C2002/1728, Transcript of Proceedings [2002] AIRCTrans 1552 (9 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HODDER

C2002/1728

FINANCE SECTOR UNION OF
AUSTRALIA

and

WESTPAC BANKING CORPORATION

Notification pursuant to section 99 of the
Act of a dispute re offer of remuneration
package to employee

BRISBANE

11.32 AM, TUESDAY, 23 APRIL 2002

PN1

MR M. CLIFFORD: I appear on behalf of the Finance Sector Union of Australia. Appearing with me today is MS G. COCKS.

PN2

MR D. WILLIAMS: I am a solicitor, and therefore I seek to appear on behalf of the respondent, Westpac Banking Corporation.

PN3

THE COMMISSIONER: Mr Clifford, have you got any objection to leave being granted to Mr Williams?

PN4

MR CLIFFORD: No objection, Commissioner.

PN5

THE COMMISSIONER: All right. On that basis I will grant you leave, Mr Williams.

PN6

MR WILLIAMS: Thank you, Commissioner.

PN7

THE COMMISSIONER: I assume you will be here to assist the Commission today.

PN8

MR WILLIAMS: As always, Commissioner.

PN9

THE COMMISSIONER: I wouldn't say that. Okay. Mr Clifford?

PN10

MR CLIFFORD: Thanks, Commissioner. Commissioner, if it please the Commission, could we suggest that, to proceed today, if we could put the matters in dispute on record, but if I could suggest to the Commission that it might be worthwhile to then go into conference, once those matters have been put on record, to see if we can resolve this issue through conciliation.

PN11

THE COMMISSIONER: Yes. Do you have any objection to that course of action, Mr Williams?

PN12

MR WILLIAMS: No, Commissioner. That is an agreed course.

PN13

THE COMMISSIONER: Thank you. Yes, thank you, Mr Clifford.

PN14

MR CLIFFORD: Thanks, Commissioner. Commissioner, this dispute is regarding the rights of our members, and in particular, our member, Mr Glen Heard. It is about their rights to be given an opportunity to receive remuneration packaging arrangements in accordance with the Westpac Enterprise Development Agreement 1998. To get to that point, if I could first give a very brief outline of our member's employment history with Westpac. Secondly, if I could take the Commissioner to the relevant provisions of the award and the enterprise agreement that deal with packaging arrangements. And then thirdly, and again very briefly, just take you through the background that has got us to this point today.

PN15

In terms of Mr Heard's employment status, Mr Heard has been an employee of Westpac for 22 years. His current position with Westpac is Customer Manager/Analyst. And he is graded A3 within the Westpac classification structure. He has held this position in what was called the Property Finance Unit in Westpac since 28.8.2000. The Property Finance Unit is now referred to as the middle - as Middle Markets Queensland, Commissioner. In terms of the provision - the relevant provisions in the award and the agreement, Commissioner, we handed up a copy of the Westpac award and the Westpac agreement.

PN16

THE COMMISSIONER: Yes. I have those, thank you.

PN17

MR CLIFFORD: Commissioner, if I could take you first to the Westpac award.

PN18

THE COMMISSIONER: Yes.

PN19

MR CLIFFORD: And it should be tabbed there, clause 8.7 - - -

PN20

THE COMMISSIONER: .2?

PN21

MR CLIFFORD: .2.

PN22

THE COMMISSIONER: Yes. I have that. I will mark that just for identification purposes as MFI exhibit 1.

MFI #1 WESTPAC EMPLOYEES AWARD 1998

PN23

MR CLIFFORD: Thank you, Commissioner. The whole of clause 8.7, Commissioner, deals with remuneration packaging. 8.7.1 is what is called a Package 1. It is a certain style of packaging which is made available to employees who are grade M1 and above. The packaging arrangements that concern us today are those contained in 8.7.2. And it states that:

PN24

the bank may offer you a remuneration package, or Package 2, as they are called, where you will be exempt from ...

PN25

and then it details a range of clauses that an employee would be exempt from if they accept such a remuneration package. And you can be offered these packages, basically if you are in an A2 role or above. So primarily these packages focus on people who are in A2 or A3 classifications. And as I mentioned, Mr Heard is an A3 employee.

PN26

THE COMMISSIONER: Now, what emphasis are you putting on the word "may"?

PN27

MR CLIFFORD: Well, it is a discretionary offer. The bank - the bank may or may not choose - - -

PN28

THE COMMISSIONER: That is interesting, because there are some decisions which say that "may" is in context with the word "shall".

