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Australian Industrial Relations Commission Transcripts |
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:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT2355
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SIMMONDS
C2003/1607
AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION
and
CITY OF BOROONDARA
Notification pursuant to section 99 of the
Act of a dispute re the alleged actions
of the Council
MELBOURNE
12 NOON, WEDNESDAY, 16 APRIL 2003
PN1
MR R. RANKIN: I appear on behalf of the Australian Services Union and ASU member, MS. V. SCHUMANOV, is with me.
PN2
MS K. RAYMOND: I seek leave to appear on behalf of the City of Boroondara.
PN3
THE COMMISSIONER: Any objection, Mr Rankin?
PN4
MR RANKIN: No.
PN5
THE COMMISSIONER: Leave is granted. Yes, Mr Rankin.
PN6
MR RANKIN: This is an application under section 99 re Ms Vicky Schumanov and the City of Boroondara. Ms Schumanov was employed under a senior officers' employment agreement under clause 22(6), Senior Executive Officers' clause of the Victorian Local Authorities Award 2001. The agreement was for a period of three years from 20 May 2002. She was employed as Project Manager Boroondata which is in the IT area and consequently the "data" on the end of "Boroon" to undertake a project or series of projects.
PN7
Ms Schumanov was the subject of complaints from management regarding her performance and she has also lodged complaints against her manager, Ms Lesley Milburn. Those complaints were reported to HR or the HR Manager at Boroondata prior to the complaints relating to performance. They were not formalised in writing until some time later. The ASU has represented Ms Schumanov throughout the whole episode and has been extremely concerned by what we see as lack of due process and procedural fairness.
PN8
Our concerns culminated in action by Council yesterday at 3 pm to terminate the employment of Ms Schumanov in what we believe was a precipitated and pre-emptive manner. It is our belief that such action may have been taken in part to try and avoid the hearing or the limit the effect of this hearing today. Ms Schumanov was terminated yesterday afternoon with immediate effect. The ASU and Ms Schumanov will make appropriate applications to seek a remedy in relation to what we allege is an unfair dismissal.
PN9
There are matters relating to Ms Schumanov's treatment that have broader application and we believe need to be addressed as part of this application. Firstly, in our application we indicated that the first area was Council's failure to properly apply the provisions of clause 22(6), Senior Executive Officers of the Victorian Local Authorities Award 2000. This clause provides for employment arrangements for employees whose duties exceed those specified in band 1 to 8 of the Local Government Authorities Award 2001. If I could hand up to you the relevant section.
PN10
THE COMMISSIONER: I have got the award.
PN11
MR RANKIN: Right. 22, 6.4 in the fourth dot point sets out the requirements of such agreement. One of those requirements is the second dot point under that which says:
PN12
Access to the AIRC for dispute resolution in accordance with the award dispute resolution procedure.
PN13
PN14
MR RANKIN: R1. We need to go to clause 13, dispute settlement. 13.1 says:
PN15
Mediation or conciliation. Any dispute between the parties in relation to this agreement may be settled by an agreed process or failing agreement as to a process may be referred to the President of the Institute of Arbitrators or any successor body for mediation and conciliation by the President or by his nominee.
PN16
And arbitration:
PN17
If mediation or conciliation does not resolve the matter then the parties must submit to arbitration by the mediator performing the functions under clause 13.1 whose decision the parties agree to accept subject to any legal avenues of appeal.
PN18
This agreement or Ms Schumanov's agreement was made after the making of the 2001 award and it is my understanding that specific changes were made to the award in relation to the dispute resolution procedure relating to the senior executive contracts, that specifically provided for access to the award dispute resolution procedure and specifically to the Commission. What we have in relation to this agreement and presumably all other such agreements at the City of Boroondara is no mention of the Commission or of the award dispute resolution procedure.
PN19
We say that this is at best deceptive and could have serious consequences in that an employee may believe that they are not able to access award processes and the Commission and be obliged at last resort to accept mediation, conciliation and arbitration by the nominee of the President of the Institute of Arbitration, whoever that may be or whatever that organisation may be but it is not made clear in any sense that Ms Schumanov or any other employee under such a contract had access to the Commission or to the award dispute resolution procedure.
PN20
The lack of clarity in a process for dispute resolution may prejudice the outcome of disputes between the employee and the employer and may well have done so in the case of Ms Schumanov. The second aspect of our concern relates to the second point raised in the section 99 notice, that is the Council's failure to properly apply the terms of the agreement entered into pursuant to clause 226 of the award with Ms Schumanov. Ms Schumanov was placed on a performance - - -
PN21
THE COMMISSIONER: Let us - you would say purportedly entered into.
PN22
MR RANKIN: Purportedly entered into.
PN23
THE COMMISSIONER: Yes. Because you have complained, haven't you, about it?
PN24
MR RANKIN: Oh, we have, yes. I apologise.
PN25
THE COMMISSIONER: No, no, I am just - - -
PN26
MR RANKIN: Ms Schumanov was placed on a performance review under clause 6 of her senior executive officer agreement. In correspondence to her of the 15th - this was made clear to her in correspondence of 15 January and given we have an hour we are not going to go to all of the correspondence because there is a file that thick. Ms Schumanov lodged a grievance against her supervisor on 14 February 2003. As I indicated before those matters had been discussed with Mr Pawsey and Mr Davies prior to the performance management being instituted.
PN27
Discussions took place on 5 March re the outcome of the performance review that Ms Schumanov had been placed on and also discussions were to take place on the grievance lodged. At that meeting attempts were made to try and resolve the problem by other methods but that was unsuccessful. As a consequence the ASU sought then to invoke the dispute resolution procedure in the agreement and we did this in formal correspondence on 17 March and we indicated that we would seek to formally invoke those procedures despite the fact that there was inherent error in it that I previously identified to the Commission and we sought to propose a procedure to deal with the whole range of the disputes.
PN28
PN29
MR RANKIN: R2. If we go to the second page of R2 and we go to the paragraph just below half way which starts:
PN30
In its facsimile of 17 March -
PN31
and I will continue reading:
PN32
... its facsimile of 17 March 2003, the ASU has sought to invoke clause 13 of your employment agreement in an attempt to resolve the problems that exist in ...(reads)... Council has followed procedures outlined in clause 6. Clause 13 does not apply in this situation.
PN33
THE COMMISSIONER: So the words "any dispute between the parties in relation to this agreement" - - -
PN34
MR RANKIN: That - yes, I will - - -
PN35
THE COMMISSIONER: - - - had a meaning different from what I would understand the meaning?
