C2001/6211, Transcript of Proceedings [2001] AIRCTrans 3620 (24 December 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2001/6211

COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED
SERVICES UNION

and

AUSTRALIA POST

Application under section 170LW of the Act
for settlement of dispute re alleged dispute
over clause 18 of the Australia Post Enterprise
Agreement 1999/2001 and who this leave clause
should apply to

SYDNEY

10.00 AM, FRIDAY, 7 DECEMBER 2001

Adjourned sine die

PN1

THE COMMISSIONER: I'll take appearances.

PN2

MR M. ETUE: I appear for the CEPU.

PN3

MS A. PERIGO: If the Commission pleases, I appear for the Australian Postal Corporation, with me is MR WILSON and MR DAVIDSON.

PN4

THE COMMISSIONER: Thank you. It's your application, Mr Etue.

PN5

MR ETUE: Thank you, Commissioner. If it please the Commission, first of all we would like to apologise for taking up the time of the Commission being that we've tried to reconcile this matter on numerous occasions and Australia Post have failed to actually come down and negotiate this matter. So it is unfortunate that we are here. To give some background in regards to the 48/52 leave in 1988 the management and union representatives conducted a joint review of the work and family initiatives.

PN6

As a matter of the review, the 1999/2001 EBA4, committed Australia Post to the promotion of work and family initiatives throughout the organisation, introduced a number of initiatives, one which is purchased leave or 48/52. If I may, I would like to table this document, please. If it please the Commission, the opening page, page 1 is the cover, on page 2 - - -

PN7

THE COMMISSIONER: Are you tendering the document?

PN8

MR ETUE: Yes, I am.

PN9

THE COMMISSIONER: We'll mark that exhibit A1.

EXHIBIT #A1 DOCUMENT

PN10

MR ETUE: If I could take the Commission to the top of the page, both the left and the right hand side, on the left hand side, in the column where it's marked B, "this is the provision in EBA4, 48/52 mode of employment where arrangements can be made costs related to the business". On the right hand side are the explanatory notes, if I allow the Commissioner to have a read of that.

PN11

THE COMMISSIONER: I have read them.

PN12

MR ETUE: You have read them, okay. In regards to this matter then, 48/52 allows employees to purchase an extra four weeks leave. The salary for the remaining 48 weeks has spread across an entire year, given employees consistent pay every fortnight. The purpose of the 48/52 arrangement is to make it easier to balance work and family commitments for approximately the 34,500 permanent employees to whom the initiative applies. It gives the opportunity to a better balanced family responsibilities which clash with current work place practices.

PN13

For Australia Post, it adds to making the organisation more competitive and productive through less stress, less absenteeism and less turnover. Indeed, to gauge the benefit of the organisation, work has to be done by Australia Post on calculating where the attendance rate during school holidays is higher in sites where staff can access 48/52 during these periods. There was a proposal put forward nationally that this work would be carried out but until to date the union is not aware that this actually has been done. In addition, Australia Post booklet, Work Life, a Better Life, also makes it clear that an issue such as 48/52 are a benefit to be enjoyed by employees, albeit taking into account operational needs.

PN14

Furthermore, another Australia Post booklet, a Guide to Using Work Life Initiatives, explains that Australia Post will look at introducing greater flexibility in the future, with 49/52, 50/52 and 51/52. If I could take the Commission to the following pages in the tender document, we have on page marked 4, we have the Work and a Better Life, which is the opening of the copy. The next page, if I could take the Commission to page marked 5, there is a brief explanation in regards to, you might say, the initiative. If we go to page 6, in regards to, again, the same document, again it further explains you might say the motivation behind the document, whereas we have in the paragraph that's in italics:

PN15

A worker ...(reads)... for family means.

PN16

Things like that, that is, you might say, the thrust of the 48/52 initiative, to allow that family and work and family to be balance there. If I can take the Commission to page 8, marked down the bottom, I apologise for the terrible photocopy, but that's all I have. Just to the point, in the last sentence in the middle there, square, I'll read it out for the Commission:

PN17

We will look at introducing greater flexibility in the future with 49/52 and 50/52, 51/52.

