C2004/2404, Transcript of Proceedings [2004] AIRCTrans 1346 (7 April 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 10304
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2004/2404

LYNNE McLENNAN

and

HOSPITAL CONTRIBUTION FUND
OF AUSTRALIA LIMITED

Application under section 170LW of the Act
for settlement of dispute re sick leave and
family leave

SYDNEY

11.35 AM, FRIDAY, 26 MARCH 2004

PN1

THE COMMISSIONER: I will take appearances, please.

PN2

MR N. RUDD: If the Commission pleases, I appear for the New South Wales Dental Assistants Association on behalf of Lynn McLennan. We seek leave to intervene in these proceedings.

PN3

THE COMMISSIONER: Do you need leave?

PN4

MR RUDD: The notice is filed by the employee under the non-union agreement

PN5

THE COMMISSIONER: I take it you apply for leave.

PN6

MR W. SPANNER: Commissioner. I am a solicitor and with your leave, I appear on behalf of the Hospital Contribution Fund. With me is MS J. MALLON, the Human Resources Manager from the Hospital Contribution Fund.

PN7

THE COMMISSIONER: You definitely have to seek leave. I take it leave is not opposed on either side and I grant it in both cases. Mr Rudd.

PN8

MR RUDD: Thank you Commissioner. The dispute or notice under the dispute settling procedure notified relates to two particular issues. If I can give a brief background, it might assist the parties today. On 11 March, 2004, Lynne McLennan, a member of the Dental Assistants Association, sought retrospective deduction of annual leave for previous two days taken on sick leave. However, the reason for the request - - -

PN9

THE COMMISSIONER: When were those two days.

PN10

MS McLENNAN: 4th and 5 March.

PN11

MR RUDD: 4th and 5 March Commissioner.

PN12

THE COMMISSIONER: You will have to address me through your representative Ms McLennan. Sorry, say again Mr Rudd.

PN13

MR RUDD: Yes Commissioner. Lyn McLennan had the two sick days on 4th and 5 March and then sought on 11 March to pay for those days out her annual leave entitlements. The reason for the request Commissioner rather than a normal application for sick leave to be granted, was that our member had exhausted all her sick leave entitlements at that point in time. What occurred after that point Commissioner is that as far as I am aware the disputes procedure was followed in that it was taken up with the relevant practice manager or dental manager at which time the view was put to our member that prior request was not able to be accommodated and then the matter referred to the relevant HR manager.

PN14

It is my understanding that the HR manager and our member concerned met regarding the other request and that it was the position of the company or the employer that they would not be granting the request for the additional days from the annual leave entitlements for the absence due to the previous illness.

PN15

THE COMMISSIONER: Did she have annual leave?

PN16

MR RUDD: I'm sorry.

PN17

THE COMMISSIONER: Did she have annual leave accrual?

PN18

MR RUDD: Yes, it is my understanding. It is also our understanding that the way it has previously been conducted under the provisions in particular the clause 16 sick leave of the agreement, is that the member has been given annual leave or sick leave in those circumstances previously.

PN19

THE COMMISSIONER: What provisions are they exactly?

PN20

MR RUDD: If I can tender a copy of the relevant agreement Commissioner, it might assist.

PN21

THE COMMISSIONER: I have it before me.

PN22

MR RUDD: Yes Commissioner.

PN23

THE COMMISSIONER: Just give me a clause and I have got it.

PN24

MR RUDD: Clause 16 Commissioner.

PN25

THE COMMISSIONER: Which part of 16?

PN26

MR RUDD: The first paragraph.

PN27

THE COMMISSIONER: Is there some provision for the use of annual leave and sick leave.

PN28

MR RUDD: Commissioner, if I can quote from it, it states:

PN29

You are entitled to sick leave, annual leave to care for your immediate family.

