C2001/6356, Transcript of Proceedings [2002] AIRCTrans 130 (7 January 2002)

AUSCRIPT PTY LTD
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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT01851

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2001/6356

HEALTH SERVICES UNION
OF AUSTRALIA

and

BENTLEIGH BAYSIDE COMMUNITY
HEALTH SERVICE

Notification pursuant to section 99 of the Act
of a dispute re payment of higher qualifications
allowances

MELBOURNE

10.37 AM, TUESDAY, 18 DECEMBER 2001

PN1

MS J. BREMNER: I appear for the Health Services Union of Australia.

PN2

MS F. WILLIAMS: I am from the Service Industries Advisory Group appearing for the respondent, Bentleigh Bayside. Appearing with me is MR C. TRIFILETTI.

PN3

THE COMMISSIONER: Yes, Ms Bremner.

PN4

MS BREMNER: Commissioner, this is a dispute about the back-payment of the higher qualifications allowance pursuant to your decision in the HSUA Number 4, 111AA decision of December 2000. The dispute is specifically over the obligation of the employer to back-pay the higher qualifications allowance for the Graduate Diploma back to 1 October 2000.

PN5

Now, I am pleased to be able to report to you but I think that at the very last minute this morning the parties have reached an agreement over the issue in that I received very late, in fact about 15 minutes before this hearing was scheduled to commence, a letter from the employer agreeing to back-pay that allowance. And I just wanted to get clarification from Ms Williams on transcript if I could that the employer's intention is to pay the allowance from 1 October 2000 as the letter doesn't specifically say that.

PN6

THE COMMISSIONER: Thank you, Ms Bremner. Yes, Ms Williams.

PN7

MS WILLIAMS: Thank you, Commissioner. Yes, in line with Ms Bremner's submission the issue with the higher qualifications allowance, when it came to the notice of the chief executive officer he did pay the applicant, Ms Burns, back pay until March of this year. She began work in October of the previous year. The issue in relation to the amounts owing are quite trifling really, only a few hundred dollars. We put an offer to Ms Bremner of a couple of alternatives.

PN8

One is which there was an overpayment of annual leave entitlements paid in error and the view of my client was that because of the likelihood of being able to - not being likely to be able to retrieve the moneys, this particular employee has no entitlements at all, including sick leave. That she may be prepared to have the $500 or approximate written off against the debt. We have, as of this morning, agreed that we want to enter into an arrangement in relation to retrieval of the moneys but, obviously, there are some issues about withholding wages on that basis. So that will be further discussion that Ms Bremner and I will have but we do agree that the payment will be made back to 1 October. Thank you, Commissioner.

PN9

THE COMMISSIONER: Does that accord with what you believe the position to be, Ms Bremner, in terms of - obviously there is agreement in terms of the allowance but in terms of the coming to some arrangement about recoveries of moneys being overpaid?

PN10

MS BREMNER: Well, Commissioner, the award provides that in the event of an employee taking annual leave in advance and then resigning before they have, in fact, accrued - - -

PN11

THE COMMISSIONER: Accrued any entitlement.

PN12

MS BREMNER: - - - additional time, the employer is entitled to deduct any amounts owing from their final payment, their final salary. And given that the award requires four weeks notice I would have thought there wasn't really an issue here. I am not aware that the employee has any intention of resigning and if she doesn't resign, of course, the effluxion of time will resolve the matter, it just means that she can't take paid annual leave at the moment. But there is a solution there in the award for the employer should she resign. I really don't see there is a problem there.

PN13

THE COMMISSIONER: I suppose the difficulty would be that - I don't know how old your member is but, for instance, if your member is 40 and decides to stay there until 60 it is a 20-year debt. Is that right?

PN14

MS BREMNER: No, Commissioner - - -

PN15

THE COMMISSIONER: Why? I understood that Ms Williams said that she had no entitlement - - -

PN16

MS WILLIAMS: That is correct, Commissioner.

PN17

THE COMMISSIONER: - - - to annual leave.

PN18

MS WILLIAMS: She has - she is in fact on unpaid leave at the moment, unpaid sick leave.

PN19

THE COMMISSIONER: Right. So she has been paid for leave that she wasn't entitled to.

PN20

MS WILLIAMS: Yes, in fairness, Commissioner, it was in error, it was a payroll error but she had actually applied for leave very shortly after she started, I think, only some couple of months and was paid to the extent of $1568 I am instructed by my client. There have been, as I understand, discussions have taken place with her in relation to retrieving that overpayment. What Ms Bremner says about the notice period is quite correct but if the employee chooses not to work notice period we are still in the same situation or, as you say, Commissioner, in relation to a debt going for quite some time.

PN21

We are quite happy to be reasonable about some payment arrangement but at no time stated that we want those moneys reimbursed up front. What I am saying is that we want to enter into a proper arrangement, proper agreed arrangement in relation to retrieval of the $1568.