PN29

MR CLIFFORD: Yes, well - and perhaps that becomes clearer, Commissioner, when we go to the enterprise agreement. Because it actually qualifies that in the context of this particular dispute.

PN30

THE COMMISSIONER: And obviously this certified agreement over-rides the award.

PN31

MR CLIFFORD: Correct.

PN32

THE COMMISSIONER: If there is an inconsistency.

PN33

MR CLIFFORD: Correct.

PN34

THE COMMISSIONER: Yes.

PN35

MR CLIFFORD: So what happens when you are offered one of these remuneration packages is that you need to be given a salary increase of 15 per cent on top of your current salary, to - for, I suppose, compensation if you like, for being exempt from those particular provisions of the industrial instruments. If I could now take you to the enterprise agreement, Commissioner.

MFI #2 WESTPAC ENTERPRISE DEVELOPMENT AGREEMENT 1998

PN36

MR CLIFFORD: The relevant clause in the enterprise agreement, and again I think it has been tabbed, Commissioner, is clause 24.2.8. And here we say - here we see that the - when people are offered a Package 2 arrangement, and again Package 2 arrangements are the ones that can be offered to employees classified as A2 or A3. It says:

PN37

When the bank first makes an offer of a Package 2 package to an employee, an offer of a package will be made to all current incumbents of that position in that business unit at the same time.

PN38

And down below that it talks about the fact that:

PN39

... people subsequently appointed to that position in the business unit will be offered a package within 12 months, provided their performance is satisfactory.

PN40

THE COMMISSIONER: So that is the trigger essentially, you say.

PN41

MR CLIFFORD: That is correct. So we would argue it is discretionary as to whether a package is offered to an employee or not. But once it is offered to an employee in a particular business unit, then it needs to be offered to all employees in that business unit. And the intention behind this clause, Commissioner, and it is a principle to which the Commission is no stranger, it is a principle of equity. This clause says that if it is appropriate for one person to have a package arrangement in a particular business unit or in a particular section, then for the purposes of equity, then all people in that business unit should have the same opportunity. It doesn't say they have to accept the package, but they should have the same opportunity to accept a package.

PN42

THE COMMISSIONER: So can I just and encapsulate your submission? If the - this - 24.2.8 doesn't operate unless the bank makes an offer to an employee in that particular unit?

PN43

MR CLIFFORD: That is correct.

PN44

THE COMMISSIONER: Once they make that offer, your submission is that they are bound to make the same offer to other employees who fit the category.

PN45

MR CLIFFORD: That is our submission, Commissioner. So the circumstances before us in this dispute are that an employee was offered a package in this particular business unit.

PN46

THE COMMISSIONER: Can I just clarify this with you?

PN47

MR CLIFFORD: Yes.

PN48

THE COMMISSIONER: At the time this agreement was certified was the - what was the distinction in terms of the way this unit was described? You said it was - initially it was described as the - - -

PN49

MR CLIFFORD: What was it - - -

PN50

THE COMMISSIONER: - - - Westpac Finance Unit.

PN51

MR CLIFFORD: Yes. It was - - -

PN52

THE COMMISSIONER: And then, at some stage, or now you say, it is described as Middle Markets Queensland.

PN53

MR CLIFFORD: That is correct. So at the time that - well, I suppose the issue here is that we say an employee did come into this business unit and was offered a package. And at that stage it was called the Property Finance Unit.

PN54

THE COMMISSIONER: So the change in terminology - do I take it your submission is that that was - that is simply a packaging arrangement, or a name tag arrangement for the bank, but it doesn't change the intent of the certified agreement.

PN55

MR CLIFFORD: That is correct, Commissioner. I would - in fact, that was for the purpose of, sort of, completing the information. We think that the change of name, from Property Finance Unit to Middle Markets Queensland has little relevance to the actual - to the actual dispute. So the circumstances which bring us here today are that there was an employee, a Beverley Bailey - or there is an employee, Beverley Bailey, who has moved to Queensland from New South Wales. Now, she was an A2 officer in New South Wales and was offered a package in New South Wales. She moved to Queensland to take up a position in the bank's Credit Support Unit.

PN56

THE COMMISSIONER: This agreement is nationwide, is it?

PN57

MR CLIFFORD: That is correct.

PN58

THE COMMISSIONER: Yes.

