C2004/4915, Transcript of Proceedings [2004] AIRCTrans 3056 (9 August 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 10980
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2004/4915

B. CHAPMAN

and

AUSTRALIA POST

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

MELBOURNE

11.15 AM, TUESDAY, 27 JULY 2004

PN1

THE SENIOR DEPUTY PRESIDENT: I will take the appearances, please. Mr Chapman, you appear on your own behalf, do you?

PN2

MR B. CHAPMAN: I do.

PN3

MS J. PORTER: I appear on behalf of Australia Post, together with MR D. RAFFERTY, who is the HR Manager.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Chapman, you have filed an application, or notified an alleged industrial

PN5

dispute involving yourself and Australia Post. What is it all about, Mr Chapman?

PN6

MR CHAPMAN: First can I say, your Honour, I am unfamiliar with the procedures of the Commission, so if I offend protocol in any way, please take a moment to educate me.

PN7

THE SENIOR DEPUTY PRESIDENT: Well, it is usual for people to stand when they are addressing the Commission.

PN8

MR CHAPMAN: I apologise, Commissioner. Shall I address you as, Commissioner.

PN9

THE SENIOR DEPUTY PRESIDENT: No, your Honour.

PN10

MR CHAPMAN: Your Honour, I apologise again.

PN11

THE SENIOR DEPUTY PRESIDENT: That is all right.

PN12

MR CHAPMAN: Yes, I would like to clarify the meaning of the term, pro rata, in a particular clause of the award. Australia Post does not credit the entitlements of the part-time employees in direct proportion to the hours worked. And I don't believe that this is a fair interpretation of the term, pro rata. That is what I would like clarified.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes. What discussions have you had with Australia Post to try to resolve this? I take it you are not a member of the union and that is why you are here yourself.

PN14

MR CHAPMAN: No, I am not, that is why I am here on my own behalf.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR CHAPMAN: Initially I discussed the matter with my local manager. And those discussions were not successful. I then attempted to follow the dispute resolution procedures as laid out in the award, and sought discussions with more senior managers. However, Australia Post declined my requests. I wrote personally to two more senior managers, the Facility Manager, Mr Lee Hopkins, and the Area Manager, Mr Peter Warnes. However, both declined to respond. I have had my most fruitful discussions with - - -

PN17

THE SENIOR DEPUTY PRESIDENT: Do you have copies of that correspondence?

PN18

MR CHAPMAN: I have a copy of the initial letter that I sent to my Delivery Manager. And the - - -

PN19

THE SENIOR DEPUTY PRESIDENT: All right, but not to the senior managers.

PN20

MR CHAPMAN: The other letters were identical, except for a change of names.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. You were just saying your most fruitful discussions have been?

PN22

MR CHAPMAN: So far, yes, but - - -

PN23

THE SENIOR DEPUTY PRESIDENT: When, today?

PN24

MR CHAPMAN: Yes, today with my learned friends here. However, we still have a sticking point, and that is the basis on which entitlements for part-time employees should be calculated. And my argument has been that those calculations should fairly and accurately reflect the hours worked, but Australia Post has a slightly different view.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes. And you refer, of course, 13.2 of the Australia Post General Conditions of Employment Award 1999. And that is the clause that you want interpreted, is it?

PN26

MR CHAPMAN: That is correct, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: Well, it says permanent and - you are a fixed term, part-time employee, are you?

PN28

MR CHAPMAN: Permanent. Well, I was a permanent part-time employee, now permanent full-time. However, this dispute relates to a period of part-time employment.

PN29

THE SENIOR DEPUTY PRESIDENT: And what period of employment is that?

PN30

MR CHAPMAN: From my commencement in January 2001 until because of the way leave is calculated, 1 January 2004.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes. I might just hear from Australia Post briefly and then I might revert back to you. This matter may be a matter that is amenable to resolution in conference rather than in a formal hearing.

PN32

MS PORTER: Thank you, sir. Sir, firstly I wanted to outline two jurisdictional argument. It is our respectful submission that the Commission does not have jurisdiction to hear this application. This is a dispute between an individual employee and his employer, Australia Post. There is no collective element to this dispute. It is a personal dispute which lacks the potential for industrial disputation - disruption, sorry, contemplated by the expression "industrial dispute". Sir, I have two authorities that I will hand up and refer you to. Sir, they are two authorities that no doubt you will be familiar with, the first being the High Court decision of The Queen v Staples ex parte Australian Telecommunications Commission.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes. Just give a copy to Mr Chapman. You have handed me two copies of this, so one can go to Mr Chapman.