PN36
MR RANKIN: I was coming to that. What it seems that - is that this puts any employee on such a contract at a disadvantage if we accept the employer's interpretation because it excludes - the employer's interpretation excludes them from raising any dispute in relation to the application of clause 6 and I can see nothing in either clause 6 or clause 13 or any other part of the agreement that would exclude the application of clause 13 to clause 6.
PN37
What we say about that is that we believe that Ms Schumanov may have been disadvantaged and that her position may have been prejudiced by the employer's interpretation of their own agreement which we say is an erroneous interpretation and one that stretches or beggars belief. We therefore believe that the City of Boroondara should be required to rectify the two matters that I have outlined and raised with the Commission today, that is that the senior executive - that those people on senior executive contracts either should have them redone or be informed of their rights - - -
PN38
THE COMMISSIONER: Well, that is contracts that have been entered into since the agreement had application?
PN39
MR RANKIN: Yes.
PN40
THE COMMISSIONER: Since the award had application?
PN41
MR RANKIN: Since the making of the 2001 award.
PN42
THE COMMISSIONER: There was a - my memory is a bit defective but my recollection suggests that there was some sort of phasing in period of that, wasn't there or - - -
PN43
MR RANKIN: If that is the case your memory is better than mine.
PN44
THE COMMISSIONER: I can remember the discussions that is all but - in any event.
PN45
MR RANKIN: But that is something that we could look at. So those people who have specific rights in relation to the award that are not included in their agreement and that would incorporate a phasing in period if necessary should either be informed or have new arrangements made and that they should be informed that if there is a dispute in relation to any matter relating to the agreement then they would have rights to pursue those matters through the dispute resolution process in the award and if necessary have access to the Commission.
PN46
The final matter that we would raise is that Ms Schumanov lodged a complaint against her employer on 14 February of this year. That was in a formal letter of grievance. She had made the nature of her grievances known to senior members of the HR department of Boroondara well prior to that. The Council wrote to Ms Schumanov and ASU on 22 March and said that they had appointed a person to investigate. That is well over a month after the complaint was lodged.
PN47
The ASU and Ms Schumanov objected to (a) the process and (b) the person that they had appointed and on 14 April, that is Monday of this week, conciliation or mediation, sorry, was undertaken using an agreed mediator. Unfortunately that mediation was unsuccessful but we are concerned that a complaint made by Ms Schumanov took two months, exactly two months, to get a process under way that could attempt to resolve the grievances that she had raised.
PN48
There are a range of issues that arise out of those grievances and the process that Council has adopted up until now in terms of Ms Schumanov's performance reviews but given the time we have it is - we may need to deal with that at another time or maybe under another set of proceedings. If it please the Commission.
PN49
THE COMMISSIONER: Yes. What do you want the Commission to do, Mr Rankin?
PN50
MR RANKIN: Well, I want the Commission to assist in having the City of Boroondara, (a) apply the appropriate award procedures to people who are under senior executive contracts and also to apply the - or allow the dispute resolution procedures that are in the - that would be derived now from the award apply to clause 6 of those agreements relating to performance and further we would seek that an appropriate policy be developed by the City of Boroondara which will deal with grievances by employees in a timely and agreed manner. The ASU would be more than happy to be involved in discussions in relation to that matter.
PN51
THE COMMISSIONER: Well, aren't there procedures provided in the award?
PN52
MR RANKIN: I think it is provided under the dispute resolution procedures.
PN53
THE COMMISSIONER: In clause 12. It even talks about grievance in 12.2.2(a).
PN54
MR RANKIN: Well, we would argue that Council needs to have an appropriate policy around the application of that clause.
PN55
THE COMMISSIONER: Well, it sound like they didn't apply it at all, did they?
PN56
MR RANKIN: We would argue that, yes.
PN57
THE COMMISSIONER: Well, we will hear what Ms Raymond has got to say.
PN58
MS RAYMOND: Commissioner, I didn't come here today to take a jurisdictional point. I am instructed that my client is prepared to go into conference. The problem I have is - what you just raised is what is Mr Rankin seeking today? I was initially under - - -
PN59
THE COMMISSIONER: I think he is probably seeking my assistance in getting the city to apply the award provisions as he interprets them.
PN60
MS RAYMOND: Well, I am - - -
PN61
THE COMMISSIONER: Now, if the city says that it is applying the award provisions, well, there is probably not much I can do but if the city says it is not and we go into conference then they will presumably tell me why as a statutory authority they are not prepared to apply the award provisions.
PN62
MS RAYMOND: Well - okay, well, I will go back to the beginning. The city is applying the award provisions and I would just like to take you, Commissioner, to clause 12 of - sorry, to take you to clause - what is it in the recitals of their contract. Recital D says that:
PN63
Ms Schumanov has been appointed as a senior executive officer for the purposes of clause 34 of the award.
PN64
THE COMMISSIONER: Sorry, in recital?
PN65
MS RAYMOND: D.
PN66
THE COMMISSIONER: But clause 34 is:
PN67
Overtime and work performance, Saturdays, Sundays and public holidays.
PN68
MS RAYMOND: It also - okay, well, I will take you to another provision of the award as well. If you to clause 13 in the contract.
PN69
THE COMMISSIONER: Clause 13 in the - - -
PN70
MS RAYMOND: In the actual contract of agreement.
PN71
THE COMMISSIONER: In the agreement?
PN72
MS RAYMOND: Yes. The agreement between the Ms Schumanov and Council. It says that:
PN73
Any dispute between the parties may be settled by any agreed process or failing agreement -
PN74
now, it is Council's submission that that means that as she is covered by the award as all employees of Council are she has access to clause 12 of the award, to the dispute resolution process set out there.
PN75
THE COMMISSIONER: Well, why wasn't it followed?
PN76
MS RAYMOND: Pardon?
PN77
THE COMMISSIONER: Why wasn't it followed?
PN78
MS RAYMOND: Well, it is Council's submission that it was followed. If you have a look at the dispute resolution clause in clause 12 - I will hand you up, Commissioner, a copy of the chronology of the events surrounding the termination of Ms Schumanov and you will see that in - - -
PN79
MS RAYMOND: The procedure that was followed by Council was in effect the procedure set out in the award and I can take you through that.
PN80
THE COMMISSIONER: I am sorry, this goes to what the Council's problems were with her but I understood Mr Rankin to be saying that she had a grievance regarding her supervisor which she raised at some stage and then on 14 February this year she sought to progress that by writing to the Council and it is that grievance about which she complains. It is not the grievance in regard - not the procedure that was followed in relation to the termination.
PN81
MS RAYMOND: Well, it was my understanding he was complaining about the procedure in clause 6 of the contract and that that wasn't in accordance with clause 12. I might be mistaken.
