C2002/4110, Transcript of Proceedings [2002] AIRCTrans 3380 (3 September 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 VT05360
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2002/4110

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
concerning Austin and Repatriation Medical Centre
ceasing to require Anaesthetic Technicians who are
engaged to work at the Repatriation campus to
perform work other than in a manner in which it is
customarily performed, that is, by requiring them
to work at the Austin campus of the Hospital

MELBOURNE

2.31 PM, FRIDAY, 16 AUGUST 2002

PN1

MR D. LANGMEAD: I seek leave to appear for the HSUA in this matter.

PN2

MR J. RICHARDSON: I appear on behalf of the Austin Repat Medical Centre and with me today is MR P. O'DONOGHUE.

PN3

THE COMMISSIONER: Thank you. Do you have any objection to leave for Mr Langmead?

PN4

MR RICHARDSON: No, I have no objections.

PN5

THE COMMISSIONER: Leave is granted, Mr Langmead. It is a rather portentous courtroom to be in, isn't it, for these proceedings?

PN6

MR LANGMEAD: I am confident the spectators and the media will be along shortly, sir.

PN7

THE COMMISSIONER: I am sure they will, sure they will. What can you tell me about this matter?

PN8

MR LANGMEAD: Commissioner, this is related to the matter which came before you on 30 June, matter C2002/2558.

PN9

THE COMMISSIONER: 30 May actually.

PN10

MR LANGMEAD: 30 May, I am sorry, yes, which is a grievance brought before the Commission by the HSUA in relation to the employment of anaesthetic technicians at the Austin Repat Hospital. Sir, since that conference and hearing, there have been a number of meetings between the parties, considerable correspondence, all of which has failed to bring about a resolution to the matter to date, or the culmination of that very extensive exchange of correspondence by way of e-mails, letters, draft documents and the like seems to have been a meeting on 9 August which was last Friday and a final piece of correspondence on 10 August. Then the Medical Centre advised the relevant staff members in terms of the document which I will hand to the Commission.

PN11

THE COMMISSIONER: Do you wish to tender the document?

PN12

MR LANGMEAD: I do, Commissioner, please.

EXHIBIT #A1 STAFF BULLETIN FROM THE AUSTIN AND REPATRIATION MEDICAL CENTRE DATED 12/08/2002

PN13

MR LANGMEAD: If the Commission pleases. Commissioner, that document advises the anaesthetic technicians that the Workplace Relations Act places limitations on an employer, as it were, to pay staff during a period when they engage in industrial action, sets out a summary of section 187AA, points out that it is illegal for employees to receive payment for any period during which they took industrial action and states that it is illegal for a union to seek such payments. Then in the final paragraph reminds employees that:

PN14

Staff should be mindful that any and all industrial action will result in the employees not receiving their pay during the period of time such action is taken and/or in proportion to the amount of work not undertaken due to industrial action.

PN15

Now, the union apprehended and the members believed, that this was directed to their continuing to work at the Repat campus and not go to the Austin campus pending the resolution to this matter. The HSUA wrote to the Medical Centre on the 12th, the same day, if I could hand a copy to the Commission and subject to Mr Richardson's attitude to it, tender it.

PN16

THE COMMISSIONER: Do you have any attitude towards it, Mr Richardson?

PN17

MR RICHARDSON: No, Mr Commissioner, I am happy for that to be tendered.

EXHIBIT #A2 LETTER FROM HSUA VICTORIAN NO 1 BRANCH TO AUSTIN AND REPATRIATION MEDICAL CENTRE DATED 12/08/2002

PN18

THE COMMISSIONER: Yes.

PN19

MR LANGMEAD: And that letter reminds the Austin that all anaesthetic technicians are willing and able to perform all contracted work as per their current conditions of employment, denies that there is any industrial action, reminds that the grievance procedure is such that until the grievance is determined work shall continue normally in accordance with the custom or practice existing before the grievance arose while discussions take place.

PN20

The HSUA believes there is a grievance and therefore we are complying with the grievance procedures as outlined and will continue to do so.

PN21

Commissioner, on the Wednesday, I am instructed, one of the anaesthetic technicians was told that, as she was taking industrial action by not being - accepting a transfer to the Austin campus, that she would no longer be getting paid. The thrust of this conversation was understood to be that this would apply to anyone else who took a similar view. I understand that it is not protested by the Medical Centre that this is the deposition and this is what has occurred.

PN22

I am not in a position of being able to call direct evidence from that employee because the listing of this matter at short notice, a matter of which we certainly don't complain, we are very indeed grateful to the Commission for having done so, but she simply hasn't been contactable and she is one of those employees, Commissioner, who doesn't work every day.