PN18

So it was clearly the intention of the organisation not to limit the 48/52 provision but to further expand it. In other words, allow its employees to, instead of having 48 over 52, but 50, to reduce that leave to two weeks or one week, whatever, but again the corporation has walked away from this commitment in this area. If I can take the Commission to page 9, the last page of the document that I've tendered, there is a part that I've marked dot point 3, which states, midway through the page:

PN19

Develop a 48/52 leave rostering system which is secondary to leave rostering or to ARL.

PN20

Again, this puts forward the commitment by the corporation to devise an alternative means to meeting this provision in the EBA. Both the EBA and the Australia Post publications make it clear that where applications for 48/52 can be accommodated, they should go ahead. It is our view that Australia Post has walked away from its commitments. Last year they advised the union nationally that they will not be extending the initiatives for 49/52, 50/52 and 51/52 options as I've previously explained.

PN21

Now, in the North Sydney Delivery Network, which is a matter in this dispute, they are just saying no to the applications without really thinking about how the initiative can support the work flow and whether there is an alternative for getting the work done. Compare this to the Sydney West Letter Facility Delivery Network, which is on the other side, where there are approximately 60 applications for 48/52, all which have been able to be covered by either fitting into the existing ARL roster or fill in additional relief positions. If I may I'd like to table the next document please.

PN22

THE COMMISSIONER: Before you do, could you just explain to me your view of these words in the dot points you've marked at page 9 of exhibit A1. The words "which is secondary to leave rostering".

PN23

MR ETUE: In our view, "secondary to leave rostering" you have a relief position, everyone is entitled to four weeks' annual leave, approximately, some five. But through that, there is actually a formula that's calculated that provides permanent relief staff to fill those relief positions throughout the year, depending on the size of the network, how many positions, but it can be quite large. What the secondary leave rostering is, if Australia Post is well aware in advance of how many people are accessing 48/52, be it 73 in this current position, they then could set up a secondary leave rostering and hire permanent employees or fixed term or casual to cover that. So there is no, you might say, position left unattended while they are actually accessing that leave.

PN24

THE COMMISSIONER: Yes, thank you, that helps me. I will mark this document which is a letter from Australia Post to CEPU dated 20 November 2001, headed Establishment Action Relief Positions SWLF Delivery Network, and I'll mark it exhibit A2.

EXHIBIT #A2 LETTER FROM AUSTRALIA POST TO CEPU DATED 20/11/2001

PN25

MR ETUE: I give the opportunity to the Commission to have a read of this letter.

PN26

THE COMMISSIONER: Yes, I've read it, thank you.

PN27

MR ETUE: Thank you. As to summarise what the letter says, I guess I should take the Commission back to the understanding of how Australia Post works within, say, the Metropolitan Delivery Network in New South Wales. There are two State Managers, one being Mr Wilson, who is here today, who covers the inner west and the northern suburbs, which is the matter in dispute, then on the other side you have a Mr Steve Honeyset who is the Manager of delivery who is the person who covers the area with the SWLS, Sydney West Letter Facility Delivery Network. So there are two State Managers in delivery, you might say, though Mr Wilson is actually Manager of Letters, but he does have a delivery component.

PN28

So as this letter says that in the other delivery, the SWLS delivery network, they've received over 60 applications for 48/52, rather than to deny people access to this leave, they have created four new SPDO or relief positions, Senior Postal Delivery Officer relief positions, that's SWLS then accommodating, these are A Class positions which are permanent full time positions. These will be located throughout the network. It is one of the provisions we will be putting forward to the Commission today that a similar thing happens in the North Sydney Delivery Network.

PN29

Moving on. In the year 2000, the first year of operation in regards to 48/52, 700 employees nationally access 48/52, that's just two percent of the total number of eligible employees. In New South Wales in the year 2000, only 186 employees or just 1.5 percent accessed 48/52. So it's not an extreme burden upon the corporation at this time.

PN30

It is important to remember that these percentages are conservative estimates as only permanent employees can actually access leave, and the reason we're making that statement is that Australia Post have a number of fixed termers, a number of casual employees, and a very large number of contractors who cannot access this leave, so they are not actually subject to this provision.