PN82
THE COMMISSIONER: I am sorry, maybe we are at cross purposes. He was told by the Council that the provisions - that is in correspondence that he has passed up as an exhibit, that the provisions of clause 13 of the agreement did not apply to performance review.
PN83
MS RAYMOND: That is correct and - - -
PN84
THE COMMISSIONER: Now, you now say, well, we did apply it.
PN85
MS RAYMOND: No. I say we applied clause 6 but the procedure that was applied under clause 6 is similar if not more beneficial than the procedure that is applied under clause 12 of the award.
PN86
THE COMMISSIONER: I see. I understand but what do you say about the complaint - maybe I misunderstood what Mr Rankin said. I thought the complaint was that firstly, that the provisions of clause 13 were not consistent with the requirements of the award and that they had not been applied to her grievance that she formally lodged in February but informally advised management of some time earlier.
PN87
MS RAYMOND: I think that is one aspect of his complaint. There is also - - -
PN88
THE COMMISSIONER: Well, I didn't think that there was a complaint otherwise.
PN89
MS RAYMOND: Yes, there is.
PN90
MR RANKIN: If I could just try and clarify. What we are saying is that - in relation to the formal application of the grievance procedure we - Ms Schumanov was denied the grievance procedure in relation to clause 6. The employer says that it did not apply. Now, that meant that Ms Schumanov did not have the capacity to raise concerns that she had about the application of clause 6. It was effectively unilaterally conducted by the employer so that is one clear aspect of what we are saying.
PN91
THE COMMISSIONER: But that is just a formal position. I mean - so? I mean - - -
PN92
MR RANKIN: Well, what we say about that is that it denied her procedural fairness. She did not have the - you know, Council says, here is a performance management process that you are on and we had concerns that - you know, most of those concerns I haven't raised with you but they were things like the process being conducted in part by the person that Ms Schumanov complains - had put in complaints about harassment and bullying over so - and Ms Schumanov, by the Council saying that clause 13 did not apply, was denied the opportunity of raising those issues and also raising other procedural matters relating to the performance management scheme that she was placed under.
PN93
THE COMMISSIONER: Yes, okay, I - well, there is a bit of a crossover there, it seems to me, but - - -
PN94
MS RAYMOND: So can I just clarify it. Is it Mr Rankin's position that he is satisfied with the way that Ms Schumanov was performance managed and terminated pursuant to clause 6?
PN95
THE COMMISSIONER: No, that is what he is saying - - -
PN96
MS RAYMOND: No - - -
PN97
THE COMMISSIONER: - - - before but she sought to raise a grievance about that process and was told, no, she couldn't and that - - -
PN98
MS RAYMOND: About the actual performance management process?
PN99
THE COMMISSIONER: About the process, about the process that they were applying she sought to raise a grievance about that and was told, no, she couldn't.
PN100
MR RANKIN: That is right.
PN101
THE COMMISSIONER: Yes.
PN102
MR RANKIN: And - - -
PN103
THE COMMISSIONER: And that is one element of it.
PN104
MR RANKIN: Yes. And furthermore, we did not believe that we could separate the two issues of the - - -
PN105
THE COMMISSIONER: Harassment and bullying, alleged harassment and bullying - - -
PN106
MR RANKIN: Harassment and bullying and performance.
PN107
THE COMMISSIONER: Yes, I understand.
PN108
MR RANKIN: And we believed that they were one - - -
PN109
THE COMMISSIONER: Yes, it might be quicker to go into conference but I just want to give Ms Raymond an opportunity to really put her position.
PN110
MS RAYMOND: Our position was that clause 13 is limited to grievances and the complaint that Ms Schumanov had raised about her manager was an appropriate sort of dispute to be dealt with pursuant to clause 13. However it was my understanding when Mr Rankin wrote to us and said that she wanted to raise - have her performance review dealt with under clause 13, not that he was critical of the process, but that the performance review should be taking place under clause 13.
PN111
THE COMMISSIONER: Well - - -
PN112
MS RAYMOND: And I think that is what we are have said in our response.
PN113
THE COMMISSIONER: Well, it is not, on my reading of it. In my reading of it, it is quite - it is exactly the same as - - -
PN114
MR RANKIN: It may help if I hand up the correspondence where we - - -
PN115
THE COMMISSIONER: There is nothing in that - I mean there is nothing in the agreement that says you can't - as I read it, assuming that the agreement itself is valid and I suspect that it may not be because it does not comply with the terms of the award. But that is a side wind. There is nothing in that agreement of itself that says that the purpose of clause 13 of your employment agreement is to resolve disputes in relation to your employment that are separate from your performance.
[12.30pm]
PN116
MS RAYMOND: Well, in that case, why do we have clause 6? We wouldn't need clause 6 if clause 13 - - -
PN117
THE COMMISSIONER: No, because you mightn't have a dispute about - you mightn't have a dispute about someone's performance.
PN118
MS RAYMOND: But this was a dispute about her performance that we were dealing with, and then she went and lodged a separate dispute, a grievance about her manager.
PN119
THE COMMISSIONER: Well, that is true, and it would appear that that wasn't - I mean, whatever else you say, that doesn't appear to have been done in accordance with the procedure contained in either clause 13 of the agreement, or the requirements of the award.
PN120
MS RAYMOND: Well, I haven't responded to that yet. I have just been dealing with the - - -
PN121
THE COMMISSIONER: No, I understand that but it doesn't seem to have been.
PN122
MS RAYMOND: Well, that is a - - -
PN123
THE COMMISSIONER: Now, to the extent that we are talking about a dispute in regard to the performance review process, then clearly that can be done under clause 13. Now, I am not quite sure what the ASU were saying in the letter, and it may be that you are right, that they wanted to replace that performance process with a dispute - - -
PN124
MS RAYMOND: That is what I am saying.
PN125
THE COMMISSIONER: With a dispute settlement process, in which case that seems to me to be eminently sensible, subject to what Mr Rankin might say. But if they are unhappy with the way you are applying clause 6, and that is what I detect from this. See, the ASU sought to invoke - I haven't seen the 17 March correspondence, unless it is attached here.
PN126
MR RANKIN: Would it help if I handed that up to you?
PN127
PN128
THE COMMISSIONER: Well, it looks like they were going beyond the issues of - - -
PN129
MR RANKIN: Yes. Clearly, if you have a look at the dot points on the second page, the Commission doesn't have that correspondence of the 15th of the 1st, but in that correspondence it outlines the performance management process that Council placed Ms Schumanov under, and a key element of our concerns was the disagreement between the parties in relation to Ms Schumanov's budget control, rolling budget control, which was a performance issue, the issue that they had raised. So, you know, we did not limit ourselves to the complaints that Ms Schumanov had made against Ms Milburn. We are saying we want to invoke the grievance resolution procedure in relation to all matters.