PN30

Now what occurred also during the course of the discussion on the 11th was that our member, her father is suffering from throat cancer at the moment and the question was put that given that she had exhausted her sick leave that she may, in the future given the circumstances, require the use of other leave for the purposes of caring for that immediate family member. It was put to our member that it is the company's policy that they would only award that leave in what is termed exceptional circumstances and additionally that notice would need to be provided in those circumstances.

PN31

Commissioner, what we say is that no where in the terms of that particular clause is there any requirement for notice to be given nor is there any discretion afforded to the company to offer annual leave for the purposes of caring for an immediate family member.

PN32

THE COMMISSIONER: You are referring to clause 16 again.

PN33

MR RUDD: Yes, that is correct Commissioner. Rather, what we say is that it is clear on the first sentence of clause 16 that you are entitled to sick leave and leave to care for your immediate family.

PN34

THE COMMISSIONER: Then it goes on to define the leave and define immediate family doesn't it?

PN35

MR RUDD: It does Commissioner, yes.

PN36

THE COMMISSIONER: Lets go to the second paragraph of clause 16.1 or go to both paragraphs. I just want to check if we are on common ground here as it hits me from the face of the document that you are entitled to five days sick leave in the first year and eight days each year thereafter and I doubt there is any dispute about that. If you are the primary care giver, you can use sick leave to care for a member of your immediate family who is ill so referring, as I read it, to the use of sick leave in certain circumstances for non personal sickness, sickness of others. You say it goes further than that?

PN37

MR RUDD: Yes. Our reference was with respect to the first sentence where it talks about you are entitled to sick leave and leave to care for your immediate family. There is a distinction there between sick leave and leave. The only other leave that would be available under the terms of the agreement is what we would say would be annual leave. There is a distinction made that you are entitled to sick leave and leave. It then goes through 16(1) and 16(2) etc to state the requirements for sick leave but it does not go on to say that there are any requirements for leave to be used for the care of an immediate family member.

PN38

THE COMMISSIONER: Yes. The heading sick leave and family leave. Then it goes on to the clause or the heading you are relying upon "You are entitled sick leave and leave to care for your immediate family." It would appear to me that you can't, it would be improper, you can't have sick leave unless you are sick yourself but then there is a clause, or a sub clause, which says that in certain circumstances you can use sick leave for the sickness of another. What does the annual leave clause say?

PN39

MR RUDD: It is silent on this particular issue.

PN40

THE COMMISSIONER: Does it help you at all?

PN41

MR RUDD: I don't think so Commissioner. We would say that it is silent on that area.

PN42

THE COMMISSIONER: What I am interested in is does the annual leave clause provide that it must be taken in certain blocks? What I am getting at to assist you is would you say that the annual leave clause does or does not allow the taking of single days or is silent upon that.

PN43

MR RUDD: I think it would be silent on that Commissioner.

PN44

THE COMMISSIONER: It appears to me be silent. We are exploring this matter at the moment so would you mind if I heard from the employer and then you have the right to address me further.

PN45

MR RUDD: If it pleases.

PN46

THE COMMISSIONER: You might before, sorry Mr Spanner to get you to hop up and sit you down again. Mr Rudd, what are you seeking from the Commissioner, a formal interpretation of the agreement or what do you want me to do.

PN47

MR RUDD: What we want, if I can describe it that way Commissioner, is that there were two days that our member has sought to be reimbursed to be taken out of her annual leave for two previous days taken. We would hoping to reach that agreement with the company. Additionally, the other issue which, if I can say is the more wider ranging issue, is in respect to whether an employee can access annual leave for the purposes of caring for an immediate family member.

PN48

THE COMMISSIONER: I suppose there is another issue isn't there whether an employee can access annual leave retrospectively?

PN49

MR RUDD: Yes Commissioner.

PN50

THE COMMISSIONER: Wouldn't that also be a key issue.

PN51

MR RUDD: Yes. I think with that particular issue, we would be hopeful of achieving a settlement on that particular matter.