PN23

THE COMMISSIONER: Right.

PN24

MR LANGMEAD: She did speak to one of the people who is in the room presently who could give hearsay evidence but that probably doesn't take it very far and, as I say, in light of what I now understand the position of the Medical Centre to be, it would appear to be evidence which I can give on instructions without controversy arising from it.

PN25

THE COMMISSIONER: Well, it may or may not be the case, that the Hospital doesn't dispute what you are saying.

PN26

MR LANGMEAD: Well, as I say, if it is disputed, then the best I can do is call hearsay evidence of it.

PN27

THE COMMISSIONER: Which, in this type of short notice proceedings, I would be prepared to hear - - -

PN28

MR LANGMEAD: Yes.

PN29

THE COMMISSIONER: - - - and apply appropriate weight to it.

PN30

MR LANGMEAD: That is all. Mr Richardson can confirm my characterisation of the Hospital's position and we will see if that is necessary. Commissioner, the matter is brought as a 127 application because we do characterise the Hospital's action as industrial action. It may assist the parties in the Commission if I hand up a draft of an order that we seek. It is a - - -

PN31

THE COMMISSIONER: I have been wondering when I would see a draft order.

PN32

MR LANGMEAD: And I apologise for the handwritten correction that appears therein.

PN33

THE COMMISSIONER: I might just take a moment to read this one.

PN34

MR LANGMEAD: Certainly.

PN35

THE COMMISSIONER: Yes, thank you, I have read it now.

PN36

MR LANGMEAD: Commissioner, we do characterise it as industrial action and do so for a number for a number of reasons. Firstly it is action designed to achieve the industrial ends of the employer. The employer has decided that it wants to transfer these employees to the Austin campus for part of their time to perform work there, we say of a dramatically different nature and in the circumstances where there is a procedure which has been partly exercised, they have chosen, as we say, to achieve their industrial ends by adopting the process of saying, well, you will go there and if you don't go there, we are not going to pay you.

PN37

This we characterise as industrial action. In terms of the requisite definition of the Act which is contained in section 4, subsection (1), industrial action means:

PN38

The performance of work in a manner different from that in which it is customarily performed or the adoption of practice in relation to work ...(reads)... in connection with an industrial dispute.

PN39

Now, an industrial dispute has the expanded definition, we submit, caused by the deferral of the Victorian powers to the Commonwealth and secondly the work in question is covered by both a certified agreement being the North East Health Care Network Health and Allied Services Certified Agreement 1997 and an award being the Health and Allied Services - Public Sector - Victoria Consolidated Award 1998. Can I make brief references to a decision of Senior Deputy President Polites in print R8020?

PN40

THE COMMISSIONER: Of which you have a copy for me?

PN41

MR LANGMEAD: I do. I was going to hand up another decision of Senior Deputy President Polites being print PR905645 at the same time for the convenience of the Commission. In relation to the first of those in print R8020, at paragraph 14, Senior Deputy President Polites says, in the second sentence:

PN42

Put simply, what needs to be established, is that the employer has imposed a ...(reads)... that the employer is said to have breached the agreement.

PN43

Then, in respect of this instance, we say that the employer has imposed a ban, limitation or restriction upon the performance of work or the acceptance of work, which has been properly offered, in accordance with the agreement. And we do so in two respects, firstly, we say that it has placed a restriction or limitation in respect, or ban, even, in respect of the payment of wages, which has been properly offered. And, secondly, we would say it is a ban, limitation or restriction upon the performance of work, in the sense of the system of work is subject to industrial instruments, which contain grievance resolution procedures, particulars of which I will come to, but in essence, say that whilst the grievance procedure is being followed, work shall continue as normal. And, in our submission, it will be our continuing submission, that grievance procedure is still in the processes of being exhausted and, indeed, won't be exhausted until either of the parties have agreed or the Commission has determined the matter.

PN44

The other passage to which I wish to refer, in the other decision of Senior Deputy President Polites, is contained on page 5 of the extract - the copy that I have handed to the Commission, at the second dot point:

PN45

The issue to be determined here is whether by insisting on a performance of particular ...(reads)... in a manner different from that which it is customarily performed.

PN46

And then the Senior Deputy President deals with the particulars of the case and in the third dot point:

PN47

The substantive issue, therefore, is whether the duties or the customary duties are not customary duties. I now turn to examine this question.

PN48

THE COMMISSIONER: And what does it decide in the end?

PN49

MR LANGMEAD: In that particular case that they weren't the customary duties, I think, Commissioner. He said, in his conclusion:

PN50

I must be satisfied, objectively, that the conduct was a change of custom...