PN130
THE COMMISSIONER: So at some stage she was removed from a position.
PN131
MR RANKIN: Yes.
PN132
THE COMMISSIONER: Is that consistent with the performance management process?
PN133
MR RANKIN: No.
PN134
MS RAYMOND: It is our submission that it was.
PN135
THE COMMISSIONER: Well, show me where.
PN136
MS RAYMOND: Okay. Go to clause 6 of the agreement. She is told to be given certain tasks to be performed within a certain time frame, in clause 6.1.
PN137
THE COMMISSIONER: Yes.
PN138
MS RAYMOND: She was removed from out of her position and given the tasks that she would normally perform in that - - -
PN139
THE COMMISSIONER: I am sorry. So where does it say they can be removed from their position? She has been appointed to a position by virtue of this agreement, I presume. Is that right, or not?
PN140
MS RAYMOND: It doesn't specifically say in clause 6.1 that she can be removed from her position, but she - I mean, it would be - - -
PN141
THE COMMISSIONER: Well, given that it provides that she can be terminated, I would have thought - - -
PN142
MS RAYMOND: It would be an arbitrary argument as to whether she actually has been removed from her position because she is still doing the tasks in her position. The only duties that she was removed from was the supervision of, in effect, a number of people who are preparing budgets in her position, and there is a long and detailed background as to why that had to take place, but - - -
PN143
THE COMMISSIONER: Well, I am sure that is right.
PN144
MS RAYMOND: - - - the situation was that she was still performing tasks, even when she had technically been removed from some of her duties, that she would normally have performed in the position as project manager, and that was done to assist Ms Schumanov in order that she could do those tasks rather than to create any problems from her, and she - it is Council's submission, even when she was allocated those specific tasks, she couldn't do them.
PN145
THE COMMISSIONER: Given that - well, I understand all of that, and you will no doubt have a great fight about that, and it won't be before me because I am going to disqualify myself, but you will no doubt have a great fight about that when it comes to the unfair dismissal application. But really, they are invoking - you are doing things to her. She seeks to invoke the grievance procedure because it is happening in a climate where she has previously raised a grievance, and you just sit on your hands.
PN146
MS RAYMOND: Her grievance was raised on 14 February.
PN147
THE COMMISSIONER: No, no. It was raised much earlier than that, according to Mr Rankin, in a formal way, but not in writing, and there is nothing in the award that says that it has got to be in writing. How much before 14 February was it raised?
PN148
MR RANKIN: We believe it was late last year.
PN149
THE COMMISSIONER: And it was specifically raised with whom?
PN150
MR RANKIN: Mr Pawsey, I understand.
PN151
THE COMMISSIONER: And he is shaking his head and saying no, but that - well, that becomes an issue of fact.
PN152
MR PAWSEY: I would, if I may Commissioner?
PN153
THE COMMISSIONER: Yes, Mr Pawsey.
PN154
MR PAWSEY: I would certainly acknowledge that there were some discussions between myself and Ms Schumanov regarding some concerns. I don't have her complaint in front of me, so bear with me. To the best of my knowledge it would be true of me to say that not all the issues raised in the complaint were raised with me, and it would also be true to say that advice I gave her about that matter was to endeavour to sit down with her manager, discuss those issues, and try and reach resolution. At that point in time I had no knowledge or no instruction that she was lodging a formal complaint with him, and that the matter might well be discussed and resolved between herself and her manager.
PN155
THE COMMISSIONER: Well, at least by 14 February there was a formal one.
PN156
MS RAYMOND: By 14 February there was a formal complaint and - - -
PN157
THE COMMISSIONER: And - - -
PN158
MS RAYMOND: If you look at the actual chronology of events, Commissioner, you will see that - - -
PN159
THE COMMISSIONER: Well, it is not mentioned in this, unless you have missed a page out.
PN160
MS RAYMOND: No. The ..... isn't, because I just wanted to actually focus on - - -
PN161
THE COMMISSIONER: We jump from 15 January to 5 March in my document.
PN162
MS RAYMOND: Yes.
PN163
THE COMMISSIONER: Is there a page - - -
PN164
MS RAYMOND: I just wanted to focus on the performance management of her. The grievance that she had in relation to her manager has always been - tried to be treated separately from the performance management process, and as far as we knew we weren't here today because of that. This is the first I have heard of it.
PN165
THE COMMISSIONER: Well - - -
PN166
MS RAYMOND: And I am still - I must admit, I am still trying to work out why we are here today. But just going back to this letter - - -
PN167
THE COMMISSIONER: Well, obviously - well, let me have a go. Obviously the union, which represents employees employed by Boroondara, is concerned (a) that the Council is not applying the terms of clause 22.6.4 when it enters into these sorts of agreements, because that agreement does not provide for access to the Commission for dispute resolution in accordance with the award dispute resolution procedures. That much is clear on its face.
PN168
MS RAYMOND: This is in relation to the complaint made 14 February.
PN169
THE COMMISSIONER: Well, that is one complaint they have, yes.
PN170
MS RAYMOND: Yes.
PN171
THE COMMISSIONER: They have a second - and they want some sort of undertaking, I think - - -
PN172
MR RANKIN: Yes.
PN173
THE COMMISSIONER: - - - that the Council will apply the appropriate award procedures to those under these contracts, and that - and particularly to enable dispute settlement procedures that are contained in the agreement to apply to clause 6, and I have written "or its equivalent". I mean, if someone has got a problem about the way you are carrying out your performance management process, they don't like the way you are doing it, they can surely raise a grievance about that.
PN174
MS RAYMOND: But they weren't raising a grievance about the performance management process. They were raising a grievance - Ms Schumanov was raising a grievance about her manager. It was nothing to do with the performance management process.
PN175
THE COMMISSIONER: Well, and now we come to the stage where she is no longer an employee, where had the Council applied the grievance process, or indeed, had the union sought to invoke the procedure much earlier, we would have been able to get to that and resolve that aspect. I mean, it seems to me that the two are interwoven in a very complex way, and you say there is no complaint about the grievance process.
PN176
MS RAYMOND: By them.
PN177
THE COMMISSIONER: And to the extent that that is an accurate characterisation of the complaint, it must be right. But I think Mr Rankin doesn't characterise it as simply as that.
PN178
MS RAYMOND: It is the first I have heard of it today, at - since sitting in here.
