C2002/1943, Transcript of Proceedings [2002] AIRCTrans 1729 (20 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT03814
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2002/1943

CPSU, THE COMMUNITY AND PUBLIC SECTOR
UNION - PSU GROUP, VICTORIAN BRANCH

and

CSL LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re the refusal of CSL
Limited to allow an employee to resume work
following parental leave and leave without pay

MELBOURNE

2.37 PM, MONDAY, 6 MAY 2002

PN1

MR T. WARD: I appear on behalf of the CPSU.

PN2

MR M. COOPER: I am from the CPSU.

PN3

MS M. MAHONEY: I am from CSL.

PN4

MR G. WHITLEY: I appear on behalf of CSL Limited.

PN5

THE DEPUTY PRESIDENT: Thank you. Just before we start, I have another matter at 3 so I am going to have to adjourn at 3 and then we can reconvene. I don't expect the other matter will take much more than 30 to 45 minutes at the outside, so we should be able to reconvene fairly shortly after that. That being the case, I thought it might be convenient if I could get a background as to what this is all about in fairly brief compass from both parties, and then perhaps the parties can utilise that time to some effect in conference while I am dealing with another matter. What we may do is then reconvene back into conference rather than back on to the record if that suits the parties, but subject to what things are about because I don't know at this point in time. So, Mr Ward, perhaps you would like to tell me.

PN6

MR WARD: This matter concerns a CPSU member, Miriam Mahoney, who works for CSL. She has worked for - approximately 15 years service with CSL so she is a longstanding employee. Miriam Mahoney has been on a variety of - she went on parental leave followed by leave without pay due to family responsibilities. The last leave without pay was from 2 November. Throughout - prior to this leave without pay and subsequent, the company has given assurances that there was work available when Miriam was due to return to work.

PN7

THE DEPUTY PRESIDENT: Sorry, Mr Ward, just so that I get it right, the initial period of parental leave started when?

PN8

MR WARD: January 2000.

PN9

THE DEPUTY PRESIDENT: And then that - - -

PN10

MR WARD: It was a combination of long service leave, recreation leave, paid maternity leave, parental leave without pay.

PN11

THE DEPUTY PRESIDENT: All butted up against one another.

PN12

MR WARD: Yes.

PN13

THE DEPUTY PRESIDENT: Yes, which brings us up to what date? Up to now presumably?

PN14

MR WARD: Yes.

PN15

THE DEPUTY PRESIDENT: Yes. Thank you.

PN16

MR WARD: On 1 March, Miriam contacted CSL approximately two months before she was due to return to work and in accordance with the expectations that had been stated to her, that she was - it was her responsibility to contact the company, and I also spoke to the company at tha time and I spoke to Grant Whitley, who is sitting here to my left, and Miriam spoke to one of the managers, Karen Neave, and both of those people assured both Miriam and myself that there was work available, the company was growing, particularly in the area of finance where Miriam works.

PN17

Miriam contacted the company again a month later and received a similar response that, yes, it is fine, we have got lots of work available. This continued up to one week before she was due back, where the company said there is no work available. I then became involved as the union organiser and this resulted in the dispute avoidance procedures being invoked on 1 May. On 2 May, the day that Miriam was due to return to work, she attended work as she was required to do, and the company moved outside those dispute avoidance procedures by threatening to terminate the employment on that day unless the member applied for two days recreation leave. In the circumstances, we thought it was appropriate that rather than get terminated on that day that we apply for the two days recreation leave, but the dispute avoidance procedures require that work continues as normal, and in our view, you know, a threat to terminate or go on recreation leave is not work continuing as normal.

PN18

At that meeting on 2 May the company made it quite clear that there was a decision that was going to be made on Monday when Grant Whitley returned from leave and it was made clear in no uncertain terms that one of the outcomes that was possible was termination. The Human Resource Manager, Julie Todaro, made reference to - that we could access external decision makers if we were unhappy with the company's decision.

PN19

There was a meeting that was set down for 11 o'clock this morning between the parties. We sought a written guarantee from the company that that meeting would not result in termination. The company was unable to provide that guarantee, so that is why we have come here today.

PN20

THE DEPUTY PRESIDENT: All right, thanks, Mr Ward.

PN21

MR WARD: Thank you.

PN22

THE DEPUTY PRESIDENT: Mr Whitley.

PN23

MR WHITLEY: Thank you, Deputy President. Perhaps I can work backwards in time and recap some of what Mr Ward said. The two days that was referred to was to buy a bit of time until I returned from leave. I was on leave for the last two weeks; today is my first day back, so I have just picked up this case anew, so to speak. It was most unlikely that at the 10 or 11 o'clock meeting that was foreshadowed for today to start addressing Miriam's case that termination would have resulted, but it was going to follow from that unless we could find an alternate position to place Miriam in.