PN52

THE COMMISSIONER: I will put the employer on notice now, what I will be intrigued to know from them is what their attitude would be to an application for prospective leave, annual leave to be used for another purpose. As far as I can see, what a person uses their annual leave to do is really up to them. So, I will hear from the employer now addressing as well as whatever you want to put to me those issues I have raised.

PN53

MR SPANNER: Thank you Commissioner. I think it will be useful if I just confirm. I think we don't have any, in terms of what my friend suggested earlier in terms of the factual scenario, I don't we have too much at issue in that point.

PN54

THE COMMISSIONER: That's good.

PN55

MR SPANNER: That being that Ms McLennan did seek retrospectively, she sought two days retrospectively for 4 and 5 March. She sought that on 11 March and then to be taken out of her annual leave.

PN56

THE COMMISSIONER: That is not in dispute.

PN57

MR SPANNER: I don't think that is in dispute. Secondly, that is where we start diverging I suppose on a number of grounds. The first ground is the dispute settlement procedure. I could take you to clause 27 of the enterprise agreement and I think if we are on record it is fair for me to do so. I appreciate we are here now but in relation to.

PN58

THE COMMISSIONER: I am sorry, what was that last remark?

PN59

MR SPANNER: Sorry.

PN60

THE COMMISSIONER: What did you just say?

PN61

MR SPANNER: I appreciate that we are here now, but I take it as a matter of formality to the grievance procedure.

PN62

THE COMMISSIONER: You can now argue that you shouldn't be here, if you want to - - -

PN63

MR SPANNER: I will mount that argument Commissioner.

PN64

THE COMMISSIONER: I am just trying to save you a bit of time. Just have a look 27.9.

PN65

MR SPANNER: I think if we start at 27.6 to cut to it:

PN66

You and your team leader/line manager are to confirm with a more senior line manager up to the business unit general manager. If the matter is not resolved, then a joint meeting will be held with you, your line manager and general manager human resources. If the matter is not resolved, the grievances referred by to the general manager, human resources to a mutually agreeable third party for mediation which may include your representative.

PN67

And then it goes on to the effect of the position of the Industrial Relations Commission. My point there Commissioner is that the issue was raised with the human resources Manager and a meeting was in fact arranged with Ms McLennan's business unit general manager, Mr Sean Larkin, which was actually cancelled on the day that this application was filed.

PN68

THE COMMISSIONER: By whom?

PN69

MR SPANNER: The meeting was cancelled by Ms McLennan, Commissioner.

PN70

THE COMMISSIONER: So your argument is that the dispute procedure hasn't been followed to the point that we should be here.

PN71

MR SPANNER: That is right, Commissioner.

PN72

THE COMMISSIONER: That may or may not be true. Once we are here, it has reached this level of seriousness, are we not better just to get on with it? Isn't it better from your point of view just to get on with it?

PN73

MR SPANNER: We are here to try and get on it with Commissioner but I do reserve that position and I will take you to my other points in relation to the matter that you have addressed earlier.

PN74

In relation to the question and let me state categorically I think, that from the employer's perspective, provided an employee takes annual leave in accordance with the relevant clause and annual leave is taken prospectively under the notice provisions, the employer does not have a problem in respect of the employee or what the employee actually does with that annual leave. The question is, you go to the annual leave clause and I think that is clause 13. We say there is a mechanism for determining annual leave. Quite simply, in clause 13.1, your entitlement to annual leave is provided in accordance with the Annual Holidays Act, 1944. The basis for the entitlement under the Annual Holidays Act is upon completion of 12 months continuous service, you have entitlement to pay. The pay period of annual leave equivalent to four weeks.

PN75

THE COMMISSIONER: And she has been there longer than 12 months?

PN76

MR SPANNER: We do not dispute the fact that she has annual leave due to her, currently accrued annual leave.

PN77

It then goes on to talk about where 12 months continuous service has not been completed, approval should be sought. I would put it to the Commission Commissioner that in essence the Annual Holidays Act requires leave to be taken prospectively. It does not require leave to be taken after the event. In fact, to require us to do so would in fact put us in breach of the Annual Holidays Act because when leave is taken, it must be paid.

