C3200/099, Transcript of Proceedings [2003] AIRCTrans 1482 (23 April 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT2254
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

C No 32000 of 1999

DISPUTE RESOLUTION PROVISIONS

Application under section 520 of the Act
by Police Federation of Australia-AFPA
Branch - Victoria Zone re section 293F - denial
of sick leave to constable T. Hill

MELBOURNE

10.06 AM, MONDAY, 7 APRIL 2003

Continued from 23.6.99

PN1

THE COMMISSIONER: It has been a while, so perhaps I will take the appearances again.

PN2

MS M. HOGAN: I appear for the Police Association.

PN3

MR G. PATTERSON: I appear for the Chief Commissioner of Police. With me today is MR C. HENRY.

PN4

THE COMMISSIONER: Thank you. Yes, Ms Hogan.

PN5

MS HOGAN: Yes, thank you, Commissioner, and you are right, it has been some time. This matter was before the Commission for both hearing and recommendation in 1999 and the Association thanks the Commission for assisting today in relisting the matter. The matter of the dispute as it began with sick leave for Ms Hill has long been resolved, Commissioner. The matter that is not resolved, though, is that of the development of guidelines to create a transparent process for the granting of sick leave of the type that Ms Hill did apply and was then denied, but later paid out.

PN6

The sick leave was a provision under the old Police Force Award, paragraph 125. It is now replicated in the new Victoria Police Certified Agreement of 2001 at clause 6.2.2.5, but it is the same clause exactly, Commissioner. After the recommendation was handed down, the parties met several times and worked on some draft guidelines. That was designed to become the clear guidelines as recommended by the Commission. Commissioner, I will at this point hand up the guidelines as they are at the moment.

PN7

THE COMMISSIONER: We will start a new exhibit list.

EXHIBIT #H1 DRAFT GUIDELINES DOCUMENT

PN8

MS HOGAN: H1, Commissioner?

PN9

THE COMMISSIONER: Yes.

PN10

MS HOGAN: Thank you, Commissioner. Commissioner, there are two issues of dispute between the parties at this stage. The first relates to, under criteria 1.2:

PN11

Employees must exhaust all accrued leave entitlements with the exception of long service leave before an approval for special sick leave becomes effective.

PN12

The other matter of dispute between the parties, Commissioner, is at 1.3.3 under approval, the second dot point, where there is a provision to seek further medical advice and clarification from the police medical officer. Commissioner, we think that goes further than what the actual clause in the certified agreement says. However, we have had discussions with the police force and that matter is not in dispute as much as the matter of the rec leave, so, Commissioner, the Association's position on rec leave is that the Commission's recommendation made comment at paragraph 12 about recreation and sick leave being for very different purposes:

PN13

If an employee in the Victoria Police Force is on rec leave and becomes ill, the employee can produce a medical certificate and have that rec leave recredited and sick leave debited.

PN14

The Commission also made comment in the recommendation that it is not clear why rec leave should have to be exhausted before the granting of what has become known as special sick leave under 6.2.2.5 and, in fact, the Victoria Police Force does have a practice in place of recrediting recreation leave if someone does produce such a medical certificate, so the Association's natural question on this matter is why should it be a mandatory requirement to exhaust all rec leave before granting of sick leave under this provision?

PN15

Commissioner, there has been a series of letters back and forward between the parties on this matter and it might be worthwhile to hand those up to you in their entirety and you can follow what has gone on between the parties, so the first letter if from the Association to the police force dated 3 May 2001.

EXHIBIT #H2 LETTER DATED 03/05/2001

PN16

MS HOGAN: The next one, Commissioner, is from the Victoria Police Force to the Association. That letter is dated 28 May 2001.

EXHIBIT #H3 LETTER DATED 28/05/2001

PN17

MS HOGAN: The fourth, Commissioner, is from the Association again to the police force dated 11 July 2001.

EXHIBIT #H4 LETTER DATED 11/07/2001

PN18

MS HOGAN: And the last one, Commissioner, is from the police force to the Association dated 21 August 2001.

EXHIBIT #H5 LETTER DATED 21/08/2001

PN19

MS HOGAN: Thank you, Commissioner. It is probably not necessary to go through each letter in detail. The purpose of the correspondence is all centred on this particular issue of the taking of rec leave and certainly the role of the PMO, but particularly the issue of the mandatory requirement to exhaust recreation leave and I suppose the major letter and one that has caused us to be here today, Commissioner, is the exhibit H5, the letter which basically says that the sick leave guidelines have been promulgated.

