C2003/1603, Transcript of Proceedings [2003] AIRCTrans 1682 (2 May 2003)

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:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT2327
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2003/1603

COMMUNITY AND PUBLIC
SECTOR UNION

and

DEPARTMENT OF EDUCATION
AND TRAINING

Notification pursuant to section 99 of the Act
of an industrial dispute re shift allowance

MELBOURNE

12.06 PM, THURSDAY, 17 APRIL 2003

PN1

MR R. RICHARDSON: I appear in this matter for the CPSU.

PN2

THE COMMISSIONER: Yes, thank you, Mr Richardson.

PN3

MR R. HARDMAN: With me is MR M. STEPHENSON and we represent the Department of Education and Training in this matter.

PN4

THE COMMISSIONER: Yes, thank you, Mr Hardman. Yes, Mr Richardson.

PN5

MR RICHARDSON: If the Commission pleases, this dispute concerns the arrangements for shift patterns at the emergency and security management office of DEET. There is just a brief history that I will put on the record.

PN6

THE COMMISSIONER: Well there is the claim which goes to some detail which is on the file. Do you want me to mark that separately?

PN7

MR RICHARDSON: Yes, I think if that could be marked.

PN8

THE COMMISSIONER: It seems to go to some of the history, at least.

EXHIBIT #R1 CLAIM

PN9

THE COMMISSIONER: I take it the Department has got a copy of that?

PN10

MR HARDMAN: Yes, we do.

PN11

MR RICHARDSON: There has been a range of things in the period from 1997, when the Department, as part of its AWA offer to people - - -

PN12

THE COMMISSIONER: Mr Richardson, I don't want to - I am going to be assisted much more if you tell me what clause 11.2 of the VPS certified agreement is about because there is a reference to that in the correspondence of 6 February, which went with the proposal and which is also on the file in this matter.

PN13

MR RICHARDSON: It is a reference to occupational specific - departmental specific occupational classifications and the process by which they were to be resolved through the - - -

PN14

THE COMMISSIONER: And what does that require people to do?

PN15

MR RICHARDSON: Well to sit down and talk and that is part of the difficulty I guess we have had with - - -

PN16

THE COMMISSIONER: Has that happened in this matter?

PN17

MR RICHARDSON: There was one meeting where DEET sought the meeting to clarify the claim made. During the meeting, DEET said was there any possibility the issue could be resolved on a cost neutral basis and we said that we didn't believe that that was possible and we left that meeting expecting a formal response and no formal - - -

PN18

THE COMMISSIONER: Well, I would still be assisted to know the precise detail of clause 11.2 of the agreement. Do you have that with you?

PN19

MR RICHARDSON: I am not sure that I do.

PN20

THE COMMISSIONER: Are you able to assist me, Mr Hardman?

PN21

MR HARDMAN: If the Commission pleases, yes Commissioner. Look, if I could perhaps just briefly elaborate on what Mr Richardson has identified.

PN22

THE COMMISSIONER: Can I just please ask what does clause 11.2 of the agreement say? That is all I want to know at the moment.

PN23

MR HARDMAN: Clause 11.2 is headed "agency specific occupational categories" and it requires within a month of the certification of the 2001 agreement, the parties will determine agency specific occupational categories to be reviewed and if necessary, restructure to address anomalies. There are four parts to that particular subsection of the agreement, Commissioner, and if it assists, I can pass that page up.

PN24

THE COMMISSIONER: Well, one step at a time. Have the parties determined that these people are to be reviewed, the parties being - - -

PN25

MR HARDMAN: These matters are the subject of negotiations between the CPSU and central agency of government, the Department of Workforce Development. They are currently - - -

PN26

THE COMMISSIONER: The words that you read out don't sound like that to me. That within a month, the parties will determine - what was the words?

PN27

MR HARDMAN: The parties will determine agency specific occupational categories to be reviewed and if necessary, restructure to address anomalies.

PN28

THE COMMISSIONER: Now the parties to that agreement, as I recall, is the CPSU on the one part and then the various agency heads on the other.

PN29

MR HARDMAN: The agreement is between the - it is between the employer and the CPSU and the employer is the State of Victoria in respect of all employees.

PN30

THE COMMISSIONER: But aren't there signatories by all of the heads of agencies at the back?

