C2003/6299, Transcript of Proceedings [2003] AIRCTrans 5472 (10 December 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 5443
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2003/6299

CPSU, THE COMMUNITY AND
PUBLIC SECTOR UNION

and

DEPARTMENT OF HUMAN SERVICES

Notification pursuant to section 99 of the Act
of a dispute re the recurrent salary payable
to a Department of Human Services employee

MELBOURNE

2.25 PM, MONDAY, 24 NOVEMBER 2003

PN1

MR R. RICHARDSON: I appear on behalf of the Community and Public Sector Union together with MR W. CONROY.

PN2

MR S. CHANT: I appear on behalf of the Department of Human Services.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Richardson, what is it all about?

PN4

MR RICHARDSON: If the Commission pleases, in July 2000, Mr Conroy was assessed at the assessment process as "needs improvement". As a result of the enterprise agreement that operated for that performance cycle, that assessment had salary implications in that satisfactory and above were given a 1 per cent ongoing salary increase. Mr Conroy has disputed the rating from the time it occurred and ever since, and the matter still remains unresolved. We are here at the Commission seeking a resolution of it and the resolution that we would be seeking is the 1 per cent recurrent salary increase payable from the first pay period on or after 1 July 2000 and an appropriate figure of backpay.

PN5

THE SENIOR DEPUTY PRESIDENT: Why should Mr Conroy get his 1 per cent? I notice from your section 99 that the matter has been through an internal grievance process.

PN6

MR RICHARDSON: No, it hasn't.

PN7

THE SENIOR DEPUTY PRESIDENT: It hasn't been?

PN8

MR RICHARDSON: No.

PN9

THE SENIOR DEPUTY PRESIDENT: Okay. Why hasn't it been and why should it be, in that case?

PN10

MR RICHARDSON: At the commencement of the performance assessment period, that is, in late June 1999, a new pay system was introduced. Now, the system had a number of problems, and we can give you some e-mails concerning problems with the system, and these are not by any way exhaustive, but on at least 10 occasions there were directions from the central office, who was coordinating the introduction of that pay system, indicating difficulties and suggestions for reworking particular things that were proving to be a problem with the pay system.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. Has that got something to do with Mr Conroy or is it a general problem?

PN12

MR RICHARDSON: We say it was a general problem. The problems were repeated in early 2002 when the system was introduced into the health networks and I understand there were matters listed in the Commission by the union that covers the people that work in the health networks at the time about the problems associated with it. So that was what was occurring during the period under assessment. Now, the department for the region Mr Conroy worked in had one position on the advanced training course and that was given to another officer in the area who was supposed to attend that training course and essentially mentor people as difficulties arose in the area.

PN13

So that was the background. Now, why we say the assessment was wrong, is that the agreement that was introduced, which commenced on 1 July 2000, attempted to deal with some of the identified problems with performance pay systems, and to set a criteria for doing any assessment that was due to occur upon the introduction of the agreement. Of particular note is 21(2)(g) of that agreement.

PN14

THE SENIOR DEPUTY PRESIDENT: Has the agreement got a name?

PN15

MR RICHARDSON: The Victorian Public Service (Non-Executive Staff) Victoria Agreement 2000.

PN16

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of that?

PN17

MR RICHARDSON: No, I don't.

PN18

MR CHANT: You can have my copy, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: Has that been replaced with a 2001 agreement, has it?

PN20

MR CHANT: That is right, that supersedes.

PN21

THE SENIOR DEPUTY PRESIDENT: Well, we are looking at the 2000 agreement, are we?

PN22

MR RICHARDSON: Initially I think that is what Mr Richardson is looking for, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Chant. What clause?

PN24

MR RICHARDSON: 21(2)(g).

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, I have that.

PN26

MR RICHARDSON: It says:

PN27

Goals, performance plan, assessment criteria and key performance indicators should be varied by agreement, if necessary, to reflect the changing circumstances and/or factors beyond the control of staff should be taken into account.

PN28

Now, there was no account of this in the assessment of Mr Conroy, and that has got a history of its own, which I will get to in a moment. Mr Conroy was assessed against another set of performance criteria different to those on which he had signed off on, but there was no agreement. It was determined unilaterally. When you look at the assessment of Mr Conroy in that period, there was part of the assessment were against those areas that had been changed unilaterally. Now, in Mr Conroy's case there was no regard given to the difficulties the new system was generating for the entire DHS staff employed in the payroll area.

PN29

Now, we are unaware of anyone who was assessed as needs improvement in the entire payroll area across DHS or, for that matter, anywhere else in the Victorian Public Service, and who missed out on the 1 per cent.