PN179
THE COMMISSIONER: Well - - -
PN180
MS RAYMOND: I understood that we were here today to, in effect, to talk about the performance appraisal and the subsequent termination of Ms Schumanov, pursuant to clause 6.
PN181
THE COMMISSIONER: I am sorry. The letter of 17 March to the Council says:
PN182
Ms Schumanov has made a series of complaints against her manager ...(reads)... with Ms Schumanov to terminate her contract of employment. In further discussions ...
PN183
and I won't go on, because the transcript is going to be public. She sought appropriate advice, and determined that the union should formally invoke the dispute settlement procedure. Now, if that is not a complaint about the procedure that is being followed, I don't know what is.
PN184
MS RAYMOND: In relation to the complaints about - - -
PN185
THE COMMISSIONER: No. In relation to - - -
PN186
MS RAYMOND: - - - the manager.
PN187
THE COMMISSIONER: No. It seems to me that they sought to come to an agreement with her to terminate her contract of employment and an offer was made. And it is a complaint about that part of the process as much as anything else, which I presume was done pursuant to clause 6 of the agreement. Maybe it was a side issue again.
PN188
MS RAYMOND: If you look at their letter further on, you see that they are wanting to discuss, in the first two dot points on page 2 - sorry, the last two dot points, the contents of the correspondence to Ms Schumanov from John Nevins, which was all in relation to her performance management.
PN189
THE COMMISSIONER: Yes.
PN190
MS RAYMOND: And secondly, the disagreement between the parties in relation to her role in budget control for Boroondata - - -
PN191
THE COMMISSIONER: Yes.
PN192
MS RAYMOND: - - - which is all about performance management. And the problem we have there is they are trying to use clause 13 - - -
PN193
THE COMMISSIONER: But, sorry. How then - if in the performance review the employee says, "I am doing a good job" and the employer says, "No, you are not" then you have a dispute about that. How does that get resolved?
PN194
MS RAYMOND: Okay.
PN195
THE COMMISSIONER: By the employer going "bang", and they have no access to the dispute and grievance procedure in the agreement. That can't be right.
PN196
MS RAYMOND: On Monday a mediation took place, pursuant to clause 13 of the employment agreement before a mediator who was agreed upon between the parties.
PN197
THE COMMISSIONER: But there is nothing about that in the award.
PN198
MS RAYMOND: It is in - it is set out in her contract, which she entered into.
PN199
THE COMMISSIONER: But the contract is not consistent with the terms of the award. To that extent it must not be enforceable.
PN200
MS RAYMOND: There is two ways that you look at it. You look at the - - -
PN201
THE COMMISSIONER: No, you don't.
PN202
MS RAYMOND: You can look at it in two ways. You look at clause - - -
PN203
THE COMMISSIONER: You look at it one way. You look at it the way the award requires you to look at it, that is, and the clear words of the award are that:
PN204
... which provides for access to the AIRC for dispute resolution in accordance with the award dispute resolution procedure.
PN205
There is no way - well, maybe there is if you are a highly paid lawyer, that you can interpret that another way, but that was clear - look, I know about this. I was involved in making the award in the negotiations that took place, and the clear intention of the award was that - because a whole lot of evidence came before the Commission, about which the employer representatives were highly embarrassed, where dispute settlement clauses led to curious - results that were unfair, and the clear intent of the parties, when they reached the agreement about this clause, was that those words be given their plain meaning, and it was not open to someone to draw up an agreement that said they may do certain things. They had an entitlement to certain things. The award gives them an entitlement to something. Now - - -
PN206
MS RAYMOND: So is that the situation that if the employee is not happy about their latest pay rise, pursuant to clause 13 of that contract they should be able to come to the Commission? I don't know. I am asking the question.
PN207
THE COMMISSIONER: Well, I don't know either.
PN208
MS RAYMOND: But that would be the situation if you were to accept - - -
PN209
THE COMMISSIONER: But if they have a grievance about it, I mean, I suspect that that grievance would get short shrift. But if they have a grievance about their treatment pursuant to the award they have got access to the Commission for assistance. I mean, the Commission has got no power to do much under the award, because we are bound by 89A, but clearly they have the right, and this agreement does not give them that right that the award says that they should have.
PN210
MS RAYMOND: Under clause 13.
PN211
THE COMMISSIONER: Yes.
PN212
MS RAYMOND: But under clause 6, the procedure that is followed under clause 6 is well and truly in accordance with clause 22 in the award.
PN213
THE COMMISSIONER: But how does - well, look, it might be. It might be. But what happens if she is unhappy with it?
PN214
MS RAYMOND: With clause 6.
PN215
THE COMMISSIONER: When does it come to the Commission? She has been terminated before she had the opportunity to come to the Commission.
PN216
MS RAYMOND: It is Council's position that she has said that she is unhappy with her manager.
PN217
THE COMMISSIONER: No. She is unhappy with the process as well. It says in here:
PN218
The disagreement between the parties in relation to her role in budget control for the Boroondara data project.
PN219
The dot point you were - - -
PN220
MS RAYMOND: Sorry. What are we reading from?
PN221
THE COMMISSIONER: From the - I am reading back something you read to me a moment ago. The 17 March correspondence from the ASU.
PN222
MS RAYMOND: Yes.
PN223
THE COMMISSIONER: There were two elements of the - as I read it, two elements of the performance process with which she disagreed. One was the correspondence from Nevins, and the other was the disagreement regarding her role in budget control.
PN224
MS RAYMOND: Which are both performance management issues.
PN225
THE COMMISSIONER: Yes, and she disagreed with management's approach on those matters, sought to invoke the grievance procedure, and was told it has no application.
PN226
MS RAYMOND: Well - - -
PN227
THE COMMISSIONER: Now, frankly, all that is saying is that once it is performance management, the employee has no right to go to a third party.
PN228
MS RAYMOND: It was our interpretation that she wanted to use clause 13 rather than clause 6 of the agreement to resolve the performance management process.
PN229
THE COMMISSIONER: Well, I understand that that was your position, but clearly there was a disagreement about what management was doing under clause 6, and there - it is borne out by those two dot points that you referred me to.
PN230
MS RAYMOND: It was our interpretation that the reason they were wanting to invoke clause 13 was instead of the process under clause 6.
PN231
THE COMMISSIONER: But you just about concluded the process under clause 6.
PN232
MS RAYMOND: No, we haven't.
PN233
THE COMMISSIONER: According to your own document.
PN234
MS RAYMOND: The process under clause 6 was concluded yesterday.
PN235
THE COMMISSIONER: And despite all attempts to invoke the dispute settlement provision, you say there was no dispute between Ms Schumanov, the ASU on the one part, and Boroondara, about your application of that process.