PN31

MR HARDMAN: Not as far as I am aware. It was the - this was an agreement negotiated between the - - -

PN32

THE COMMISSIONER: I had some role in that and that is why I am raising the question. But anyhow, you say the parties are the State of Victoria.

PN33

MR HARDMAN: Yes and the CPSU. The State of Victoria on behalf of all employees in the Victorian - the non-executive Victorian public service.

PN34

THE COMMISSIONER: Yes and the other side was the State of Victoria.

PN35

MR HARDMAN: The State of Victoria.

PN36

THE COMMISSIONER: Why then would the agency - anyhow, that is how the agreement defines the parties.

PN37

MR HARDMAN: Yes. Within that was a requirement to do two things. One was basically a pay and classification review, which is looking at the classification and pay arrangements for all non-executive VPS staff. The second part was to identify what were known as agency specific occupational categories and a review was to be undertaken under part 11.2 of that agreement. Both of those things are happening currently between the Office of Workplace Development and the CPSU. The Department's position in relation to this is that is where this matter should be addressed and in a nutshell, Commissioner, that is basically where our position lies.

PN38

THE COMMISSIONER: Yes, thanks for that. Has that position been conveyed to the CPSU?

PN39

MR HARDMAN: It has.

PN40

THE COMMISSIONER: Mr Richardson.

PN41

MR RICHARDSON: Not in a formal sense. Sorry. We don't believe that that - - -

PN42

THE COMMISSIONER: Well it certainly has been conveyed in a formal sense now. Isn't - I mean is that what clause 11.2 means? Do you agree that it is you and the government that have got to get down and decide who the agency specific classifications are to be reviewed and restructured as anomalies?

PN43

MR RICHARDSON: No. And that is not what is occurring in any other departments. I guess - - -

PN44

THE COMMISSIONER: Well, they might be not acting in accordance with the agreement. What I am really interested in is what does the agreement mean because clearly the Department is taking the view that the agreement means that you and the State of Victoria have got to agree as to whether this group of people are to be reviewed at an agency level.

PN45

MR RICHARDSON: No, there was a process in the agreement that - - -

PN46

THE COMMISSIONER: Well where is the agreement? I mean I am having great difficulty dealing with this matter in the absence of the information that really, the obligation is on you to provide. I mean I can see what the claim is. Having heard Mr Hardman, it is very clear that there is a threshold issue to be sorted out and that threshold issue is whether or not your claim on the Department is in accordance with the terms of the overarching agreement. Now I mean it may be that you weren't aware that that was their position before today or hadn't been formally advised. How were you informally advised?

PN47

MR RICHARDSON: It was raised, I understand, at a meeting earlier this week - prior to that.

PN48

THE COMMISSIONER: Well if something is raised at a meeting - I mean you are getting more bureaucratic than the bureaucrats if you are saying that it needs to be formally raised. I mean you were put on notice before these proceedings that that was an issue or have we got to get everything in writing nowadays or did the person who was put on notice not tell you? I don't want to go into that. I mean it just makes my position almost impossible because you are wanting to argue a case that these people ought to be entitled to certain things or at least have a review and they are saying hey, whoa, there is a first step and that is we are not obligated to do anything. Now I don't know who is right but that is clearly where we are at.

PN49

You know, it is a bit like the old - and I am sure you will understand this; it is a bit like the notification of dispute and the other side jumps up and says there is no dispute within the meaning of the Act and you have got to meet that issue before you can get to the dispute. That is where we are at, I think and I don't know what the clause - I really do need the agreement before me. Perhaps if - can I just have a quick look at the clause and then we might be able to get my associate to photocopy it. So it is only 11.2, yes, okay. And while that is being photocopied, you are saying that agency specific - no, look, I can't do it. I really do need that documentation. In the correspondence of the - have you got the correspondence of 6 February that accompanied that claim?

PN50

MR RICHARDSON: I have seen it. We - - -

PN51

THE COMMISSIONER: Well it is fairly brief. It says:

PN52

Last year the CPSU nominated the above employees for review pursuant to clause 11.2. The union seeks to meet with you to discuss a resolution of this protest in the context of the attached proposal.

PN53

Now my question is to whom did the CPSU nominate these employees for review?

