C2003/3873, Transcript of Proceedings [2003] AIRCTrans 2951 (14 July 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

C2003/3873

THE ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA

and

SYDNEY WATER CORPORATION -
WATER SERVICES DIVISION

Notification pursuant to section 99 of the Act
of a dispute re rates of pay for an employee

SYDNEY

10.43 AM, MONDAY, 30 JUNE 2003

Continued from 17.6.03

Hearing continuing

PN127

THE SENIOR DEPUTY PRESIDENT: Can I have the appearances please?

PN128

MR D. BOURNE: If the Commission pleases, I appear for The Association of Professional Scientists and Managers along with MR K. HUSSAIN.

PN129

MR D. FITZGERALD: Your Honour, I appear for Sydney Water Corporation and with me is MR R. FERRIER and MR G. HOGBIN.

PN130

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Bourne?

PN131

MR BOURNE: Thank you, your Honour. Your Honour, the last time we were before you, we discussed the list of 33 long term employees which were handed up to the State Commission before Commissioner Boland and which we indicated Mr Hussain was on that list and you required a copy of that list which we have.

PN132

THE SENIOR DEPUTY PRESIDENT: Would you like to hand it up?

PN133

MR BOURNE: Yes, there's two copies.

PN134

THE SENIOR DEPUTY PRESIDENT: That list will be APESMA1.

EXHIBIT #APESMA1 LIST OF 33 LONG TERM EMPLOYEES HANDED UP TO STATE COMMISSION

PN135

MR BOURNE: You will notice on that list that I think I marked it with an asterisk employee number 3048050 Kamal Hussain. That list was subject to some culling in terms of discussions between Mr Ferrier, the ASU and ourselves over employees who were not constituted at genuine acting positions. Some people were working on what was called the SIBS project, the computerised billing project, which was clearly a term position. Other employees had gone onto other organisations such as Mr Carmody who went to the Sydney Catchment Authority. Mr Hussain did not fall into those categories. We believe that given his position which had been over four years in duration, that the position was a genuine acting position and it was clearly an ongoing position.

PN136

So our argument was that he fell into that category of employees who should have been appointed to a permanent position as per the judgment of Commissioner Boland and the agreement between ourselves. Sydney Water apparently seems to have some different view on that, but that is our contention. Clearly Mr Hussain is on the list. The position he had been acting in was over four years, therefore we say a genuine acting position and therefore should have been subject to the permanent appointment at the acting grade.

PN137

That has occurred, of course, through the reorganisations, but the dispute was that he has not been - well, the position he is now in encompasses a 35 hour week as opposed to the 38 hour week which he had been working on for over four years. Our view is that there should have been no loss in the appointment to the permanent position and therefore the hours should have been grandfathered as has happened in a number of other cases.

PN138

THE SENIOR DEPUTY PRESIDENT: Yes, and you have had further meetings about this or have you not had further conversation till you've come back to me?

PN139

MR BOURNE: No, we believe we'd exhausted all those conciliations prior to coming here in the first instance, your Honour.

PN140

THE SENIOR DEPUTY PRESIDENT: All right, yes, Mr Fitzgerald?

PN141

MR FITZGERALD: Thank you, your Honour. Our position is fairly simple, your Honour. When we were last before you, APESMA handed up a transcript of the matter before his Honour, Boland J, dated 28 May 2002. At that stage, I certainly hadn't seen transcript, but on the day I had a look at it and I've had a look at it since we were last before you. If we go, your Honour, to page 2 of the transcript, and it's marked para 10, it's quite clear from that statement by Mr Ferrier, and I'll read it:

PN142

The difficulty that I had outlined at our last meeting was that we could not accept appointment to positions that we were aware would be redundant in the immediate future.

PN143

The truth is the position that Mr Hussain was in was a project position and the position no longer exists. Mr Hussain applied for and was successful in being appointed to another position within Sydney Water within a different business unit, within the engineering and contracts group. So we say that clearly Mr Hussain wasn't in the basket of people to be appointed. APESMA have just handed up to your Honour a document that's been marked APESMA1. There are a number of people, your Honour, on that document that didn't fall in the basket of being directly appointed.

