C2002/5645, Transcript of Proceedings [2002] AIRCTrans 5231 (30 December 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2002/5645

COMMUNITY AND PUBLIC SECTOR UNION

and

AUSTRALIAN CUSTOMS SERVICE

Application under section 170LW of the Act
for settlement of dispute re excess travelling
time and excess fares allowance

SYDNEY

2.00 PM, WEDNESDAY, 11 DECEMBER 2002

PN1

THE COMMISSIONER: Good morning. Appearances, please.

PN2

MR N. SPEERS: I appear on behalf of the CPSU and also assisting me today is MR PETER NOBLE.

PN3

THE COMMISSIONER: Good, thank you. Ms Godwin?

PN4

MS A. GODWIN: I appear as National Manager of Staffing on the Australian Customs Service. With me is my Director of Human Resource Management, GLEN LYON.

PN5

THE COMMISSIONER: Good, thank you. Before I invite the parties to put initial submissions to me, I don't think I've had you before me before, have I?

PN6

MS GODWIN: No.

PN7

THE COMMISSIONER: No. I've got to tell you - it is my duty to tell you that I used to be an employee of the CPSU. I was Secretary of the Telecommunications Division or the TCA Division and I remained as a consultant to the CPSU until the day before I took this job. So if you have any objection - I remain a life member also of the CPSU. Do you have any objection to my hearing the case?

PN8

MS GODWIN: We're in mediation. I don't have any objections.

PN9

THE COMMISSIONER: Thank you. We're not quite in the mediation yet. I want to know the outline of the case.

PN10

MR SPEERS: Okay. Thank you, Commissioner. CPSU has notified a dispute to the Commission under the disputes settling procedure which is outlined in clause 24 of the Customs Certified Agreement 2002 2004. There's a couple of issue; firstly, the refusal by Customs senior management to pay the excess travelling time and excess fares to affected Customs employees in Sydney that we believe - there are not a huge number, but certainly some employees who should have been covered under the particular provision of the agreement. This refusal has meant that there is a dispute from our point of view in relation to particular employees in Sydney.

PN11

It's probably also triggered a wider dispute about the application of the what are the sort of key ETT provisions in the Customs Certified Agreement. In particular, it goes to the application of the payment during organisational change provision in the ETT clause at section 5.19 of the Certified Agreement and - - -

PN12

THE COMMISSIONER: Do you have a copy of the Certified Agreement for me?

PN13

MR SPEERS: I've got a copy of the relevant sections of it.

PN14

THE COMMISSIONER: Mr Lyon does so that's okay.

PN15

MR SPEERS: Also photocopied the relevant bits so, yes, ..... someone would be referring it.

PN16

THE COMMISSIONER: Yes. Proceed.

PN17

MR SPEERS: Yes. So it's in - Mr Lyon has given you a copy - yes. So it's in page 40 - 49, Excess Travelling Time 519. It's the last - basically the last subclause, Payment During Organisational Change; that's the significant subclause that we're - that this matter is fundamentally about. And there's also a relevant section on page 45 under the Building Activity Disability Allowance. The second last paragraph in that on page - under that 510 refers to excess travelling time and it refers to excess travelling time provision of the agreement, clause 519. So there's a bit of a cross-reference so there's also an application in both of those clauses.

PN18

These developments - some are occurring particularly in Sydney against a backdrop of significant accommodation and organisational change. There's a major restructure right across Customs. CMR is the sort of acronym, Cargo Management Re-engineering. A fundamental sort of technological and associated with it, staffing changes: that's across the agency. In particular though also is - in Sydney we have a situation where partly driven by that, partly driven by the - Customs have recently signed up a deal to have a new purpose built building which will be located out of Sydney airport.

PN19

So there's also - that's as I understand it supposed to be completed in the second half of 2004. But in the interim, caused by both the organisational CMR aspects but also by some other things and also the new building, there's a number of people moving around within Customs particularly in Sydney. So that's the sort of the backdrop to why it's occurring. Commissioner, in my submission, I want to try and show why the union contends that Customs senior management, from our point of view, are reneging on a key entitlements outcome that formed part of the settlement of the current certified agreement which was certified by the Industrial Relations Commission back in 20 May of this year.

