C2001/5842, Transcript of Proceedings [2001] AIRCTrans 3525 (17 December 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 1520
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2001/5842

HEALTH SERVICES UNION OF
AUSTRALIA

and

CASEY COMMUNITY HEALTH
SERVICE

Notification pursuant to section 99 of the
Act of a dispute re an employee's return to
work

MELBOURNE

2.35 PM, FRIDAY, 30 NOVEMBER 2001

PN1

MS E. CRESSHULL: I appear for the Health Services Union with MS S. THOMAS.

PN2

MR J. DOUGLAS: I appear for Southern Health with MR T. WALSH and MR R. KEALY.

PN3

THE COMMISSIONER: Thank you, Mr Douglas. Yes, Ms Cresshull.

PN4

MS CRESSHULL: Commissioner, we are here today because we have come to a dead end trying to resolve a grievance about the failure to permit an employee to return to a position as nearly comparable in status and pay to that of her former position before she took maternity leave. I propose to run you through a brief background and then see where we can get to today. Ms Ledger has been working at Berwick Wide Community Health Centre since 1991. She has commenced as a Grade 2 Paediatric Speech Pathologist and in 1994 went from the sole speech pathologist to that of the senior speech pathologist. Her employment is covered by the Health Services Union Public Sector Award 1993.

PN5

Ms Ledger took maternity leave on 1 March this year. In September there was a merger of the services provided by the Berwick Wide and Cranbourne Community Health Centres and they became the Casey Community Health Service. Out of that amalgamation there will be one team leader position for Casey and one clinical coordinator. Ms Ledger had been on maternity leave when the merger occurred and she has not been consulted on any changes. She found out about the changes through chance by a colleague.

PN6

After contacting Tim Walsh, the General Manager of Casey, by telephone it was established that her position as Senior Speech Pathologist was no longer available. According to the Southern Health Organisational Change Agreement the network has made a definite decision to implement change:

PN7

Organisational change that is likely to have a significant effect on employees the network shall, as early as practicable, consult with staff.

PN8

I can hand that agreement up if you like, Commissioner.

PN9

THE COMMISSIONER: No, that's fine thank you.

PN10

MS CRESSHULL: The agreement says:

PN11

For purposes of such discussion the network shall provide in writing to the affected employees all relevant information ...(reads)... to take place and the expected effects of changes on employees and other matters that may impact on them.

PN12

We don't believe any of this has occurred. We also note that the Commission stated in November that consultation is more than just providing advice on what is about to happen. It is providing the individual or other relevant persons with a bona fide opportunity to influence the decision maker. That is from Commissioner Smith. Ms Ledger has never been given an impact statement and she only rang Mr Walsh because she heard a rumour that her position was going to go to interview. On 19 September Ms Ledger then wrote to Mr Walsh.

PN13

Our understanding is that Ms Ledger's position as Senior Speech Pathologist is most aligned with the duties outlined in the Speech Pathology Clinical Coordinator job description so this is a new position. For example, both descriptions outline co-ordination of speech pathology service, co-ordination of student placements and the clinical supervisions of speech therapists.

PN14

THE COMMISSIONER: So a speech pathology coordinator position?

PN15

MS CRESSHULL: Yes, that is right.

PN16

THE COMMISSIONER: Right. Thank you.

PN17

MS CRESSHULL: I would like to tender a letter that Ms Ledger wrote to Mr Walsh.

PN18

THE COMMISSIONER: Thank you. You are tendering that. I will make that HSUA1.

EXHIBIT #HSUA1 LETTER MS LEDGER TO MR WALSH

PN19

MS CRESSHULL: After she sent this letter Ms Ledger had a conversation with Mr Walsh who agreed that he would speak to Human Resources about the process for dealing with two things. The first was that Claire's job - what Claire's job would be on the first day she returned from maternity leave if her position was non-existent. The second point was what would her job be if she was unsuccessful in interview for the other two positions. Mr Walsh never got to Claire - Ms Ledger - about the above. It was not until another colleague rang Ms Ledger and let her know that she would be replacing one of the team positions for six months that Claire knew anything was going on at all.

PN20

A memo came out about one week later which appointed the temporary positions. Under the award under clause 36 part XIIIB return to work after maternity leave is considered - it states:

PN21

An employee upon returning to work after maternity leave or the expiration of the notice required shall ...(reads)... as nearly as possible in status and pay to that of her former position.

PN22

In discussions with the Human Resources and in correspondence of November 7 Southern Health had only agreed to delay the interview process until Ms Ledger had returned from maternity leave for the two positions rather than offering re-employment. Yesterday we had conversations with Southern Health and they offered to keep her substantive position available so she will come back from maternity leave to her previous position. But this might only be for something like two days before going through the interview process. The union's view is this is just a way to get around their award obligations.