PN34

MS PORTER: Sorry, thank you. And the second one is the High Court decision of the Metal Trades Employer Association and Others v the Amalgamated Engineering Union and Others. Sir, if I can perhaps refer you to the often-cited passage which is in the Metal Trades Employer Association case.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes.

PN36

MS PORTER: At page 403, at the second-last line, if I can read that out for the benefit of Mr Chapman; I do not have a copy for him:

PN37

Industrial disputes are essentially group contests. There is always an industrial group when it leads to one side. A claim of an individual employee against his employer is not in itself an industrial dispute. If it professes to be based on an existing right, as, for example, a contract of employment or an award, such a claim may give rise to litigation in the civil courts, but it is not an industrial dispute. If a claim is made by an individual employee for some improvement in his pay or conditions of employment the refusal of the claim by his employer may result in a personal dispute, but this in itself would not be an industrial dispute. One necessary element of an industrial dispute as distinguished from other disputes is the circumstance that a demand is made by or upon a group of employers or employees.

PN38

Sir, and that passage is cited with approval in The Queen v Staples in the print-out that I have given you at page 5 at paragraph numbered 9 halfway down that page. That passage I have just read out is cited with approval. Sir, on that basis, it is our respectful submission that the Commission should not proceed with hearing this application.

PN39

THE SENIOR DEPUTY PRESIDENT: Is there a dispute settling clause in the award that entitles an employee to involve the Commission? Do you have the award there? Do you have a copy of the award there?

PN40

MS PORTER: I do, sir.

PN41

MR CHAPMAN: I do.

PN42

THE SENIOR DEPUTY PRESIDENT: Just a moment.

PN43

MS PORTER: Sir, I do have a copy I can hand up to you.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. What clause is the dispute-settling clause?

PN45

MS PORTER: Sir, it is clause 11, and sir, that takes us through the various stages. We also say, sir, that these stages have not been concluded.

PN46

THE SENIOR DEPUTY PRESIDENT: Well, that is a matter of argument and contention and discussion.

PN47

MS PORTER: Certainly, sir.

PN48

THE SENIOR DEPUTY PRESIDENT: But at the moment is a matter of power, why doesn't the settlement of the dispute between the union and Australia Post and the power of the Commission to deal with a matter of this kind, and I am looking at particularly clause 11.1.4.

PN49

MS PORTER: Well, sir, if this matter - this clause does not give the Commission power that it does not already have.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes.

PN51

MS PORTER: If this matter was being brought by the union or by a group of employees the Commission would be empowered to hear that dispute, but it is my submission that clause 11.1.4 simply refers to it being notified to the Commission and the Commission taking action consistent with its powers under the Workplace Relations Act. It is our submission it doesn't have powers to deal with this in the event that the application has been brought by an individual employee.

PN52

THE SENIOR DEPUTY PRESIDENT: Well, I understand your submission, but - yes.

PN53

MS PORTER: Sir, if you would like me to address you any further on that issue, there is one other issue I would like to raise with you.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes.

PN55

MS PORTER: The next issue I raise with you, sir, is raising section 170N of the Workplace Relations Act. The subject matter of this application is issues that are being dealt with by the negotiating parties of EBA6.

PN56

THE SENIOR DEPUTY PRESIDENT: Well, how can it be? This is merely seeking an interpretation of the award, which is a matter for a court, not for the Commission, unless it falls within the provinces of a dispute-settling clause, isn't it?

PN57

MS PORTER: Sir, I understand it is actually an application of the manner of calculation of part-time entitlements, sorry, pro rata entitlements for part-time employees, and that in fact is an issue that is being negotiated at the - - -

PN58

THE SENIOR DEPUTY PRESIDENT: What issue is being negotiated? Where is the log of claims or the matters that are being negotiated?

PN59

MS PORTER: Sir, I do have - I don't have the log of claims, but I am instructed by my colleague, Catherine Walsh, who is on the negotiating party for EBA6 that this is one of the issues that is being negotiated, in particular - - -

PN60

THE SENIOR DEPUTY PRESIDENT: Well, I don't know what you mean by, this is one of - what is the issue that is being negotiated in particular?

PN61

MS PORTER: The calculation of pro rata entitlements for part-time employees.