PN20

I draw particular attention to points A and B in that letter, which is obviously where the parties are in dispute and it is the Association's position that those guidelines should not have been promulgated with such a major issue of dispute still between the parties and particularly the irony, I suppose, that the dispute arose initially because then Constable Hill was not able to have sick leave and was told to use her recreation leave and we are still essentially faced with the same problem that brought us to the Commission initially and the idea of establishing the clear guidelines so the parties would not be back before the Commission, that there was a clear, fair and transparent process in the granting of this sick leave. Commissioner, the other issue that I would like to draw the attention of the Commission to also is H3 which is a letter signed by the Chief Commissioner and in particular the paragraph beginning:

PN21

In regard to the first issue...

PN22

about halfway down the paragraph there:

PN23

However, executive command believes that special sick leave was intended to be a compassionate act of last resort in extraordinary circumstances.

PN24

Commissioner, we don't see it as a compassionate act which I think the Macquarie dictionary refers to compassion as taking pity on someone. We see it as an industrial entitlement that sits in the Victoria Police Certified Agreement along with all the other entitlements to do with sick leave and should be treated as such and not as something that sits slightly outside that award. Having said that, we do recognise obviously there is a discretion in the process of granting the leave, but we don't see it as something that is of such discretion that it could be considered a compassionate act by the employer. Commissioner, as I did signal, the other matter goes to that of advice being sought from the police medical officer. We see that as going again over and above what the clause actually says in the certified agreement, which is that:

PN25

The sick leave can be granted on the recommendation of either the police medical officer or another legally qualified medical practitioner.

PN26

And it would be our position that if someone is undergoing some sort of treatment and produces a medical certificate from a specialist medical practitioner certifying that they are unwell and will take a certain time to either seek treatment or convalesce, that that really should be sufficient. However, having said that, we do recognise there is some organisational requirement for the police force to satisfy themselves and we are not opposed to a role by the police medical officer, but we don't think that role should necessarily place excess obligations on employees. Commissioner, that is probably all I will say at this stage, depending on what - - -

PN27

THE COMMISSIONER: Just clarify one thing for me, Ms Hogan, before you sit down. Clause 125 of the award is reproduced in exactly - - -

PN28

MS HOGAN: Exactly the same in clause 6.2.2.5 of the certified agreement. Yes, nothing was altered in that replication.

PN29

THE COMMISSIONER: Thank you.

PN30

MS HOGAN: If the Commission pleases.

PN31

THE COMMISSIONER: Mr Patterson.

PN32

MR PATTERSON: Thank you, Commissioner. If the Commission pleases, just to provide you with those relevant details, it may be easier to complete your file, I will provide you a copy of the provision of the new certified agreement if I may.

PN33

THE COMMISSIONER: Thank you.

EXHIBIT #P1 COPY CERTIFIED AGREEMENT

PN34

MR PATTERSON: And if you would just turn to the third page of that document, it is actually page 50 of the certified agreement and at 6.2.25 you will notice that if you have the previous award conditions, I think they are word for word to the previous. Commissioner, when we were last before the Commission, the Commission made a recommendation and if I may, could I draw on that? Do you have a copy?

PN35

THE COMMISSIONER: Yes, I have a copy.

PN36

MR PATTERSON: And I will draw on page 2 of that recommendation and at paragraph 12 that my colleague referred you to, the last sentence of that indicates:

PN37

If there is a requirement for recreation leave to be exhausted before paragraph 125 leave is available -

PN38

and then you have got in brackets -

PN39

and it is not clear to me why there should be, then this proviso should be clearly stated and applied uniformly.

PN40

You then go on to make the recommendation at 15 that:

PN41

Clear guidelines concerning the application of paragraph 125 of the award are required. These should be developed as a matter of urgency and promulgated widely.

PN42

And you go further, granting the leave pursuant to 125. Commissioner, my colleague has provided you with document H1 which is a copy of the new set of guidelines for the granting of special sick leave. It has been promulgated to the work force and does form part of the policies and guidelines of Victoria Police now and we say that we have abided by the recommendations of the Commission.

PN43

The guidelines were developed after a series of consultations with the Police Association and also the CPSU, the Community and Public Union because it also applies to employees associated with that union and I do agree that there is still a dispute between the parties in relation to the provision of the recreation leave. Commissioner, the parties came to an agreement on all other matters apart from that and I do also indicate about the police medical officer, although there has been an indicated from my colleague that it is not such a telling point, that we have worked through some of those issues, so certainly we have abided by the recommendations by promulgating and developing these special sick leave guidelines.

