AG2002/6575, Transcript of Proceedings [2003] AIRCTrans 108 (10 January 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT1190
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

AG2002/6575

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT

Application under section 170MD(6)
of the Act by the Community and
Public Sector Union and Another to
vary an agreement re public holiday
entitlements

MELBOURNE

11.02 AM, THURSDAY, 19 DECEMBER 2002

PN1

MS M. COOPER: I appear with MR M. HAMMOND for the CPSU.

PN2

MR A. DAVIS: I appear with MS B. NIELL, for Medibank Private.

PN3

THE COMMISSIONER: This is the first of two matters that have been notified in relation to Medibank Private. The first one is a matter concerning public holiday entitlements. And the second is one regarding the simplification of one of the awards between the parties, the CPSU and Medibank. Can I take it the same people are going to be appearing in both matters?

PN4

MS COOPER: Yes.

PN5

THE COMMISSIONER: Can I suggest then that when we finish the first matter we will adjourn, and then we will go straight on with the second matter, rather than waiting until 11.30.

PN6

MS COOPER: Yes.

PN7

THE COMMISSIONER: Okay. Good. Right. The first matter is in relation to a notice from the CPSU regarding public holiday entitlements. Ms Cooper?

PN8

MS COOPER: Yes, Commissioner. I would like to thank you, Commissioner, for listing it so quickly. The application has arisen from approached to the CPSU by members in relation to the upcoming Christmas/New Year holiday break. And what the union has come to realise is, what we say the inequitable treatment of particular Medibank employees insofar as their entitlement to public holidays goes. The treatment, we say, was not intended to result from the application of the agreement, and which we say can be remedied by our application to vary or remove this uncertainty that has arisen.

PN9

By way of background, as I understand it, I should explain a bit about how I understand the hours of work at Medibank to apply. The normal hours of work are over six days, that is, Monday to Saturday, and from 7 until 6, as a span of hours within those days. Some employees work five in five, what is called five in five, which is Monday to Friday, with Saturday and Sunday as non-work days. And some employees work what is known as five in six, which is Monday to Saturday, and if they are working on a Saturday, then their non-work days are Sunday and another day during the week of - between Monday to Friday.

PN10

These employees receive normal rates of pay for that Saturday work. This year, and for New Years Day next year, the non-work day for some of these employees is Christmas Day, Boxing Day, and on New Years Day. So consequently the - on the employer's interpretation of how the agreement applies in this circumstance is that five in five workers will only work seven days over that two week period. Five in six workers, whose non-work day is any of these public holidays, will work at least eight, but possibly nine days within that same period. Therefore we say it is clear that they have not been afforded the benefit of their entitlement to public holidays. There is a test case standard that is regarded as the safety net in these circumstances, and that test case standard is reflected in the decision Print Number - - -

PN11

THE COMMISSIONER: Perhaps you refer to it in your correspondence.

PN12

MS COOPER: Yes. That is right. And I will just - I won't hand up - - -

PN13

THE COMMISSIONER: L9178.

PN14

MS COOPER: L9178. Yes. That is the one, Commissioner. Thank you. In that decision the Full Bench said that:

PN15

Members of the Commission dealing with particular awards will be expected to apply these principles wherever possible.

PN16

And the Commission also said there, that:

PN17

... it may happen that a prescribed holiday falls upon a day when the employee would not be working in any event. Fairness requires that the worker no be disadvantaged by that fact.

PN18

The Commission then went on to say appropriate compensation was an alternative day off, an addition of one day to annual leave, or an additional day's wages. In that decision the Full Bench also specifically excluded Easter Saturday and Anzac Day from the substitution process. So in those circumstances, we would say that the safety net in relation to these employees at the very least would entitlement them to days off in lieu or a day's wages for the loss, if you like, of that entitlement, or the failure to recognise that entitlement.

PN19

And it was never the union's intentions in its negotiations regarding the CA that - the certified agreement, the employees not be afforded that entitlement. However, we do acknowledge that the agreement is uncertain on this. The hours of work clause entitles employees to two non-work days per week. The public holidays clause provides that in addition, employees are entitled to a public holiday. The only way five in six workers can have advantage of that public holiday without being disadvantaged by a comparison with the other workers, we say is to be given another day, or days if appropriate, off in substitution. Or, as the test case provides, an extra day's pay.