PN31

It is difficult to argue on the basis of these figures and the fact that all applicants have been able to be accommodated in the yellow half of the delivery network that Australia Post North Sydney Delivery Network is not in a position to approve these applications. We feel that Australia Post is walking away from its responsibilities and commitments in this initiative and that this matter needs to be addressed.

PN32

At the same time, the process for deciding who gets leave in our view is inherently flawed. Employees who do not have leave in 2001 will be given first preference and a ballot kicks in after that. The promise here is that while the 48/52 is built here on helping employees balance work and family responsibilities, the process being used completely undermines the purpose by not even considering the reason employees now require leave. I would like to now tender another document please?

PN33

THE COMMISSIONER: The document now tendered by the applicant is a letter from Australia Post to the CEPU dated 16 November 2001, headed re 48/52 applications (2002) North Sydney Delivery Network which will be marked exhibit A3.

EXHIBIT #A3 LETTER FROM AUSTRALIA POST TO CEPU RE 48/52 APPLICATIONS 16/11/2001

PN34

ME ETUE: Thank you, Commissioner. In regards to this letter here, it's not a very long letter, but the Commission should have an opportunity to read through it.

PN35

THE COMMISSIONER: Just give me a moment and I will read it. Yes, thank you.

PN36

MR ETUE: Thank you, Commissioner. As you can see from this document, Australia Post has put forward several reasons as to why they rejected the extra 23 applications, and again the union does not believe these are suitable. It is pointed out, and again in regards to this balloting system, not taking into consideration the family needs and family considerations, but just as matter of preference. If you had it last, year, I'm sorry, you don't get it next year. And further, just pulling names out of the hat that was given to me as an explanation of how it would take place, again is not suitable. I would also like to take the Commission to dot point 2 of the letter at the bottom of the first page where it says:

PN37

Operation of the North Sydney Delivery Network has a number of vacant relief positions awaiting recruitment and is not in a position to approve all applications considering operational requirements known as scheduled leave.

PN38

Australia Post has a commitment through the EBA to provide permanent staff and to provide permanent relief positions. These positions vacant in the North Sydney Network have been vacant for over 12 months, some even longer, and we feel it's negligent on their part to have not recruited to fill these positions. Further, we are saying that in this application that if these positions are filled to cover the 48/52, it may allow Australia Post an opportunity to actually recruit some of these possible fixed termer casuals who would be competent enough to actually fill these full time vacant positions. So again we feel that this is not a valid reason for rejecting these applications.

PN39

If there is a valid operational reason for not granting the 48/52, which we do not believe there is in a situation of this case, management needs to discuss with the employees and the union and consider alternative timing or of different initiative. How will this affect the employees, Commissioner, some employees who want to have leave? I would like to tender three letters from members of the CEPU.

PN40

THE COMMISSIONER: I will mark these as one exhibit which will be exhibit A4, and the exhibit consists of a letter from a Mr Cobden to Mr Etue. The second one is a letter from a Ms Fowles to Mr Etue. The third component of the exhibit is a letter from a Mr Shanahan to Mr Etue of the CEPU.

EXHIBIT #A4 THREE LETTERS

PN41

MR ETUE: I will allow the Commission a moment to read these letters.

PN42

THE COMMISSIONER: Please. Good, thank you, Mr Etue.

PN43

MR ETUE: Thank you, Commissioner. As the Commission can see from the gist of the letters, is that these people have applied for 48/52. They have family reasons. One to spend time with an organisation in regards to disadvantaged children, another with a father of two with the family, and they were denied leave on the pure basis that they had leave last year or there were not vacancies.

PN44

What concerns the union in regards to this matter is that their individual circumstances were not taken into consideration and a full assessment was not taken of the fact of why they were granted leave and for what periods. What is also understood by the union is that because several people couldn't get the times that they wanted they withdrew their leave as well, their application of leave, and again no discussions have taken place regarding these 20 odd employees.

PN45

I've tabled three letters today, but I've had discussions with several employees as well who have had their leave refused, and so they have just withdrawn their applications. But it gives an idea of the extent of why people are wanting to access leave, and in fairness to say that they are trying to access or purchase this leave to spend time with their family which is part of the EBA4 and a provision within the EBA4 and something that Australia Post has agreed to.

