxed to your Honour and this document is dated 23 December 1999.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, I have read that.

PN12

MS RANGOTT: Your Honour, if I can just draw your attention to page 2 of that letter. The bottom paragraph on page 2 states that:

PN13

If you -

PN14

that is Dr Pelling -

PN15

leave the service of the University within two years of taking up your appointment, other than by termination by the University, you may be liable to refund whole or part of the appointment expenses.

PN16

It then goes on to page 3 to state:

PN17

That the University is obliged to recover all over payments should an over payment of your salary ...(reads)... may make reasonable deductions from your salary to recover the debt.

PN18

And it then goes on as in the case with the University claims with Dr Pelling:

PN19

If at the termination of your employment with the University you have a debt to the University, you agree that the university may deduct the amount owed from your final payment.

PN20

Your Honour, after Dr Pelling received the advice from the University that they were seeking to recover this debt, the union notified the existence of an industrial dispute under clause 63 of the University of New England Academic Staff Enterprise Agreement and a - the case related to the intention of the University to deduct moneys from Dr Pelling's salary without her specific authority.

PN21

We also notified the existence of a grievance under clause 62 of the enterprise agreement on behalf of Dr Pelling and this grievance related to a number of matters, including the attempt by the University to recover the cost and also to withhold Dr Pelling's salary when she considered that there were a significant number of issues associated with her employment that she wished to discuss further with the University with a view to arguing that these matters mitigate the costs and in fact should - that the University should take these issues into account and she was seeking to in fact negotiate the debt she not be paid at all. These items were outlined in our letter of 24 October which your Honour should have in the documents that were faxed.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

PN23

MS RANGOTT: In response, the University in a letter of 25 October, which again your Honour should have, that the University now intends to pay Dr Pelling her final fortnightly salary, but that it would still withhold payment of her annual leave. And in doing so the University sought to continue to rely upon the provisions of Dr Pelling's appointment letter. Your Honour, the reason why we have sought the assistance of the Commission is that we believe this case raises several questions and areas of concern for the union and has consequences for all staff at the University.

PN24

Firstly, Dr Pelling has notified a grievance in relation to the recovery of costs and in relation to the withholding of her annual leave. This notification of a grievance was made in accordance with the Enterprise Agreement. Clause 62.7 of the grievance settling procedures states that - just to read an extract of that:

PN25

If a decision with respect to the employment of a staff member is the subject of a grievance, the University will not implement the decision until this procedure has been followed, or until the grievance is settled.

PN26

So that we say that the action by the University to withhold payment of annual leave, despite a grievance notification being lodged, is a breach of the agreement. We also wish to note that we have in fact set a meeting in Armidale for tomorrow to be held between Dr Pelling, myself and the University to discuss these matters and to attempt to resolve the issues of concern for all parties. And we say that this is a further example that the grievance settling procedures are in fact in train and that the University should allow those procedures to be followed and not make a decision, or not take any action to withhold her annual leave until the proper grievance settling procedures have been followed.

PN27

Secondly, we also state that the annual leave provisions, which are in fact under clause 40 of the Enterprise Agreement, have also been breached and it is important to note that prior to notifying her resignation, Dr Pelling had made a request to take three days' annual leave. This request was approved. However, once Dr Pelling notified her resignation the approval was retracted on the basis that there was a question over her eligibility for the leave. In the circumstances, and in light of the subsequent correspondence received by Dr Pelling, it would appear that the University withdrew the approval for Dr Pelling to take her annual leave in order to recoup part of the costs of the removal expenses. And again, we say that this is a breach of the Enterprise Agreement, particularly clause 40.2.2 which states that the University must ensure:

PN28

That an academic staff member has the opportunity to take all annual leave entitlements during their employment and prior to an academic staff member's cessation of employment. If this is not possible any annual leave entitlements will be paid out on cessation of employment.

PN29

We say that the action by the University causes great alarm for the union and for the current employees, who may in fact be denied the opportunity to take theirs annual leave in order to allow the University to recoup a debt. And we say that this goes against the intention of the provisions of annual leave. They are the two major areas of concern in relation to the breaches of the Enterprise Agreement, your Honour.

PN30

I guess just very briefly we also have issues of concern in relation to the general operation of the letter of appointment and the argument used by the University that the provisions that I have referred to on pages 2 and 3 on the letter of appointment, mean that the University can withhold moneys without the specific authority of the employee. We have noted our concerns to the University on the basis that we believe that this may very well breach the provisions of the New South Wales Industrial Relations Act, particularly section 118 which states:

PN31

That any deductions from salary must be authorised by the employee.