PN54

MR RICHARDSON: There was a central process that any anomalies were nominated to the central committee. Those that were perceived not to have implications beyond a single department were then isolated and were to be pursued with the Department. Now - - -

PN55

THE COMMISSIONER: Sorry, isolated and then?

PN56

MR RICHARDSON: Well, there is - to give an example, there was - - -

PN57

THE COMMISSIONER: No, no, just tell what the - I missed the word.

PN58

MR RICHARDSON: The central committee was to look at them and if they had implications beyond one department, then they took them over; if they didn't, they agreed that they were to be dealt with with the department.

PN59

THE COMMISSIONER: Right. Now did the Department get told about this?

PN60

MR RICHARDSON: Well we don't know about the processes from - - -

PN61

THE COMMISSIONER: But that agreed result is minuted and it is known.

PN62

MR RICHARDSON: Well we got notification of those that the central committee believed had implications beyond a single department so by that - - -

PN63

THE COMMISSIONER: No, but the bit that - the other bit that you said, that it was agreed that those that didn't have implications beyond a single department would be dealt with at the departmental head - you know, at the level of the department. Was that ever - was that part of the decision ever reduced to writing or anything?

PN64

MR RICHARDSON: No, well I think it was by exception, essentially, that those - - -

PN65

THE COMMISSIONER: Well if the departments weren't told that, isn't it reasonable for them to assume that it doesn't obligate them to do anything? It even says:

PN66

The occupational categories to be reviewed shall be agreed by exchange of letters between the parties.

PN67

Where is the exchange of letters between the parties that shows that this category is going to be reviewed?

PN68

MR RICHARDSON: Well I haven't got that.

PN69

THE COMMISSIONER: Right:

PN70

A framework and timeline for these reviews will be established by the parties within a month following certification of this agreement to ensure that all agreed occupational categories will be dealt with by the end of 2002.

PN71

Yes. Right. Where is the framework and timeline dealing with these people?

PN72

MR RICHARDSON: Well that is, I guess - the intention was that if - the intention of the agreement, in our view, was that there was a general review and there were eight - - -

PN73

THE COMMISSIONER: But the words are clear. You only go to intention if the words are not clear and those words are very clear:

PN74

The parties will determine agency specific -

PN75

and the parties, I think, are defined as the State of Victoria and the CPSU -

PN76

will determine agency specific occupational categories to be reviewed and if necessary restructured to address anomalies.

PN77

My question is has that been done in respect to this occupational group and if not, what is the basis for your claim?

PN78

MR RICHARDSON: There was a letter - there was certainly correspondence between the work organise - the career structure and work organisation review nominating all of those agency specific occupational categories that we - - -

PN79

THE COMMISSIONER: Yes, you nominated them.

PN80

MR RICHARDSON: Yes.

PN81

THE COMMISSIONER: But there need to be agreement:

PN82

The occupational categories to be reviewed shall be agreed by exchange of letters between the parties.

PN83

Very clear words. The parties are the Victorian Government or the State of Victoria and the CPSU and there was to be an agreement evidenced by an exchange of letters about those occupational categories to be reviewed. Where is the exchange of letters that includes this group of people to be reviewed?

PN84

MR RICHARDSON: Well my understanding was, as I said earlier, that essentially the letter was put back in the form of yes, we agree that those are occupational specific categories except for - it didn't spell out all of the specifics because there was a list of some length but it essentially agreed to the list with the - - -

PN85

THE COMMISSIONER: Yes, I understand your position, it is that somehow or another, as a side agreement to this agreement it would appear, there was a consensual position reached between the CPSU and the State of Victoria that those occupational categories that you had submitted for review that did not have any implications beyond a single department would be referred to the Department. I understand that. Now okay, I understand that there might be a variation to this agreement that is consensual but where is it, other than in your mind?

PN86

MR RICHARDSON: Well I think - - -

PN87

THE COMMISSIONER: Because the other side is saying we are under no obligation to do anything and in terms of this agreement, as written, they are not, as I read it and if you are saying that there is a separate agreement reached at as part of this process, then we need to belt them over the head with it, somehow or another, to get them doing it but it is a bit hard to beat them over the head with thoughts. You need a piece of paper that says look, you are obliged to do this and you have been obliged to do this since X, since at least since we wrote our letter to you on 6 February.