PN46

How can this problem be fixed? The people can be accommodated in the North Sydney Delivery Network, and this can be done by filling the vacant relief positions. As I pointed out to the Commission earlier on, Australia Post have several vacancies in the network by hiring fixed term positions because this leave is approximately two weeks to four weeks to fill the time, and all by casuals, and there is agreement between Australia Post and the union that casuals can be hired for up to a one month period, so that would allow that period there.

PN47

Proper gauging of the effect of 48/52 and post operations from a broader perspective i.e. less absenteeism during the school holidays incites with 48/52. So Australia Post, we put forward, is that they should actually have a look at the amount of, we say, the benefit to the corporation in regards to less unauthorised leave during school holidays and see that they're actually benefiting under this provision in the EBA of 489/52.

PN48

Some facts for the Commission. A third of the Australia Post workforce are women. That's one third. The average age of the women is 39 years old, which might be called parenting years with family responsibilities. So these are two things again to point out that again this area is not in a situation which will go away and one that will probably die down. But we see an obvious situation where in the future it will progressively become more and more numbers, so we believe that some clear guidelines should be set up as to how to handle this procedure rather than just denying people leave under the circumstances they have in the North Sydney Delivery Network.

PN49

In conclusion, Commissioner, it is the union's view that both the employee and Australia Post benefit greatly from this initiative. The employee by less stress and more time with their family. Australia Post by greater productivity and less absenteeism, especially during school holidays. Commissioner, the union is seeking four things from today's proceedings. One, that relief arrangements be made to accommodate all applications submitted in the North Sydney delivery network by filling the current vacant positions creating new positions as in the case in the Sydney West letter facilities delivery network or by using fixed term and casual employees to cover this leave.

PN50

If this is the case that all applications that were submitted and withdrawn are reviewed again with the intent of granting this leave. Two, that a review was conducted by Australia Post to calculate the effect 48/52 provision has in regard to reducing absenteeism especially during the school holidays and share this information with the union. Three, discussions take place between Australia Post and the union on the priority of who accesses this leave at certain periods of the year and the reasons for their application i.e. school holidays.

PN51

Rather than the name be pulled out of the hat competition. Four, that Australia Post and the union discuss the 48/52 initiative with the knowledge that the trend is upwards and growing in regards to more employees applying for this leave over the EBA five period, and the EBA five period is due to most likely commence from January and what arrangements will be made to accommodate these applications. One note I will up this document, the 48/52 as the EBA four has expired with current EBA's being voted on, the 48/52 provision is in the EBA five. I will tender this document here.

PN52

THE COMMISSIONER: Mr Etue has handed me a document entitled, Enterprise Agreement 2001 consisting of three pages which will be marked exhibit A5.

EXHIBIT #A5 ENTERPRISE AGREEMENT 2001

PN53

MR ETUE: I take the Commission down to point ten of the first page, the EBA four conditions of service. They have agreed that the conditions of service will be retained. On the next page, to the last paragraph or last point five, working life, that is the headline. In regards to the benefits to the business. On the next page, it explains again section three 48/52 provision at the top.

PN54

THE COMMISSIONER: So you say that the new agreement is being voted on currently contains in effect the same provisions as the previous one in relation to this matter.

PN55

MR ETUE: That's correct.

PN56

THE COMMISSIONER: Thank you for that.

PN57

MR ETUE: Commissioner, I conclude my submissions.

PN58

THE COMMISSIONER: Thank you. The respondent?

PN59

MS PERIGO: Thank you, Commissioner. Commissioner, Mr Etue has taken you through the purpose of 48/52 and I won't take you back to that. It has been in the corporation since our agreement in 1999. A few comments on Mr Etue's opening remarks. He apologised to the Commission for being here, Commissioner. I would say that they have notified this matter prematurely. That this matter probably could have been resolved through further discussions between the corporation and the union. The EBA four which Mr Etue has mentioned has expired, states at clause 9.2 that the introduction of the following work and family initiatives are available provided such arrangements are negotiated agreed to by management and the employee and meet the operational needs of the business.

