C2002/3282, Transcript of Proceedings [2002] AIRCTrans 2691 (16 July 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT04752
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/3282

THE COMMUNITY AND PUBLIC
SECTOR UNION

and

JOINT SERVICES DEPARTMENT

Notification pursuant to section 99 of the Act
of a dispute re failure by the Joint Services
Department to comply with Clause 10 of the
Agreement

MELBOURNE

10.30 AM, MONDAY, 1 JULY 2002

PN1

MS D. HILL: I appear on behalf of the CPSU, and with me today is MR J. KENNELLY.

PN2

MR S. AIRD: I appear on behalf of the Joint Services Department, and with me today is MS M. LAND.

PN3

THE COMMISSIONER: Thank you. Yes, Ms Hill.

PN4

MS HILL: Thank you, Commissioner. The notification of dispute today appropriately defines the nature of our complaint, which is the failure by the Department of Parliamentary Services to comply with clause 10 implementation of change of the members of State Parliament Staff Victoria Certified Agreement 2002, with respect to the unilateral decision to restructure the way in which the pool of electorate office staff are divided among the three main political parties, thus terminating the employment of electorate officers.

PN5

Commissioner, the ink is barely dry on the members of State Parliament Staff Victoria Certified Agreement 2002. It is only just over a month ago, in fact on 23 May, that the CPSU and Parliamentary Services, or Joint Services Department stood before Commissioner Gay and, after singing its praises, and after a two-year struggle, including a very tense industrial campaign, and some aspects having to be determined by a section 170MW, the agreement was certified. Commissioner, I would like to hand up a copy of the agreement.

PN6

THE COMMISSIONER: I have a copy, thank you.

PN7

MS HILL: You have a copy. I would just simply like, from the outset, to ask you to turn to clause 1 which is on page 1, objectives of the agreement. I am just going to read a little bit of it:

PN8

This agreement is made by the Parliament of Victoria in respect of employees to be covered by this agreement and the CPSU in a spirit of trust and goodwill to further the aims of the Parliament of Victoria and the employment interests of the employees, and to enhance constructive working relationship.

PN9

Commissioner, we certainly entered into this agreement in a spirit of trust and goodwill to further the aims of the Parliament and the employment interests of the employees and to enhance a constructive working relationship. The CPSU on behalf of our members have a deal, a section 170LJ contract deal. I would like you to turn now to page 2 of that agreement, to the definitions. You will see the second one in on the definitions of employer:

PN10

The President and the Speaker of the Parliament of Victoria who may delegate the status of the employer to the Secretary and/or Director Corporate Services of the Joint Services Department who may exercise the powers of employer as duly authorised.

PN11

Bearing in mind that the President and the Speaker are the employer, we were astounded, amazed and confused when opening the newspapers on Thursday morning, 27 June, to learn that a unilateral decision had been made and announced by the Premier that he had made a decision to restructure the way in which the pool of Electorate Office staff were divided among the three main political parties which will terminate the employment of electorate officers. Some of our members will fall casualty to this decision.

PN12

Commissioner, I would like you to turn to clause 10 of the agreement, which is at page 4. Commissioner, the implementation of change clause is quite explicit when it comes to a process of consultation, and for the record I would like to read it:

PN13

Where the employer is considering a restructure of the workplace, the introduction of new technology or changes to existing work practices of employees, the employer will advise the affected employees and the CPSU of the proposed change as soon as practicable after the proposal has been made. The employer will advise the affected employees and the CPSU of the likely effects on the employees' working conditions and responsibilities. And the employer will advise of the rationale and the intended benefits of any change. The employer will regularly consult with affected employees and the CPSU and give prompt consideration to matters raised by the employees or CPSU, and, where appropriate, provide training for the employees to assist them to integrate successfully into the new structure.

PN14

In accordance with the clause, the CPSU may submit alternative proposals which will meet the indicated rationale and benefits of the proposal. Such alternative proposals must be submitted in a timely manner so as to not to lead to an unreasonable delay in the introduction of any contemplated change. When such a proposal is made, the employer must give just cause to the CPSU if the employer does not accept its proposals. Any dispute concerning the parties' obligations under this clause shall be dealt with in accordance with clause 11 of the agreement.

PN15

I would like to reiterate this clause was consented to by the employer. This agreement was consented to by the employer. This agreement was approved by all of the government approval processes, it was ticked by Industrial Relations Victoria, it was agreed to by the Industrial Relations Sub-committee of Cabinet and approved by Cabinet itself, and with their hands on their hearts they shook our hands and stood alongside us and certified this agreement.