PN59

MR CLIFFORD: The - perhaps I should explain. This agreement before us today, Commissioner, is the Westpac Banking Corporation Queensland Enterprise Development Agreement. There are agreements which apply throughout the bank, and it is a strange situation in that they are identical in terms, but they apply to different areas. People - - -

PN60

THE COMMISSIONER: I am just wondering if, at the time she was made the offer she was working - what terms would you say she attracted? Are they under the Queensland Agreement or the New South Wales Agreement?

[11.42am]

PN61

MR CLIFFORD: Well, they would have been under the New South Wales Agreement, but it would have been in terms identical to this.

PN62

THE COMMISSIONER: I am just wondering if they are isolated to the extent of only being enforceable in their own right.

PN63

MR CLIFFORD: Yes. Commissioner, I could take that point on notice, actually. It is an interesting point that you raise, and perhaps one that is relevant to this dispute.

PN64

THE COMMISSIONER: Well, when we hear what Mr Williams has to say, we will see if it is or not.

PN65

MR CLIFFORD: Yes. Commissioner, she was offered this package in New South Wales. When she moved to Queensland, she took up a position in the Credit Support Unit. She retained her package to remuneration. That in itself was interesting in that the Queensland part of the bank states they have a policy which is a policy not to instigate salary package for A level staff, and in fact it is our information that a number of employees who have moved to Queensland have been unpackaged when they come to Queensland, but in this case Ms Bailey was not unpackaged.

PN66

If I could just, for the information of the Commission, hand up a letter to Mr Heard from Mr Paul Anderson of the bank which states that that is the policy of the bank.

EXHIBIT #FSU1 LETTER FROM MR HEARD TO MR ANDERSON, WESTPAC

PN67

MR CLIFFORD: This is a letter to Mr Heard which says that, having investigated the background of his claim for a package, the last paragraph says:

PN68

As you are aware, the bank in Queensland has a policy of not instigating salaried packaging for A level staff, and that policy currently remains in force.

PN69

So, despite that, Ms Bailey has kept her package as she has moved to Queensland. Now, subsequent to her moving to Queensland, an additional position in Mr Heard's area became available, so an A3 Customer Manager Analyst position became available in the Queensland Property Finance Unit as it was known at that time. It was advertised, and it was advertised not as a packaged position, it was advertised as an unpackaged position.

PN70

Ms Bailey applied for that position and was successful in her application and she was appointed to it, and her commencement date in the position was 28 January 2001. But in being appointed to it, she was appointed with a package; she was appointed as a packaged employee. And it is at this point that we say that other employees of that business unit should have been offered the opportunity of a package, and we say that would be consistent with clause 24.2.8. And again we would state that the intent behind clause 24.2.8 is to create equity amongst remuneration arrangements for employees in a particular business area.

PN71

The bank deemed it fit for Ms Bailey to be appointed to this area and to take up a packaging arrangement, but for some reason has deemed that the other employees in that same area doing exactly the same work as Ms Bailey are not fit to have a package.

PN72

THE COMMISSIONER: Well, I don't know about the word "fit".

PN73

MR CLIFFORD: Well, perhaps I could use different terminology, Commissioner. Now, Mr Heard had in fact approached the bank prior to even becoming aware that Ms Bailey was packaged and had sought a package from the bank, and the reason he had sought a packaging arrangement was because of the amount of overtime that was being worked in that particular area, at that point in time much of it unpaid overtime.

PN74

So there were workload issues, and Mr Heard felt that it would be appropriate that the employees, because of that workload, were packaged, received a 15 per cent increase, and that would be a much smoother arrangement for the bank and the employees instead of having to claim overtime all the time, or as the case was then, as I understand it - - -

PN75

THE COMMISSIONER: Did they get paid for it when they claimed it?

PN76

MR CLIFFORD: Well, as I understand - and perhaps in conference Mr Heard could elaborate on this - but as I understand it at the time that the claim was first made for packaging, a lot of the overtime wasn't being paid. My understanding is, but I stand to be corrected, Commissioner, is that since that time a lot of the overtime is paid in that particular area, but Mr Heard could perhaps give us more information.

PN77

THE COMMISSIONER: Was this overtime recorded?

