C2002/746, Transcript of Proceedings [2002] AIRCTrans 572 (26 February 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT02419

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2002/746

HEALTH SERVICES UNION OF
AUSTRALIA

and

CENTRAL GIPPSLAND HEALTH
SERVICE

Notification pursuant to section 99 of the Act
of a dispute concerning the alleged removal of
tool allowance

MELBOURNE

9.41 AM, THURSDAY, 7 FEBRUARY 2002

PN1

MR S. HUDSON: I appear for the HSUA, sir.

PN2

MS T. NADEBAUM: I appear for Central Gippsland Health Service together with MR D. KING.

PN3

THE COMMISSIONER: Right, Mr Hudson.

PN4

MR HUDSON: Thank you, sir. Sir, the matter we have brought before you today relates to Mr Phillip White, sir. Phillip is employed as a chef for Central Gippsland Health Service at the Sale Hospital, sir. Phillip commenced his employment back in 1983 with the facility, sir, having a 9-month break in early 1997, then recommencing his employment with the employer again in late 1987 as a chef. Since 1987 onwards Phillip has been paid a tool allowance in accordance with clause 43.3 of the Health and Allied Services Public Sector Consolidated Award of 1998. That being the sum of $7.17 per week in accordance with that provision.

PN5

Phillip was paid that on an ongoing basis until late July 2001. The payments ceased without any particular notification. Since that particular time HSUA organiser for the area, Doug Byron, and Phillip have had numerous discussions with management at the hospital in relation to why the tool allowance was removed and whether it will be reinstated. To this point, sir, the hospital has held the position that they do supply the tools and that Phillip will not have the payment reinstated.

PN6

The HSUA is prepared to concede that the hospital does supply some tools but Phillip does supply his own set of quality knives. And I guess it is for this reason that the parties have been unable to reach any sort of amicable conclusion that we brought the matter before you. If the Commission pleases, the HSUA would seek to take the matter into conference.

PN7

THE COMMISSIONER: Thank you. Yes, Ms Nadebaum.

PN8

MS NADEBAUM: Good morning, Commissioner. I wish to apologise for our late appearance. It was entirely our responsibility and I apologise for it. We maintain, sir, that all tools are provided by the organisation and that the tools that are provided by the gentleman here are of his own volition and are not a requirement of the job. The tool allowance was paid and was considered an anomaly and as such that anomaly was addressed, it was a mistake, it shouldn't have been paid. There are no other members of our workforce that receive this tool allowance, of which 11 are eligible, some have got almost as long-serving experience.

PN9

Sir, as I have said, no other staff received the tool allowance. We do consider it an anomaly and we did invite Mr White to take up the option of going through the internal grievance procedure to have this aired internally. An option that Mr White elected not to take up. Basically that is our position.

PN10

THE COMMISSIONER: What is the internal grievance procedure?

PN11

MS NADEBAUM: Sorry - - -

PN12

THE COMMISSIONER: What is the internal grievance procedure?

PN13

MS NADEBAUM: We have an internal grievance procedure which addresses any staff grievances, they can take it right up to the executive level for resolution. It is designed to provide resolution to staff conflicts or matters that should - we believe be dealt with internally before it ever gets to this stage. Unfortunately, we were denied the option of doing that despite discussions with Mr White to that effect.

PN14

THE COMMISSIONER: But the HSUA says that the allowance ceased in July 2001. Since then there have been a series of discussions between the HSUA and the hospital regarding that allowance.

PN15

MS NADEBAUM: Yes, sir, that is correct.

PN16

THE COMMISSIONER: So there is still no settlement.

PN17

MS NADEBAUM: The discussions were around providing written evidence on Mr White's reason for why he felt the tool allowance should have been continued and that would have been considered through a grievance procedure. He didn't give us the opportunity to do that. He did not produce any written evidence, he didn't go through - lodge a grievance procedure as required.

PN18

THE COMMISSIONER: But that is not mandatory, is it, it is - - -

PN19

MS NADEBAUM: No, it is - no, sir, it is not.

PN20

THE COMMISSIONER: No, it is a voluntary - and it doesn't supersede or override the grievance procedure as outlined in the award for agreements, certified agreements?

PN21

MS NADEBAUM: No, sir, it does not.

PN22

THE COMMISSIONER: Right, okay. So there is an option as to whether Mr White wishes to pursue that and he has chosen not to?

PN23

MS NADEBAUM: Yes, sir.

PN24

THE COMMISSIONER: Right, okay. So that can't be held against him. So when the decision was made you say it was made to correct an anomaly. Were there discussions about that with Mr White or the HSUA, or was it just a decision to cease and that was it?

PN25

MS NADEBAUM: I understand the discussions were with both parties, sir.

PN26

THE COMMISSIONER: After or before?

PN27

MS NADEBAUM: Afterwards, sir.

PN28

THE COMMISSIONER: Why not before?

PN29

MS NADEBAUM: It was - it should have been done before, it was not done before.

PN30

THE COMMISSIONER: So do you have consultative provisions in your - do you have a certified agreement?

PN31

MS NADEBAUM: No, we do not, sir.

PN32

THE COMMISSIONER: But you are bound by an award?

PN33

MS NADEBAUM: Yes, we do.

PN34

THE COMMISSIONER: So who made the decision?

PN35

MS NADEBAUM: Mr King made the decision. It was an oversight not to confer beforehand and we recognise that as an oversight.

PN36

THE COMMISSIONER: Okay. Now, what are you going to do to correct the oversight? Don't stand there and say, "I am sorry".

PN37

MS NADEBAUM: I believe it is a position that we can't go back and correct at this stage other than, as you say, to offer an apology. In conference - I mean, one of the possibilities is to go back and to reinstate the tool allowance, sir, and then go through the correct channels to have that addressed as an anomaly and then subsequently the removal of the tool allowance.

PN38

THE COMMISSIONER: I have to say that that sounds like a reasonable solution. That is that you reinstate the tool allowance. Mr White cannot assume from that that it is reinstated for ever but you then follow the process of addressing it correctly with Mr White and, if necessary, his union. Mr White, you believe it to be an anomaly and then if you cannot get an understanding of an agreement, more than happy to have it come back here and then the Commission will assist the parties to address it. But I think that that is a reasonable solution. Can I take it that that will happen?

PN39

MS NADEBAUM: Thank you, sir, I agree with you. Yes, certainly, I will undertake to have that happen.

PN40

THE COMMISSIONER: All right, thank you. Mr Hudson, I think that is a reasonable course.

PN41

MR HUDSON: Yes, I concur with your view, sir.

PN42

THE COMMISSIONER: Okay. Well, the Commission will adjourn on the basis that the allowance will be reinstated back to the date it ceased. Mr White, you cannot assume from that that it will go on for ever. There will be a process of consultation with yourself and, if necessary, the HSUA as to why they believe, that is, the Central Gippsland Health Service believes that it is an anomaly. If you cannot reach an understanding then either party is free to have the matter brought back here. Okay? Thank you. The Commission will stand adjourned.

ADJOURNED INDEFINITELY [9.50am]