PN23

There is also an outstanding issue in relation to relocation costs. Prior to Ms Ledger's leave she was located at the Endeavour Hills site. That site has since closed down and she will be required to work at Berwick. We believe that she would be entitled to a lump sum payment of $750 as a result of permanent relocation. To summarise Ms Ledger has been discriminated against and disadvantaged because she was never consulted regarding the restructure.

PN24

She was on maternity leave so she is at a clear disadvantage to those people already working in the organisation when going through an interview process. There is a job available which is of equal pay and status, the clinical coordinator position, and the award states that she would be entitled to this position without going through an interview process. If the Commission pleases.

PN25

THE COMMISSIONER: Thank you. Where was the relocation to and from?

PN26

MS CRESSHULL: It was a relocation from the Endeavour Hills site to the Berwick site. I think it's about 11 kilometres away.

PN27

THE COMMISSIONER: Thank you. Mr Douglas.

PN28

MR DOUGLAS: Thank you, Commissioner. Perhaps if I deal with that last issue first. I am instructed that this is the first time that the issue of the relocation allowance has been raised. Clearly it is a term of the organisational change agreement between Southern Health and the union and, subject to what should be a fairly brief investigation of the matter, that would be rectified forthwith although we note at this stage that Ms Ledger is not actually at work she is on maternity leave and so the matter presumably can't be rectified until she returns from maternity leave.

PN29

Commissioner, we are at a bit of a loss to know why we are here today frankly. The situation is this, that there has been a restructure as has been put to you. This restructure hasn't just happened this has been - this is a part of an ongoing process which has been in place now for a number of years and essentially since the formation of what was then the Southern Health Care Network. When that network was formed there were, I am instructed, six community health centres which were to be merged within the umbrella of then the Southern Health Care Network and since that time there has been an ongoing restructure of which the matter which is before you is one component.

PN30

The union has been fully kept across all of the issues and matters to be dealt with as a result of that restructure and so to say that there has been a lack of consultation we would reject that outright. In terms of this particular matter the situation is this, Commissioner, if I could put it as succinctly as possible. I am instructed that Ms Ledger is a Senior Speech Pathologist Grade 2 Year 4. That is the position which she currently holds. As a result of the restructure that has taken place that is the merging - if that is the word - of the Berwick and the Cranbourne Community Health Centres the position which she occupies would be abolished.

PN31

However, there will be - sorry, before I go on to that - as things stand at the moment there are two team leader positions, one which is called north and the other one which is at south. Those team leader positions will continue for a period of six months and will be merged into one position in march 2002. The position of clinical coordinator. which has been put before you and which we understand is the position which Ms Ledger wishes to be directly appointed to, I am instructed is merely a position of four hours per fortnight so it is very much a part time role amounting to an average of merely two hours per week and it is basically a co-ordination role, sir.

PN32

It is to co-ordinate the various activities of the speech pathologists in a range of areas within the service. That position will be filled in accordance with a process which has been in place now for quite some time and which the union would be aware of.

PN33

THE COMMISSIONER: How many hours was Ms Ledger working?

PN34

MR DOUGLAS: Well, her full time position - she is a full time Senior Speech Pathologist Grade 2 Year 4. And so this other position is a part time role and extremely part time at that. So the filling of that part time role, sir, will take place in accordance with a process which has been in place for a very, very long time and which the union would be aware of and which the union, if it hasn't entered into an agreement with Southern Health it certainly has acquiesced to the process for quite a number of years in relation to the selection strategy and process for the filling of all positions.

PN35

Now, I could summarise the process, sir, as being that where there is only one person who has claim to a position, in other words only one person meets the selection criteria for a particular position, that person would be directly appointed to that position. In the event that there is more than one person a competitive selection process will be put in place but will be limited to persons within the Community Health area rather than what normally occurs in Southern Health being that positions are advertised internally across the entire service and applications are received and selection process.

PN36

So that process has been in place for some time. Now, in relation to the clinical coordinator position it is the position of Southern Health that Ms Ledger is not the only person who has a claim to that position. There are others and what is proposed to occur is that that position will not be filled until the return of Ms Ledger from maternity leave. Upon her return from maternity leave the position will be advertised. She will be invited to apply and her claim to that position will be considered in the competitive selection process. In terms of the other - at the same time and I am instructed it is co-incidental - the position of team leader or the two positions of team leader will be merged into one position.

PN37

And that position will also be advertised at that time and it will be open to Ms Ledger to apply for that position. In the event - and we are now in the total realm of the hypothetical - in the event that Ms Ledger is unsuccessful in relation to applying for the team leader position - well then obviously she will continue to be employed in her substantive position and paid accordingly. If, however, she is successful in applying for the clinical coordinator position, that being a position of two hours per week, obviously she will in addition to her full time functions also perform that work as well.