PN78

MR CLIFFORD: At that time, I don't believe it was. Since that time, I believe it has been recorded. So we claim that, from the time that Ms Bailey was appointed to the position, and appointed with a package, that the other employees in that area - now there were only two other employees in that area, one of whom is Mr Heard, so our claim is not one for a massive group of people. It is for two other people, including Mr Heard, to be offered the packaging arrangements, to ensure that there is equity in remuneration arrangements in that particular unit. If the Commission pleases.

PN79

THE COMMISSIONER: Thank you. Mr Williams.

PN80

MR WILLIAMS: Thank you, Commissioner. Commissioner, there has been no decision to offer Mr Heard a package, and there has been no decision as a matter of principle to offer the role that he occupies a package. So in that sense it is, I guess, what you could style an opportunistic claim. It is a claim which seeks to compel Westpac to offer a package that they don't want to offer.

PN81

THE COMMISSIONER: Well, subject to the certified agreement providing that.

PN82

MR WILLIAMS: Naturally. And if - - -

PN83

THE COMMISSIONER: I mean Westpac can't pick and choose whether it will operate under the terms of the agreement, but it is a question of whether or not the agreement has been triggered.

PN84

MR WILLIAMS: Exactly, that is exactly so. So it comes down to a question of an analysis of what has occurred against the provisions of the certified agreement as to whether Westpac can be forced to make an offer in an operational or business sense they don't want to make. If that is the bed they have made for themselves, then of course that is the bed they will have to lie in, Commissioner, but in these particular factual circumstances certainly, in our submission, that is not the case, although much of the history that Mr Clifford has recounted is not controversial, and I will come back only to the bits that are.

PN85

Commissioner, there might be a different emphasis as between the parties as to what the purpose of the qualifier to the bank's right to offer packages. Mr Clifford says it is a matter of equity and fairness. From the union's point of view that might be right, and in a sense that might be right from the bank's point of view as well. But really what you have is a compromise. Presumably the bank would prefer to have the flexibility to offer and not to offer as it chooses. Presumably the union would prefer perhaps that packages aren't offered at all, but you have a negotiation about those things and you reach a compromise.

PN86

It would be perhaps leading down a dry gully to infer that there is some kind of a social justice principle or social equity balance which that clause represents which ought to be upheld in some way by the Commission. It is simply an agreement reached between two competing positions on the issue of workplace flexibility. But the - - -

PN87

THE COMMISSIONER: Well, I would agree with that, that the Commission is not in the business of enforcing principle on parties.

PN88

MR WILLIAMS: Exactly.

PN89

THE COMMISSIONER: Nor is it in the business of enforcing awards or certified agreements.

PN90

MR WILLIAMS: Well, that is true as well.

PN91

THE COMMISSIONER: But obviously if it becomes as clear as the nose on your face that Westpac has an obligation to comply with the agreement, that becomes a different issue, not so much for this Commission, but for the parties.

PN92

MR WILLIAMS: Well, it might be for the parties or for enforcement in a different place, Commissioner.

PN93

THE COMMISSIONER: In another place, yes.

PN94

MR WILLIAMS: And if it was as obvious as the nose on your face, we wouldn't be here at all. But, Commissioner, whatever the purpose of the qualifier, the one packaged therefore all packaged principle, it only applies in very particularly defined circumstances, and the certified agreement itself makes that clear. The relevant clause is 24.2.8. Before I go to the precise wording, Commissioner, I just want to say something about the principle that Mr Clifford has argued for and what it might mean.

PN95

What Mr Clifford says is that, if you have a packaged employee anywhere in Westpac - it is a national organisation - or within a state or whatever, if there is a decision by a particular Business Manager, because it would be a Business Manager's decision, a particular Business Manager, that is the same in Perth, that in his particular business unit he wants to have packaged employees, he makes the offer, presumably he makes it to all people in similar roles.

PN96

What Mr Clifford argues for is an interpretation of the certified agreement which then means that, if those people in the furtherance of their careers, or at the request of the bank or whatever, choose to move interstate or into a different business unit, or into any other part of the bank governed by the same or similar certified agreement, they carry that packaging like a virus, and they then spread that packaging into business units under different Business Unit Managers who might have different operational requirements or different operational aspirations requiring that person simply by accepting a transfer to then offer a package to all other people in that business unit.

[11.53am]

PN97

THE COMMISSIONER: Can I just ask you to pause there. I didn't take that to be the submissions Mr Clifford made.

PN98

MR WILLIAMS: Well, it is part of his submission, Commissioner.

PN99

THE COMMISSIONER: Yes, but at the nub of it, that is not the submission. He gave me some background about this lady, Ms Bailey.