PN20

So I want to try and show that from our point of view, Customs are being unreasonable, and I believe lacking in good faith in terms of their present approach, and that their stated position flies in the face of what could be considered a fair and reasonable approach on this particular matter. Commissioner, the second issue that was outlined in the dispute notification, was the matter of the application of clause 8.1 of the certified agreement which is to do with overseas air travel. It's on page 68 of the certified agreement and it's the first - it's class of travel. It's the first lead-in subsection. The clause under the subsection provides:

PN21

That where available, employees required to travel overseas for official purposes will be entitled to travel at business class standard.

PN22

Notwithstanding this subclause, Customs management refused to apply this provision to employees to travel overseas to join cruise ships in order to perform passenger clearance work whilst the ship is travelling back to Australia. The CPSU have asked Customs to apply the CA provision but they refuse. In fact, they have sought to over-ride the CA through the use of a chief executive instruction from the CEO of the agency and that instruction particularly undercuts the CA provision; and also would say that it needs to be noted that there was absolutely no consultation with the CPSU on the content of that chief executive instruction which does, as I say, seek to undercut the certified agreement.

PN23

So, Commissioner, I have to state that the CPSU has been through a reasonably thorough consultation process with ACS management to try and resolve both of these issues. This included an in person meeting in Sydney on 3 October this year between the parties where both issues were agenda items. Unfortunately, no resolution has been achieved and the CPSU is seeking the Commission's assistance to resolve the matters in dispute as provided for under the dispute mediation arrangement at clause 24 of the customs agreement. I've got some fuller comments to make, Commissioner, but that's an overview of the issues and would you like me to pause there and - - -

PN24

THE COMMISSIONER: That's what I want. I want the thumbnail sketch - - -

PN25

MR SPEERS: Yes, okay.

PN26

THE COMMISSIONER: - - - to start with and then we'll conciliate the matter - I'll conciliate the matter.

PN27

MR SPEERS: Okay. Thank you, Commissioner.

PN28

THE COMMISSIONER: Ms Godwin?

PN29

MS GODWIN: Thank you. Thank you for agreeing to handle this matter today. Just as some opening remarks, Commissioner, I joined the Australian Customs Service on 14 October of this year, so it's not quite two calendar months now since I've been in this role. There have been a number of negotiations that were held with regard to the certified agreement before me coming on board. And I have taken that information into account, going through file notes and things like that as to what was the intent of the negotiations with the certified agreement in the way that we've prepared.

PN30

Clause 24 of the Australian Customs Service Certified Agreement outlines the dispute mediation arrangements that we have - that's on page 84 - and that's what we're doing today: to try and seek some utilisation of your time to work through some of those issues. We have - I agree with Noel - have had a number of meetings and exchanges of correspondence in relation to the interpretation of what we consider to be organisational change component of the excess travelling time which is in page 48 of the Certified Agreement. And we have sought to resolve this matter using the provisions of clause 24 of the certified agreement. And we now seemed to have come to the point where we need some sort of independent mediation on that point.

PN31

Customs has concerns about the scope of CPSU's 20 November notification of the dispute. This matter started out as a claim for ETT which is the excessive travel time provision regarding to staff in the commercial cargo systems relocating from Mascot to Customs Pitt Street offices in Sydney. And we're prepared to seek mediation in this matter if necessary to get your recommendation on how we should apply that.

PN32

Since that matter was first raised it's now in a number of other significant developments for Customs, in particular with our accommodation arrangements in Sydney. And we're not quite sure with CPSUs wanting to bring those matters now into the scope of this mediation or not, but there are a number of other arrangements in place with the Regional Director in Sydney who are actually dealing with those specific issues. So I'd like to make a distinction between those issues which have been dealt with more generally under negotiations with the Regional Director in Sydney, and what I would consider to be the specific issues to do with the provision of ETT Organisational Change as a general point.

PN33

THE COMMISSIONER: So you say the accommodation issue hasn't reached fruition - - -

PN34

MS GODWIN: No.

PN35

THE COMMISSIONER: - - - through the disputes resolution procedure?