PN44

We come to a point, Commissioner, where we have a dispute between the parties on what should be in the guidelines and what shouldn't be in the guidelines and what the reference refers to. I acknowledge the fact that the provision is contained in the current certified agreement and we have maintained from the initial dispute that occurred in 1999 through all the negotiations that we are talking about an issue that is called special sick leave and in all the documentation that my colleague has handed to the Commission from H2 through to H5, there has been an indication from the Chief Commissioner and Victoria Police that this is a special item that is in addition to all other leave entitlements and it has been so interpreted from the time it was in the Victoria Police Force Award which has been in force for quite some time and goes back to when that provision was actually in the old police determinations prior to 1992, that it has been a special leave in accordance with requirements where an employee has - and I think we use the terminology and I might have to refer to the guidelines just to make sure I have got this correct, where it refers to:

PN45

A serious illness or where other justifiable causes exists.

PN46

Now, we are talking about, as I said, something that is special. If you just had this as a normal provision, then employees would be able to access three months of sick leave at any stage, even if they had only six months' service and it just doesn't make sense that that would occur and that is why we have the provisions in the agreement and the previous award that employees are entitled to only 15 days per annum. Now, I go back on the provision that it is special and we have developed guidelines to indicate it is special to the workforce.

PN47

There was one other document that hasn't been provided that there has been correspondence between the parties and I can only give you a copy of that and I must apologise, it is neither signed, nor undated, but it refers to an additional letter of 24 September 2002 that was - - -

PN48

THE COMMISSIONER: 2002?

PN49

MR PATTERSON: 2002.

PN50

THE COMMISSIONER: Right, so well after this other correspondence?

PN51

MR PATTERSON: That is correct, Commissioner. If I may provide this as a copy. My colleague might want to indicate something about that because it is unsigned and undated and it refers to further correspondence that we received from the Police Association of 24 September and it reiterates basically what has been said in all other correspondence.

PN52

THE COMMISSIONER: Do you have a problem with that document? Do you recognise it, Ms Hogan?

PN53

MS HOGAN: I don't have a problem with it being marked, Commissioner.

EXHIBIT #P2 UNSIGNED AND UNDATED LETTER

PN54

THE COMMISSIONER: Yes, go ahead, Mr Patterson.

PN55

MR PATTERSON: Thank you, Commissioner, and it clearly spells out to the Police Association in the last paragraph:

PN56

The term extraordinary circumstances is a discretionary term which the employer is required to interpret in each case in order to provide consistent ...(reads)... with the exception of long service leave.

PN57

So we have actually exempted long service leave, so we have said that the employee has to use all their recreation leave and I know there was a question by the Commission previously about that, but that has been the interpretation of the force. Commissioner, I have nothing more to add at this stage. I am not too sure how we proceed from here onwards, whether you wish to make a determination at some stage or whether you wish to go into conference between the parties.

PN58

THE COMMISSIONER: I think we will go into conference, Mr Patterson, but I might hear from Ms Hogan again.

PN59

MR PATTERSON: If the Commission pleases.

PN60

THE COMMISSIONER: Thanks. Ms Hogan.

PN61

MS HOGAN: Thank you, Commissioner. I would just like to respond to a couple of things then go into conference. The word special, that is indeed special in this case, because it has been imported into the guidelines that I handed up that are H1. It is not in the certified agreement clause at all, talking about special sick leave, so it is a term that essentially has been used in an informal way, if you like, between the parties in developing these guidelines and previously to that in disputes. We would say there is certainly nothing special about, as some people did, spending their recreation leave having chemotherapy for cancer.

PN62

We did deal with the issue of this word special in a letter to the force and that is exhibit H4, Commissioner, where we believe the police force are using that term and executive command in hearing that term has indeed recognised this sick leave, this award entitlement sick leave is something over and above and something totally discretionary and special which indeed I think has given them the impression that it is something that sits slightly outside the award, so certainly I think the issue of special has perhaps clouded some of the decisions made in this process. That is all I will say at this stage on that matter, Commissioner, and I am happy to go into conference. If the Commission pleases.

PN63

THE COMMISSIONER: Thank you. Yes, I think we will go into conference now. Thank you.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #H1 DRAFT GUIDELINES DOCUMENT PN8
EXHIBIT #H2 LETTER DATED 03/05/2001 PN16
EXHIBIT #H3 LETTER DATED 28/05/2001 PN17
EXHIBIT #H4 LETTER DATED 11/07/2001 PN18
EXHIBIT #H5 LETTER DATED 21/08/2001 PN19
EXHIBIT #P1 COPY CERTIFIED AGREEMENT PN34
EXHIBIT #P2 UNSIGNED AND UNDATED LETTER PN54