PN78

THE COMMISSIONER: I would take it on the face of the document, leave must be requested in advance, speaks for itself. When Ms McLennan took these two days off, that is what we will call them at the moment, on 4 and 5 March, what happened. She did what and you did what?

PN79

MR SPANNER: My understanding is that she has taken effectively sick leave, and unpaid sick leave, was provided to her. A medical certificate was provided by Ms McLennan which effectively identified the reason for why she was away which was not family responsibilities I might add Commissioner, that is a separate issue which has been raised.

PN80

THE COMMISSIONER: What was it?

PN81

MR SPANNER: It was effectively, to read from a doctor, a group of doctors in the Westfield Shoppingtown, Hornsby Medical Centre:

PN82

Who in my opinion is suffering from a personal illness

PN83

and it is highlighted under there -

PN84

viral illness and was unfit to work or school from 4 March to 5 March.

PN85

So it was not a family responsibility. It was a personal. We don't dispute the fact genuine sick leave issue and there is a mechanism to deal with that in the enterprise agreement Commissioner and that mechanism is that unpaid leave can be provided to the person who is ill.

PN86

THE COMMISSIONER: Where is that?

PN87

MR SPANNER: If we go to the sick leave provision which effectively provides under 16(1) that you are entitled to five days sick leave for your first year of employment, eight days in subsequent years. As a result of that, that is what is paid and to the extent that additional sick leave is required, it remains unpaid is our argument.

PN88

That is common sense and common practice I think in most organisations. The issue again, just to raise this additional point.

PN89

THE COMMISSIONER: Did Ms McLennan ring up, telephone to say she wouldn't be there on or before 4th?

PN90

MR SPANNER: Our understanding is that she might have rung up on the 4th or whatever but I will leave that to Ms McLennan. I don't have specific instructions on that.

PN91

MR RUDD: If I may Commissioner, yes, yes she did.

PN92

THE COMMISSIONER: She spoke to some person at the respondent and told them, if I get any of this wrong either of you can tell me, that she was sick and wouldn't be in until, I take it the 6 March. In terms of your internal processes, what did you do then? You can take instructions if you need.

PN93

MR RUDD: Yes, Commissioner. On her return from leave, and I can hand this up to you if the Commissioner's requests, but an application for leave was completed by Ms McLennan which ticked, I think she has initially ticked an annual leave box and referred there to:

PN94

If possible I would like this to be taken out of my annual leave or RDO as I only have about four hours owing in sick leave. Thank you.

PN95

It was approved on the basis that it would be taken as unpaid sick leave.

PN96

THE COMMISSIONER: I submit that both sides need to see that document. Do you object Mr Rudd.

PN97

MR RUDD: No Commissioner.

PN98

THE COMMISSIONER: Perhaps if you would tender it.

PN99

MR RUDD: Yes I will tender it Commissioner. Attached is an application for leave in form number HRO3B and attached to it is the medical certificate of the Hornsby Medical Centre.

PN100

THE COMMISSIONER: The two documents will be collectively marked as exhibit R1.

EXHIBIT #R1 APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATE ATTACHED

PN101

THE COMMISSIONER: Just give me a moment to have a look at this will you. On the face of this document, if you go to the end of it, the authorisation section, there appears that a supervisor has ticked the "yes" box in "recommended", whatever that may mean, then the "comments box" has got "sick leave".

PN102

MR RUDD: That is right and I think it has been initialled by the same supervisor up at the top with a tick of sick leave, as opposed to annual leave. So that is the supervisor saying that the recommendation is that it is taken, it take that to be recommendation that it is taken as sick leave.

PN103

THE COMMISSIONER: How could, on your submission, it be sick leave if sick leave had expired unless someone, I am just flying a kite here, recommending that it be granted in advance of accrual.