PN22

MS BREMNER: Commissioner, my point is this. That Ms Burns is entitled under the award to 4 weeks annual leave for every 12 months of service. Now, she has been accidentally given more credit than she should have been because she has been actually treated as a full-time rather than a part-time employee which was by error. When she has rendered another 12 months service she accrues another 4 weeks credit so she will discharge that debt over the period of another 12 months service. That is my point, that the debt won't be ongoing.

PN23

THE COMMISSIONER: So when she has an entitlement, a full entitlement to annual leave and decides to take it it will be unpaid.

PN24

MS BREMNER: If she took it now it would be unpaid because she doesn't have any annual leave credits.

PN25

THE COMMISSIONER: The money is outstanding because she was paid from leave in advance of what she was entitled to. Rather than seek to recover it now when she becomes entitled to a full amount of annual leave she can take it but she doesn't get paid it because it is still a debt. You don't get paid twice.

PN26

MS BREMNER: No, you don't get paid twice, Commissioner. She has already been paid for a period of leave and therefore she will not be able to have any further paid leave until she has rendered the period of service that she needs to render to qualify for that amount of leave. And I think it was 5 days, it was quite a small amount, 5 days of leave which equates to about 3 months service. So she would be required to render 3 months service during which time she would not be entitled to take any paid leave, but over the effluxion of time - - -

PN27

THE COMMISSIONER: It works itself out.

PN28

MS BREMNER: It works itself out.

PN29

THE COMMISSIONER: Yes, that is true.

PN30

MS WILLIAMS: The only issue we have with that, Commissioner, is the fact that if the employee chooses not to remain with the organisation there is certainly some view from my client that she is seeking work elsewhere. And she has, as I said earlier, absolutely nothing accrued by way of entitlements at all.

PN31

THE COMMISSIONER: Well, see whether you can come to some arrangement. I mean, it would be unfortunate if no arrangement could be reached and the employer was forced to recover the money through a Magistrates Court.

PN32

MS WILLIAMS: Well, we are quite happy to enter into a reasonable arrangement as I have already said. I may have some difficulty in relation to - I mean, I agree about the annual leave accruals but we don't want to be in a situation where we are in dispute over the fact that there is accrued annual leave but an employee is requested to take that leave unpaid. Thank you, Commissioner.

PN33

MS BREMNER: Commissioner, can I just perhaps clarify this issue again? There isn't a problem because the employee would be required to give 4 weeks notice to the employer and the employer would be entitled to deduct from the final salary any moneys owing through an overpayment of annual leave and that is an explicit entitlement in the award. Now, we are talking here about an amount that is now less than 5 days of annual leave so given that there would be 4 weeks notice required, 4 weeks wages would be payable at the end of the period of service, there would be more than enough money there for the employer to recover those annual leave credits. So I can't see the problem.

PN34

THE COMMISSIONER: Well, although the employee is required to give 4 weeks notice quite often they don't, they give a week's notice. But it doesn't mean to say that they are deducted 3 weeks pay.

PN35

MS BREMNER: Well, Commissioner - - -

PN36

THE COMMISSIONER: It just means that they forfeit 3 weeks pay in terms of not being paid out the 4 weeks notice, but being paid out the week.

PN37

MS BREMNER: Commissioner, that would be a breach of the award for that to happen and I - - -

PN38

THE COMMISSIONER: For what, the employee?

PN39

MS BREMNER: For the employee not to give 4 weeks notice is a breach of the award. Now, I don't think there is any suggestion here that Ms Burns intends to breach the award. Certainly, I haven't any reason to anticipate that that would be the case.

PN40

THE COMMISSIONER: But even if Ms Burns gave 4 weeks notice and she worked out her 4 weeks, what does it mean? It means that she gets paid 4 weeks wages. Where does the employer get a chance to recover the money?

PN41

MS BREMNER: He can deduct that from her wages.

PN42

THE COMMISSIONER: The 5 days?

PN43

MS BREMNER: Yes. Under the award that is an entitlement - - -

PN44

THE COMMISSIONER: And what if she doesn't give 4 weeks notice? Is the employer going to prosecute on two fronts? One is that the money is owing because of overpayment of annual leave that she wasn't entitled to. And, secondly, 3 weeks for notice that she didn't give.

PN45

MS BREMNER: Commissioner, we are speculating about a situation of Ms Burns behaving illegally, breaching an award. Now, I have just got no basis to believe that that is the fact. There is an obligation on Ms Burns to give 4 weeks notice and I don't think any party has any reason to think that she would behave illegally in that way.

PN46

THE COMMISSIONER: Well, I hope not. All right. Well, we will see where we go.

PN47

MS WILLIAMS: And obviously Ms Bremner and I, and I think that there has been some difficulty in contacting the member in relation to those issues but our view certainly would be that we would like to enter into an arrangement in relation to a deduction of an agreed amount at least to go some way to repaying that debt. Thank you, Commissioner.

PN48

THE COMMISSIONER: Okay, thank you. The Commission will stand adjourned.

ADJOURNED INDEFINITELY [10.50am]