PN20

However, the agreement doesn't specifically deal with this situation. And hence our application to vary the award, to remove that uncertainty. And we have handed up, or we have faxed through a draft order, and Medibank Private have a copy of that draft order. That draft order is literally lifted from the award simplification decision, the only substitution being the substitution of the word "agreement" for the word "award" in clause, our proposed clause 7.12.4. So we are not asking for anything other than what is regarded as a minimum standard. Now, there has been correspondence between the parties about the issue, and obviously the employer disagrees with the CPSUs view on this. However, we acknowledge that the application has been brought on quickly. Medibank Private have advised that they think there might be some value to some further discussions in relation to this point. And in those circumstances, we are happy to have those further discussions, and at this stage would seek an adjournment of our application until late January, early February.

PN21

THE COMMISSIONER: Thanks, Ms Cooper.

PN22

MS COOPER: Okay. Thank you.

PN23

THE COMMISSIONER: Mr Davis?

PN24

MR DAVIS: Commissioner, Medibank Private believes it is premature to be at this place at this time. We - the full history of this dispute was a letter. A letter was written to a manager by the CPSU organiser less than two weeks ago. That was copied into Human Resources. There was a brief discussion between Human Resources and the organiser, and a letter followed on 11 December from Human Resources to the organiser in relation to the substance of the matter. There has been no reply, or any further correspondence in relation to the matter until yesterday, when we received a call from the CPSU.

PN25

So in terms of the disputes avoidance and settlements procedure in the certified agreement, the company's view is that we certainly haven't exhausted that procedure. I would also point out, at this stage, that the notice is insufficient for the company to be able to make a considered submission today. And would also agree that the matter should be adjourned. In terms of the substance of the issue, very briefly - - -

PN26

THE COMMISSIONER: Mr Davis, I don't think it is necessary to go to the substance at this time.

PN27

MR DAVIS: Terrific.

PN28

THE COMMISSIONER: I think both parties are acknowledging that there is a need for further discussions between you before it possibly comes back to this Commission for some substantive hearing. Hopefully comes back to this Commission with some level of agreement between the parties. What I would propose to do would be to adjourn the matter. Would both parties agree that a date late in January would be suitable, or would you prefer February?

PN29

MR HAMMOND: I think I would prefer February, Commissioner.

PN30

THE COMMISSIONER: All right. Well, perhaps Monday, 17 February, at 10 am, in the Commission, for a report back. And hopefully, by that time there will be either substantive agreement, or you will have recognised the areas of disagreement.

PN31

MR HAMMOND: Yes, fine, Commissioner.

PN32

MR DAVIS: That is fine, Commissioner.

PN33

THE COMMISSIONER: My observation would be that it does - there does appear to be substance in the submissions made by the CPSU, but that is a matter for negotiation between the parties. I notice, by the way, two things. That clause 7.13 of the enterprise agreement talks about "good wealth day. Good wealth day." Is that something which is enjoyed in

PN34

Medibank Private?

PN35

MR DAVIS: "Good health day" it should say.

PN36

THE COMMISSIONER: It says "good wealth."

PN37

MR DAVIS: "Good wealth day." Well, we will - - -

PN38

MS COOPER: It does say "good wealth day."

PN39

THE COMMISSIONER: Yes, it does.

PN40

MR DAVIS: We will have to look at that.

PN41

THE COMMISSIONER: And, Ms Cooper, in your application, or your notification to the Commission, you have two paragraphs. Paragraph A, which talks about a day with pay added to the annual leave. Or B, which is payment of one day's pay. And I take it the final part of that, which talks about:

PN42

... such holiday may be allowed off with pay ...

PN43

is actually para C. Am I right there, or not?

PN44

MS COOPER: As I say - - -

PN45

THE COMMISSIONER: Is that the third of three alternatives, or are there two alternatives. It is just a - - -

PN46

MS COOPER: I did, as I say, lift it from the award simplification decision, and I wasn't aware of paragraph C, that that meant - that doesn't mean there probably shouldn't be one there. Is that - I think it should be C.

PN47

THE COMMISSIONER: Yes, okay.

PN48

MS COOPER: Yes. Then I will amend that accordingly.

PN49

THE COMMISSIONER: All right.

PN50

MR DAVIS: I am sorry, Commissioner. What was paragraph C?

PN51

THE COMMISSIONER: Well, it is the proposed clause 7.12.3 which - sorry. 7.12.4, which I imagine you would have a copy there.

PN52

MR DAVIS: Yes, I do.

PN53

THE COMMISSIONER: You will notice that there is a - in the paragraph, there is a sub-para A, there is a sub-para B. I, when I read it, I - it appeared to me as though the second - the last two lines of that paragraph should have been a sub-paragraph C, but I may be wrong there. That is - I am just asking the question, and suggesting someone looks at it. Good. Well, we will adjourn this matter until the date nominated in February. And so this matter is now adjourned until that day.

ADJOURNED UNTIL FRIDAY, 21 FEBRUARY, 2003 [11.13am]