PN236
MS RAYMOND: I don't believe that we were formally notified of that. All they ever said to us - - -
PN237
THE COMMISSIONER: Well, I am sorry.
PN238
MS RAYMOND: - - - was they thought that clause 13 - - -
PN239
THE COMMISSIONER: This letter of 17 March says that the matters that should be subject to mediation and/or conciliation would be those two dot points, which clearly are disagreements about that process.
PN240
MS RAYMOND: But is it about the process, or is it actually about her performance?
PN241
THE COMMISSIONER: Well, I don't know.
PN242
MS RAYMOND: I think it was about her performance.
PN243
THE COMMISSIONER: Well, Mr Rankin is going to say no, it is not.
PN244
MR RANKIN: No. No, if - we were concerned about the process. We are also concerned that - in our belief the allegation in relation to performance were incorrect. But what we were saying is we - what we believed was that we could not get procedural fairness in the process that had been adopted. We were concerned about what was going on, and how it was going on.
PN245
MS RAYMOND: If that was the case why didn't the union write to us and say, "We don't think that the process under clause 6 is fair. We think that you should be doing this in accordance with the award." This is the first that this has ever, ever been raised, and, you know, you have seen from yourself, Commissioner, from the chronology, that this has been going on formally since August 2002. Why weren't we ever told before today that they were concerned that the process in the contract wasn't in accordance with the award? It is the first we have heard of it today.
PN246
THE COMMISSIONER: The process, the - - -
PN247
MS RAYMOND: The process - - -
PN248
THE COMMISSIONER: The dispute settlement procedure.
PN249
MS RAYMOND: - - - under clause 6.
PN250
THE COMMISSIONER: No.
PN251
MS RAYMOND: And under clause 13 is not in accordance - - -
PN252
THE COMMISSIONER: No, sorry. I don't think there is any suggestion that the process under clause 6 is not in accordance with the award.
PN253
MS RAYMOND: Okay.
PN254
THE COMMISSIONER: What they are saying is, if they have a dispute about that process they ought to be able to invoke the dispute settlement procedure.
PN255
MS RAYMOND: Why didn't they tell us that? They have never told us that, and they have never told us that clause 13 is not in accordance with the award.
PN256
MR RANKIN: I believe that in the discussions all along we have expressed our concern with the process being adopted. In the correspondence that we are referring to we indicate that, in the second last paragraph on the first page:
PN257
The ASU and Ms Schumanov formally invoke the disputes settlement procedure, notwithstanding the obvious errors that exist within that procedure.
PN258
Now, you know, I suppose I could have spelled it out word for word, but I thought those errors within the procedure were pretty apparent.
PN259
THE COMMISSIONER: But that is the errors within the dispute settlement procedure. I think the - I mean, well, whatever. We are now at the stage where it would be pretty clear that there is a dispute about the procedure that was adopted by the Council in regard to clause 6 of the agreement, and there is a - well, I will just go back to what he was seeking from us. They want some sort of undertaking from the Council that it will apply the appropriate award procedures to those with senior executive contracts.
PN260
They want assistance in - well, they want the Council to agree that the dispute settlement procedures apply to clause 6 or its equivalent, and I would interpose there, because there might be other clauses like, I mean, clause 6 in this contract, and they wanted development of appropriate policy to deal with employees' grievances in a timely and agreed manner. Well, I would have thought that if you apply the appropriate award procedures then you have got that, but - I mean, is the Council saying that once they invoke clause 6 that the employee can't raise a grievance about that?
PN261
MS RAYMOND: No. But if we had been told that the reason they wanted to use clause 13 was to advise us that they were concerned that clause 6 procedurally wasn't fair, then we would have - - -
PN262
THE COMMISSIONER: Or that the way in which they were applying clause 6 was not procedurally fair.
PN263
MS RAYMOND: Fine. We would - - -
PN264
THE COMMISSIONER: Because it doesn't talk about entitlement to representation or anything, does it?
PN265
MS RAYMOND: Council would have gone down that track. But as far as Council was aware the reason they wanted to use clause 13 was to deal with the grievance that Ms Schumanov had made against her manager on 14 February.
PN266
THE COMMISSIONER: Well, she was certainly entitled to that, wasn't she?
PN267
MS RAYMOND: Definitely.
PN268
THE COMMISSIONER: And when was that done? When was the first time they applied clause 13?
PN269
MS RAYMOND: That was in April.
PN270
THE COMMISSIONER: A month later. Two months later.
PN271
MS RAYMOND: Yes.
PN272
THE COMMISSIONER: So they sat on their hands for two months.
PN273
MS RAYMOND: No, there was a - - -
PN274
THE COMMISSIONER: They are busy challenging her performance, but whoever was responsible for the performance of that element of it did nothing for two months.
PN275
MS RAYMOND: Well, there was a mediator that had to be agreed upon.
PN276
THE COMMISSIONER: And when did - when was the mediator proposed?
PN277
MR RANKIN: There was - the first proposition was put by Council on 22 March. Right, and that - - -
PN278
THE COMMISSIONER: So five, six weeks after the - - -
PN279
MR RANKIN: Yes.
PN280
THE COMMISSIONER: - - - grievance was lodged.
PN281
MR RANKIN: And that - - -
PN282
THE COMMISSIONER: And you are going crook about someone else's performance.
PN283
MS RAYMOND: That was when the mediator was proposed by Council
PN284
MR RANKIN: No, it wasn't that a mediator was proposed by Council. It was that Council - what they indicated that Council had appointed a person to investigate the complaints. Now, we objected both to the process - - -
PN285
THE COMMISSIONER: Yes, but that was still five or six weeks.
PN286
MR RANKIN: That is right, yes.
PN287
THE COMMISSIONER: So it took them five or six weeks to appoint someone to investigate it.
PN288
MR RANKIN: Yes. Yes.
PN289
THE COMMISSIONER: Well - - -
PN290
MS RAYMOND: In the meantime there is a lot of other things happening in terms of her.
PN291
THE COMMISSIONER: Yes, but look, the award says that things will happen with sensible time frames being allowed, and agreement, and all those sorts of things. Now, someone has taken five weeks, maybe six weeks, to decide to appoint someone to investigate her complaints. What is timely about that?
PN292
MS RAYMOND: There is nothing timely about it. Commissioner, if we can go back to the other point about clause 13, unless you are - you have had enough of that.
PN293
THE COMMISSIONER: Well, hang on. Let us - why do we keep shifting? Why do we keep shifting? I mean - - -
PN294
MS RAYMOND: Well, I mean, there is not much more I can say about the investigation of the - - -
PN295
THE COMMISSIONER: But had the - - -
PN296
MS RAYMOND: - - - on 14 February.