PN38

So, sir, that is the situation and as I said at the outset we are at something of a loss to know why we are here today. The process which has been undertaken in relation to Ms Ledger is precisely the process which has been in place for quite some time. It has been applied in a number of circumstances over a long period of time and it will be applied in the case of Ms Ledger that her - - -

PN39

THE COMMISSIONER: So Ms Ledger - so nothing will occur in terms of Ms Ledger's position. She will come back to her substantive rate of pay.

PN40

MR DOUGLAS: Correct.

PN41

THE COMMISSIONER: And title.

PN42

MR DOUGLAS: That is correct.

PN43

THE COMMISSIONER: You will go through the process of restructuring?

PN44

MR DOUGLAS: Yes.

PN45

THE COMMISSIONER: Ms Ledger will have an opportunity the same as others that are I suppose within the group and put the hat in the ring for certain positions. If she - I seem to recall the speech pathology clinical coordinator which you say is a four hour per fortnight position, is that right?

PN46

MR DOUGLAS: That's correct.

PN47

THE COMMISSIONER: If she wishes to do that. If she doesn't wish to do that she can put her hat in the ring for one of the two team leader positions?

PN48

MR DOUGLAS: Well at that stage by the times, as I said, it is something of a coincidence but at the time - if she returns from maternity leave in march it is at that point t hat it is envisaged that the two positions will be folded into one and there will be one position which she is - - -

PN49

THE COMMISSIONER: Yes, one team leader position?

PN50

MR DOUGLAS: One team leader position.

PN51

THE COMMISSIONER: Right.

PN52

MR DOUGLAS: And she is free to apply for that position.

PN53

THE COMMISSIONER: Yes.

PN54

MR DOUGLAS: And her claims will be considered.

PN55

THE COMMISSIONER: So if she doesn't choose to go for the clinical coordinator and just simply come back off maternity leave her substantive position and rate of pay will be the same?

PN56

MR DOUGLAS: Yes.

PN57

THE COMMISSIONER: But at that time if you decide to put the two team leader positions into one she will have an opportunity to apply?

PN58

MR DOUGLAS: Correct.

PN59

THE COMMISSIONER: If she doesn't apply - if she doesn't apply what happens she maintains - - -

PN60

MR DOUGLAS: She will continue to be employed as a Senior Speech Pathologist Grade 2 Year 4.

PN61

THE COMMISSIONER: And paid accordingly?

PN62

MR DOUGLAS: That's correct.

PN63

MS CRESSHULL: Commissioner, there is no position as a Senior Speech Pathologist Grade 2 Year 4. That position has been made redundant.

PN64

THE COMMISSIONER: It has been abolished. Right.

PN65

MS CRESSHULL: So I don't see how, if she doesn't get these other two jobs, she can just fall back into a position that doesn't exist any more.

PN66

THE COMMISSIONER: Well, I would think that Southern wouldn't be so stupid as to have somebody sitting at a desk being paid as a senior speech pathologist and not have duties to perform and I would expect those duties would be in line with the qualifications of Ms Ledger.

PN67

MS CRESSHULL: I must say it is news to us, Commissioner. We didn't - we haven't been informed of that.

PN68

THE COMMISSIONER: Well, can we just - let us try and flesh that out a bit can we. If Ms Ledger doesn't apply for one of the - for the team leader position - she maintains her substantive title and rate of pay. What does she do in terms of duties? I am asking you, Mr Douglas.

PN69

MR DOUGLAS: I am sorry, Commissioner. What was the question again?

PN70

THE COMMISSIONER: If Ms Ledger doesn't apply for either of the two positions, the clinical coordinator or the team leader position but chooses to maintain the title and the rate of pay as a senior speech pathologist what does she perform, what functions does she perform?

PN71

MR DOUGLAS: Well, she will perform a range of clinical duties consistent with the classification of Grade 2 Year 4. There - sir, it is an operative position if you like. It is a hands on position and she will continue to perform those functions. That is her current substantive classification.

PN72

THE COMMISSIONER: I understand that.

PN73

MR DOUGLAS: She is on maternity leave. She will return to that substantive position. There are positions, I am instructed, to which she can be transferred. Certainly her position has been abolished but the obligation that is imposed upon the organisation is that she be put in a position as close as is practicable to a position in rate of pay and status. I am instructed she will be appointed to a position of Senior Speech Pathologist Grade 2 Year 4.

PN74

THE COMMISSIONER: And utilised accordingly?

PN75

MR DOUGLAS: And utilised accordingly.

PN76

THE COMMISSIONER: So won't be plucking flowers from the garden bed?

PN77

MR DOUGLAS: Commissioner, no.

PN78

THE COMMISSIONER: Cutting the grass or washing the walls?

PN79

MR DOUGLAS: Absolutely none of those, sir. The functions will be consistent with the position description as contained in the award. If the Commission pleases.