PN100

MR WILLIAMS: Yes.

PN101

THE COMMISSIONER: And her circumstances when she arrived from New South Wales as a packaged employee. But as I understood it, it wasn't till such time that she was offered a further package whilst residing in Brisbane that the union says on behalf of Mr Heard that clause 24.2.8 was triggered.

PN102

MR WILLIAMS: Yes. Well, it may be that the argument has become that limited but - - -

PN103

THE COMMISSIONER: Well, I will just confirm that. Mr Clifford, is that the position?

PN104

MR CLIFFORD: That is correct. We weren't claiming that when she moved in to the A2 position that that triggered it.

PN105

THE COMMISSIONER: Yes.

PN106

MR CLIFFORD: But on applying for a higher level job and being offered the package whilst in Queensland - - -

PN107

THE COMMISSIONER: Whilst in Queensland in that unit, you say that that was the action that triggered the need for clause 24.2.8 to be enacted upon by the bank.

PN108

MR CLIFFORD: That is correct, Commissioner.

PN109

THE COMMISSIONER: That is a bit narrower I think, Mr Williams.

PN110

MR WILLIAMS: Yes. No, Commissioner, it is narrower but in these particular factual circumstances it might have the same practical effect.

PN111

THE COMMISSIONER: Yes.

PN112

MR WILLIAMS: Commissioner, clause 24 allows, in 24.2.3, for the employee to review on an annual basis and also at promotion time, or transfer time whether or not the employee wants to remain packaged so it - - -

PN113

THE COMMISSIONER: 24.2.3?

PN114

MR WILLIAMS: 24.2.3, it allows an employee to review the employees decision to have a package, and relevantly on promotional or lateral transfer. But, Commissioner, the clause is notable for not allowing the bank the same flexibility. So if the bank - if an employee wants to transfer and it suits the - let us say a packaged employee wants to transfer, if it suits the business for the person to transfer and there is no reason to disrupt the career. What the bank can't say if it accepts the transfer, unilaterally that is, that the person should become an unbundled or unpackaged employee and go back to the rates in the award. So the bank itself doesn't have the right to do that.

PN115

THE COMMISSIONER: So once you are packaged, the bank doesn't have the right to unpackage you; is that what you are saying?

PN116

MR WILLIAMS: No, not under that clause, Commissioner. Of course it could be done by agreement, and it may well be that that has happened from time to time.

PN117

THE COMMISSIONER: Yes.

PN118

MR WILLIAMS: But if - and the structure of the clause is that when you are packaged, you are a packaged employee. Now, of course, it might - - -

PN119

THE COMMISSIONER: But this gives the employee some rights.

PN120

MR WILLIAMS: yes.

PN121

THE COMMISSIONER: 24.2.3 gives them rights; it gives them the right to look at the outcome.

PN122

MR WILLIAMS: That is right.

PN123

THE COMMISSIONER: And if they are not happy with the outcome, they then have a choice to reject the package offer.

PN124

MR WILLIAMS: That is right.

PN125

THE COMMISSIONER: That is on my reading of that particular subclause.

PN126

MR WILLIAMS: Yes, that is right. And clearly the bank could make it a condition of the transfer or the promotion that the employee agree to unpackage. But what the bank doesn't have is a unilateral right to say to an employee once they are packaged: well, you can't package any moire.

PN127

THE COMMISSIONER: Yes, but I still think, Mr Williams, you are driving at something that Mr Clifford doesn't seek.

PN128

MR WILLIAMS: Yes, and I - - -

PN129

THE COMMISSIONER: He doesn't seek that.

PN130

MR WILLIAMS: No. As the submissions have arisen today, it is true that he doesn't. But, Commissioner, I suppose I am trying to paint a picture for what practically happens. And what has happened here is that the female employee who transferred from Sydney came to Brisbane, accepted an A2 position, and she was a packaged employee in Sydney and she remained a packaged employee in Brisbane.

PN131

THE COMMISSIONER: So the agreement wasn't triggered at that stage then?

PN132

MR WILLIAMS: Well, it is not said now that it was triggered. No, that is correct.

PN133

THE COMMISSIONER: No, no.