PN36

MS GODWIN: What's actually happened - there's some dates that came over. Over the last two to three months there have been some major developments relating to the relocation of staff. There was a letter on 23 October which tried to deal with some of those issues. On 12 November Peter Noble, who is the president of the CPSUs Customs Section Council, wrote to the Customs Regional Director in New South Wales indicating that the CPSU believes the ETT Organisational Change provision should apply for all those moved within Sydney, and that's actually been held in abeyance pending this process because on 15 November - three days later - we had reiterated our position to state that we didn't believe the ETT provisions applied, and that this position was openly discussed in the certified agreement.

PN37

So there have been other discussions which are going on specific to Sydney which are different to the more general discussion about what is relocation in the terms of organisational change, which is the provision in the certified agreement. So there's - I think there's two actual - two different parts to that. On the third part which is about the use of cruise ships, which is the part to the bottom of the formal notice. Customs is undertaking a major review of how the cruise ships operate; that is, what happens currently is that as a service to cruise ships we send Customs officers to a port; they get on the ship with the cruise operator, and they process the passengers before they arrive back in Australia whilst they're on the ship.

PN38

This is a service we actually provide to the cruise ship operator, and they make all the payments arranged with that. And we're actually doing a major review of that and the whole process. So the issues that have been raised by the CPSU about the class of travel that is now being included in that is actually something that is not in our scope because we're not paying for it. Now, we have in fact written to all the cruise ship operators and outlined to them that this is the position of the CPSU; that they're wanting to be now paid at business class travel for what is considered the overseas travel component of that, and asking them if they are prepared to make payment. But it's not a payment that Customs actually makes. Again, we haven't had the response back from them - - -

PN39

THE COMMISSIONER: But the people involved are your employees?

PN40

MS GODWIN: Yes, but we're doing it as a service to the cruise shop operators and in many cases it's actually more appropriate and efficient for us to actually do that in Australia. It was just a service that we were providing. So we've written to the cruise ship operators saying are they prepared to up the class of travel for the people that they're flying to the cruise ships, and we haven't received their response back from that.

PN41

THE COMMISSIONER: I take it the people who fly are your employees - you're paying salary while they're performing this duty?

PN42

MS GODWIN: The salary component we are, but the rest of the - - -

PN43

THE COMMISSIONER: And you're paid back something, are you, by the operators - something by way of fees, or what?

PN44

MS GODWIN: The operator pays the direct - while they're on the ship they're paid all their accommodation and their food allowances and it's provided by the cruise ship operator, and the cruise ship operator is also, at this point, paying for their air fares.

PN45

THE COMMISSIONER: But they don't become employees of the cruise ship operators.

PN46

MS GODWIN: No, they don't become employees of the cruise ship operators. But we have asked them - - -

PN47

THE COMMISSIONER: If they were injured, they would be covered by the usual work arrangements?

PN48

MS GODWIN: They would be covered by Customs - - -

PN49

THE COMMISSIONER: If they suffered a workers compensatable injury - - -

PN50

MS GODWIN: They would be covered by Customs on that.

PN51

THE COMMISSIONER: Yes.

PN52

MS GODWIN: So we're waiting for the cruise ship operators to get back to us regarding whether or not they're prepared to pay the business class travel for that aspect of travel - getting to the port.

PN53

THE COMMISSIONER: How are their air fares paid now? What is the actual arrangement? Person A has to fly somewhere. How does he get a ticket - he or she?

PN54

MS GODWIN: Well, at the moment it's arranged through Customs in terms of getting them to the port where they would fly from to the new arrangement. And my understanding is that at that point we are paying it but they are reimbursing us for the costs.

PN55

MR NOBLE: No, the cruise ship operator - sorry - the cruise ship operator actually do all the bookings for the employee. They'll be told Joe Bloggs is required to be in Auckland, for argument's sake, and they will say here are the - make the bookings for Joe Bloggs to fly to Auckland, put them up in accommodation if they need to, and then they'll embark the vessel and process passengers on the way back to Australia.

PN56

THE COMMISSIONER: But how do they get their hands on the ticket? Who buys the ticket - the air ticket?

PN57

MR NOBLE: The cruise ship companies purchase the tickets. Customs doesn't see - pay any moneys or seek any reimbursement because it's all paid for by the cruise ship operators.