PN30

THE SENIOR DEPUTY PRESIDENT: What are you saying, that nobody else was assessed as needs improvement?

PN31

MR RICHARDSON: Well, none were brought to our attention. Certainly there was no one else in the payroll area in DHS.

PN32

THE SENIOR DEPUTY PRESIDENT: And that is where Mr Conroy works, is it?

PN33

MR RICHARDSON: Yes. Now, there is also a number of procedural breaches against the policy for determining this matter. Firstly, the performance plan was not developed until nine months after the performance cycle began. As I said earlier, the performance plan was altered unilaterally, and again, against policy, there is a suggestion that if there is developments in the changes in work that need to be accommodated in the performance plan, that this should be accompanied by a performance development plan scheduling training, etcetera, and none of that was done.

PN34

Then once the assessment was done, if there is a dispute about the assessment, the policy says that it has to be given to the supervisor's line management for comment. Now, in Mr Conroy's case there had been a change of the supervisor's line management seven-twelfths of the way through the cycle, that is, at the end of January 2000. Now, the person who was the line supervisor was not contacted. Presumably, if that process went on, the person who was spoken to was only there for the last five months of that cycle and during that five months Mr Conroy was assigned to other duties for a period of approximately eight weeks.

PN35

So after Mr Conroy raised the issue that he didn't agree with the assessment, the person who had been the line manager of the supervisor who made the assessment for 7/12s of the year wasn't consulted, and the person who had been his direct supervisor for eight weeks of that remaining five months wasn't consulted. Now, to put this in some perspective we say that you need to look at Mr Conroy's performance either side of this period. And we say most telling is, that DHS conducted a survey of staff during late 2002 into early 2003, and Mr Conroy was the most commonly acknowledged and praised for his professional, friendly and responsive services, and all supervisors, with the exception of the author of the assessment, speak highly of him.

PN36

And we have got a sheaf of personal messages from individual employers stretching back to 1994 relating to Mr Conroy's promptness, efficiency and professionalism, including a number during the review period. Now, the question, why so long before the - Mr Conroy refused to sign the assessment as he didn't agree with it initially? There was no effort to engage in any sort of dialogue to work out that process, and Mr Conroy eventually spoke to his local member of Parliament. That was initiated by someone else. Mr Conroy got a call, and the federal member said it had been raised with him there was some difficulties, did Mr Conroy want to go and discuss the difficulties?

PN37

There were a number of other issues that emerged during the involvement of Mr Gibbons, the federal member of Parliament, including the fact that there were two separate files kept on Mr Conroy. This matter drifted on and, as I said, it dealt with a range of other matters. Eventually it was suggested that as most of the other matters had been dealt with, the one remaining matter was the 1 per cent salary increase, which, by that stage, was two years old. It was suggested that Mr Conroy file an individual grievance. When he did this it was rejected by the grievance registrar of DHS. That was in July of 2003.

PN38

Through this period as well Mr Conroy suffered some health problems, and there was some intermittent time away from work and, significantly, a block of time when he was off work from March through to June 2003. Mr Gibbons wrote to the union's regional organiser on 13 August 2003, essentially saying that all the matters he had taken up had been resolved, with the exception of the question of the 1 per cent salary increase going back to 2000.

PN39

And we wrote to the Department on 12 September 2003, and they responded on 7 October, essentially suggesting that the way to resolve the matter would be to use the Department's grievance process, which remains the appropriate channel for this issue. However, Mr Conroy had attempted that and been told that because of the time delay that that wasn't an option.

PN40

THE SENIOR DEPUTY PRESIDENT: Who told him that?

PN41

MR RICHARDSON: The grievance registrar sent him a letter on 1 July 2003. I can give the Commission some copies, and we are happy to go into conference about this matter. I provide the Commission with a copy of the letter that we sent to Mr Lee. Attached to that is the response from Mr Lee, and attached at the back is the copy from the grievance registrar rejecting the grievance.

EXHIBIT #CPSU1 CORRESPONDENCE BETWEEN CPSU AND GRIEVANCE REGISTRAR

PN42

MR RICHARDSON: I have got another document I can give to the Commission.

PN43

THE SENIOR DEPUTY PRESIDENT: What is that about?

PN44

MR RICHARDSON: If I can explain. The way the performance system worked in DHS, was that within a month of the turning of the financial year a performance agreement was supposed to be entered into between the parties. The front of the performance agreement that Mr Conroy entered into, and I have included a page out of that document, which is under 5(b), manage change successfully.