PN51

And he says that that wasn't so. But - - -

PN52

THE COMMISSIONER: Except, he goes on to say, in the last dot point:

PN53

Accordingly, because I cannot conclude industrial action is taking place, I have no jurisdiction to make the orders sought.

PN54

And then going on to offer some criticism of the Westrail.

PN55

MR LANGMEAD: Yes, but I think he arrived at that conclusion because, he said, it wasn't a departure from their customary duties and, therefore, didn't fit within the definition of industrial action, as defined in section 4(i).

PN56

THE COMMISSIONER: So, you say, in essence, that the employees are not taking industrial action by refusing, or in refusing to work in another location.

PN57

MR LANGMEAD: That is so, Commissioner.

PN58

THE COMMISSIONER: But that the employer is taking industrial action by refusing to pay them, when they do so?

PN59

MR LANGMEAD: Yes, we do. And, if I can come to the grievance avoidance procedure, contained in the Health and Allied Services, Public Sector, Victoria Consolidated Award 1998 and I will hand a copy of that clause to the Commission. And it is an unremarkable clause. The grievance steps go through the various stages. Those stages have taken place, in one form or another, perhaps not with the same vertical progression, but, certainly, a number of those steps have been engaged in. The step at 9.1.2(f) was the step at which the union first notified the matter to the Commission, but it is the step which has not yet been included. It is the step that, we say, should now take place.

PN60

THE COMMISSIONER: So why are you doing this pursuant to section 127 of the Act, rather than reviving the proceedings in C2002/2558?

PN61

MR LANGMEAD: Well, we don't do it, without doing so, sir. We say that that process should be reactivated. And, I understand, no formal application has been made, to date, to ask you to re-list it. I am instructed to do that, today.

PN62

THE COMMISSIONER: Is it not a case where a 127 application is made to hurry up the listing of a section 99, is it?

PN63

MR LANGMEAD: No, sir, it is - well, it was done in response to the immediate difficulties the employees are faced with, being docked their, presumably, entire pay. When we say that the matter should be steady as she goes, in accordance with clause 9.1.2, that work should continue, normally, in accordance with the customs or practice existing if all agreements arose, while discussions take place. And, that is the process, we say, should continue.

PN64

THE COMMISSIONER: Except, I note 9.1.2(e) it says, the steps above that paragraph should take place in seven days. We are now about two and a half months, aren't we, since the last hearing.

PN65

MR LANGMEAD: Those steps, I note - I will just have to check this, sir, but they refer to 9.2, not 9.1. I don't know whether that is a - - -

PN66

THE COMMISSIONER: I see, yes, you are right.

PN67

MR LANGMEAD: I suspect and I see now - - -

PN68

THE COMMISSIONER: No, you are right, I am wrong, yes.

PN69

MR LANGMEAD: - - - 9.2 has been deleted, so I suspect that is a past reference to a disciplinary procedure, where one would expect a very urgent need for a - - -

PN70

THE COMMISSIONER: Yes, I think the peculiarity of this was picked up last time on some previous proceeding, we have had. So, do you persist with the 127 application or do you want to just revive the 99?

PN71

MR LANGMEAD: Well, in circumstances were the employees, concerned, are being docked and as I say, I understand, Commissioner, the medical centre doesn't take issue with that factual characterisation, however, we do, sir. I was going to take the Commission, also, to the certified agreement. I am in a position to, in fact, give the Commission a copy of the entire agreement. It is clause 12 of that agreement, Commissioner. Again, an unremarkable dispute resolution provision, without the, seemingly, obsolete references to another subsection, but, in its essence, the same relevant two steps. One is that the matter shall be referred to the Commission for resolution and secondly, that until it is determined, work shall continue normally, in accordance with the custom and practice, existing before the grievance arose.

PN72

Now, can I say a couple more things about the action which is being taken. In relation to not paying people, we say, firstly, there is no stand down clause in the award. We say, secondly, there is no common law right to deduct from salary. And the Commission will be familiar with principles arising from Goetz case. There is no provision in the award or agreement, that I am aware of, which allows deductions to be made in these circumstances. And the common law position has been, therefore, varied by the award prescription, requiring a salary or a wage to be paid.

PN73

THE COMMISSIONER: When they people have declined - let us just say, declined to work in a different location, do they still work? Is there work for them at the other location?

PN74

MR LANGMEAD: There is, and the majority of their work, as I understand it, in accordance with the employers proposal, would still be at the rehab site.

PN75

THE COMMISSIONER: So what is happening in practice. Say Mr and Ms X declines to work at the other site. The company is just standing them down, in effect?

PN76

MR LANGMEAD: No.

