C2002/3762, Transcript of Proceedings [2002] AIRCTrans 3294 (28 August 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

C2002/3762

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and
Allied Services Union of Australia and
Australian Postal Corporation for an order
to stop or prevent industrial action re lockout
and/or alleged refusal to allow employees to work

SYDNEY

10.30 AM, MONDAY, 12 AUGUST 2002

Continued from 29.7.02

PN241

MR M. McDONALD: I wonder if I could announce a change in appearance, if the Commission pleases. I now seek leave to appear with MR S. MEEHAN on behalf of Australia Post.

PN242

THE SENIOR DEPUTY PRESIDENT: Of counsel?

PN243

MR McDONALD: I am of counsel, your Honour, interstate counsel dare I say it.

PN244

THE SENIOR DEPUTY PRESIDENT: Which state?

PN245

MR McDONALD: Victoria.

PN246

THE SENIOR DEPUTY PRESIDENT: You're with Mr Meehan and Ms Dean?

PN247

MR McDONALD: With Ms Dean, thank you. I wonder before my friend, Mr Reitano rises to his feet whether I can indicate to the Commission what Australia Post's position is, your Honour? Last Wednesday, Australia Post received a revised list of witnesses that the union proposed to call in support of its application. That list consisted of some 16 individuals and 10 of those individuals were different, different persons to those who had previously been identified by the union on 29 July as persons whom it proposed to call in support of its application to lead witness from those people.

PN248

THE SENIOR DEPUTY PRESIDENT: Different or extra?

PN249

MR McDONALD: Different.

PN250

THE SENIOR DEPUTY PRESIDENT: Yes.

PN251

MR McDONALD: Different and extra, I should say. Some were different, some were extra. There are only six people who were identified on 29 July are on the list that we now have. Of those 16 individuals, eight are currently on sick leave at the direction of Australia Post. The balance of the employees, seven of them continue in employment and continue to actually perform duties. One of them, a Mr Rajaratnam, that's R-a-j-a-r-a-t-n-a-m, has been compulsorily retired on ill health grounds.

PN252

Your Honour will recall that on the last occasion on 29 July, Mr Reitano indicated that the basis of the union's application under section 127 was that Australia Post was directing employees, as he somewhat colourfully put it, to go on strike. Now, put at its highest, that can only be the case in respect of eight of the 16 people from whom the union has indicated propose to lead evidence. It is unclear to Australia Post just exactly what case it meets in respect of the other eight individuals who have not been directed on sick leave.

PN253

Perhaps not surprisingly, your Honour, the 16 individuals, their workplaces are such that they're located at various mail centres in and around Sydney. We have not in the time available to us been able to take proper instructions from the line management who have been involved in the decision-making processes concerning those employees. I should indicate to the Commission that most, if not all of the employees had a history of, if not a workers compensation history, a history of sick leave in excess of that prescribed by relevant awards and certified agreements which has been the subject of specific management programs by Australia Post and there is a mass of documentation. I rather suspect that some of it is at the right hand corner of the bar table in front of Mr Pasfield. There's a mass of documentation relating to the employees.

PN254

We are not, with respect, in a position to comprehensively or properly cross-examine the 16 witnesses who have been identified by the union and if we are required to proceed today, I'd place on the record that we would be needing to reserve our rights in seeking to recall the persons who are presented for cross-examination. Can I also indicate to the Commission that in respect of a number of the 16 individuals, the relevant personnel and medical files held by Australia Post indicate that there is conflicting medical evidence.

PN255

Can I indicate to the Commission that there is a jurisdictional issue which arises fairly and squarely in this case and it is this. As I understand the case put by Mr Reitano at least in respect of the eight individuals who have been directed on sick leave, it is that Australia Post is engaging in industrial action in that the implementation of its policies in respect of employees who have non work related injuries and who have been directed off work onto sick leave, that the implementation of that policy constitutes a ban or a limitation on the performance or acceptance of work in accordance with the definition of industrial action at section 4 of the act.

