C2002/3762, Transcript of Proceedings [2002] AIRCTrans 4521 (15 November 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 VT569
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2002/3762

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION

Application under section 127(2) of the Act
by the CEPU for an order to stop or prevent
industrial action re lockout and/or alleged
refusal to allow employees to work

MELBOURNE

1.26 AM, TUESDAY, 29 OCTOBER 2002

PN1

THE COMMISSIONER: This is a conciliation conference arising from an application by the CEPU for orders under 127 of the Act. Her Honour, Senior Deputy President Drake, has been dealing with this matter by way of formal hearings and the Commission, as currently constituted, has had a number of conferences with the parties in order to settle the outstanding issues. Following those conferences the Commission now intends to read into transcript what it understands to be the terms of settlement in regards to this matter. It commences:

PN2

The parties to these proceedings agree to settle all matters between them relating to these proceedings in the following manner:

PN3

1. Discussions between the parties at the New South Wales State level will continue on the matters relating to the application of the procedures for line managers on the management of employees with non-work related medical restrictions (Non-Start Policy) in New South Wales. These discussions will take place in the week commencing 28 October 2002. Both parties commit to finalising these discussions by 1 November 2002. Both parties further agree to discuss the wider application of the New South Wales procedures relating to the Non-Start Policy at the national level.

PN4

2. During the week beginning 28 October 2002 to 1 November 2002 the Australian Postal Corporation (Post) will not direct an employee in New South Wales to be medically examined by a Post nominated medical practitioner under the Non-Start Policy.

PN5

3. During the week beginning 28 October 2002 to the week of 1 November 2002, Post will not direct an employee in New South Wales onto sick leave under the Non-Start Policy.

PN6

4. The parties to these proceedings agree to commence national discussions on the application of attendance improvement management systems in all States. Such discussions will commence on 4 November 2002.

PN7

5. The parties agree to make application to the Commission in accordance with section 131 of the Act for an award or order of the Commission appointing a Board of Reference and assigning to the Board of Reference the function of determining employee grievances subject to the conditions set out below in relation to decisions made by Australia Post to direct an employee onto sick leave in accordance with its Non-Start Policy.

PN8

6. The parties will seek that the Commission's award or order will specify, as a condition of appointment, that:

PN9

(i) the Board of Reference will be constituted by a Commissioner or a former Commissioner;

PN10

(ii) the Board of Reference is only to determine in each case before it whether or not the decision of Australia Post to direct the employee onto sick leave under its non-state policy was harsh, unjust or unreasonable, having regard to:

PN11

(a) the medical evidence upon which Australia Post based its decision;

PN12

(b) the employee's medical condition and work restrictions at the time of the direction;

PN13

(c) the inherent requirements of the employee's actual position;

PN14

(d) the compliance by Post with the terms of its Non-Start Policy (as amended in paragraph 10);

PN15

(e) the employees compliance with reasonable requests by Post under the Non-Start Policy; and

PN16

(f) any other circumstance that the Board of Reference thinks is relevant;

PN17

(iii) the Board of Reference after hearing from the parties may, if it determines that the direction by Post was harsh, unjust or unreasonable, make one or more of the following determinations:

PN18

(a) that Post revoke its direction to the employee that he/she remain on sick leave;

PN19

(b) that Post re-credit any leave credits which have been used by the employee whilst on a period of any paid leave as a result of a direction by Post;

PN20

(c) that Post make a payment to the employee in respect of the actual wages (ordinary wages plus shift penalties if appropriate) lost as a result of not being in attendance at work during the period that the employee was directed onto sick leave; and

PN21

(d) that Post make available to the employee, under the Non-Start Policy, work in a current position provided the employee can meet the inherit requirements of the position; and

PN22

(e) that Australia Post look at the redeployment opportunities as in accordance with paragraph 10 relating to the Non-Start Policy;

PN23

(iv) the Board of Reference will use its best endeavours to determine any grievance within 14 days of the lodgment of grievance appeal;

PN24

(v) any determination of the Board of Reference may be reviewed by the Commission on the application of either party, provided that a notice of an application of a review of such determination shall be given to the Commission within 14 days of such determination (and a copy to be provided to the other party), provided that the Commission may extend the time for filing of the notice at its discretion.

PN25

7. The parties also agree that the conditions set out below will apply to any grievance appeals:

PN26

(i) an appeal to the Board of Reference can only be lodge by an employee following a decision by Post to direct the employee onto sick leave;

PN27

(ii) appeals must be lodged within 14 days of the direction by Post to an employee to commence sick leave;

PN28

(iii) no appeal shall be sent to or accepted by the Board of Reference until the matter has been discussed at the State level between the employee and/or his/her representative and a representative from the relevant area of Post, such discussion will occur within 7 days of Post receiving notification of the intention to bring an appeal; and

PN29

(iv) an application may represent him/herself or be represented by an officer or employee of the respective union, Post may be represented by any employee of Post;

PN30

8. Employees who are currently the subject of the joint review between the parties following the conciliation of this matter, and who are as at 29 October 2002 on sick leave in accordance with a direction by Post, have until 8 November 2002 to notify Post if they wish to appeal the decision to be directed onto sick leave to the Board of Reference to be established in accordance with this agreement. Where an employee who is currently a subject of the joint review make such notification the employee will be paid sick leave entitlements without deduction from their sick leave credits until their case is reviewed and determined by the Board of Reference. Employees who are currently the subject of the joint review between the parties and do not notify of an appeal and who are, as at 29 October 2002, on sick leave in accordance with a direction by Post will continue to be paid sick leave entitlements without deduction from their sick leave credits until 8 November 2002.