PN80

THE COMMISSIONER: Thank you.

PN81

MS CRESSHULL: Commissioner, I would like to know how Mr Douglas can consider that position equal in status to her old position when the restructuring has come through because there will be - it will be a different structure so she will be much junior than she was before and that is part of the award obligation.

PN82

MR DOUGLAS: Well, Commissioner, as I said she will be returned to perform duties as a Grade 2 year 4 Senior Speech Pathologist. That is her substantive position. That is the position which she will be employed and she will perform functions consistent with that classification.

PN83

THE COMMISSIONER: Can I just maybe clarify. Is your concern, Ms Cresshull, that Ms Ledger say currently is here in the pecking order, right, and the transcript can't see my hand but you can. Ms Ledger is here in the pecking order. Because of the proposed restructuring and the new position of the clinical coordinator is your concern that Ms Ledger might still be here but there would be somebody over the top?

PN84

MS CRESSHULL: It is our understanding from the restructure that that would be the case.

PN85

THE COMMISSIONER: I am not quite sure that that is actually envisaged to be covered in an increase of legislation or the award because if Ms Ledger's position is the same as that that she had if your argument is correct it prohibits anybody from restructuring. You are keen and eager to get up.

PN86

MS CRESSHULL: I am.

PN87

THE COMMISSIONER: Yes. Right.

PN88

MS CRESSHULL: Commissioner, I don't say that it is that Ms Ledger would be here and someone would be essentially being appointed above her. My understanding is that if Ms Ledger was here and she has had people underneath her - - -

PN89

THE COMMISSIONER: Reporting to her.

PN90

MS CRESSHULL: - - - reporting to her that it could be potentially a switch so the people that had been reporting to her could possibly take Ms Ledger's job and she would then be underneath their supervision so to speak.

PN91

THE COMMISSIONER: Okay. So instead of Ms Ledger not being the reportee she would be the reporter, is that right? Do you get that?

PN92

MR DOUGLAS: Well, I think the goal posts are moving around a bit here. As I understood the position of the union at the outset, it was the issues was this position of clinical coordinator which was that which was in issue. And I think we have dealt with that. Now it seems as though the question is: well, we must - she must be returned to a position - - -

PN93

THE COMMISSIONER: Status.

PN94

MR DOUGLAS: - - - at the status, or in the same position in the pecking order.

PN95

THE COMMISSIONER: Right.

PN96

MR DOUGLAS: Now the problem we would have with that, sir - and before I go on with the problem, at the end of the day it is open to her, this is why I said earlier that we are now in the realm of the hypothetical, it is open to her to apply for the position of team leader. That position, as I said, coincidently will be advertised around March of next year when, we understand, that she is proposing to return from maternity leave. And she is able to apply for the position. If she is successful we don't have - any of the issues which the union raises simply do not present themselves.

PN97

THE COMMISSIONER: Right.

PN98

MR DOUGLAS: If, however, she is unsuccessful then there is the agreement which is relied on by the union and which is then activated.

PN99

THE COMMISSIONER: But even if she is not successful, or doesn't wish to apply, her position remains the same.

PN100

MR DOUGLAS: Her position remains precisely the same.

PN101

THE COMMISSIONER: Right, so - - -

PN102

MR DOUGLAS: Now, the next thing is the agreement - - -

PN103

THE COMMISSIONER: Sorry if I was talking and you wanted to interrupt me.

PN104

MR DOUGLAS: I am sorry, sir.

PN105

THE COMMISSIONER: That is all right. Who currently reports to Ms Ledger? I - sorry - - -

PN106

MR DOUGLAS: It is two part time positions of speech pathologist.

PN107

THE COMMISSIONER: Right, so if - when the new restructuring - or when the new structure takes place, and if Ms Ledger maintains her current position, would anybody report to her?

PN108

MR DOUGLAS: She coordinates five other speech pathologists, I am instructed, Commissioner.

PN109

THE COMMISSIONER: So it expands.

PN110

MR DOUGLAS: In any event, sir, what we say is whether or not that is a relevant consideration on the question of status, certainly it is relevant in terms of the maternity leave clause. But we have an agreement, admittedly it is an unregistered agreement, but the organisational change agreement provides for the ability of the organisation to implement organisational change. And in the event that any person's position is abolished there is then a process for that for redeployment to occur. And it provides for reasonable offers of employment to be accepted by the employee.

PN111

THE COMMISSIONER: Right.

PN112

MR DOUGLAS: And we - reasonable offers are defined quite prescriptively within the agreement. And the Commission would be aware of the fact that there needs to be positions which are similar in classification, rates of pay, etcetera. So, sir, that is how the process occurs. That is how the process has occurred in Southern and the rest of the public health system for probably close to 20 years. And in the case of Ms Ledger that process will be applied to her. As I said, though, we are in the realm of the hypothetical. The position hasn't been advertised and this issues hasn't really arisen yet.