PN24

Going backwards in time, the immediate period from now backwards six months was leave without pay granted by the company on specific conditions, conditions that I would argue that Miriam accepted at the point she took up that offer of six months leave without pay. Amongst the conditions that were specified at that time was that her re-engagement would be subject to a suitable vacancy existing at that time. In the finance group we found that there wasn't and we started to search in the broader company, and that is where we are currently sitting at the moment.

PN25

There were a couple of other conditions which I will tender documents about if you like. The application itself today before you refers to parental leave and there is absolutely no link to that. Her parental leave was 12 months ago, so going back almost from today two years, Miriam commenced a period of maternity leave which went for 52 weeks. That was followed roughly, I think, by six months worth of long service leave and rec leave in combination, and the third period of leave was this six months period of leave without pay.

PN26

THE DEPUTY PRESIDENT: So your contention is that the company has discharged its obligations in respect of the parental leave and therefore it is not a - - -

PN27

MR WHITLEY: There was a period of 52 weeks, and I understand Miriam resumed duty for a day, because the maximum period under our provisions is 52 weeks continuous for maternity. She came back to work for a day, I understand that is pretty true, and then she started her long service leave. So that was a bit of contrivance, a deal done to enable her to have her leave extended for the purposes that she expressed. When she applied for the leave without pay, this last six month period, it was about the time she was due to resume work after all of her paid credits - or virtually all of her paid credits would have expired, and at the time we had a conversation, and this is also replicated in the documents, that her options were either to resume work, to resign or to apply for approved leave without pay. So that leave without pay was the option that she accepted in the end.

PN28

So I am at a little bit of a loss here why we didn't have the meeting at 11 o'clock today rather than come straight to the Commission because I don't think our processes internally in the grievance procedures were resolved before coming to the Commission today.

PN29

THE DEPUTY PRESIDENT: All right. Thanks, Mr Whitely. Mr Ward, did you have anything you wanted further to add?

PN30

MR WARD: Certainly. The union and the company have a redundancy agreement which is certified - part of a certified agreement, and that is quite clear when it states that:

PN31

Redundancies may arise in a number of circumstances, including where the number of employees exceeds that required for the efficient economical and profitable operation of the company.

PN32

Now, our understanding of the agreement between Miriam and the company was that whilst her specific job could not be guaranteed over such a long period of leave without pay, that her relationship as an ongoing employee was maintained, and if there was not suitable available work, that that would then trigger the redeployment and redundancy procedures.

PN33

Now, Miriam is available to recommence work now and wants to recommence work, but the company is claiming or asserting that there is no link, that she has no access to the redundancy provisions, despite the fact that she is an ongoing employee and the provisions only exclude three categories of employees and that is casuals, fixed-term and short-term employees.

PN34

We believe the company has moved outside the dispute avoidance procedures and indeed the advice to us on Thursday, as I have already stated, was that the company would make a final decision today and that is what the meeting at 11 o'clock is about, and the indication was further that, you know, termination was a distinct possibility. We sought to have that meeting at 11 o'clock today, and we sought a written guarantee that the meeting would not result in termination, provide an opportunity for the parties to discuss the matters and resolve them in an orderly way, but the company was unable to give us that written guarantee.

PN35

THE DEPUTY PRESIDENT: All right. Look, I think it is probably best served that we go off the record and I intend to do that and, as I say, I have another matter at 3, but I think we have got at least a short time where I can speak in conference, so we might do that with effect from now. Thank you.

SHORT ADJOURNMENT [2.47pm]

RESUMED [4.20pm]

PN36

THE DEPUTY PRESIDENT: To enable further discussions between the parties on this matter and to enable the company to exhaust its process of attempting to find alternative employment for Ms Mahoney, there is an undertaking from the company to maintain Ms Mahoney in employment at least until a further hearing of this matter is concluded. That hearing will be set down for Monday, 20 May at 2 pm, and at that hearing, should it be necessary that it goes ahead, I will hear submissions from the parties both as to the jurisdiction of this Commission to make determinations and/or orders with respect to the matter and also submissions as to the substances of those determinations and orders.

PN37

In the interim, I would commend to the parties that they do progress this matter through consultation because it seems to me that that may well offer the best opportunity for a mutually satisfactory outcome as far as this matter is concerned.

PN38

I request that the parties, to the extent that the matter becomes resolved between now and the 20th, that there be advice to this Commission so that that date can be abandoned on the 20th. I don't think there is anything that I have left out in that, is there, Mr Ward? Nothing, okay.

PN39

On that basis, I will reiterate that I commend to the parties a period of at least two weeks where this matter can be explored further between the parties and, I guess more importantly, there can be determinations made by the company as to whether or not there is an opportunity in some other part of the business for Ms Mahoney's employment to be accommodated. On that basis, I will adjourn.

ADJOURNED ACCORDINGLY [4.22pm]