PN134

MR WILLIAMS: But what happened, as Mr Clifford has pointed out, was that the employee then applied for, and accepted an A3 position. And that position, there was no decision by Westpac - and this is probably the more critical part having regard to the way the argument has developed. No decision was made by the state managers, the relevant manager in Queensland to offer that A3 position on a package basis. What happened, and this is recorded, was that the decision was offered consistent with the policy and the strategy in Queensland on the basis of an A3 unpackaged remuneration scale. Now - - -

PN135

THE COMMISSIONER: Now, is that - that can be documented - - -

PN136

MR WILLIAMS: Yes.

PN137

THE COMMISSIONER: - - - documented and proved by way of documentation, can it?

PN138

MR WILLIAMS: It can, it can be.

PN139

THE COMMISSIONER: Yes. So the A3 position for Ms Bailey was not approved on a package basis.

PN140

MR WILLIAMS: It was not offered on a package basis.

PN141

THE COMMISSIONER: Well, not offered; yes, not approved rather, but not offered.

PN142

MR WILLIAMS: And no decision was made to offer it on a packaged basis. But, of course, what happened then was that she had been on an A2 position. There is not a huge amount of difference between the bands in terms of salary. She was on a packaged A2 position which meant that her salary rate was 15 per cent higher than it would otherwise have been in A2. And when she was then offered an A3 - and no doubt it was an entry level A3, I think there is some bands but no doubt it would have been towards the bottom of the A3 range because she was an entry level A3.

PN143

She did the sums and realised that she was going to be worse off. So she said to them: well, look, why would I accept this, it actually costs me money, it is a promotion that costs me money? And what the business unit decided to do, because they were wanting her to transfer, they wanted her to have the job and they didn't want her to be disadvantaged by the way that the remuneration system worked, they agreed to maintain her salary.

PN144

THE COMMISSIONER: Now, just let me put this to you, Mr Williams. Clause 24.2.8 says:

PN145

When the bank first makes an offer of a package to package to an employee, an offer of a package will be made to all current incumbents.

PN146

Now, that doesn't require that the offer is taken up before the other offer has to be made to the other employees, does it?

PN147

MR WILLIAMS: That is right, that is right. But in this case, Commissioner, what happens was that there was an agreement to maintain salary as if she was an A3 employee. And, Commissioner - - -

PN148

THE COMMISSIONER: I see. So you are saying that there was no package offer made for Ms Bailey.

PN149

MR WILLIAMS: That is right, yes. When it is properly analysed her salary was maintained - - -

PN150

THE COMMISSIONER: But wasn't there an offer made and you suggested that she examine that, and then decided she would be worse off?

PN151

MR WILLIAMS: An offer was made under - what happened, look, this is possibly factually a debatable issue. But from the bank's point of view it - - -

PN152

THE COMMISSIONER: Well, you and I are having a debate about it right now.

PN153

MR WILLIAMS: No, we are not - well, perhaps it will be debated in a moment or maybe in a different place. But what happened was that an offer was made in good faith to her when she accepted an A3 position, or said she was prepared to. And in accordance with the strategy of the day in Queensland, it was made in an unpackaged way. She complained about that because it reduced her salary. An agreement was made to pay her as if she remained a packaged employee. So for practical purposes, it related to her remuneration. She remained a packaged employee.

PN154

THE COMMISSIONER: Well, it sounds like a bit of fancy footwork to me.

PN155

MR WILLIAMS: Well, it is just - you can imagine that happening in a practical sense, Commissioner.

PN156

THE COMMISSIONER: Well, yes.

PN157

MR WILLIAMS: And it might - it would be unfair to - - -

PN158

THE COMMISSIONER: If you are looking at the bottom line it would be a very practical sense.

PN159

MR WILLIAMS: Well - - -

PN160

THE COMMISSIONER: Which banks tend to do these days, as I understand it.

PN161

MR WILLIAMS: They are in business, like all of us. Commissioner, when you look at 24.2.8 it is fairly clear that the factual situation doesn't - wouldn't be a trigger in any event. It says when the bank - and it is very deliberately worded, too:

PN162

When the bank first makes an offer of a package to package to an employee, an offer of a package will be made to all current incumbents of that position in that business unit.

PN163

So, Commissioner, what we say about that is that that actually records what you would imagine would be the commonsense approach to this, namely that employees - you become a packaged employee and then if you move throughout the bank, there is an expectation you might continue to be a packaged employee because people don't usually take a pay cut to get a promotion. But there is only one - on one occasion that an offer to an employee to become packaged can be a trigger and that is when the employee is first offered a package. So even if Mr Clifford - - -

PN164

THE COMMISSIONER: So you say that that happened in New South Wales.