PN32

We have not believed that the provisions of the letter of appointment should be used by the University as a general overriding authority to deduct any moneys, without first negotiating and speaking with the employee and attempting to negotiate the payment schedule, or to in fact discuss the debt. Your Honour, we would appreciate and seek the assistance through conciliation to attempt to resolve these matters and to also resolve the question of the repayment of the travel costs and the withholding of the annual leave. In these circumstances and in light of the fact that Dr Pelling's employment finishes this Friday, we would appreciate any assistance that the Commission could provide. Thank you, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: Mr Burrell.

PN34

MR BURRELL: Sorry, your Honour, I just missed that last part of Ms Rangott's submission, just the last few words, sorry.

PN35

MS RANGOTT: Seeking the assistance of the Commission in attempting to resolve these matters in attempting to obtain a conciliated outcome, and I guess just to explain that we would be seeking an assurance from the University that they will abide by the grievance settling procedures and not take any action to withhold the outstanding annual leave entitlements and that the meeting tomorrow should proceed as we attempt to resolve the issues of concern. Thank you.

PN36

THE SENIOR DEPUTY PRESIDENT: Get that, Mr Burrell?

PN37

MR BURRELL: Yes, I did. Thank you, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: Right.

PN39

MR BURRELL: Your Honour, obviously Ms Rangott has made some rather interesting claims against the University and some of the steps which we have taken. The University is of the view that there are a number of principal issues that need to be determined here and not a lot of those principal issues can necessarily be determined by this forum via the teleconference.

PN40

However, I would just like to make a couple of points if I may on what Ms Rangott has stated. The University does rely to a certain extent on a signed - not only the signed letter of offer but also an additional form which is attached to the letter of offer which I was unable to get from Dr Pelling's file until I received Dr Pelling's file late this afternoon, which is the condition of an employment file which also goes into detail and outlines certain matters regarding the paying back a debt or an outstanding debt which the University, or which an employee may have.

PN41

And we believe that the University's position - that the University has the right to deduct moneys from final - final moneys to cover any outstandings that is owed to the University and that the argument put forward by Ms Rangott in relation to the Industrial Relations Act and its application - I think it is section 118 Ms Rangott has referred to - we would say is overridden in that the employee has consented to the University be able to deduct moneys.

PN42

And we would also put forward, your Honour, that there are terms which are in the Enterprise Agreement, particularly those under clause 18 which refers to the terms of engagement and then at clause 18.15 which says that when we do a letter of offer or outline our conditions of employment, we also outline other matters and conditions of employment which are obviously going to relate to the relationship and we would say that this is obviously a matter that would be incidental, nott only to the agreement but also to the relationship between the employee and the employer.

PN43

There are also some principal issues we think that need to be discussed, your Honour, and we are obviously happy to go into any form of conciliation if that is the direction in which your Honour chooses to proceed. The principal issues about what does and does not constitute agreements under our grievance procedures, and what does and does not constitute an industrial dispute, that is a matter which seems to be something that from our perspective should be an opportunity to have a bit of a discussion about, whether that be through conciliation or in the end arbitration.

PN44

We have already indicated in correspondence to Ms Rangott on 26 October that we recognise that the University and the NTEU and Dr Pelling will be having discussions tomorrow regarding all the points that Ms Rangott has raised, and Dr Pelling will have a chance to put to the Dean of the relevant faculty any issues that might admit - have to be taken into consideration about the debt. And we have already indicated to Ms Rangott that should some discussion - or should the outcome of those discussions result in, for example, a reduction in the debt even further, or that the debt would be wiped off, then the University would amend the current stance that it has taken to deduct the accrued entitlements from the outstanding debt that is owing.

PN45

And we are happy to put that on record to say that depending on the outcome of these proceedings, if the University is - was to be found that it was unable to proceed in the way in which it believes it can, then we would obviously be happy to rectify any problems or any issues that are associated with Dr Pelling's final payment. One of the difficulties we have, your Honour, though we - I think the particular point that Ms Rangott has raised about not proceeding with what - proceeding with the deduction, is that the pay cycle of the University has already been completed for this pay and is I believe has now - has left I suppose in a sense, the building, left the University and is now with the relevant banks for disbursement which happens tonight.