PN256

In response to that contention on behalf of the union, it will be Australia Post's case that that argument is misconceived, that the individuals are not at work because of a ban imposed by Australia Post but rather they are not at work because of their inability to perform the requirements of the job. That of necessity will require consideration and findings of fact, we submit, by the Commission as to the actual medical condition of those employees. That is whether or not they're not able to work because they're not fit to do so.

PN257

In those instances where there is conflicting medical evidence as between the medical advisers of the individuals and Australia Post's medical advisers, it's Australia Post's position that it will be necessary to lead evidence directly from those doctors. They'll need to be subject to cross-examination and there will need to be findings made in respect of those individuals by the Commission.

PN258

Can I indicate there's one other jurisdictional issue which arises, your Honour.

PN259

THE SENIOR DEPUTY PRESIDENT: Why is that a jurisdictional issue? I mean, I understand that's what you're saying your case is and that's what you're saying will have to be undertaken when the matter runs but why do you say that matters of fact for determination of them as to medical issues in this matter - I don't know much about the matter yet, I haven't heard anything on it, but why do you say that's a jurisdictional issue?

PN260

MR McDONALD: With respect, your Honour will need to make a finding whether or not someone can't actually work.

PN261

THE SENIOR DEPUTY PRESIDENT: Yes.

PN262

MR McDONALD: If there's conflicting evidence, one doctor saying they can and one doctor saying they can't, the Commission is going to have to come to a conclusion about that, with respect.

PN263

THE SENIOR DEPUTY PRESIDENT: Yes, it will.

PN264

MR McDONALD: We say that will go to a question of jurisdiction.

PN265

THE SENIOR DEPUTY PRESIDENT: All right. No doubt you'll explain that to me later.

PN266

MR McDONALD: Yes, your Honour, in due course. There's one other issue, your Honour, which arises and it's this. So far as we can ascertain, the capacity of Australia Post to direct employees to go on sick leave dates back to at least 1996 and it resides in a document which is called Australia Post Principle Determination and this arises under the power of Australia Post to prescribe conditions of employment of its employees.

PN267

The instructions we've received to date and we haven't yet been able to investigate this matter as thoroughly as we wish to, indicate that the contents of the relevant determination were the subject of direct consultation and negotiation with the national office of the CEPU prior to the determination being made.

PN268

A question will therefore arise in the proceedings, your Honour, in these terms. That is whether or not insofar as Australia Post is giving effect to the power conferred upon it by the relevant determination to direct employees to go on sick leave, whether or not they are acting in accordance with steps in fact which have been authorised by the CEPU. Now, I clearly indicate, your Honour, that's a matter that we haven't fully investigated but that of itself gives rise to a further potential jurisdictional issue in the case.

PN269

THE SENIOR DEPUTY PRESIDENT: Yes. I'm sorry, Mr McDonald, I understand that you wish to outline to me a whole range of matters that will arise in the course of this hearing, I just don't understand why you want to do them now before Mr - - -

PN270

MR McDONALD: I'm sorry for being so long winded, your Honour.

PN271

THE SENIOR DEPUTY PRESIDENT: It's just that you're out of turn.

PN272

MR McDONALD: I was doing that by way of background to the application which I wish to make for an adjournment. Now, I appreciate, your Honour, there was correspondence with you on Friday.

PN273

THE SENIOR DEPUTY PRESIDENT: Yes.

PN274

MR McDONALD: Can I indicate this and I apologise for being cryptic. I've had some discussions with my learned friend, Mr Reitano about a further adjournment of the proceedings and I've raised matters with Mr Reitano which were not referred to in the correspondence with your Honour. It's fair to say those matters go to alleviating potential financial hardship to any of the individual applicants in these proceedings if an adjournment was to be granted.

PN275

Mr Reitano has put certain matters back to me in response and I'm in the process of obtaining instructions in relation to those matters from Australia Post. The union's position has been relayed to Australia Post management and I'm currently awaiting instructions in relation to those matters. Now, your Honour, I would request that the matter be stood down until I get those instructions and having got those instructions, I would wish to, having got them, to make an application for an adjournment of the proceedings. Can I indicate one last thing, your Honour?