PN62

THE SENIOR DEPUTY PRESIDENT: I don't know what that means. What is - is it sought to change clause 13.2 of the award in the certified agreement?

PN63

MS PORTER: No, it is not, sir. It is in fact how that calculation should take place, and, sir, perhaps if I can - I am not the best person to explain to you the operation of our HRMS system, which is why I have brought with me Mr Rafferty and also Mr Holland, who work in that area, but the calculation of entitlements for part-time employees is initially based on their nominal hours, and then additional hours is a separate calculation. It might be helpful perhaps if we went into conference and these matters could be clarified in more detail for you and then perhaps - - -

PN64

THE SENIOR DEPUTY PRESIDENT: Yes. So, despite your jurisdictional objections you are prepared to enter into a conference to try to resolve this matter?

PN65

MS PORTER: Well, sir, certainly at this stage could I ask that we go into conference to discuss and explain the current method of calculation, that - - -

PN66

THE SENIOR DEPUTY PRESIDENT: No. I want to go into a conference to try to resolve the issue. Is that part of what you intend to happen in the conference?

PN67

MS PORTER: Well, sir, we do make this application that the Commission doesn't have jurisdiction to deal with it and we would like a ruling on that, sir, prior to - - -

PN68

THE SENIOR DEPUTY PRESIDENT: Well, Ms Porter, I can deal with this in two ways. I can deal with your objection to jurisdiction in a formal sense and rule on it, or we can put that aside and go into conference and try to resolve the issue between Mr Chapman and Australia Post. I am not going into conference just so that you can explain to me how you think the clause operates, unless there is a preparedness in that conference to resolve the issues. There is no point otherwise, is there?

PN69

MS PORTER: Sir, we would seek a ruling on the jurisdictional objection.

PN70

THE SENIOR DEPUTY PRESIDENT: So you are not prepared to go into conference prior to that occurring?

PN71

MS PORTER: No, sir.

PN72

THE SENIOR DEPUTY PRESIDENT: Very well. Do have the material that you rely on for the section 170N objection?

PN73

MS PORTER: No, I don't, sir.

PN74

THE SENIOR DEPUTY PRESIDENT: So you have no evidence as to what is at issue between the parties, other than assertions from the bar table?

PN75

MS PORTER: I do have one document that I could tender, but it is - it does allude to the fact that this matter is being negotiated, and I would tender that document. Sir, it is a letter from Australia Post to Brian Bourke, the Divisional Secretary of the CEPU. It refers to recent EBA discussions and raises one of the issues about part-time employees being recognised for sick leave payment purposes. This is one of the issues, sir, that has been raised in Mr Chapman's application, and it does have a proposal attached to the back of that letter, sir. At this stage it is not an agreed document and it does have an element of confidentiality about it in that it is part of ongoing discussions. If I could perhaps hand that up for your approval.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes. You had better show a copy to Mr Chapman.

PN77

MR CHAPMAN: Thank you.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Have you seen that, Mr Chapman?

PN79

MR CHAPMAN: I have, your Honour. May I be allowed at some stage to the - - -

PN80

THE SENIOR DEPUTY PRESIDENT: In due course, yes.

PN81

MR CHAPMAN: Yes. Thank you.

PN82

MS PORTER: Sir, whilst that doesn't cover all of the issues it does cover the fact that at least one component of Mr Chapman's application is being subject to negotiations as part of EBA6 discussions, and it is my submission that in fact on a wider basis part-time pro rata calculation issues are being discussed. Sir, I have no further submissions.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Chapman, you don't need to reply in relation to the bargaining period basis of the objection to jurisdiction. I am satisfied that there is no substance in that submission. Whether or not there is negotiation for dealing with the matter in which permanent fixed-term part-time employees are to be treated for the purposes of sick leave and so on in the future is not an issue that is concerning Mr Chapman and Australia Post. He seeks an interpretation of the clause in relation to his past work performance from January 2001 until 1 January 2004.

PN84

In those circumstances, section 170N has no application because the matter of Mr Chapman's past entitlements is not a matter that is or could be at issue between the negotiating parties for a new certified agreement. Mr Chapman, you can address me on the question of whether there is jurisdiction in relation to your notification of an alleged industrial dispute.