PN165

MR WILLIAMS: Exactly.

PN166

THE COMMISSIONER: It can't happen again in Queensland.

PN167

MR WILLIAMS: It can't happen again, no. So we put - the defence of the proceeding if you like is put on two bases. One is that properly analysed there was not an offer of a package at the A3 level. There simply was an agreement to maintain salary, a complaint having been raised. But, secondly, they could offer her ten packages in ten different positions but, because the trigger was spent, the shot was fired when the offer was made in Sydney - - -

PN168

THE COMMISSIONER: So it is a one off, is it?

PN169

MR WILLIAMS: Well, that is what the agreement says, Commissioner, and there was a practical reason for that.

PN170

THE COMMISSIONER: When the bank first makes an offer.

PN171

MR WILLIAMS: That is right, when it first makes an offer - - -

PN172

THE COMMISSIONER: So the reliance is on that word "first".

PN173

MR WILLIAMS: Yes, and why else would it be there, Commissioner? It is very deliberately inserted. And it makes sense because it - it makes sense for the bank not to agree to something which gives rise to these arguments that as people progress, presumably still wanting to be packaged, that they infect every business unit they go to because, as the union would say, there has been a further offer of a package in a different job.

PN174

THE COMMISSIONER: I would be interested to know whether there were any notes kept on the negotiations which went to the ultimate acceptance of this document as an agreement.

PN175

MR WILLIAMS: I am not instructed, Commissioner, but I have - - -

PN176

THE COMMISSIONER: I would have thought that is a pretty important aspect of this agreement - - -

PN177

MR WILLIAMS: Yes.

PN178

THE COMMISSIONER: - - - which somebody - there should have been some discussion and debate between the parties about the intent and meaning of this clause.

PN179

MR WILLIAMS: I see what you mean, at agreement level.

PN180

THE COMMISSIONER: Yes.

PN181

MR WILLIAMS: Yes, I - - -

PN182

THE COMMISSIONER: Yes, because, you know, parties like to come before the Commission with certified - they want an agreement certified and it is all nicely packaged up, and they have got stat decs that says everything is hunky-dory and we all love one another and all agree. And then all of a sudden all hell breaks loose.

PN183

MR WILLIAMS: Yes.

PN184

THE COMMISSIONER: No, that is not what we agreed to, that was never the intention. And then when you try to find out what the real intention behind the terminology is, low and behold, nobody knows.

PN185

MR WILLIAMS: Yes. Or one party had it in their minds but it wasn't shared by the other party in which case - - -

PN186

THE COMMISSIONER: Yes.

PN187

MR WILLIAMS: - - - you wonder if you have got an agreement at all.

PN188

THE COMMISSIONER: You get a big of that so then you become a mind reader.

PN189

MR WILLIAMS: Yes, well, Commissioner, look let us hope it doesn't come to that. But if it does, then one would have thought there would be a very close analysis - - -

PN190

THE COMMISSIONER: But I mean that is - essentially though that is the bank's argument, that is their case.

PN191

MR WILLIAMS: Yes, yes.

PN192

THE COMMISSIONER: The word "first" in that sense means that it is a one off offer, a one time offer only which can't be carried any further into other business units which then mean that you can - as you say, it is like a virus, it just goes through the rest of the unit and they automatically have to be made an offer.

PN193

MR WILLIAMS: Well, it goes through the first unit but it doesn't transfer.

PN194

THE COMMISSIONER: It doesn't keep on going. From there it is - it is insulated against itself.

PN195

MR WILLIAMS: Yes, people can move freely from job to job without infecting the business unit they go to.

PN196

THE COMMISSIONER: I guess it could be an inhibitor in that sense, couldn't it, if it wasn't that?

PN197

MR WILLIAMS: But why would the bank - Commissioner, why would the bank accept transfers and allow people to remain packaged if they thought it was going to be a virus?

PN198

THE COMMISSIONER: Yes, if they knew that they were going to, in effect, give themselves a much larger wage bill somewhere else because they agreed to transfer somebody somewhere.

PN199

MR WILLIAMS: Yes, and it might inhibit people's careers possibly. So that might be a reason why the Commission or the Court or whatever would accept our analysis of 24.2.8.

PN200

THE COMMISSIONER: Well, that is fine but, you see, there is another issue raised. It is an allegation of overtime worked and not paid.