PN113

THE COMMISSIONER: Well, I - I was just going to say, and I was going to make the comment to Ms Cresshull and Ms Thomas and Ms Ledger herself, that I am really wondering whether at this point - I can understand your concern about the proposed restructuring and where, maybe, Ms Ledger might fit within that. But given what Mr Douglas has said, I am just wondering whether at the moment we are jumping at shadows, and whether or not we are waiting - we should wait and I will keep the file. Wait and see what happens. I mean, it - Ms Ledger may, towards the end of March or the end of February, may make a decision not to return to work, that is her choice of course and so we are going through this exercise for nothing.

PN114

It may be that she returns to work and decides to apply for one of the team leader positions. I think the best path that we can follow is to wait and see actually what Ms Ledger decides to do. And if she decides not to apply for the team leader position, if she decides not to apply for the clinical coordinator position but simply to maintain her current classification and rate of pay but still have some uncertainty about what her duties are and who is reporting to her, then I think we need to deal with that at the time. I think we are jumping ahead of ourselves, I would have to say.

PN115

MS CRESSHULL: Commissioner, she has already notified Southern Health of her intention to return to work.

PN116

THE COMMISSIONER: Okay, fine, well let us see what happens when she does. And if - if she chooses not to apply for the team leader position, or the clinical coordinator, but decides to maintain the status quo - from her point of view, the status quo, let us see what is involved in it. At the moment I agree with Mr Douglas, it is all hypothetical. Yes, Ms Thomas?

PN117

MS THOMAS: There was no assurance from Southern Health, until yesterday afternoon, that Ms Ledger would return to her position of senior speech pathologist. In every discussion that we have had so far, it has been that she will return as - well, it was - - -

PN118

THE COMMISSIONER: She will return.

PN119

MS THOMAS: She will return but she didn't know what she was doing.

PN120

THE COMMISSIONER: Right.

PN121

MS THOMAS: So, I suppose our - - -

PN122

THE COMMISSIONER: So something has come out of today and that is that you have got on transcript, and an understanding before the Commission, that Ms Ledger's classification and her rate of pay will not alter.

PN123

MS THOMAS: Although her duties - her duties will only be assured, the ones that she left, the job description that she was working by, are only assured for a day or so. So we would think it is a nominal time for Southern Health to be saying that, "We will keep your job open to you for - - -

PN124

THE COMMISSIONER: Why do you say a "day or so"?

PN125

MS THOMAS: Because the jobs will be advertised and interviewed - - -

PN126

THE COMMISSIONER: That is right. But if she decides not to go for the team leader position, if she decides not to go for the clinical coordinator, her classification and her rate of pay will not alter.

PN127

MS THOMAS: But her duties will.

PN128

THE COMMISSIONER: Well, no, Mr Douglas has said her duties will be in line with her classification. It might be an issue as to - well, in fact Mr Walsh indicated to Mr Douglas that at the moment there are two people that, if Ms Ledger was there, there would be two people that would report to her. My understanding is that when she returns if she maintains her current position, it would be fine.

PN129

MS THOMAS: That is if she is successful, Commissioner, that is my understanding. The clinical coordinator - - -

PN130

THE COMMISSIONER: If she is successful in what?

PN131

MS THOMAS: In the clinical coordinator position she would have five people reporting to her. If she is unsuccessful she will have none and she will lose the management role that - - -

PN132

THE COMMISSIONER: But that is not the answer that I got to the question. I put the question - if I understood, I put a specific question to you.

PN133

MR DOUGLAS: Commissioner, if I can just clarify, to say that what has been put today is new to the union ignores the fact that a letter was sent to Ms Hodginkson of the union on 7 November from - which was signed by Mr Keely who is with me today, in setting out precisely what I have put to the Commission today, precisely. Now, in effect what it is saying is that because of Ms Ledger's situation the organisation will hold off the filling of the positions of the clinical coordinator until she returns from leave, to give her every opportunity to compete for those positions. We are not at the point yet, as I have said all along, of saying whether she has missed out or not.

PN134

THE COMMISSIONER: No, no.

PN135

MR DOUGLAS: And furthermore, sir, I am instructed that the position of clinical coordinator is not a line management position, it is a coordinator position. And this has also been explained in writing to the union. It is a coordinator position with low - with no line management responsibilities. It is totally misconceiving the nature of the position to say that the clinical coordinator position has any number of employees reporting to it. It simply - - -

PN136

THE COMMISSIONER: But the question the Commission put directly to you, Mr Douglas - - -

PN137

MR DOUGLAS: Yes.

PN138

THE COMMISSIONER: - - - was that if Ms Ledger chose not to apply for the team leader, chose not to apply for the clinical coordinator's position but simply maintained the status quo - - -

PN139

MR DOUGLAS: Yes.