PN45

THE SENIOR DEPUTY PRESIDENT: How often do these performance assessments take place?

PN46

MR RICHARDSON: They are an annual assessment with a half yearly review.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes. Has there been another one since February 2000 for Mr Conroy?

PN48

MR RICHARDSON: If I can explain. This is what should have been in place by August 1999, to cover the year. It was not given to Mr Conroy and signed off until 25 February 2000, which was already eight months into the year in which it was supposedly assessing.

PN49

THE SENIOR DEPUTY PRESIDENT: Has he had assessment since?

PN50

MR RICHARDSON: Yes.

PN51

THE SENIOR DEPUTY PRESIDENT: Was he proved satisfactory?

PN52

MR RICHARDSON: Yes.

PN53

THE SENIOR DEPUTY PRESIDENT: And has he received pay increases associated with those assessments?

PN54

MR RICHARDSON: Yes, he has.

PN55

THE SENIOR DEPUTY PRESIDENT: So this is the one that goes back for three years that he wants the 1 per cent pay increase on?

PN56

MR RICHARDSON: That is correct.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes, go on.

PN58

MR RICHARDSON: The final two pages of the document are the - - -

PN59

THE SENIOR DEPUTY PRESIDENT: Sorry, is this an incremental thing? Have his more recent pay increases suffered as a result of him not having this 1 per cent?

PN60

MR RICHARDSON: No. Only as much as the 1 per cent has undercut the base each time.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes. So he is still 1 per cent behind for over three years, not just the one year, if his claim is successful. Yes.

PN62

MR RICHARDSON: So the first two pages of the document I have handed to you are the document that Mr Conroy signed off on 25 February. The back two pages are extracts from the assessment sheet. And it states quite clearly on that, that Mr Conroy wouldn't sign off, that he was unhappy at the date the assessment is done. But more significantly, is that under manager change successfully, it is much more tailored to the payroll system that was introduced, the SAP transactions, than the one that he had signed off on. As I said, when the assessment itself ranked him, they were the major areas that he was ranked needs improvement, and dragged - - -

PN63

THE SENIOR DEPUTY PRESIDENT: Well, where does it say that?

PN64

MR RICHARDSON: Well, it doesn't on what I have handed up.

PN65

THE SENIOR DEPUTY PRESIDENT: What are you trying to demonstrate with this document? What am I to take from it?

PN66

MR RICHARDSON: Well, that in terms of process, the performance, he was assessed on a significantly different criteria than what he had signed off on.

PN67

THE SENIOR DEPUTY PRESIDENT: How do I see that?

PN68

MR RICHARDSON: Well, we would say that the absence of a signature and the contrasting between manage change successfully and manage change successfully in the material at pages 2 and 4 in the two documents.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes.

PN70

MR RICHARDSON: If the Commission pleases, we expected that this matter would probably adjourn into conference. There is a heap of material that I have referred to that I took pity on the trees and didn't generate, but there is a lot more material, if some of the submissions were contested, that we could present to the Commission. But the bottom line is that Mr Conroy, who has been employed with the Department for 30 years in the payroll area, has had one assessment in that 30 years that is negative, there are clear procedural problems with the way that the assessment has done, and there has never been, until this stage, an ability to have any contesting of that assessment in either the internal processes or any processes external to the Department.

PN71

It is our view that Mr Conroy's performance was assessed incorrectly in 2000, and the appropriate remedy for that situation is, we say, a 1 per cent salary increase and some back pay to cover the period from 1 July 2000. And we are still happy to go into conciliation. If the Commission pleases.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Chant?

PN73

MR CHANT: Thank you, your Honour. I would agree with the proposal to move into conference on this matter, your Honour, but before we do so, or before you decide whether we should do so, there are a few matters that I would like to just put our position on. Firstly, with regards to why hasn't this gone through the internal grievance process, I can't answer that. I am not sure why that option isn't being explored, rather than bring the matter here.

PN74

THE SENIOR DEPUTY PRESIDENT: Well, it should be, shouldn't it?

PN75

MR CHANT: Sorry?

PN76

THE SENIOR DEPUTY PRESIDENT: It should be explored, shouldn't it?

PN77

MR CHANT: Yes, it certainly should be. And I would refute that Mr Conroy has been rejected from applying through the grievance process, your Honour. In that letter that Mr Richardson has handed up, the second last paragraph does not reject Mr Conroy's application to have this matter heard through the grievance process. It merely queries as to whether the matter is still live after all this time. It was therefore quite available to Mr Conroy to give evidence that, in fact, the matter is still live, and therefore pursue the matter through the grievance process as sought.