PN58

THE COMMISSIONER: Okay. Sorry, did you have more to put to me by way of opening?

PN59

MS GODWIN: Just, I suppose, in terms of - there is an awful lot of organisational change going on and I'm certainly aware of that. We are looking at the definition of locality or location in terms of the organisational change component, and from my understanding in the certified agreement negotiations, those definitions were made aware to the CPSU and they were in fact voted upon by staff when they approved the certified agreement, and voted in accordance for it. The reason that the definition was actually put in - and location definition is on page 81 at the back under the last - before you get to the page. It's about two-thirds of the way down the page.

PN60

That was put in to be in line with the Public Service Act when we received direction from the Public Service Commissioner that we needed to put in a definition in our certified agreements to make sure that we were complying with the new Act when it came in. So in terms of what we're looking at, when you go back to page 49:

PN61

Employees who are required to transfer from one location to another as a direct result of significant organisational or accommodation change will be eligible for excess travelling time and excess fares allowance for a period of six months from the day of the transfer.

PN62

Then when you go over to page 81 to actually look to see what another location is:

PN63

In the context of compulsory relocation of duties performed by an employee a transfer from one ...(reads)... be necessary and reasonable for the employee to move house in order to maintain employment.

PN64

So that's the definition there. Now, I also understand from the certified agreement negotiations that there was an undertaking through those negotiations for the Sydney situation to be addressed in a separate matter; that there would be some individual negotiations on that and there would be some arrangement put in place to support that move.

PN65

The arrangements, again from my understanding from the files, were to be something that was fairly simple in terms of administrative arrangements, and was not as an equivalent provision to what was under ETT. Now, Customs has never stepped back from that position. We are still prepared to negotiate and that's what the letter to the Regional Director has been about from the CPSU and they are continuing to hold those negotiations separate to this notification to you regarding the need for a mediation on this definition of location.

PN66

THE COMMISSIONER: Can I just take you to page 81, and it's part D, 17, where it says:

PN67

Location or locality means a zone that encompasses all Customs installations in an area.

PN68

Do you have the country divided up into zones, or cities divided into zones?

PN69

MS GODWIN: We do have regional areas and they are all established so - - -

PN70

THE COMMISSIONER: I'm talking about city, Mascot. Is there a zone which sort of says they're in two different zones, or one zone?

PN71

MS GODWIN: The only zones we have are in terms of regions.

PN72

MR NOBLE: State boundaries.

PN73

MS GODWIN: State boundaries, although Queensland you could - no, Queensland is just still one region. There are a number of district offices in Queensland.

PN74

THE COMMISSIONER: So it's not a terribly helpful definition, is it?

PN75

MS GODWIN: The first part, no, not in terms of that.

PN76

THE COMMISSIONER: "Another location" is quite clear to me.

PN77

MS GODWIN: So I've tried to split out the issues. There is the definitional issue; there is that issue that is specific to Sydney; and then there's the third issue about the cruise ships. Oh, the only other point is that in - again, clause 24 on page 84 of the certified agreement outlines the dispute mediation arrangements that are in place in the certified agreement, and there's been a commitment that we'll try and properly address the disagreements; we'll discuss it in an open and honest way; we'll provide each other with information; and we'll try to seek to resolve those disagreements where we could.

PN78

This, as I said, has moved quite quickly from some correspondence that was going on between us. As of 12 November there was a letter written; 15 November we reiterated the position that I had signed; and then on 20 November there was this notification to put to you. So it's actually something that's happened quite quickly, and given my time in this role I was a little surprised at how quickly we've actually got to this point without continuing to work through some of these dispute mediation arrangements. Under this process, your appointment was to be timely, which we have done, and that we are continuing to try and go through those processes. So - - -

PN79

THE COMMISSIONER: But you say that this process under clause 24 hasn't been exhausted yet?

PN80

MS GODWIN: Well, I think that this is certainly a component of it, but I said I was a little surprised at how quickly we had actually gone from exchange of letters to having this notification put in place, particularly given my short period in the role.

PN81

THE COMMISSIONER: Yes. Well, notification came in on 20 November, so - - -

PN82

MS GODWIN: Yes.