PN88

MR RICHARDSON: Yes. Well we say that there is an implication if you go to clause 11.2(d) so - - -

PN89

THE COMMISSIONER: Right. So when was it last referred by either party to the Career Structure and Work Organisation Review provided for in clause 11.1?

PN90

MR RICHARDSON: We can't have the meetings to - the Department won't meet on the issue and as far as - we have not officially seen any referral back to the Career Structure and Work Organisation Review.

PN91

THE COMMISSIONER: You can do it:

PN92

If the parties fail to reach agreement on any or all occupational categories to be the subject of the examination and restructure process -

PN93

and I think it is pretty fair to say that you are unable to reach agreement with them because they refuse to talk to you -

PN94

any matters at issue may be referred by either party -

PN95

you are one of the parties, the Victorian Government is the other, not the Department -

PN96

to the Career Structure and Work Organisation Review provided for in clause 11.1.

PN97

Now the Department can't refer it, you can, so why are we here?

PN98

MR RICHARDSON: Well I think the parties, despite what was said earlier, each of the departments signed off and in terms of the negotiations, each of the departments had to look at the agreement and the formal copy of the agreement, you will see, is signed off by all of the departmental heads.

PN99

THE COMMISSIONER: I understand that but the definition of party has already been read out to me and doesn't include the agency heads. They may - I mean they might be something else. They may have to sign as employers or something but the agreement defines party as the State of Victoria. I mean there were lawyers involved in drafting it at great expense to the State. I have got to give it the meaning it purports to have. I mean goodness, one of the lawyers was the bloke who was co-author of the textbook on industrial law, as I recall.

PN100

MR RICHARDSON: I think that is correct.

PN101

MR HARDMAN: Commissioner, could I just intervene at this point and I might be able to add some light or shed some light to the question that you have raised.

PN102

THE COMMISSIONER: Yes, certainly.

PN103

MR HARDMAN: This matter is currently a matter being discussed between the central government agency and the senior people in the CPSU. This matter is one of two matters; a review of the agency specific occupational categories, and they are all included in that, and as I understand, the parties are very close to reaching agreement on both a VPS pay and classification review outcome and issues surrounding the agency specific occupational categories and that is where this matter is and the Department's position is that is where the matter should be dealt with, if the Commission pleases.

PN104

THE COMMISSIONER: Have they not told you about this, Mr Richardson?

PN105

MR RICHARDSON: No, well certainly the experience in other departments is it - - -

PN106

THE COMMISSIONER: No, you have heard what Mr Hardman has just said - - -

PN107

MR RICHARDSON: Yes.

PN108

THE COMMISSIONER: He is saying that senior officers of the CPSU are negotiating with the central agency about this matter.

PN109

MR RICHARDSON: No, not about this matter.

PN110

THE COMMISSIONER: Well that is not what he - that is not what I heard him say. Now if you are saying he is not telling the truth that is fine but - - -

PN111

MR RICHARDSON: Well I think there is two separate issues and this is - - -

PN112

THE COMMISSIONER: Well no, there is only one issue. You are proposing that they do certain things pursuant to clause 11.2 and they are saying it is being done at a central level and that the CPSU is close to agreement with the central level about this agency group. They were your words, Mr Hardman, as I understood them. Am I correct?

PN113

MR HARDMAN: That is correct, Commissioner.

PN114

MR RICHARDSON: On the information I have got - - -

PN115

THE COMMISSIONER: And you are here saying - - -

PN116

MR RICHARDSON: - - - that is not correct. That the - - -

PN117

THE COMMISSIONER: Well how am I to decide that issue? You bring your evidence to establish that it is not correct or he brings his evidence to establish it is. I am not going to waste the time of the Commission on a matter where it is being alleged that the matter is being dealt with in the terms of - well more or less in accordance with the terms of the agreement that was struck between the parties. I mean you are coming to the Commission and saying that you want the Commission to deal with an issue that is comprehended by the agreement that the agreement provides a process for and that the Department says is being dealt with and which you say is not.

PN118

MR HARDMAN: Commissioner, if I could perhaps - just to make it very clear, I am not necessarily - there is a specific dispute claim that the CPSU has lodged. What I am saying is that the whole issue about occupational categories and the pay and classification review is a matter that is being dealt with through central government and senior CPSU.