PN31

9. An employee other than those covered in clause 8 who has been directed onto sick leave in accordance with the Non-Start Policy, shall have 14 days from the establishment of the Board of Reference to file an appeal against Australia Post decision to the Board of Reference.

PN32

10. Before directing an employee onto sick leave under Australia Post Non-Start Policy, the person with the authority to make such a direction will look at redeploying the employee to a vacant position that:

PN33

(i) is immediately available;

PN34

(ii) is either at the same or lower level than the employee's nominal position;

PN35

(iii) would otherwise be subject to external recruitment; and

PN36

(iv) the employee could perform the inherent requirements of the position after appropriate specified training, no employee will be compelled to accept such redeployment to a lower position, salary maintenance will not apply.

PN37

11. Both parties agree to abide by Commissioner Blair's recommendation of 1 October 2002 which is attached. In addition, should Mr Richard O'Brien be deemed fit to return to the task he was performing prior to the direction under sick leave, Mr Richard O'Brien will return to work and have his leave entitlements re-credited, including actual wages lost from 12 June 2002, and will be regarded as being on duty from 12 June 2002 until his return to work.

PN38

12. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) will withdraw the section 127 application. The Commission understands that there are two employees who are part of the original 39 who are subject to the joint review. Those two employees shall continue to be paid as in accordance with the agreement in paragraph 8.

PN39

The Commission notes that the Registrar shall have a list of former Commission Members in each State who would make up a Board of Reference. Applications under this agreement shall be addressed to the Registrar at the Nauru House address of the Australian Industrial Registry. Now, the Commission understands that there is an issue, a question to be raised by the CEPU which shall be responded to by Australia Post. Mr Baulk, do you wish to raise that question?

PN40

MR BAULK: If I could, please, Commissioner. It is in relation to the new paragraph 10 and it is in relation to what is meant by "immediate vacancy".

PN41

THE COMMISSIONER: Australia Post, Ms Perigo.

PN42

MS PERIGO: Thank you, Commissioner. Commissioner, we have defined "immediate vacancy" as a position that we would be recruiting externally for. If, for example, that position had a fixed term employee in it but the fixed term employee was engaged solely until the position could be filled on a permanent basis, that would still be a vacant position.

PN43

THE COMMISSIONER: Is that the union's understanding, Mr Baulk?

PN44

MR BAULK: Yes. Yes, Commissioner. Thanks.

PN45

MS PERIGO: Commissioner, if I may raise one point.

PN46

THE COMMISSIONER: Yes.

PN47

MR BAULK: The new paragraph 10, there were some words at the beginning of that paragraph that seem to have been omitted. And, Commissioner, they were very simply that:

PN48

The Australia Post Non-Start Policy will be amended to incorporate the following -

PN49

and it then picks up from where you started reading.

PN50

THE COMMISSIONER: That is correct. The Commission omitted that. That is your understanding, Mr Baulk?

PN51

MR BAULK: It is.

PN52

THE COMMISSIONER: Yes. Thank you. All right. Now, having read that into transcript, and the clarification, the Commission would ask Australia Post is that your understanding and the acceptance of the terms of settlement?

PN53

MS PERIGO: It is, Commissioner. And we also understand that the CEPU will withdraw the 127 application this afternoon.

PN54

THE COMMISSIONER: Right. Thank you. Mr Baulk, is that your understanding of the terms of settlement and acceptance of?

PN55

MR BAULK: It is, Commissioner. Yes.

PN56

THE COMMISSIONER: Thank you. Would the CEPU care to now formally advise the Commission that they intend to withdraw the - they are willing to withdraw the section 127 application?

PN57

MR BAULK: Based on what you have read out there, Commissioner, and based on the clarifications sought afterwards we would seek to withdraw the section 127 application.

PN58

THE COMMISSIONER: All right. The Commission thanks the parties for their cooperation and hopes that you will understand when I say, I hope I don't see you again. However, the Commission would note that there is a conference schedule for 12.30 am on Monday, 11 November to see what progress has been made in regards to other matters.

PN59

MR BAULK: Can I just raise one more point, just if it would be possible to get transcript as quickly as possible please, Commissioner.

PN60

THE COMMISSIONER: Transcript will be made available to the parties as quickly as possible. Thank you very much.

PN61

MR BAULK: Thank you.

ADJOURNED INDEFINITELY [1.40pm]