PN276

THE SENIOR DEPUTY PRESIDENT: Yes.

PN277

MR McDONALD: If this proceeding goes ahead, it will of necessity be a lengthy proceeding. There's no avoiding that because - - -

PN278

THE SENIOR DEPUTY PRESIDENT: Yes, that's obvious, Mr McDonald.

PN279

MR McDONALD: And if it does go ahead, in my submission, it's in everybody's interest that it go ahead in an orderly fashion. The exchanging of witness statements on both sides will enable the case to be conducted in a much more timely and efficient manner than will be the case if witnesses are presented on both sides in circumstances where competing counsel have now clear advanced indication of the matters which are to be raised.

PN280

THE SENIOR DEPUTY PRESIDENT: Mr McDonald, that might be the case or not. It has not always been my experience that witness statements help to expedite a matter but I think we should leave that till you have some instructions. In the meantime, I might just ask Mr Reitano of those people who are assembled here today are the six who aren't different or extra present?

PN281

MR REITANO: Yes, your Honour.

PN282

THE SENIOR DEPUTY PRESIDENT: Are they available to give evidence?

PN283

MR REITANO: Yes, your Honour.

PN284

THE SENIOR DEPUTY PRESIDENT: Is particularly Mr O'Brien available to give evidence?

PN285

MR REITANO: Certainly, your Honour. I don't want to address everything my friend said. I understand that your Honour is going to give him an opportunity to get instructions from your Honour's body language, if nothing else but could I just deal with two matters because I don't want your Honour to proceed on the same misconception that my friend is proceeding on.

PN286

THE SENIOR DEPUTY PRESIDENT: Well, Mr Reitano, you shouldn't attempt to read my body language. You should understand that I thought if he was bothering to get instructions and it might have been that you'd put a position to him that you would accept and you'd want to hear the answer but it's a matter for you.

PN287

MR REITANO: The position I have is that I don't want to waste any valuable court hearing time that might be available in circumstances where at least some of the people sitting behind me are suffering financial hardship and the case needs to be determined as quickly and efficiently as possible but can I just say to your Honour, there are not 16 individual applicants in this case. There never have been and it is entirely misleading to suggest that there are.

PN288

There is one applicant in this case and that is the organisation and the relief that the organisation seeks is from Australia Post engaging in industrial action by recourse to, amongst other things, a policy that my friend has described to your Honour in very brief terms and your Honour became acquainted with last time. There are not 16 individual applicants. There are 16 people who will give evidence of the industrial action to which they are being subjected to as a result of that policy.

PN289

The second matter that I just want to touch on very briefly is this. This matter was listed on 29 July before your Honour and I think we had an afternoon of hearing and a little bit of conciliation. The first we heard of any proposal that there should be directions or that there was some difficulty or anything else about the matter was last Friday afternoon at about midday as I recall. There's been roughly a week and a half in which Australia Post could have done any of the things that it's now seeking to do by way of indulgence from the Commission, by way of threats to run the case out for many weeks and so on and yet last Friday afternoon is the first we heard.

PN290

We are suffering under Australia Post's conduct in failing to deliver us the medical files that your Honour said you didn't think your Honour needed to make an order about which we received at a quarter to nine this morning. We are prepared, despite only having received those files then, to proceed and have the matter heard and determined by your Honour.

PN291

Nonetheless, in terms of the adjournment application my friend has made, we would consent only to a very short adjournment for the purpose of him obtaining instructions but certainly we do not want to lose any hearing time that might be available to us and when we say short, we would say 10 minutes if that's appropriate.

PN292

THE SENIOR DEPUTY PRESIDENT: How long do you need, Mr McDonald?

PN293

MR McDONALD: Till 10 past 11, your Honour.

PN294

THE SENIOR DEPUTY PRESIDENT: I'll come back at five past 11 and we'll start this matter and in the meantime, if somebody makes a phone call and finds out that there's instructions that you need to discuss with your client, I'll excuse you for that purpose.