PN60

It talks about 48/52 mode of employment where arrangements made are cost neutral to the business. So it is clearly, Commissioner, not an entitlement of an employee. Commissioner, the process for applications for this leave are requested of employees each year and every employee whether they have availed of leave or not previously, who seeks to avail the leave must make an application. Commissioner, if I could hand up one document, please.

PN61

THE COMMISSIONER: This document is being tendered?

PN62

MS PERIGO: Yes, Commissioner.

PN63

THE COMMISSIONER: I have been handed a document by the Respondent, headed Australia Post State Information Bulletin 2001/62 and dated - - -

PN64

MS PERIGO: Commissioner, I apologise that actually isn't the date of the bulletin. The bulletin would have been dated in October this year. I apologise I provided you with an undated copy.

PN65

THE COMMISSIONER: Dated according to the respondent approximately October 2001 and I will mark that as exhibit R1.

EXHIBIT #RI AUSTRALIA POST STATE INFORMATION BULLETIN

PN66

MS PERIGO: Commissioner, I would just like to draw your attention to the third paragraph in that bulletin. This bulletin was provided to all staff in New South Wales to remind them of the opportunity to apply for 48/52. The third paragraph states whether your application is approved depends upon operational requirements and relief availability.

PN67

The dispute, as Mr Etue has indicated is about our North Sydney area network. That network employs approximately 472 employees across ten delivery centres. In that network in the year 2000, for leave to be availed of in 2001, 57 employees applied for the initiative and 57 applications were granted. So no one missed out on application for a 48/52. The corporation had increased the number of relief positions by four to enable those applications to be granted.

PN68

Applications for this year, Commissioner, Mr Etue has provided you with a letter which is exhibit A2 that refers to 60 applications across a number of networks and I can just provide you with some more detail on that. North network which is the area that we were having the dispute in relation to this morning, had 73 applications out of 472 employees. So 15 percent of employees in that network have requested leave. In our Inner West network, 25 employees out of 665 requested leave and that is 3.8 percent. In our Penrith network, 22 employees out of 464 requested leave which is 4.7 percent.

PN69

The other three networks which is Peakhurst, 10 employees out of 595 so 1.7 percent and Macarthur nine employees out of 465 which is 1.9 percent. So, Commissioner, you can see clearly that the North Sydney network, 15 percent of employees requested leave. In the other networks it was quite a different situation. Mr Eteu has asked that Post consider what occurred in what is termed the Sydney West Letters Facility Delivery Network. That was 60 applications over four networks. Quite a different situation to what we have today. In that correspondence it states that there was an additional four relief positions put into place across four networks.

PN70

In North Sydney delivery network, one network of ten delivery centres, four relief positions are already in place to cover leave applications. We have, as I said by far the largest number of applications this year have come from the North Sydney network. Managers needed to put a process in place to deal with that. What managers had asked employees to do was to provide an expression of interest for 48/52 and in that to include the reasons. So employees are asked to state the period of leave that they are requesting and the reasons they are requesting it so those issues could be considered by management in their process.

PN71

73 applications were received. Management looked at operational issues, rostering arrangements, coverage of relief positions, issues of service performance and determined that we could accommodate approximately 52 employees in the North Sydney network. So we advised employees that that would take place. We put a process in place to determine how we could equitably take employees through the application process and that is detailed in exhibit A3.

PN72

Mr Etue has stated that staff who did not avail of leave previously would not get leave again, that is incorrect. We have said that staff who did not avail of leave previously would be given first preference. There were a number of employees who had availed of leave previously who have also had the ability this time to receive leave in the year 2002. There were a number of employees who withdrew their applications for numerous reasons. The end result, Commissioner, is of 73 employees, 11 employees are unable to avail of the leave.

PN73

Commissioner, the employees were advised at the last ballot and I must comment, Commissioner, the ballot was conducted with a union representative present. The ballot that was conducted in relation to employees who had previously availed of leave only was finalised at 3.00 pm Monday afternoon. This dispute notification was lodged at 10.00 am Monday morning. The EBA also provides, Commissioner, that where employees have sought an application for 48/52 and this is still in clause 9.2, have sought application for 48/52 and have not been able to have that application granted, are able to access our grievance procedures to appeal against any refusal based on operational reasons.