PN77

THE COMMISSIONER: Based on that refusal or docking some of their pay or?

PN78

MR LANGMEAD: Well, there hasn't been a pay period, so we don't know, but as I understand it, they have been told well we are not going to pay you.

PN79

THE COMMISSIONER: Just take it on notice, Mr Richardson, I will ask you that question.

PN80

MR LANGMEAD: And, finally, which we would say, even it were thought there were some no work as directed, no pay, adoption, which could be invoked, which we certainly don't concede, we would say, these aren't proper directions in circumstances of the award and agreement grievance procedures. Because that sets in place a system of work in which disputes are to be resolved by reference to those two instruments. For the sake of completeness, I can tell the Commission that there are other agreements to deal with change in the workplace, which are not certified agreements but which have, again, similar grievance resolution procedures. And, we would say, that if there is any argument about the common law situation, you would want to go and look at those, as well, to see whether they are proper directions.

PN81

So, we say, that there is a proper system of work, in place, an employer has placed this limitation on it, firstly by not paying them and secondly by not complying with a grievance procedure which requires them to allow that work to continue until the matter has been resolved.

[2.58pm]

PN82

And on both counts the failure to pay we say is industrial action and the failure to provide work in accordance with the industrial instruments, namely the award and the agreements, by not complying with the industrial - the grievance resolution procedures is equally industrial action. The purpose of it all is to bring about by coercion - industrial coercion, the compliance of those employees with the directions of the employees and its industrial imperatives, namely that it wants them to work up the road. And we say that with respect, that is industrial action which is not wilful industrial action.

PN83

There is no bargaining period in place and in those circumstances the Commission should exercise its discretion to order that that industrial action can no longer take place and our proposal for the resolution of this matter is that the matter should be listed for hearing at the Commission's convenience of the underlying grievance between the parties, which is whether or not the employees concerns should be reassigned in any way to the Austin campus or whether or not it constitutes such a dramatic variation of their duties as to put them in a situation where other aspects of the employment relationship to do with change and the making available of redeployment and redundancy options should in fact apply.

PN84

THE COMMISSIONER: It seems to be coming to a hearing, doesn't it - underlying matter? Okay.

PN85

MR LANGMEAD: And those are our submissions, Commissioner.

PN86

THE COMMISSIONER: Well, I intend to conciliate as well, so we will take that as your opening salvo.

PN87

MR LANGMEAD: Yes. Well, certainly if there is any way that further conciliation in this matter or the grievance matter which isn't formally listed before you, we would obviously be anxious to pursue that and welcome the participation of the Commission in such an activity.

PN88

THE COMMISSIONER: Yes. We will just take it on notice. I am back here next Thursday, with some spare time as well, So I will hear from Mr Richardson now, if it is okay with.

PN89

MR LANGMEAD: Thank you, sir.

PN90

THE COMMISSIONER: If you can just give me a sort of thumbnail sketch - - -

PN91

MR RICHARDSON: I will try as best I can, Mr Commissioner.

PN92

THE COMMISSIONER: - - - of where it is from and then we will go into conciliation and you can have another go later.

PN93

MR RICHARDSON: Just on the question of the grievance process, the union, as I understand it is putting in essence that the Hospital is in breach of the grievance process. Now, however, it would be our contention that simply calling an issue a grievance doesn't actually make it a grievance. It is our view, sir, that what the union is really seeking to do is to characterise the matter as a grievance in an attempt to fill a buster and forestall what we see is a legitimate roster change.

PN94

It is our submission that the Commission should look behind the issue as presented and examine the conduct of the parties in order to determine whether in fact the grievance has been - grievance process has been properly pursued. It is certainly our contention that the grievance process has been followed to the letter. The matter has been under discussion for over five months, the parties have been before the Commission specifically on this question back in May.

PN95

As the union has noted, there has been numerous letters, exchanges, meetings, employee impact statement, developed and revised to address the union's concerns and similarly with job descriptions and draft rosters. So we say that there is no failure on our part to follow the grievance process. What there is is a failure on the part of the union to agree but that can't be characterised as a failure on the part of the employer to follow the process, nor does it indicate that the changes proposed is in any way deficient. The union has made much of the Hospital's alleged failure to follow the grievance process but we would suggest, sir, that the union is not itself a clean skin in this regard.

PN96

Had the union followed the grievance process itself, then what should properly have occurred is that having ping-ponged our way through it that if the union was unhappy about the employer's proposal it was open to them to re-list the matter under section 99 as in fact you, yourself sir, invited them to do on 30 May. Instead the union sought to bypass consideration of the merits and invite the Commission to grant 127 orders on the basis that we are engaging in industrial action.