PN16

Nothing - and I repeat nothing - in clause 10 has happened and there is an additional subclause in clause 10 that says: Failing all of the above, read the newspapers for the consultation or keep watching the newspapers for further information. It doesn't say that at all. The employer's actions have been a blatant and calculated disregard for this industrial agreement. On Thursday morning, 27 June, I immediately contacted Steven Aird, the CEO of the Joint Services Department. Mr Aird informed me that likened to the CPSU, he hadn't been consulted either.

PN17

In fact, he advised me that he had to get a copy from the Opposition Leader of what was being proposed, Mr Napthine, the previous evening. I had to remind him of his obligations to consult and I also had to remind him that the Premier was not the employer. I had some sympathy for his dilemma because he hadn't been consulted either and, by default, he was the employer. He promised to call me back within half-an-hour and to his credit he did so, but what he had to say was very disappointing. He told me that unfortunately he was acting under instruction.

PN18

The decision had been made, and whilst he thought that the effective dated of 1 July was ambitious, the decision would nonetheless be implemented. He told me that he would try to get the three Chiefs of Staff of the three political parties together to discuss the implementation of the decision, and whilst he thought that two of those Chiefs of Staff may not wish to meet with me, he would try and include me in those discussions. I have never heard back on that issue and I don't know whether that meeting took place.

PN19

What I do know, Commissioner is that that afternoon the Premier did a media doorstop and stated to the media that this a sovereign state, we don't have to consult. You can imagine the feathers that flew after we heard that one. Our agreement says that they do have to consult. There isn't a pecking order of supremacy in the parties to our agreement. Once again I state that it is an LJ consent agreement, nobody's arms had to be twisted to sign it or shake hands.

PN20

Commissioner, this implementation of change clause is repeated in nearly all of our agreements across the public service and public sector by consent. We question the status of consultation for all of our agreements given the attitude and contempt being shown to our many thousands of members if this is the case. An hour after I put the section 99 dispute notification into the Commission, I received a letter via e-mail which has apparently been sent officially under signature from Steven Aird, and I would like to hand up a copy of that.

EXHIBIT #CPSU1 EMAIL FROM MR AIRD TO MS HILL

PN21

MS HILL: Thank you. I will just give the Commissioner a moment to read the first - over the page, the first letter that is dated Thursday, 27 June, and addressed to Karen Batt.

PN22

THE COMMISSIONER: Yes.

PN23

MS HILL: Thank you. There are a couple of things to say about this letter. Firstly, it is way too late to try and feign compliance with the agreement, given that Mr Aird himself had indicated that the decision had already been made; and the Premier's media grab certainly reflects that. Secondly, as mentioned earlier, the ink is barley dry on our agreement and it took two years to get it agreed and certified. We do not accept that budget deliberations were only considered in the last few weeks. They had two years of negotiations to put this on the agenda.

PN24

Thirdly, our elected officers - are elected officers so valued by the employer that they should be sacrificed for upgrading the technology or security for the MPs which is what the newspapers are saying? Many of my members are the security of the politicians because we believe that they keep them elected. Finally, Mr Aird wants to consult about how to implement the decision. The agreement provides for a process of consultation which will arrive at a decision; in other words, they have put the cart before the horse. And the Premier doesn't want to talk about it and he claims he doesn't have to; and he isn't the employer.

PN25

Commissioner, bearing in mind that this agreement will take us beyond the next State election, if we don't make a stand about the consultation and implementation of change clause now, I don't know where that will lead us if there is a change of government because they will probably kick us all over the park.

PN26

THE COMMISSIONER: How can I help you, Ms Hill?

PN27

MS HILL: Well, I would like to take you to clause 11 which is at the bottom of the other page of the implementation of change clause.

PN28

THE COMMISSIONER: That says the Commission can determine the - if there is any dispute - - -

PN29

MS HILL: Yes.

PN30

THE COMMISSIONER: - - - about the proper application of the agreement.

PN31

MS HILL: Well, clause 11(b)(iv) is something I would like to draw your attention to when it comes to matters with respect to jurisdictional powers that have been provided to - well, basically we have agreed not to run jurisdictional arguments so hopefully that is not going to be something that is in the back pocket of Mr Aird today because we certainly want to see some sort of resolution today.

PN32

THE COMMISSIONER: But I can tell you what the agreement means, can't I?

PN33

MS HILL: You certainly can.

PN34

THE COMMISSIONER: And what if I tell you it means precisely what you say it means; how does that advance the position?

PN35

MS HILL: What will happen there is that we today are going to be seeking a stay. We want the letters that have gone out to 40 odd people withdrawn and we want to go into a proper process of consultation because that is what they signed up to do and we had a deal.

PN36

THE COMMISSIONER: Is that the roll of the Commission, to stay the operation of action by an employer?