PN297
THE COMMISSIONER: So what is going to happen, what does the Council say about applying appropriate award procedures to those who have got senior executive contracts that were entered into subsequent to the award?
PN298
MS RAYMOND: Well, it says in relation to clause 6, in relation to unsatisfactory performance, which is one aspect of her complaint, that it is applying them in accordance with the award.
PN299
THE COMMISSIONER: Yes. Well - - -
PN300
MS RAYMOND: In relation to clause 13 there is a procedure that is set out. Today is the first we have ever become aware, from Mr Rankin, that he says that that clause 13 is not in accordance with the award.
PN301
THE COMMISSIONER: Fair enough. Understand that.
PN302
MS RAYMOND: And I would like some indication of what grievances he says should have the capacity to come all the way to the Commission.
PN303
THE COMMISSIONER: Any grievance that doesn't get resolved, I would have thought.
PN304
MS RAYMOND: So it could be in relation to a review of salary, what kind of coffee is served in the kitchen. You know, you could be - - -
PN305
THE COMMISSIONER: Well, certainly salary, certainly classification. I would think it is probably about matters arising out of the award.
PN306
MS RAYMOND: That aren't otherwise dealt with under clause 6.
PN307
THE COMMISSIONER: Well, matters under clause 6 aren't - - -
PN308
MS RAYMOND: Of the employment agreement.
PN309
THE COMMISSIONER: No, I would have thought that a matter under clause 6, which goes to - if there is a concern about the procedure that is being followed - - -
PN310
MS RAYMOND: You could also raise it under clause 13.
PN311
THE COMMISSIONER: I don't think that you can replace that procedure, you know. I agree with you there, that there is a procedure for managing under-performance. But if someone has got a complaint about how that procedure is being applied and seeks to raise a grievance about that, then they have got that right, I would have thought.
PN312
MS RAYMOND: Well, if you look at it from Council's perspective, Commissioner, if we had been aware that Mr Rankin first of all was concerned that the process under clause 6 was not fair in its application to his client, and he wanted to have that reviewed under clause 13; and secondly, that clause 13 wasn't in compliance with the award because it didn't provide an avenue to the Commission, we might not be here today.
PN313
THE COMMISSIONER: Well, I think that is right.
PN314
MS RAYMOND: Because this is the first that we have heard of it.
PN315
THE COMMISSIONER: I think there is - that is - but then we wouldn't be here today if the Council had applied the provisions of clause 26 to this agreement. I mean, if they had written the agreement properly in the first place, 22.6 - - -
PN316
MS RAYMOND: You say in respect of clause 13.
PN317
THE COMMISSIONER: Yes.
PN318
MS RAYMOND: Because it is our submission that clause 6 does comply - - -
PN319
THE COMMISSIONER: I am not arguing about clause 6. I am saying about clause - - -
PN320
MS RAYMOND: Okay, it is just clause 13.
PN321
THE COMMISSIONER: Clause 13, if the agreement had been structured to meet the requirements of the award, at least that element of this dispute would not be here.
PN322
MS RAYMOND: Okay. Now, I have to raise my other concern. It is not my favourite one, but why are we arguing about this in a section 99 hearing?
PN323
THE COMMISSIONER: Presumably because he has got - he didn't - - -
PN324
MR RANKIN: Well - - -
PN325
THE COMMISSIONER: I mean, presumably because he didn't raise it as a grievance in the first place.
PN326
MR RANKIN: Well, presumably because we had been - well, we had been denied the use of a grievance procedure, and our only recourse we felt was to lodge a section 99 to bring that matter to the Commission. But in respect of this notion that we didn't tell the employer that the - we wanted to invoke clause 13 in relation to the issues round performance, if you have a look at - - -
PN327
THE COMMISSIONER: No. That is not the point. See, Ms Raymond is making a distinction, and I think it is a valid one, between having a dispute about someone's performance, in which case you apply the terms of clause 6, and having a dispute about the application of that clause. They are two different things.
PN328
MR RANKIN: I understand that.
PN329
THE COMMISSIONER: Now, I know they can run together, but they are two different things, and she is saying sure, you can raise a dispute about the way in which we are applying clause 6, but you can't replace the process in clause 6 with a dispute settlements procedure, and that is what they say they were responding to in their correspondence to you of 24 March.
PN330
MR RANKIN: Yes.
PN331
THE COMMISSIONER: Now, you were obviously at cross purposes to some extent, although it may be that you weren't. But clearly, if you are - if a member, if an employee of the Council is - an employee of the Council is covered by one of these agreements similar to Exhibit R1, is dissatisfied with the process contained in clause 6 as it applies to them, they can raise a grievance.
PN332
MR RANKIN: Yes.
PN333
THE COMMISSIONER: But they can't replace that process. All they can say is, "Look, I am unhappy with the way you are going about this because of X, you won't allow me to be represented, or there is no procedural fairness here because you won't listen to me. Your mind is already made up. You are biased." There is a series of objections you could raise, I imagine, and those objections could be dealt with under the grievance procedure. But it - and I think Council is - they are all nodding their heads, so they are agreeing with that. But to the extent you can come to the Commission, if you like, or go to a mediator, whichever it is, and say, "They have reached the wrong conclusion and we want you to agree with us on that," that is not open.
PN334
That doesn't seem to me to be open, because that is not going to a grievance about the process or the application of the agreement. Now, to some extent you are at cross purposes there. The Council also says, "Look, you haven't raised with us the weaknesses that you have raised today about clause 13," and that seems to me to be pretty apparent, although you did obliquely in your correspondence of - well, it is R3, where you talk about the obvious errors that exist within that procedure, and it may be that in discussion you raised them. I don't know.
PN335
MR RANKIN: Not specifically.
PN336
THE COMMISSIONER: Yes.
PN337
MR RANKIN: But it was in - there was discussion around that clause.
PN338
THE COMMISSIONER: But whether or not it applied to - whether or not it complied with the provisions of clause 26.
PN339
[1.00pm]
PN340
MR RANKIN: Well, that was indicated that - - -
PN341
THE COMMISSIONER: Well, certainly indicated in the notice of today's proceeding.
PN342
MS RAYMOND: Sorry, what was that, Commissioner?
PN343
THE COMMISSIONER: That the - I think - - -
PN344
MR RANKIN: Yes.
PN345
MS RAYMOND: I haven't got that notice.
PN346
THE COMMISSIONER: Yes. It is only in broad terms:
PN347
The councils failure to properly apply the provisions of clause 22.6.
PN348
So it is - - -
PN349
MS RAYMOND: We haven't got that notice, we weren't served with it.