PN140

THE COMMISSIONER: - - - currently there are two people who report to her. The answer was, and I asked, "Who would report to - how many - who would report to Ms Ledger if she maintained the status quo?" And the answer that came back was five. So I then said, "Is that an expanded number of people?"

PN141

MR DOUGLAS: It would be - - -

[3.07pm]

PN142

MR WALSH: May I speak?

PN143

THE COMMISSIONER: Yes, Mr Walsh.

PN144

MR WALSH: Under the previous structure, there was a senior speech pathologist at the Berwick Wide Community Health Service and there were two, I think, part-time speech pathologists who were co-ordinated and managed by Ms Ledger.

PN145

THE COMMISSIONER: Right.

PN146

MR WALSH: Within the Casey Community Health Service, which has absorbed the Berwick Wide Community Health Service, there will be a team leader who will have management responsibility who may or may not be a speech pathologist, we don't know yet. Then there will be a horizontal co-ordination among the speech pathologists who will look after issues around professional development, staff training, conferences and that sort of thing, of which, at the current configuration, there are six part-time speech pathologists within that organisation. They are not managed by the speech pathologist, but their activities in terms of professional development is co-ordinated by the clinical co-ordinator.

PN147

THE COMMISSIONER: Right. So if Ms Ledger maintained her current title, where would she fit?

PN148

MR WALSH: Ms Ledger will be as the other speech pathologists, doing work consistent with being a grade 2, year 4 speech pathologist.

PN149

THE COMMISSIONER: But you have the team leader - - -

PN150

MR WALSH: That structure has changed, sir, from two years ago. It has been a state of evolution until now. We don't have any longer the senior speech pathologist or senior physiotherapist or senior - the organisation, consistent with the whole of Southern Health, has been restructured around program lines, not around discipline lines.

PN151

THE COMMISSIONER: Okay. But you have the team leader; in the new structure you have the team leader.

PN152

MR WALSH: Yes. Correct.

PN153

THE COMMISSIONER: You then have six part-timers, I think you said.

PN154

MR WALSH: Yes, speech pathologists. Yes.

PN155

THE COMMISSIONER: Ms Ledger is full time.

PN156

MR WALSH: No. No, Ms Ledger has been part-time.

PN157

THE COMMISSIONER: Sorry. Okay, my misunderstanding, because I thought she was full time.

PN158

MR WALSH: Initially, back in the early '90s, yes, sir, but presently - - -

PN159

THE COMMISSIONER: Right. So Ms Ledger will fit on that band.

PN160

MR WALSH: Yes.

PN161

THE COMMISSIONER: Along with the other five.

PN162

MR WALSH: Yes.

PN163

THE COMMISSIONER: And maintain her title and her salary.

PN164

MR WALSH: Her title - there is probably some discussion around the use of the word "senior" because that certain connotations in terms of management responsibility, but along with all the speech pathologists they are at the highest level you can go within that classification.

PN165

THE COMMISSIONER: Right, okay, thanks.

PN166

MR WALSH: So it would be one among equals.

PN167

THE COMMISSIONER: One for all, all for one; every man for himself. Where are we at?

PN168

MS CRESSHULL: Just trying to work that out, Commissioner.

PN169

THE COMMISSIONER: Are you aware of the letter that Mr Douglas referred to?

PN170

MS CRESSHULL: We are aware of that letter, but the structure didn't seem to fit Ms Ledger's current position in it at all, the new structure, and the letter didn't really go into what was going to happen if she didn't accept those positions.

PN171

THE COMMISSIONER: Okay. Well, maybe, given what Mr Douglas has said on transcript today, it might be appropriate that once he gets the transcript, he then converts that to a letter to Ms Ledger with a copy to yourself and to the Commission which may help clarify Ms Ledger's role. And again, the position is still there, that once Ms Ledger returns to work if there are still issues, you can bring them back under the current C number.

PN172

MS CRESSHULL: I suppose, Commissioner, the worry that the union has is that Ms Ledger hasn't been at work, she hasn't understood how the restructuring has been effected at the workplace. The people who are going to apply for the positions, the team leader and the co-ordinator positions, have been at a distinct advantage to Ms Ledger if she goes back for two days in terms of her substantive role and then wants to apply for these other two positions.

PN173

THE COMMISSIONER: Why are they at a distinct advantage?

PN174

MS CRESSHULL: Because they have been there during the restructuring, they know what is going on, and Ms Ledger has been at home and not fully consulted with.

PN175

THE COMMISSIONER: I understand that, but why would they be at a distinct advantage, simply knowing about the new structure? I mean, Ms Ledger has been made aware today of what the structure is about and what is envisaged in the new structure, but she is at no greater disadvantage because of a lack of opportunity, say for instance, to develop her professional qualifications, is she? I would have thought that they would have been - in fact, she probably has better qualifications than some. Yes, Ms Thomas.