PN104

MR RUDD: I don't believe they are recommending it is granted in advance. That is the request of the applicant that it - to the sick leave component?

PN105

THE COMMISSIONER: I am referring to point 4.

PN106

MR RUDD: It is the company practice to provide unpaid sick leave to employees who are ill and have used their entitlement.

PN107

THE COMMISSIONER: It is not what it says in the comments box though is it?

PN108

THE COMMISSIONER: Ms Walsh's comments. She has written in sick leave. Correct?

PN109

MR RUDD: Yes but there is sick leave which either forms part of the paid sick leave or unpaid sick leave. How it is paid, it is not for Ms Walsh, an immediate supervisor, who has now knowledge of what the applicant might have accrued or not, that is going to be a matter that will eventually go through to the payroll and somebody will make a determination.

PN110

THE COMMISSIONER: That is the question I am asking really in my rather round about way, whether that is true or not.

PN111

MR SPANNER: Can I just raise a few other issues. There is the problem in that we say it was not prospective the request for annual leave. We say it must be prospective. There is no provision for single days in the enterprise agreement for annual holidays and it specifically refers to the Annual Holidays Act which allows for the provision of two blocks of leave of a three week and a one week period, unless there is alternative agreement, I think it can be in four periods.

PN112

I can take you also to the provisions of the Personal Carers Leave test case back in 1995 Commissioner, where the issue of single day absences was considered, a single day leave should I say, was considered but even that I would submit is in the circumstances where one would take that in advance and not retrospectively.

PN113

THE COMMISSIONER: I agree with you that the issues of single days or less than quarter of a leave and prospectivity are separate issues. But let me ask you this, and you can seek instructions about this also: are you telling me that HCF never grants anybody a day or two days off on annual leave? It never happens?

PN114

MR SPANNER: They do grant prospective annual leave.

PN115

THE COMMISSIONER: I would have expected so. So, we can put aside. I am trying to define the issues. We can put aside the issue of the legality of granting single days. I think that one is gone. We are now talking about whether it should be granted prospectively or only prospectively or can be granted retrospectively. I am quite clear on the meaning of the clause whether it is in advance, prospective. Therefore we come down to whether you would be willing to make an exception in this case. Do you think a conference at this stage would be helpful.

PN116

MR SPANNER: I am more than happy to go into conference.

PN117

THE COMMISSIONER: Rather than put everything on the transcript and maybe prejudice people for later proceedings.

PN118

MR RUDD: We are happy with that course Commissioner.

PN119

THE COMMISSIONER: We are adjourned for conference.

OFF THE RECORD [12.02pm]

RESUMED [1.00pm]

PN120

THE COMMISSIONER: During the break, I have had the opportunity of discussing this matter with each of the parties individually or separately and the parties together and I am now in a position to make a recommendation.

PN121

It is my view that clause 13 Annual Leave of the HCF Dental Centres Certified Agreement 2003 is quite clear in its provision that annual leave is to be requested in advance by an employee and on that basis the particular request of Ms McLennan for the payment of two days annual leave retrospectively would in my view most likely fail on an interpretation of the agreement.

PN122

However, I have examined the particular circumstances of Ms McLennan's case and discussed those with the parties and I recommend to HCF that they, on this occasion, as a one off concession, agree to grant Ms McLennan two days annual leave for the dates of 4 and 5 March 2004. This concession would not count as a precedent either for Ms McLennan for further retrospective claims or for any other employee. Are the parties prepared to accept my recommendation?

PN123

MR SPANNER: Yes, thank you Commissioner.

PN124

MR RUDD: Yes Commissioner.

PN125

THE COMMISSIONER: Does that conclude this matter Mr Rudd?

PN126

MR RUDD: Yes, they are my instructions that this matter is now concluded.

PN127

THE COMMISSIONER: I consider this matter discontinued and we are adjourned indefinitely.

ADJOURNED INDEFINITELY [1.02pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATE ATTACHED PN101