PN46

So the University has already more or less completed this fortnightly pay run and obviously anything that was to be taken - or any changes that were necessary to be made we would have to do, if it was to occur, in the following pay run, or depending on the outcome of this submission, or the application that has been made by the NTEU. But the view of the University at this stage, your Honour, is that I believe there are a number of principal issues that need to be worked through. I am happy to take direction from your Honour on how he wishes to proceed and would you like to move into some form of conciliation or set another hearing, we would be happy to obviously discuss these and look at the matters which are associated with the application. If it pleases the Commission.

PN47

THE SENIOR DEPUTY PRESIDENT: What is the amount that is currently involved, the amount that the University intends to withhold?

PN48

MR BURRELL: I think it is around about $600, your Honour. I will just confirm that for you, just hang on a second. I can just clarify, your Honour, there was in the initial letter that went to Dr Pelling, it was a bit confusing in that initially it noted that the - or could have been taken that salary would be deducted, but that was - well, that was the point of view that we clarified for Ms Rangott and I think Ms Rangott noted that - - -

PN49

THE SENIOR DEPUTY PRESIDENT: Can I stop you there.

PN50

MR BURRELL: Sorry.

PN51

THE SENIOR DEPUTY PRESIDENT: Can I stop you there. I do want to understand what the present position is so I will need to quiz you fairly stringently.

PN52

MR BURRELL: That is okay, your Honour.

PN53

THE SENIOR DEPUTY PRESIDENT: Was her salary paid?

PN54

MR BURRELL: Her salary will be paid this fortnight. The amount of money that will be withheld will be approximately $400 which is for the holiday pay loading.

PN55

THE SENIOR DEPUTY PRESIDENT: I see.

PN56

MR BURRELL: Dr Pelling will receive her fortnightly pay and as we indicate again to you, that we will continue to pay people their fortnightly pay, but if there is any outstanding debt we say that the University has the right - because of the conditions of employment, that we have the right to be able to deduct that from accrued entitlements.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes, but - - -

PN58

MR BURRELL: And the only accrued entitlement at this stage is the holiday pay loading.

PN59

THE SENIOR DEPUTY PRESIDENT: That is right. What it amounts to is that the salary has been paid up to the effective date of the resignation?

PN60

MR BURRELL: That is right, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: The debt has been calculated in terms of the letter of 23 October 2001?

PN62

MR BURRELL: Yes.

PN63

THE SENIOR DEPUTY PRESIDENT: And against that debt the university is currently retaining an amount of about $400?

PN64

MR BURRELL: Approximately $400, your Honour, yes.

PN65

THE SENIOR DEPUTY PRESIDENT: Well, do you know what I think we should do; it is this. Now, just bear with me because I am advancing this as I grapple with the various problems. Number one, what has been raised is a matter of some significance to other staff at the University. Number two, there are quite a number of matters that require discussion in a general sense, not exactly to do with Dr Pelling. For example, the reliance on the signed letters of acceptance and I note your reference to that other document; it is mentioned in the letter of acceptance. It would be quite relevant. The issues that were raised by the union in regard to Dr Pelling's own situation are sett out in a letter from you, Ms Rangott, aren't they? Here is a letter to Mr Burrell of 24 October.

PN66

MS RANGOTT: Yes.

PN67

THE SENIOR DEPUTY PRESIDENT: In particular I am referring to number 2, notification of the existence of agreements.

PN68

MS RANGOTT: Yes.

PN69

THE SENIOR DEPUTY PRESIDENT: I note that the parties to the grievance are meet tomorrow. I am right in putting it that way, aren't I? It is really only dealing with Dr Pelling's situation tomorrow?

PN70

MS RANGOTT: Yes.

PN71

THE SENIOR DEPUTY PRESIDENT: Not the big brush issues?

PN72

MS RANGOTT: That is correct.

PN73

MR BURRELL: That is correct, your Honour.

PN74

THE SENIOR DEPUTY PRESIDENT: In light of the relatively small amount that is involved I would propose that the situation stand without prejudice as it is at the present time, but that it be acknowledged by the University that it will be taking no steps, other than retaining the money in trust as it were, to pursue Dr Pelling about the debt at all. Indeed, I would prefer it in the light of the terms of the grievance procedure - just let me turn it up - it is 62, isn't it, the grievance procedure?

PN75

MS RANGOTT: Yes.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes, 62.7:

PN77

If a decision which affects the employment of a staff member is the subject of the grievance the University will not implement the decision until each procedure has been followed or until the grievance is settled.