PN350
THE COMMISSIONER: You didn't send it to them?
PN351
MR RANKIN: I would believe we did. It is the normal practice.
PN352
THE COMMISSIONER: Well, I would be surprised if you didn't.
PN353
MR RANKIN: Yes.
PN354
MS RAYMOND: I haven't received it.
PN355
THE COMMISSIONER: It is the notification of dispute - it may be that you didn't. No, it has got a fax number and it has got, "Attention, Geoff Pawsey." So whether it was faxed to them I don't know. I can only tell it was faxed to us.
PN356
MR PAWSEY: When was that one sent, Commissioner?
PN357
THE COMMISSIONER: Well, it was received by the Commission - well - on 31 March. We don't send them out.
PN358
MR PAWSEY: Well, that is - - -
PN359
THE COMMISSIONER: No, that is our notification of hearing you have got there.
PN360
MS RAYMOND: I got a notice of a listing of a matter and that is all I got.
PN361
THE COMMISSIONER: But there is a notification of an alleged industrial dispute which the union lodged with us and our presumption is that the union sends it to the people who are the other side but that may not have happened on this occasion.
PN362
MR RANKIN: Well, that is the normal process - - -
PN363
THE COMMISSIONER: Yes. Well, I am aware that that is your normal process.
PN364
MS RAYMOND: I didn't get it, I didn't get that.
PN365
THE COMMISSIONER: No, no. There is no legal requirement on anyone to provide the notice of dispute to anybody other than the Commission. As a matter of practice I encourage notifiers of dispute to send a copy to the other side. It is pretty rare that the other side doesn't know that they are in dispute but it happens sometimes. I encourage it and I know as a matter of course that the ASU normally does that but it may not have done so on this occasion. They certainly threatened to do so, didn't they?
PN366
MS RAYMOND: Yes, they did threaten to and the next thing I got was a notice of listing.
PN367
THE COMMISSIONER: Look, it may be that something broke down in their system and Mr Rankin is unable to tell us that a copy was sent so - but there is no - I don't think it takes us very far because all they say is:
PN368
Council's failure to properly apply the provisions of clause 22.6.
PN369
That is pretty broad.
PN370
MS RAYMOND: Well, having said that, though, it was the first time I had been aware that they had thought - and in regard that this agreement - - -
PN371
THE COMMISSIONER: And even having received that you wouldn't have had much more knowledge.
PN372
MS RAYMOND: Well, I would have known that they had some concerns that this agreement didn't comply with the award.
PN373
THE COMMISSIONER: But, can I just raise a very simple question? Did anyone contact the ASU to find out what it was they were complaining about before they came here?
PN374
MS RAYMOND: Yes, I did, this morning. I spoke to Mr Rankin. It was my understanding that we were here because he wasn't happy about the procedure that had been invoked in terms of the actual performance management procedure.
PN375
THE COMMISSIONER: Okay. And it may be that that was their belief.
PN376
MS RAYMOND: And the reason I rang today was to seek - as I have been advised Vicky is no longer employed we are happy to have a conference with you but do you think it is worthwhile talking about what is in effect an unfair dismissal claim in a section 99 conference? And - - -
PN377
THE COMMISSIONER: And I am not doing that.
PN378
MS RAYMOND: No, that is right - - -
PN379
THE COMMISSIONER: And I have avoided that.
PN380
MS RAYMOND: But the response from Mr Rankin was, "No, no, no, I want to talk about the award". And that was the first I became aware of it.
PN381
THE COMMISSIONER: Well, I think that the best we can leave this on is for you to have some meetings with the ASU in an attempt to clarify your positions on. But for what it is worth it seems to me that clause 13 of this agreement doesn't meet the requirements of the award for the reasons I have indicated. That I concur wholeheartedly with your position, Ms Raymond, that it is not open to someone to replace clause 6 with clause 13 or some equivalent thereto. But it is open to them to complain about the processes being adopted under that and even some of the outcomes under the grievance procedure. Clearly, not a termination outcome but an outcome, sort of termination. It is open to them to complain about, I think.
PN382
MS RAYMOND: Commissioner, I am instructed to advise that council will seek instructions and legal advice on the contract, particularly clause 13, and amend if necessary. And council acknowledge that they, in relation to the grievance on 14 February, didn't act in a timely manner.
PN383
MR RANKIN: I am happy to enter into discussions in relation to - - -
PN384
THE COMMISSIONER: Yes, well, that is the bit I was going to ask. I hear what you say about those but are you prepared to enter into discussions with the ASU about those matters?
PN385
MS RAYMOND: I think that council is going to go and seek advice from their lawyers, first, around clause 13 and can we just leave it at that for the moment?
PN386
THE COMMISSIONER: Well, what about the element - you mean its interrelationship with clause 6 as well?
PN387
MS RAYMOND: No, I don't think - well, I mean, I think - I look at clause 13 in the contract of course that will involve looking at clause 6 and the process of possibly reviewing the process in clause 6 pursuant to clause 13. They will - - -
PN388
THE COMMISSIONER: Oh, no, no. I don't think there is a need to review the process in clause 6.
PN389
MS RAYMOND: No, no, not - if you have a complaint about the process in clause 6. Is that what you are asking about?
PN390
THE COMMISSIONER: Yes, yes. That they can invoke the provisions - - -
PN391
MS RAYMOND: Yes, I am sure that they will - - -
PN392
THE COMMISSIONER: But it is a complaint about the - and I think you need to get some clarification about just what it is.
PN393
MS RAYMOND: Yes, yes. But at the moment could council leave it on the basis that they will seek some legal advice?
PN394
THE COMMISSIONER: Well - they are not prepared to talk to the union? I mean, it is a question of they might not be prepared to talk to them until after they have got their legal advice, I understand that.
PN395
MS RAYMOND: I think that is basically the situation.
PN396
THE COMMISSIONER: Yes, all right. Well, look, on that basis let us just leave it. Are you satisfied with that, Mr Rankin?
PN397
MR RANKIN: I am satisfied with that, yes.
PN398
THE COMMISSIONER: And what I will do is I will hold onto the file for a month, six weeks. I mean, if you can't resolve the issues between you that arose out of this matter we will try and - we will re-list the matter so that we can attempt to fix it up by conciliation.
PN399
MR RANKIN: That is fine by us.
PN400
MS RAYMOND: If the court pleases.
PN401
THE COMMISSIONER: Yes, okay. Well, the proceedings will be adjourned until a date to be fixed. They will be re-listed on application by either party. If nothing is heard within a period of six weeks I will presume that the matter is resolved.
ADJOURNED INDEFINITELY [1.07pm]
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