PN97

Sir, in my view, it is kind of like reminiscent of a child who kills their parents and then invites mercy on the basis that they are an orphan. Before any consideration can be given to the application sought it must be determined that, in our view, that whether the Hospital has - lacks the capacity to introduce the change in the first place, and I will say more about that shortly, and with the union classing the matter as a grievance, whether the ANRMC has failed to follow the process, we say we have followed it to the letter and if we failed to follow the process and we seek to introduce the change as proposed, were the actual changes of such material significance that it constitutes industrial action as defined under the Act.

PN98

Now, such determinations have not been made. And if I can just turn to the question of the 127 application itself. As the union has already provided details of what 127 sets out in the Act, I won't revisit that, but there is a jurisdictional issue that presents that the Commission must be first satisfied that industrial action is in fact occurring or probable. And again that is defined under section 4 of the Act and I won't go over that again. However, we say that there is no industrial action occurring and we say that simply because the ANRMC is trying to introduce a change in a roster covering five anaesthetic technicians.

PN99

There is no material change to their terms and conditions of employment. There is no breach of any agreement or award and moreover the change proposed is expressly contemplated in the anaesthetic technician's contracts of employment. And if I could, sir, I would like to tender this particular document.

PN100

THE COMMISSIONER: You mention about the union having been able to revive the 30 May proceedings, but of course as I read the agreement you as the employer could have also brought it before the Commission for resolution if you believed that the dispute settling procedure had reached an internal end, couldn't you?

PN101

MR RICHARDSON: I suppose that would be open to us, sir, but from our point of view we had arrived at a point where the grievance - we question in the first instance whether a grievance, a bona fide grievance even exists.

PN102

THE COMMISSIONER: I suppose a grievance arises when people are aggrieved. If they don't want to move location, off the top of my head I would say it was a grievance, if you just want my drift of thought about it. I think what the union is saying is that you have done something without coming to the Commission as the grievance procedure provides, to have the matter resolved. Now, I partly agree with you that I think the union has taken a long while about this and should have been back to the Commission before this.

PN103

But if I was to ask you just purely hypothetically, if the matter was listed for determination and both parties agree pursuant to the enterprise agreement that the ruling by myself or one of my colleagues would be binding and final, would you then hold off what you are currently doing, pending such a resolution?

PN104

MR RICHARDSON: Yes, we would be happy to do that, sir, if we could be reasonably confident of a resolution in a short time frame. We are not seeking to be bloody minded about it, but we are determined to resolve the matter once and for all. It has been going on and off for five years, it is time it was fixed.

PN105

THE COMMISSIONER: Could I suggest to you that now is a good time perhaps we all have a chat and then we can go back and be more formal if we need to. We will adjourn into conference.

SHORT ADJOURNMENT [3.07pm]

RESUMED [3.30pm]

PN106

THE COMMISSIONER: This matter is now resumed. During the conference break I have had the opportunity of speaking to the parties both collectively and separately and it has been agreed that pursuant to the grievance provisions in the certified agreement that both parties have consented to this matter being referred to me for determination by arbitration. Those proceedings will occur in Melbourne at 10 am on 16 September 2002, with the period from 1 pm, 17 September 2002 also being reserved for the arbitration.

PN107

As a result of this agreement to proceed to have the matter determined by me, it is my understanding that the hospital will cease to take the action which has given rise to the application pursuant to section 127 of the Act, by the HSUA and that the status quo ante will apply to all matters related to the arbitration until the arbitration has been determined. As I have noted earlier both parties have agreed to accept as being final the results of that arbitration.

PN108

I have requested the parties to continue to attempt to conciliate this matter to obviate the need for arbitration on the 16th, and they have both undertaken to do so. And I take it Mr Langmead that under these circumstances you are withdrawing your 127 application?

PN109

MR LANGMEAD: I have those instructions, sir.

PN110

THE COMMISSIONER: Thank you. Have you anything to add, Mr Richardson?

PN111

MR RICHARDSON: No, sir. I think the way you have summed it up is the way we understand it to be.

PN112

THE COMMISSIONER: Good. I am glad to get it right for once. These matters are now adjourned till 10 am in Melbourne on 16 September 2002.

ADJOURNED UNTIL MONDAY, 16 SEPTEMBER 2002 [3.32pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 STAFF BULLETIN FROM THE AUSTIN AND REPATRIATION MEDICAL CENTRE DATED 12/08/2002 PN13
EXHIBIT #A2 LETTER FROM HSUA VICTORIAN NO 1 BRANCH TO AUSTIN AND REPATRIATION MEDICAL CENTRE DATED 12/08/2002 PN18