PN74

Our grievance procedures, Commissioner, involve a process of a matter being escalated through to different levels of management and ultimately a board of reference for determination or recommendations.

PN75

THE COMMISSIONER: I take it they're the provisions laid out in clause 18 of the agreement, are they?

PN76

MS PERIGO: Commissioner, we actually anticipated they might be employees who wanted to raise a grievance, so in clause 9 of the EBA, 9.2 and appearing on page 10, the last point of that clause, "staff makes this a grievance procedure". To date no-one has exercised.

PN77

THE COMMISSIONER: My point was that if somebody does want to use a grievance procedure, that's the procedure laid down in clause 18.

PN78

MS PERIGO: Yes, Commissioner, that's correct. But what it does provide for though, it provides for the employee to raise the issue with management and it provides for a board of reference to be - - -

PN79

THE COMMISSIONER: Well it provides for a board of reference as one of two options, doesn't it?

PN80

MS PERIGO: Commissioner, I could probably put a bit more detail into that. Clause 18, the dispute resolution process sets out how a matter will be dealt with through discussions and ultimately to the Commission. Australia Post has a grievance process in place for employees who have issues that they want to deal with. Those issues can be escalated to different levels of management and then would go to a board of reference.

PN81

THE COMMISSIONER: Those grievance procedures are additional to the ones laid out in clause 18?

PN82

MS PERIGO: Yes, Commissioner.

PN83

THE COMMISSIONER: Is somebody going to tender a copy of those or enlighten me as to what they provide?

PN84

MS PERIGO: I wasn't planning to tender a copy of the process that we have, Commissioner. It is the ability of the - I suppose the difference is the ability of the employee to access a board of reference which has a chairman appointed by the Commission to deal with the grievance through a mediation process. So it's an internal part of our grievance process. To date, Commissioner, no-one has availed of that and we have not received any written complaints.

PN85

I will comment, if I can, on the three letters that Mr Etue handed up as exhibit A4. I am instructed, Commissioner, that Mr Cobden and Ms Fowles have the leave approved for next year.

PN86

THE COMMISSIONER: Just give me a moment to come to exhibit A4. So you say that Ms Fowles and Mr Cobden no longer have a grievance?

PN87

MS PERIGO: Ms Fowles' letter is dated 28 November. Mr Cobden's letter is dated 29 November. They were both then advised on 3 December that their leave was approved. They were two employees, as I understand, Commissioner, who were part of the second ballot that was conducted as they had availed previously, that was conducted on 3 December and they were successful in that process.

PN88

THE COMMISSIONER: I think it's helpful you've told me that but as I take it Mr Etue was submitting these letters to indicate problems in the process but I do note that they have been resolved.

PN89

MS PERIGO: Commissioner, Mr Etue has asked for a number of things of the Commission today in relation to this matter. As I said at the outset, I believe this matter was notified prematurely and there could have been some further discussions between the corporation and the union to have the matter resolved. The correspondence which is A3 from Mr Gregory to Mr Etue, sets out the issues the corporation has with the position the union has put. Those issues have not been explored in discussion with Mr Etue.

PN90

The union chose to escalate that matter further rather than having discussions with the corporation. So, Commissioner, I propose that the corporation and the union discuss the issues that Mr Etue has raised. He has asked for a number of things and I think those things would be better explored in discussions with the union, if it pleases.

PN91

THE COMMISSIONER: Now I note that this matter hasn't been conciliated with the Commission's assistance, so what I propose to do at this time with the consent of the parties, is to adjourn into conference where we can have a full and frank discussion and perhaps iron something out. So I now adjourn into conference.

ADJOURNED INTO PRIVATE CONFERENCE [10.36AM]Y

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 DOCUMENT PN10
EXHIBIT #A2 LETTER FROM AUSTRALIA POST TO CEPU DATED 20/11/2001 PN25
EXHIBIT #A3 LETTER FROM AUSTRALIA POST TO CEPU RE 48/52 APPLICATIONS 16/11/2001 PN34
EXHIBIT #A4 THREE LETTERS PN41
EXHIBIT #A5 ENTERPRISE AGREEMENT 2001 PN53
EXHIBIT #RI AUSTRALIA POST STATE INFORMATION BULLETIN PN66