PN78

In terms of the matters raised about the performance agreement and about the process, I am not sure exactly what it is that we are meant to take from Mr Richardson said, as to whether the payment should be made because there is a problem with the process, or the payment should be made because the rating is wrong. I don't think we have actually heard evidence that would support either notion. As to the process, quite clearly, your Honour, in terms of this performance management system, there is an equal onus on both the employee and the employer to develop plans in a timely fashion, and to agree upon matters.

PN79

I don't see anything here that would suggest that the delay in putting together a performance agreement for the year in question was solely due to any delays or any mismanagement by either Mr Conroy's direct supervisor or by the line supervisor. So I don't think we can determine that there is anyone at fault in that matter, rather, it is just the way these things sometimes pan out. As to the change in line supervisor during the year, Mr Richardson hasn't made it clear as to who or what that refers to. We can only assume that we are talking about the HR manager position at Loddon Mallee region, as it was at the time, and perhaps that there was a change.

PN80

Without seeing the evidence of the period that Mr Richardson is talking about, and knowing who we are talking about, I can't be wholly accurate on that. But, again, in terms of performance plan, the major parties involved are the employee and the direct supervisor. So a change in line management above that level really should have very little or no impact on the performance plan at all. The other matter that Mr Richardson raised in terms of the 2000 agreement, and that reference to clause 21(2)(g), again, there is an issue there of the plan being amended by agreement, ie, in discussion between both the parties to reflect any change that might be outside either the employee or employer's purview to affect.

PN81

But the other very relevant factor here is, that every other person working in the payroll area in that region and, in fact, in every region, and in head office for the Department at the time, was facing the same issue of a change-over in HR systems, payroll systems. So if it was going to be changed for one person, it would have to be changed across the board. There was no such request for that to be done, there was no need for that to be done. Similarly, Mr Richardson's observations that Mr Conroy was the only person who was rated as needs improvement, I am not sure how that proves that there is any problem with SAP or problem with the performance management system.

PN82

I think it is highlighting that we are talking about the issues of the individual. Lastly, again, just in terms of supervisory issues, Mr Richardson refers to a period of eight weeks where Mr Conroy worked other than in the payroll area, and suggested that person's comments weren't taken into account. I would suggest that is quite a normal arrangement, your Honour. The general rules around the performance plan systems that we have in place in the Department require six months in any job for it to have any real relevance on performance outcome for the year, so a short period of eight weeks off in another job would really have little bearing on the assessment against a position that the person had been in for 10 months.

PN83

As I said at the start, your Honour, I would support a move into conference to discuss these matters in some more detail. But just finally, if I could mention, we have heard a lot about the 1999-2000 assessment. There hasn't been a lot of discussion about the assessments either side. There were some issues in the period immediately prior to the one that is in question. Most of those have been resolved by the future periods that we are talking about. So, again, we should be looking at the matter as it pertained at that time and the circumstances that pertained in that time, and not looking for anything more sinister about the performance system. Thank you, your Honour.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes. Well, it seems you are both of the same view, does it not? The union says that internal grievance system should have been utilised, and hasn't been, and wants it to be. The Department is at a loss to understand why it hasn't been, but says that it should be. What are we doing here, gentlemen? Why don't you go and utilise the grievance system? Mr Richardson?

PN85

MR RICHARDSON: Well, I think it was the rejection of the grievance - - -

PN86

THE SENIOR DEPUTY PRESIDENT: Where?

PN87

MR RICHARDSON: In the 1 July 2000.

PN88

THE SENIOR DEPUTY PRESIDENT:

PN89

I will not be able to accept your grievance unless you can demonstrate that the issue remains current and that you have made continual attempts up to the present time to resolve the issue.

PN90

Yes. Well, I can cut through this. Mr Chant, do you accept that the issue is current?

PN91

MR CHANT: Yes, we do, your Honour.

PN92

THE SENIOR DEPUTY PRESIDENT: And that it should be dealt with through the internal grievance system?

PN93

MR CHANT: Absolutely, your Honour.

PN94

THE SENIOR DEPUTY PRESIDENT: Is that what you want, Mr Richardson?

PN95

MR RICHARDSON: That will do.

PN96

THE SENIOR DEPUTY PRESIDENT: We will adjourn. Well done, gentlemen.

ADJOURNED INDEFINITELY [3.00pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU1 CORRESPONDENCE BETWEEN CPSU AND GRIEVANCE REGISTRAR PN42