PN144

Just having a very quick flick through it, APESMA have indicated Mr Carmody wasn't appointed. I can tell your Honour that Mr Ferguson hasn't been appointed, nor has Mr Rasouli who was in the same business unit, no direct appointment. In the same position as Mr Hussain in a project job, your Honour, he wasn't direct appointed. Mr Corboski wasn't direct appointed.

PN145

THE SENIOR DEPUTY PRESIDENT: What do you say is the relevance of their position?

PN146

MR FITZGERALD: Well, the relevance is that my friend when we were here last time painted to the Commission that all those that were listed on a list that was tendered to his Honour, Boland J, were appointed. That's not true, your Honour and I say that Mr Ferrier explained the situation to his Honour, Boland J, quite clearly and it's demonstrated in transcript, that we weren't appointing people, all the people on the list. Mr Hussain was in a project position. The project has come to a conclusion. He is now not in that position. In fact, if the Commission was to grant some relief to or make a recommendation that some concession be made to Mr Hussain, what they would be doing would be appointing him or recommending that his hours in his new position go to the 38 and that's creating some new right because he's not in the position that he was in that's highlighted on the list.

PN147

THE SENIOR DEPUTY PRESIDENT: I think, as I understand the application, it isn't that he should be appointed a position and work 38, that whatever the position is, that his financial situation should not be less than previously so that if he is appointed to a position with lesser hours and therefore lesser money he should be paid the money in any event, that's the position, is it not? That's the application.

PN148

MR BOURNE: Yes, your Honour, we believe it should be grandfathered in that sense. I did indicate earlier we didn't maintain that all of those positions were directly appointed. We said that only those that were identified as genuinely acting, long term acting positions.

PN149

THE SENIOR DEPUTY PRESIDENT: There's no need to go into that now actually.

PN150

MR BOURNE: Yes, your Honour.

PN151

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Fitzgerald?

PN152

MR FITZGERALD: Your Honour, the position is that offer and acceptance, Mr Hussain went into the job understanding that it was a 35 hour a week job. Admittedly, he accepted the position conditionally, but when he applied for the job, it was advertised as a 35 hour a week job and he's gone into the job, regardless if he wrote something on his acceptance letter, he's gone in there and has been doing that work and he's not entitled in our view to any relief, your Honour.

PN153

Now, in our view, if this is a matter that needs to proceed to arbitration and evidence has to be put on, well, we'll go that route, but certainly I don't think any recommendation of the Commission to move Mr Hussain to 38 hours would be accepted by Sydney Water.

PN154

THE SENIOR DEPUTY PRESIDENT: In that case conciliation is at an end, I would think.

PN155

MR BOURNE: Yes, I would think so, your Honour.

PN156

THE SENIOR DEPUTY PRESIDENT: How about Monday, 28 July?

PN157

MR BOURNE: That's fine for me, your Honour.

PN158

MR FITZGERALD: Yes, that's fine, your Honour.

PN159

THE SENIOR DEPUTY PRESIDENT: Mr Ferrier, I think this might involve you. Is that a good day for you?

PN160

MR FERRIER: Yes, your Honour.

PN161

THE SENIOR DEPUTY PRESIDENT: We'll have an arbitration pursuant to section 170LW on 28 July 2003 at 10.15. I don't think it will be a very long matter, do you, Mr Fitzgerald?

PN162

MR FITZGERALD: I wouldn't anticipate it, your Honour.

PN163

THE SENIOR DEPUTY PRESIDENT: It should be finished by lunch time. I'll order transcript of the last two hearing dates. There are some submissions there that might be of assistance to the parties to peruse.

ADJOURNED UNTIL MONDAY, 28 JULY 2003 [10.56am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #APESMA1 LIST OF 33 LONG TERM EMPLOYEES HANDED UP TO STATE COMMISSION PN135