PN37

MS HILL: Well, I say that clause 10 provides for that to be able to happen, and clause 11 enhances that; that clause 11 does, in fact, give the Commission a right to resolve the dispute. It gives you a right via conciliation and, if necessary, arbitration and both parties have already consented to the Commission having jurisdictional powers to do so.

PN38

THE COMMISSIONER: Yes, I follow.

PN39

MS HILL: As I said, Commissioner, what we are seeking is the withdrawal of the letters, putting aside any of the restructuring, and for the employer to commit to a proper process of consultation as outlined in the implementation of change clause, and a commitment to abide by the agreement in all aspects. We had a deal, Commissioner, and we expect that the employer should stick with the deal because we certainly do and there certainly isn't - we haven't put any extra claims on the table. There is a no extra claims clause here. We haven't asked for anything in addition but, you know, we have this restructure that just happened overnight. I would be interested to see or to hear what the other side have to say. If the Commission pleases.

PN40

THE COMMISSIONER: And what relief are you seeking?

PN41

MS HILL: We want the letters withdrawn - - -

PN42

THE COMMISSIONER: Yes.

PN43

MS HILL: - - - that have gone out to 40 odd people. We want a proper process of consultation. We want the - in saying we want the letters withdrawn, we want the restructure put aside so that we can go through a proper process, and we want a commitment that the employer will abide by the agreement in terms of the implementation of change into the future. Thank you.

PN44

THE COMMISSIONER: Thanks, Ms Hill. Mr Aird.

PN45

MR AIRD: Mr Commissioner, as Ms Hill has mentioned, the department was informed late on Wednesday, 26 June, of the changed arrangements for the electorate party pool on the basis that the changed arrangement was that the numbers of the pool was - the numbers would be restructured based on the numbers over the whole of the Parliament and also the numbers would be reduced by eleven. The following day the Parliament advised the CPSU - unfortunately, it was after the message had been put into the newspapers - and we also advised all electorate offices of what had happened. Specifically we advised that there would be consultation on the process to be followed. We also advised that we would - the termination wouldn't be occurring on 1 July as had been advised in the various reports.

PN46

THE COMMISSIONER: Do you say that is consistent with 10.1?

PN47

MR AIRD: In regard that we were going to go through and discuss with the union the process that we would be adopting, yes.

PN48

THE COMMISSIONER: 10.1 talks about proposed changes. Are these changes capable of no longer being proposed?

PN49

MR AIRD: Mr Commissioner, I would - based on the advice that we have received and that the structure of a party pool which has always been a very interesting organisation in itself has been changed, I think that the proposed party - - -

PN50

THE COMMISSIONER: Your instructions are that consultation is about implementation, is it?

PN51

MR AIRD: At this stage that is all I can say.

PN52

THE COMMISSIONER: Yes. Thanks, Mr Aird. Are you content to go into conference to - - -

PN53

MR AIRD: Yes, Commissioner.

PN54

THE COMMISSIONER: Ms Hill?

PN55

MS HILL: I think that might be useful, Commissioner.

PN56

THE COMMISSIONER: Very well. I will adjourn the matter into conference.

SHORT ADJOURNMENT [10.48am]

RESUMED [11.35am]

PN57

THE COMMISSIONER: I have conferred with the parties and I propose to now issue a recommendation. The CPSU has notified the Commission pursuant to section 99 of the Workplace Relations Act of an alleged industrial dispute concerning the restructuring of the numbers of the staff of Members of the Parliament of Victoria. At this stage I am going to make a recommendation for the consideration of the parties. To begin, the CPSU should consider whether or not this is a matter properly raised under section 99 or section 170LW of the Act.

PN58

The issue appears clear, that is, whether or not clause 10 of the agreement gives employees and the CPSU a right to be consulted when change is contemplated rather than at a time after a decision has been made. At first blush there is some force to the position advanced by the CPSU. I invite the President and the Speaker of the Parliament to reflect on the agreement that they have reached with their employees and the CPSU and which was certified by the Commission on 23 May 2002. It is important that agreements are honoured.

PN59

The employees and the union have raised a serious matter going to the integrity of the agreement. This is a matter which I think the parties should earnestly consider. If there is any doubt about the proper application of the agreement the Commission can resolve that matter so that the parties may then act in accordance with their agreement. I am going to invite the parties to consult and also I am going to invite Mr Aird to consult with the presiding officers to consider the future course of action that should be taken.

PN60

In the interim it would be appropriate that no prejudicial action be taken against employees until this important matter is resolved. I will sit at 9.30 tomorrow to hear a report back on the outcome of those considerations. Thank you. I will adjourn the matter until 9.30 tomorrow.

ADJOURNED UNTIL TUESDAY, 2 JULY 2002 [11.38am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU1 EMAIL FROM MR AIRD TO MS HILL PN21