PN83

THE COMMISSIONER: - - - it's been here a while.

PN84

MS GODWIN: From that point, yes.

PN85

THE COMMISSIONER: Well, do you think we should sit down and chat about this now?

PN86

MS GODWIN: I think we could.

PN87

MR SPEERS: Commissioner, would it be useful if I just responded very briefly to a couple of the point at all or - - -

PN88

THE COMMISSIONER: It's up to you. If you wish to respond - - -

PN89

MR SPEERS: Well, I wouldn't mind.

PN90

THE COMMISSIONER: - - - of course please do.

PN91

MR SPEERS: Just very briefly - that yes, certainly in relation to the Sydney issue, there are separate negotiations occurring, but that's simply fundamentally about the things like the spatial sort of allocation and the timing of dates and the particular arrangements. But fundamentally, these issues are interlinked in the sense that fundamentally one of the bread and butter issues is that some of the people - and we do have people who have moved already, and they moved in August, who we believe should be covered under this certified agreement in terms of that ETT provision.

PN92

So there's actually the practical issue of actually the employer, from our point of view, actually making a payment to the eligible staff. Yes, there's discussions on things like the layout, etcetera, etcetera, but to sort of say - in fact, the line that I've had from New South Wales regional management has been to say, "We'll talk with you about all the nitty gritty of various things. Can't talk to you at all about the ETT sub-clause. That's in the hands of - you know, the dispute thing and I know you're talking to Canberra about it". So they're not, you know, mutually exclusive, but the ETT is a fundamental bread and butter issue in terms of an allowance that should apply. Yes, there's separate discussions, but that in no way, you know, stops this process.

PN93

I've got to also say that my understanding is Mr Noble wrote the regional management in August of this year when those people moved. There was a further letter to - sent from Mr Noble to John Jeffrey who was the leader of the Customs negotiating team. That was in - I think in - - -

PN94

THE COMMISSIONER: Are you going to tender any of this correspondence at any stage rather than just paraphrase it to me?

PN95

MR SPEERS: No, I've got some stuff to tender when I get into my submission, Commissioner. But basically, I just wanted to give the impression that it was 1 October, so certainly to say that - and then there was an actual in-person meeting which Mr Lyon attended - 3 October in Sydney. So - and I think - what is it now, December 11? So, I mean, with all due respect to Ms Godwin, I think to say that sort of prematurely we're here, is a bit of a nonsense. This has actually stretched over a few months now in terms of trying to resolve the matters.

PN96

And I've got something to say, too, when we get into it, about the definition of "location" because part of the submission I've got is that - - -

PN97

THE COMMISSIONER: Well, you can say that now if you wish.

PN98

MR SPEERS: Yes. Well, Commissioner, in the actual definition, one of the points that I'll be making is that in page 81 on another location - another locality, from our point of view that clearly relates to section 7 of the certified agreement which goes to domestic travel on assignment to another locality on 53. There's a whole series of allowances that apply in cases of interstate and significant sort of change where you've got to move your house, etcetera. They're all located under section 7 and of course the title actually refers to another locality. But the fact is that the ETT references are in the allowances under section 5. They're not in that area, clearly because in the past - and when we get into some discussion, Customs will concede this - in the past people who moved intra-city, within Sydney, have actually been paid under the ETT organisational change provision.

PN99

THE COMMISSIONER: Well - - -

PN100

MR SPEERS: So the key thing is obviously the location or locality and as far as we're concerned, the key thing is what people were informed about. We can debate about what a zone and an area means, but I've also got some documents to tender which I think from the union and also from the employer's point of view, shows what staff were informed before the vote and what the intention of that clause is. And it would be pretty unusual to go and highlight a definition in the key features sort of information to staff. I think what you've got to concentrate on is the breakthrough that occurred. But, as I say, I've got documents to tender if we get into that. So - - -

PN101

THE COMMISSIONER: Well, we'll certainly need those documents during the conference as well.

PN102

MR SPEERS: Yes. Okay, Commissioner. I'll leave it at that for the moment.

PN103

THE COMMISSIONER: We'll adjourn to conference and come back on the record as required.

NO FURTHER PROCEEDINGS RECORDED

PN