PN119

THE COMMISSIONER: Yes but - okay. Well okay, no-one now is - everyone is consistent with each other. That is perfectly consistent with what Mr Richardson says but Mr Richardson goes one step further and says but all they are dealing with now is those agency specific matters that have implications for other agencies and this is not one of them and the central people have agreed that those agency specific matters that don't have implications for other agencies should be dealt with at agency level. Now that is not inconsistent with what you put to me, except that you don't know about that.

PN120

MR HARDMAN: No, I don't know where the central negotiations are.

PN121

THE COMMISSIONER: No, that is right. That is the difference between you. But if the central negotiations have said that (a) these people are not - the resolution of the dispute in respect to these people has no implications for other departments, if they have said what Mr Richardson says they have said and that it has been referred back to the department, that may simply be a matter that you haven't been told about.

PN122

MR HARDMAN: Commissioner, my comment is in regard to the dispute which is, as I read it, the appropriate level of shift allowances for emergency and security management officers. That is not a matter that is being dealt with centrally but the whole issue of agency specific reviews of - sorry, the review of agency specific occupational categories is a matter that is being dealt with centrally.

PN123

THE COMMISSIONER: And I repeat what I just said; that is not inconsistent with what Mr Richardson said but he says one more thing and that is that the people who are dealing with agency specific reviews centrally have decided (1) that matters that are agency level that have implications for other agencies will continue to be dealt with at the central level and (2) those matters that don't fall into that category will be referred back to the agencies for resolution with the CPSU. That is what he says - - -

PN124

MR HARDMAN: And I - - -

PN125

THE COMMISSIONER: In fact it - no. So it may simply be that advise about that decision has not been conveyed to your agency or any other agency, for that matter. I wouldn't be surprised about that, some of the things I see, but I mean it is possible.

PN126

MR HARDMAN: It is possible, Commissioner.

PN127

THE COMMISSIONER: And that is presumably what you are saying, isn't it?

PN128

MR HARDMAN: Yes.

PN129

THE COMMISSIONER: Well I can understand the Department taking the position it takes if no-one has told them about what you - your secret knowledge.

PN130

MR RICHARDSON: It is not - I don't think it is secret.

PN131

THE COMMISSIONER: Well they don't know about it, so to that extent it is secret.

PN132

MR RICHARDSON: Yes.

PN133

THE COMMISSIONER: Well isn't the way ahead for me to direct the Department to go away and establish - what is the central body called?

PN134

MR HARDMAN: The Office of Workforce Development.

PN135

THE COMMISSIONER: All right.

PN136

MR HARDMAN: In the Department of Premier and Cabinet.

PN137

THE COMMISSIONER: To direct the Department to go away and make inquiries of the Office of Workforce Development in the Department of Premier and Cabinet as to whether or not the issue of agency specific anomalies that don't have implications for other agencies have been referred back to the departments - or the agencies, I should say; I will try and get the terminology correct - have been referred back to the agencies for resolution. And clearly if the answer to that is yes, they will have to talk to you but if the answer to that is no, they will have to talk to you and tell you that and then you can take that up with the people that you have got to take it up with. Is that an appropriate course of action?

PN138

MR RICHARDSON: Yes.

PN139

MR HARDMAN: I am happy with that outcome, Commissioner.

PN140

THE COMMISSIONER: Now let us assume for the moment that the answer is yes - in other words, that Mr Richardson's advice about the situation is correct and you are told that, how soon can the CPSU expect you to enter into discussions?

PN141

MR HARDMAN: I would have to take advice on that, Commissioner. I simply don't know.

PN142

THE COMMISSIONER: No, you won't have to take advice on it. I will go one step further. My direction will be that the Department contact the Office of Workforce Development, the Department of Premier and Cabinet and establish whether or not the issue of agency specific occupational categories that do not have implications for other departments has been referred back to the agency for negotiation and if the answer to that is in the affirmative, then the Department shall enter into negotiations with the CPSU within seven days in respect to the matter that is before me today and I will relist this matter on application by either party. Do you need that direction to be reduced to writing or is it sufficient that it appear in the transcript?

PN143

MR HARDMAN: It is very clear to me, Commissioner.

PN144

THE COMMISSIONER: We will have it appear in the transcript then. The transcript will be provided in due course.

ADJOURNED INDEFINITELY [12.35pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 CLAIM PN9
PN119