SHORT ADJOURNMENT [10.48am]

RESUMES [11.25am]

PN295

MR McDONALD: Thank you for that time, your Honour. I wonder if I could indicate what Australia Post's position is? As foreshadowed, I do wish to make an application for an adjournment although I understand the position to be that it is not consented to by the union.

PN296

The basis upon which the application is sought is as follows, your Honour: my instructions are that there are presently 39 employees of Australia Post who have been directed to go on sick leave in accordance with Australia Post's procedures for dealing with employees who have non-work-related injuries.

PN297

If your Honour grants an adjournment of these proceedings Australia Post undertakes that it will pay all of those 39 employees - which includes, as I understand it, eight individuals who have been identified as giving evidence in these proceedings - sick leave entitlements until the hearing and determination of the union's application, and it will do so unconditionally. That is, if the union's application is unsuccessful Australia Post would not be seeking recovery of amounts paid in the intervening period.

PN298

In respect of those 39 employees, if, in the intervening period, it was agreed, on the advice of medical advice provided by the employee, that the employee was fit to resume normal duties, then the arrangement I've outlined would be no impediment to that individual employee coming back to work.

PN299

Further, your Honour, in the intervening period, that is, pending the hearing and determination of the application, Australia Post will not give any further directions to employees to go on sick leave in accordance with its policies in relation to employees with non-work-related injuries. It will also not direct employees to attend Australia Post's nominated doctors under its procedures dealing with non-work-related injuries.

PN300

Can I also indicate that in the interim period, your Honour, Australia Post would be happy to meet with the union to have discussions and review the position of any of those 39 employees who presently are directed on sick leave.

PN301

That's the basis, your Honour, on which we would request the proceedings be adjourned and, as I indicated earlier, we would seek a direction that in the intervening period there be an exchange of witness statements between the parties. Can I indicate that if your Honour was minded to adjourn the proceedings my estimate - and I concede it's an inexact estimate - would be that the it would be appropriate that some two weeks be set aside for the hearing of the matter. If the Commission pleases.

PN302

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr McDonald. Yes, Mr Reitano?

PN303

MR REITANO: Your Honour, I'm not in a position to consent to the application. Could I indicate, your Honour, the basis of that? There are now, in view of what Mr McDonald has outlined to your Honour, three concerns where there was originally only one.

PN304

Firstly, our understanding of the proposal put to us was not that the 39 employees would be paid their sick leave entitlements but rather that they would be paid normal weekly earnings. There is a difference between the two. I hear, sotto voce, from the other side, "We never said that", and that might be right. Our understanding was different from that on which the other side of the record proceeded in what was put on the table.

PN305

Secondly, whilst it is appropriate and proper for the undertaking that's been offered to have been given in respect of not directing employees to attend Australia Post, doctors in the intervening period, under the non stat policy - and that's the qualification my learned friend put on it - we are aware and we know that other policies in Australia Post are used to achieve exactly the same result.

PN306

What we have said, and what we make plain, is that if the undertaking covered those other policies, in particular what is known as the attendance policy, if that were not used for the same purpose then there would be no issue between the parties. We are suspicious, to say the least, because no undertaking is proffered in respect of the use of that other policy to achieve ultimately the same result.

PN307

We do not know - and this is the third matter - and we rely upon what my learned friend has said as to the number of employees who were said to be on the non stat policy. No doubt any review that is conducted - - -

PN308

THE SENIOR DEPUTY PRESIDENT: What does non stat mean?

PN309

MR REITANO: Non-statutory injuries, that is, people who have either had a Comcare claim refused and, therefore, it's not regarded as a statutory injury or alternatively, people who just didn't have a Comcare claim, who have been injured away from work.

PN310

THE SENIOR DEPUTY PRESIDENT: Yes, that's all right. I just didn't know what non stat was.

PN311

MR REITANO: I didn't either until 29 July. We understand that there are what are said to be 39 people in New South Wales who are subject to the policy. We simply do not know whether that's right or not.