PN201

MR WILLIAMS: Yes. Commissioner, I have got some very brief instructions about that and I didn't understand Mr Clifford to be putting that as a point for this debate.

PN202

THE COMMISSIONER: No, but it is something this Commission is concerned about.

PN203

MR WILLIAMS: Yes. Commissioner, my instructions are and I am instructed on this level only, yes, there was an issue about overtime and it has been resolved.

PN204

THE COMMISSIONER: So it is now being paid if it is claimed or if it is authorised.

PN205

MR WILLIAMS: I don't understand there to be a continuing dispute about the overtime, Commissioner.

PN206

THE COMMISSIONER: I see.

PN207

MR WILLIAMS: But that is all I know.

[12.04pm]

PN208

THE COMMISSIONER: Well, in terms of any adjustments for overtime, was anything done about that?

PN209

MR WILLIAMS: I am not instructed, Commissioner.

PN210

MR CLIFFORD: No, Commissioner.

PN211

THE COMMISSIONER: Yes, Mr Williams.

PN212

MR WILLIAMS: Commissioner, that is, in a large nutshell, that is the bank's position.

PN213

THE COMMISSIONER: Okay, all right. All right, Mr Clifford, what have you got to say in response.

PN214

MR CLIFFORD: Just very briefly in response before we go into conference, Commissioner, I suppose there is two responses to the position that - the offer of a package only needs to be offered to all current incumbents when it is - in the very first time it is offered to a particular employee. We would say it is relevant in this case to offer it to all the incumbents for two reasons. One is that in a promotional situation everything is up for grabs again. You are appointing a person to that position for the first time and we had heard that there was discussion around this very point when Ms Bailey was appointed to the A3 position.

PN215

It has been confirmed that the position - it has been confirmed by Mr Williams that the position was being advertised as an unpackaged position. The discussion then was around whether or not Ms Bailey keeps a package or not, so the bank's first intention was we are not going to offer you a package. Ms Bailey makes an argument to say it is not in my interests to accept this position if it is not packaged and so the bank then says, all right, we will offer you a package then. So in this particular position this is the first time that an employee in that position has been offered - - -

PN216

THE COMMISSIONER: Well, there is a real argument there then, isn't there, because on Mr Williams' submission you can't carry forward this offer arrangement, particularly to an employee who has already been offered a package, on a first occasion basis.

PN217

MR CLIFFORD: Yes.

PN218

THE COMMISSIONER: A different matter if she had never been offered a package anywhere and she comes along to Queensland and then gets offered a package. Then I think it is pretty clear as to what clause 24.8.2 requires of the bank but there is a real issue here between the parties as to whether or not this first offer scenario puts Ms Bailey outside the terms of 24.8.2 where the other employees are concerned.

PN219

MR CLIFFORD: Yes.

PN220

THE COMMISSIONER: Because that seems to me to be the issue.

PN221

MR CLIFFORD: I would agree with that, Commissioner, absolutely. I suppose the second point I would make on that is in response to the question the Commissioner asked earlier about this agreement as opposed to the New South Wales agreement. There is an argument to say this is the first time an offer has been made to this employee under this agreement, as separate to the New South Wales agreement, perhaps a more technical point to make but one - - -

PN222

THE COMMISSIONER: Yes. Well, I think to get an answer to that you will have to go somewhere else.

PN223

MR CLIFFORD: Yes. They were the only points I wish to make in response to that. If the Commission pleases.

PN224

THE COMMISSIONER: Okay, all right. Well, then if there is nothing further we will adjourn into private conference.

SHORT ADJOURNMENT [12.06pm]

RESUMED [12.40pm]

PN225

THE COMMISSIONER: The parties have met in private conference under the chairmanship of the Commission. They have not been able to resolve the issues which gave rise to the notification currently before the Commission. However, a proposition is being considered and in any event the parties may wish to have the attention of the Commission further. In that regard the Commission adjourns these proceedings and gives the parties leave to have this matter further relisted if that becomes necessary. On that basis I shall adjourn these proceedings.

PN226

MR WILLIAMS: Thank you, Commissioner.

ADJOURNED INDEFINITELY [12.41pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #1 WESTPAC EMPLOYEES AWARD 1998 PN23
MFI #2 WESTPAC ENTERPRISE DEVELOPMENT AGREEMENT 1998 PN36
EXHIBIT #FSU1 LETTER FROM MR HEARD TO MR ANDERSON, WESTPAC PN67