PN176

MS THOMAS: Commissioner, Ross Keely said that there was a competitive claim for the role of clinical co-ordinator, and in that way it has given an advantage to the person who has been filling in Ms Ledger's maternity leave position because that person is on a fixed term, and yet Human Resources are saying that that person has a competitive claim for it. So while she has been away, there is an opportunity for someone who has been filling her position to apply when ordinarily they would have been excluded from that competitive claim, so to speak.

PN177

So I think her being on leave has added to the competitiveness of that position, and our position has always been that she should be redeployed into the clinical co-ordinator position and the redeployment policy or process in the organisational change agreement does not provide for interviews.

PN178

MR DOUGLAS: I have to take strong issue with that, Commissioner. As I have said, there is a process which the union has acquiesced to for at least, at the lowest level, has acquiesced to for a number of years in terms of this restructuring process. The fact of the matter is that in this situation Ms Ledger is not the only person with a claim for that position. That being the case, where more than one person meets the selection criteria, a competitive selection process must be put in place. That is the agreement that exists and that is the process that will be followed. To do otherwise is in breach of that agreement and that is the beginning and the end of the matter from our point of view.

PN179

In terms of her absence on leave, I mean, to say that - there is some imputation here that Ms Ledger has been kept in the dark over all this, well, of course, that also ignores discussions and communications which have taken place between Mr Walsh and Ms Ledger since at least September of this year. There was a letter sent by - which is handed up now as HSUA1. That letter refers to a recent discussion that took place between Mr Walsh and Ms Ledger. Following that, there was a response to that letter dated 3 October sets out the process in relation to the matter, and so we say there has been consultation having regard to the fact that Ms Ledger has been on maternity leave.

PN180

THE COMMISSIONER: But the process that you are going through, let me just try and get a quick analogy if I could, the food monitors.

PN181

MR DOUGLAS: Ah, the food monitors.

PN182

THE COMMISSIONER: Yes, our friends the food monitors. I mean, there were three positions and there were four of them and they were re-titled.

PN183

MR DOUGLAS: Yes.

PN184

THE COMMISSIONER: And the four were entitled to apply and the unsuccessful one was redeployed; is that right?

PN185

MR DOUGLAS: Yes. That is correct, Commissioner.

PN186

THE COMMISSIONER: Right. And the same position is applying here, not food monitors, but the principles.

PN187

MR DOUGLAS: Yes, same thing would apply.

PN188

THE COMMISSIONER: There are those that are qualified that are able to apply for a position and each one will be judged on its merits and those that are unsuccessful will be redeployed, except that I suppose in this instance Ms Ledger has an undertaking that her classification and her rate of pay will not alter.

PN189

MR DOUGLAS: That is correct.

PN190

THE COMMISSIONER: And in fact the others will be at the same level in terms of the six part-timers across the next band; is that right?

PN191

MR DOUGLAS: That is correct, Commissioner, yes.

PN192

THE COMMISSIONER: Thanks. Ms Cresshull, it is the Commission's experience and understanding that in any restructuring I cannot recall an automatic redeployment from somebody from one position that has been abolished to another position if there are other people with similar qualifications who may wish to make a claim for that position. Each one is then judged on their merits.

PN193

MS CRESSHULL: Well, there is about three people who would be applying for these positions and one of those people would be the maternity leave filled position.

PN194

THE COMMISSIONER: The person on maternity leave - sorry - the person who filled the maternity leave position.

PN195

MS CRESSHULL: Sorry, the filled position, that is right, who we would dispute had a competitive claim to the positions.

PN196

THE COMMISSIONER: Why?

PN197

MS CRESSHULL: Because it was a temporary contract, temporary position.

PN198

THE COMMISSIONER: Right.

PN199

MS CRESSHULL: And there are two members of staff who are permanent members of staff and there are positions there that they can be redeployed into.

PN200

THE COMMISSIONER: So do you say that the person who was brought in on a fixed term to take the place of Ms Ledger because of maternity leave, is not eligible?

PN201

MS CRESSHULL: What I would say was the other two members of staff would be more eligible than that person.

PN202

THE COMMISSIONER: That is not answering my question. Are you saying that that person is not eligible? Because it is a different issue if you say that the other two are more eligible. It simply says that the third one can apply, but they won't be successful because they are not as qualified. That is not what you are saying.

PN203

MS CRESSHULL: I am not talking about qualifications, Commissioner, I am talking about permanent employees and the duties at the Southern Health goes to permanent employees under their change agreement.

PN204

THE COMMISSIONER: Right. So you are saying that the person is not eligible or shouldn't be eligible? It is what you are saying.

PN205

MS CRESSHULL: You are backing me into a corner, but yes, I probably am saying that, yes, sir.