PN312

I don't agree with my learned friend's estimate as to the hearing time. We say that, if there were directions given as to statements and the service of evidence, and the like, it would be more like one week rather than two. We did ask my learned friend to give some consideration as to when the matter would be listed or when a listing would be sought. I think, having regard to the fact that I think your Honour indicated on the last occasion your Honour was proceeding on some annual leave shortly, that doesn't appear to be all that relevant in the context of us opposing the application for an adjournment.

PN313

THE SENIOR DEPUTY PRESIDENT: What is the difference between sick leave and the ordinary pay, Mr Reitano?

PN314

MR REITANO: One is calculated, that is, normal weekly earnings is calculated s though you were at work. Sick leave is simply your weekly wage that you would have received.

PN315

THE SENIOR DEPUTY PRESIDENT: So what would it exclude? Overtime?

PN316

MR REITANO: I think the main thing that it would exclude would be shift penalties, and overtime, yes.

PN317

THE SENIOR DEPUTY PRESIDENT: Would these people have an easily able to be calculated average weekly earnings?

PN318

MR REITANO: Yes.

PN319

THE SENIOR DEPUTY PRESIDENT: As to your first point that you don't know how many people are to be affected, why is that?

PN320

MR REITANO: I'm really just saying that we're proceeding on the undemanding that what we've been told is correct. That's all. We do not know. It's really the first two matters - I should have indicated, and I probably went too fast, your Honour, that normal weekly earnings/sick leave entitlement dichotomy - and the other, that my friend didn't make clear but I'm sure he intended to do so, was that people would not be using their sick leave credits in the period of any adjournment.

PN321

THE SENIOR DEPUTY PRESIDENT: Well, I think that was implied when he said there was to be no disadvantage flowing to the people.

PN322

MR REITANO: Yes. It's certainly the position that was put to us and I understood it that way.

PN323

THE SENIOR DEPUTY PRESIDENT: All right. Mr McDonald, what are your instructions on the no other policy matter?

PN324

MR McDONALD: We're not prepared to concede that, your Honour, for this reason. We understand the union's concern to be people being directed on sick leave. The other policy, the attendance improvement policy, does not involve people being directed off on sick leave.

PN325

THE SENIOR DEPUTY PRESIDENT: How will it involve them in having a medical examination though?

PN326

MR McDONALD: It will arise in circumstances where there are concerns about employees taking excessive sick leave. There's a program in place whereby a meeting is organised with a manager and discussions about the reasons why someone is having the levels of sick leave that they are and arising out of those meetings someone can be asked or directed to go and see a doctor but it doesn't involve someone being sent off work. The proposal that we have put to the union provides them with complete comfort in the intervening period pending the outcome of these proceedings that no one will be sent off.

PN327

Now, we see the proposal that they're asking for, that is no one being directed to an Australia Post nominated doctor under the Attendance Improvement Programs as going into new territory not covered by this application.

PN328

THE SENIOR DEPUTY PRESIDENT: Mr McDonald, your position is that the offer is for payment of sick leave not ordinary pay or average weekly earnings?

PN329

MR McDONALD: That is the offer. I don't have any instructions on the other matter, your Honour.

PN330

THE SENIOR DEPUTY PRESIDENT: Do you want to get instructions on the other matter?

PN331

MR McDONALD: I can get the instructions, your Honour. I'm not sure how long it will take.

PN332

THE SENIOR DEPUTY PRESIDENT: You should send someone to do that I think.

PN333

MR McDONALD: Very well.

PN334

THE SENIOR DEPUTY PRESIDENT: Unless you want to do it yourself?

PN335

MR McDONALD: I'll get someone to do it for me, if that's all right?

PN336

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Reitano, in relation to this matter we have the balance of the day, depending on what I do with the adjournment application, and we have Thursday. If we're to proceed for the balance of the day and Thursday in this matter you have, you say, how many, five or six people who you say are presently directed onto sick leave?

PN337

MR REITANO: No, I think that I said I had five of the people who were telegraphed to the other side on 29 July.