PN78

What I am proposing is that that clause - the sub-clause be used as the stopper on any further action by the University. I am not saying it should hand over the 400, let me make that clear. I am saying that the amount of the debt - even the decision to impose the debt should be withheld by any form of implementation at least until after tomorrow's meeting and if it doesn't resolve in Dr Pelling's situation being settled one way or another, then we might as well go back to the grievance procedure itself and follow its form until it emerges as an industrial dispute without any qualification, because 62.9.4 provides:

PN79

That if the grievance still remains unresolved and if the individual wishes, the complaint may become an industrial dispute to be dealt with as provided in clause 63.

PN80

There is a seamless link between the two of them that way. The general matters - the matters that this incident have given rise to could be the subject initially of general discussion between the union and the university. They wouldn't arise under Dr Pelling's dispute, they would be matters that were of general moment and would be treated generally. What do you think of that?

PN81

MR BURRELL: From the University's perspective, your Honour, I mean we are quite happy with the necessary - with the preparatory ..... if I can understand what you are saying, is that pretty much we are staying with the status quo is that we have got this - the money that the university has withheld. That will be withheld in a sense in trust I think is the word you put.

PN82

THE SENIOR DEPUTY PRESIDENT: It is.

PN83

MR BURRELL: That the university would not pursue the rest of the outstanding debt or the matters associated with the debt until such time as the - - -

PN84

THE SENIOR DEPUTY PRESIDENT: The whole of the grievance procedure and if necessary the industrial dispute had been gone through.

PN85

MR BURRELL: And if necessary the matter is determined before the Commission.

PN86

THE SENIOR DEPUTY PRESIDENT: That is right.

PN87

MR BURRELL: Yes.

PN88

THE SENIOR DEPUTY PRESIDENT: That is right.

PN89

MR BURRELL: Yes. So in that sense, your Honour, the University would be happy to go down those lines.

PN90

THE SENIOR DEPUTY PRESIDENT: Before you respond, Ms Rangott, my reason for putting that proposition forward is that I have heard that the University has relented on the major part of the moneys that would be coming to Dr Pelling and I put this forward as a practical way in which Dr Pelling can get about her business on Friday and leave it to the union to - is she staying in Australia or going somewhere completely different?

PN91

MS RANGOTT: She is moving to Melbourne, your Honour.

PN92

THE SENIOR DEPUTY PRESIDENT: Well, that is in Australia, I can vouch for that. Yes, it - as I say, Ms Rangott, I think it is a reasonable compromise in the situation; what do you think?

PN93

MS RANGOTT: Yes, your Honour, we are happy to - I think also to attempt to try and resolve the matter for tomorrow's meeting; also note that the general issues of concern will need to be discussed further between the union and the University, so we are happy to go down that path.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes, all right. You remind me there, I was only checking with Mr Burrell about Dr Pelling's situation, but I record from having heard you both that you are in agreement with my suggestion about that. As far as the general issues are concerned I certainly feel that they should be the subject of further discussion at the general level between the University and the union. You are agreeable to that, aren't you, Mr Burrell?

PN95

MR BURRELL: Your Honour, we are happy to have discussion with the NTEU about certain matters. Obviously, as I have indicated I think in my brief submission, I mean there are some principal issues that we believe are here and depending on obviously the - and we are happy to have open discussions to work through them, but obviously we will reserve and as I am sure the NTEU would obviously reserve to be able to come back to the Commission if we needed to.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes, that is right, but I had in mind - to be honest with you I had in mind that your discussions might take a little time. I don't mean necessarily any lapsed time but you may need more than one meeting to discuss them, because the general issues whilst - - -

PN97

MR BURRELL: I think you are right, your Honour.

PN98

THE SENIOR DEPUTY PRESIDENT: - - - are of some significance.

PN99

MR BURRELL: Yes, we are happy to do that.

PN100

THE SENIOR DEPUTY PRESIDENT: All right then. Well, can I close this conference by noting that there is an arrangement in place in regards to Dr Pelling. It has been described in the transcript which we will have produced and that the parties will, apart from the Dr Pelling issue, have discussions between themselves on general issues which have been identified in the course of this dispute. I adjourn the matter generally with liberty to apply.

PN101

MR BURRELL: Thank you, your Honour.

PN102

THE SENIOR DEPUTY PRESIDENT: Good afternoon to you both.

PN103

MS RANGOTT: Thank you, your Honour.

ADJOURNED INDEFINITELY [5.02pm]