PN206

THE COMMISSIONER: Yes, I thought so.

PN207

MS CRESSHULL: I would also like to take the time to say that the union certainly hasn't acquiesced to any processes, Commissioner. If we received one of - a letter from Southern Health two years ago, we certainly haven't been involved in the process all along, but that is part of the consultation problem with Southern Health.

PN208

THE COMMISSIONER: Right, thank you. What do you say about that, Mr Douglas, that the person who is currently occupying the position that Ms Ledger had before she went on maternity leave should not be eligible to apply because the preference, according to Ms Cresshull in terms of the agreement, is that the permanent staff basically should be the only ones who are eligible to apply?

PN209

MR DOUGLAS: Well, two things I would say to that, sir. Firstly, the selection criteria and I still press the agreement that exists between our respective organisations in relation to the matter requires that those people employed in the Community Health Service have an entitlement to apply for the positions and a competitive selection process then takes place.

PN210

THE COMMISSIONER: The person that was brought in, were they already an employee of the Community Health Centre or were they brought in on a fixed term simply to fill the maternity leave position?

PN211

MR WALSH: I can't recall, sir. If her contract, her limited term contract expires at the expiry of Ms Ledger's maternity leave, she is then out of the picture and therefore cannot apply for a job where she doesn't have substantive employment within the organisation. We are limited by budget and staff profile, so if person A is in the job filling in whilst Ms Ledger is on maternity leave, when Ms Ledger returns, that other person goes and therefore would not be able to apply for the position.

PN212

MR DOUGLAS: But there is a second thing which conceptually strikes me, that is that with the merger, automatically the pool of people who are eligible to apply for the position must have increased because we - - -

PN213

THE COMMISSIONER: With the merger, I understand that.

PN214

MR DOUGLAS: Yes. So the point of the whole exercise is to the extent the union is saying that Ms Ledger should be directly appointed to the position, we say that is contrary to not only the overall Southern Health selection process protocols, but the modified one which applies in the case of the community health area, the primary care area, which was to the advantage - I mean, I find it interesting the union says, well, let's not have it, because the corollary of that argument, sir, taking that argument to its logical extension is we won't limit the calling of applicants for positions to those currently in there, we will open it up - we can open it up to the entire population of Southern Health, and then if we don't find anyone successful, then advertise the position externally.

PN215

The union must have it one way or the other, they can't have it both ways. So either we have a situation that advantages the members of the union by way of the agreement which the union now says it doesn't know anything about or we have the standard process that applies in Southern Health of which the union must be aware because it has been in place for a very, very long time. So which is it, is the question that I would pose. If the Commission pleases.

PN216

THE COMMISSIONER: Ms Thomas.

PN217

MS THOMAS: Commissioner, I think the purpose - a lot of the times that we use the organisational change agreement is in the case of employees who have seen a significant effect upon their position. Now, I don't know that opening up two jobs to the wider population would fit within the organisational change agreement. I couldn't see that there has been a significant effect on the wider population. What we have is two people who have been involved in this merger. That is the two team leaders, the team leaders of the north and the south.

PN218

Now, if those are, how I see it, the only two people who would fit into the change agreement for these purposes, then I would think there would be only two people that should be redeployed, one of them be Ms Ledger. That is why I can't see that there is a competitive claim with the person in the fixed term position at the moment because they are not suffering a significant effect to their employment.

PN219

THE COMMISSIONER: But the person on the fixed contract is not - when Ms Ledger returns from maternity leave, the person that was employed on the fixed term to take her place goes.

PN220

MS THOMAS: So I would be interested to know who the other people are that believe they have a competitive claim if there are only two people that I can see who are being disadvantaged or potentially.

PN221

THE COMMISSIONER: Well, maybe that is something you may want to sort out closer to the day. See, I would have to say that every issue that has been addressed or you have raised this afternoon prima facie seems to have been addressed in a reasonable fashion by Southern, and that is why I think at this point we still might be jumping at shadows to some degree. Let's get closer to the day and see what happens.

PN222

MS CRESSHULL: Commissioner, I understand your point about where we have got to today and I suppose what we would like to see come from today is a letter from Southern stating that Ms Ledger will go back into her substantive position and that position will remain, because we haven't had that before.

PN223

THE COMMISSIONER: All right. Well, Mr Douglas will get a copy of the transcript, as you will, and if he puts what he has put in transcript, the relevant parts, into a letter form as I indicated earlier, sent to Ms Ledger, a copy to you, a copy to the Commissioner, then we will take it from there. I will keep the file open, so if something does arise further down the track then you are free to bring it back. Okay? All right. Thank you. The Commission will stand adjourned.

ADJOURNED INDEFINITELY [3.25pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #HSUA1 LETTER MS LEDGER TO MR WALSH PN19