PN338

THE SENIOR DEPUTY PRESIDENT: Are those persons available to give evidence today and Thursday?

PN339

MR REITANO: Yes, your Honour.

PN340

THE SENIOR DEPUTY PRESIDENT: How long do you think that their evidence would go in chief?

PN341

MR REITANO: Very quick, your Honour. Mr O'Brien, of course, is still in cross-examination but the others would be five minutes perhaps.

PN342

THE SENIOR DEPUTY PRESIDENT: Mr McDonald, Mr Reitano, have you discussed the possibility that in relation to this afternoon at least taking those five in chief it might be just one of those matters where it's easier to deal with all of the members who you allege have been dealt with in this fashion in chief and then in cross-examination and then in re-examination as a group rather than - - -

PN343

MR REITANO: I haven't discussed that with my learned friend or with my client.

PN344

THE SENIOR DEPUTY PRESIDENT: Do you want to give some consideration to that while we're waiting?

PN345

MR REITANO: Yes.

PN346

THE SENIOR DEPUTY PRESIDENT: It's just that it's been experience that in some bulk matters where witnesses in multiple terminations and others where applications have been joined, it's sometimes easier to do it that way from counsel's point of view. It doesn't make any difference to me but it might alleviate Mr McDonald's difficulty between here and Thursday should I not grant the adjournment in that he'd be listening to your story and not cross-examining on it in the short term. We'll go off the record, I'll let him get instructions and you get instructions and I'll just sit here.

PN347

MR REITANO: Thank you, your Honour.

OFF THE RECORD [11.39am]

RESUMES [12.05pm]

PN348

MR McDONALD: I can confirm, your Honour, that the Australia Post position is that the basis upon which I made the application for the adjournment of the payment to the 39 individuals pending the hearing determination of the application would be sick leave payments.

PN349

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Reitano?

PN350

MR REITANO: Your Honour, during the adjournment we've had an opportunity to consider what my learned friend has put by way of compromise and it's been conveyed to us, that is a compromise of the adjournment application, and we've had an opportunity to consider what the best way forward is. In the circumstances we would consent to the adjournment on the basis of the undertakings that my learned friend has given to the Commission on behalf of his client. We would ask the Commission to simply note that our position is that liberty to apply should be reserved to us in the event that the attendance policy in the intervening period is used in an inappropriate or unfair and we think we would be protected by liberty to apply in respect to the use of that policy.

PN351

In those circumstances we would, as I say, consent to the adjournment. We'd ask your Honour to list the matter at a time convenient to the Commission. I did omit one other thing, I am sorry, my learned friend didn't say it and I think it was implicit in what he said again that the undertakings he gives are until the determination of the proceedings before the Commission.

PN352

THE SENIOR DEPUTY PRESIDENT: I think he actually did say that.

PN353

MR McDONALD: I did.

PN354

MR REITANO: My note doesn't say that, I thank your Honour. I would ask your Honour to set the matter down at a time convenient to the Commission and make appropriate directions as to the service of statements and the like.

PN355

THE SENIOR DEPUTY PRESIDENT: Right, I'll give you my days and you can have a discussion about them between yourselves. In August you can have the 20th, 28th and 30th, in September you can have the 4th, 9th, 10th, 11th, 16th, 19th, 20th, 25th, 26th, 27th. Do you want those again?

PN356

MR McDONALD: That's September, your Honour?

PN357

THE SENIOR DEPUTY PRESIDENT: Yes.

PN358

MR REITANO: What about October?

PN359

THE SENIOR DEPUTY PRESIDENT: You can have the week commencing the 14th, the week commencing the 21st and the week commencing the 28th. As to the directions you ought to be able to work them out yourselves. What do you want to do? Have a discussion and then come down and see me in chambers?

PN360

MR McDONALD: If that's convenient, your Honour.

PN361

MR REITANO: If that's convenient, your Honour.

PN362

THE SENIOR DEPUTY PRESIDENT: The Commission is adjourned.

ADJOURNED ACCORDINGLY [12.10pm]