C2002/1853, Transcript of Proceedings [2002] AIRCTrans 1738 (20 May 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT03813

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2002/1853

THE COMMUNITY AND PUBLIC SECTOR
UNION

and

DEPARTMENT OF EDUCATION EMPLOYMENT
AND TRAINING

Application under section 170LW for
settlement of dispute (certification of
agreement) re the use of the SSO1
classification, overtime, lunch breaks,
and first aid allowance at the Norris
Bank Primary School

MELBOURNE

11.37 AM, MONDAY, 6 MAY 2002

PN1

MR R. RICHARDSON: I appear for the CPSU. Appearing with me is MR D. CHEESEMAN, MS M. NEWTH and MS J. STAPP.

PN2

MR I. HOLLINGWORTH: I appear on behalf of the Department of Education and Training. Also here for the Department of Education and Training is MS J. SANDS and the Principal of Norris Bank Primary School, MR B. SWALE.

PN3

THE DEPUTY PRESIDENT: Thanks, Mr Hollingworth. Look, if it would assist the parties, my preference would be, because of some time constraints that I have today, to go into conference earlier rather than later. So to the extent that that means that you should restrict your opening submissions, only to the extent that they just give me the background of this case, I would appreciate it. If we need to go into full-scale submissions for the purposes of arbitration then I think that would be more appropriately done after we have exhausted any attempts that there might be to conciliate. So, on that note, Mr Richardson.

PN4

MR RICHARDSON: If the Commission pleases, Ms Stapp is employed as a school services officer at Norris Bank Primary School. There was an issue late last year about accrued time off which Ms Stapp had accumulated earlier in the year and she required some time off prior to Christmas because she was having some major surgery and she wanted to do all the things about Christmas. And the dispute arose initially out of the application of that time in lieu. And I think it is fair to say that the school had an acting principal at the time that the hours were worked and the new principal had been appointed at the point that she was taking leave.

PN5

Now, that was raised in correspondence prior to Christmas with the principal. When that hadn't been dealt with early in the new year, Ms Stapp contacted the union. When Mr Cheeseman, who was the officer responsible, went to the school, he uncovered a range of other things. One, that Ms Stapp was in our view inappropriately classified, that she was performing as the first aid officer and not being paid first aid allowance, and that she was expected to do that through her lunch hour and was effectively not getting a lunchtime. So each of those were the issues that were discovered at dispute.

PN6

Since 14 March, that was formally put to the principal of the school and we have been going through a range of processes since and the matters are still unresolved. And it was that lack of resolution that we have brought to the Commission. I think in terms of your suggestion, we were going to suggest going into conference but for the record I think that is sufficient to put on the record at this stage. If the Commission pleases.

PN7

THE DEPUTY PRESIDENT: Yes. Just to sum up, and I think you actually did it in your application, but just to sum up, Mr Richardson, the matters currently in dispute remain those that you have outlined in your outline?

PN8

MR RICHARDSON: Yes, they are.

PN9

THE DEPUTY PRESIDENT: Just going through them quickly, the incorrect use of the SSO1 classification, failure to reward overtime as per the agreement, unpaid lunch break not free from duty and first aid allowance not paid over a period of three years. They remain those issues in dispute.

PN10

MR RICHARDSON: Yes. I think there has been some discussions of recently recent days, but any proposals to resolve them have been on the basis of all of the issues being resolved by the offer, so while there has been some movement, they have all been as a package and the position at the moment is that what has been offered has been rejected. So those issues are still the issues.

PN11

THE DEPUTY PRESIDENT: Okay. Thanks, Mr Richardson. Mr Hollingworth.

PN12

MR HOLLINGWORTH: Deputy President, look, we are happy to go straight into conference, if the Commission pleases.

PN13

THE DEPUTY PRESIDENT: Yes. There is nothing you wish to put on the record?

PN14

MR HOLLINGWORTH: Not really, no. Not at this stage.

PN15

THE DEPUTY PRESIDENT: Okay. Well, you have nothing to respond to, Mr Richardson, so we will adjourn into conference.

SHORT ADJOURNMENT [11.44pm]

RESUMED [12.20pm]

PN16

THE DEPUTY PRESIDENT: Yes, I intend to direct the parties back into their own dispute settlement procedure in this matter. That procedure is referred to at clause 27 of the enterprise agreement and laid out in full at clause 10 of the relevant award. The point at which the matter should go back into the disputes procedure begins at 10.2.3 and it is in the formation of a conciliation committee. So I direct the parties to comply with that procedure to form the requisite conciliation committee and to advance this matter by discussions in the first instance within that committee.

PN17

To the extent that matters are resolved in that committee, they are disposed of as individual matters, not as a package. To the extent that matters remain live and in conflict, then they should move to the next procedure within the - laid out within the relevant clause in the agreement, which begins I think at 10.2.6 and goes on to 10.2.7. Now, 10.2.6, as I understand it, refers to a Merit Protection Board; is that the correct?

PN18

MR HOLLINGWORTH: That is correct.

PN19

THE DEPUTY PRESIDENT: Yes, the Merit Protection Board. I am cognisant of the time that this matter has been live in terms of a dispute and I am also cognisant of the time that we are now taking to go back into the disputes procedure. To that end I would like to see this matter expedited and I would request that the parties exercise their best efforts from both ends of the table to ensure that the matter is expedited.

PN20

I am also unsure at this point in time from the discussions that we have had whether the ability to make application to the Merit Protection Board is something that is available to both parties or only to the employee. If it is the case that it is only to the employee concerned that that Merit Protection Board is available then my reading of the relevant clause is that that is discretionary as far as the employee is concerned and it may be that the employee determines not to exercise that discretion, which would then leave the next step in the procedure to be back here in this Commission.

PN21

If it is available and discretionary as far as the respondent is concerned, as well, then the normal expectation I think in this matters would be that once that particular step is taken by a party that the other party to the dispute would accommodate it and would be in attendance and progress the matter in accordance with it. And, as I say, bearing in mind all of the time implications of all of this, I am going to in any event list the matter for 10 am on the morning of 31 May, the intention being to hear formal submissions from the parties in respect of any matters that remain in dispute at that point in time and to give determinations to the extent that a jurisdiction resides in this Commission in respect of those matters, further any recommendations that may emanate from the submissions that are put.

PN22

To the extent that procedures are unable to be complied with within that timeframe, and I am particularly referring here to the - any referral to the Merit Protection Board, then it is obviously open to the parties to make submissions on that day as to the jurisdiction that may reside in this Commission to hear matters that have not complied with all of the steps of the disputes procedure as the parties see those steps to be, and I will hear any submissions in respect of that on that day as well.

PN23

Now, I think I did refer to it as I was speaking, but just to make doubly sure, I have stated off the record that these matters in dispute seem to me to be each matters of fact that stand on their own, and it would be certainly my view that they should be dealt with as such at all stages of the disputes resolution process. That is, the conciliation committee should be looking independently at each of the issues and attempting to resolve the issues. To the extent that they resolve them, then they are disposed of. It is only the matters that are unable to be resolved at conciliation that should obviously go forward. One matter, on what I have so far heard, and nobody has contradicted me on this issue, does not turn upon the resolution of another, and neither should it be allowed to do so in coming to any resolution. Is there anything the parties wanted to add at this stage, on the record?

PN24

MR RICHARDSON: No, Deputy President.

PN25

MR HOLLINGWORTH: No.

PN26

THE DEPUTY PRESIDENT: All right. I will adjourn this matter until 31 May at 10 am.

ADJOURNED UNTIL FRIDAY, 31 MAY 2002 [12.28pm]