PN85

MR CHAPMAN: Thank you, your Honour. I apologise for speaking as an ignorant layman. I had no experience whatsoever of the Industrial Relations Commission or its procedures before I began my application. I read everything I could and form R4, the notification of industrial dispute, was recommended to me by someone from the Registrar's office whose name I am afraid I do not have. I observed at the time that the wording of form R4 did seem to indicate that it was a matter of - or it would deal with matters specifically between organisations and employers, and in my letter to the Registrar I made mention of that fact and asked that if my application was not deemed sufficient due to a matter of procedure then I was therefore requesting direction from the Commission in the manner or form of procedure as outlined in rule 7.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes. It is not so much a matter of procedure. It is a matter of whether there is jurisdiction at all. It doesn't matter what the procedure is.

PN87

MR CHAPMAN: And again, this is why I said I am speaking as a layman here. I have no detailed knowledge of the Workplace Relations Act and really cannot comment on jurisdiction. However, I merely put forward to demonstrate my intent that had another option of application been available to me, then I would by all means have adopted that procedure.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes. Well, you may well have to bring your application to the Federal Court claiming back payment of wages if there is no jurisdiction in this Commission, and if Australia Post is not prepared to avail itself of the conciliation services of this Commission.

PN89

MR CHAPMAN: Yes. May I also mention that at all stages I have endeavoured to follow the dispute-resolution procedures laid out in the award, and specifically clause 11.1.4 as you mentioned before.

PN90

THE SENIOR DEPUTY PRESIDENT: Well, there is a procedure. Clause 11.1.1 requires you to discuss the matter with your immediate manager or supervisor. Have you done that?

PN91

MR CHAPMAN: Yes, I have, as I have mentioned before, I did that and then tried to - - -

PN92

THE SENIOR DEPUTY PRESIDENT: And then clause 11.

PN93

MR CHAPMAN: - - - move on to the procedure as laid out in 11.1.2 and 11.1.3.

PN94

THE SENIOR DEPUTY PRESIDENT: You sought to engage more senior levels of management, did you?

PN95

MR CHAPMAN: Correct. However, two more senior managers that I wrote to failed to respond.

PN96

THE SENIOR DEPUTY PRESIDENT: Who are they?

PN97

MR CHAPMAN: They were the facility manager, Mr Lee Hopkins, and the area manager, Mr Peter Lunt.

PN98

THE SENIOR DEPUTY PRESIDENT: Area manager, Mr Peter Lunt.

PN99

MR CHAPMAN: Lunt, L-u-n-t.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes, and 11.1.3 doesn't seem to be appropriate because that is in relation to an issue that involves more than one employee, so then you have gone to 11.1.4.

PN101

MR CHAPMAN: Correct, yes.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes. Anything else you want to say at this stage?

PN103

MR CHAPMAN: No. I thank you for dealing with the second matter, the EBA terms. I may mention, even though it is probably redundant now that the issue as outlined in the letter provided, in fact, has nothing to do with the application that I am making, as we have pointed out.

PN104

THE SENIOR DEPUTY PRESIDENT: Sorry, I am not with you there.

PN105

MR CHAPMAN: This letter from Mr David Barker - - -

PN106

THE SENIOR DEPUTY PRESIDENT: Yes, we won't - - -

PN107

MR CHAPMAN: Yes, yes.

PN108

THE SENIOR DEPUTY PRESIDENT: No. Well, you don't need to address me on that.

PN109

MR CHAPMAN: It deals with an aspect of crediting sick leave for part time employees but is, in fact - - -

PN110

THE SENIOR DEPUTY PRESIDENT: Yes. You don't need to concern yourself with that, and you might hand that back to Australia Post because it is a confidential document.

PN111

MR CHAPMAN: By all means. Yes, thank you.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Porter, do you want to just say something about the dispute settling procedure not having been complied with? You assert that it hasn't been.

PN113

MS PORTER: Sir, the letter to Mr Hopkins; unfortunately, Mr Hopkins is on leave, he is back on Monday. So we have no instructions about the receipt of that letter. We have contacted Mr Lunt and he did not receive a letter from Mr Chapman and had no record of receiving a letter from Mr Chapman. So, sir, we would say that the level of dispute resolution - the various levels of dispute resolution procedure have not yet been completed. Sir, also we are having ongoing discussions with Mr Chapman in an endeavour to try and resolve this matter, and we have put forward a proposal to him about how the steps we would take to try and resolve his issues on an individual level and that those - that exercise has not yet been exhausted, sir.

PN114

THE SENIOR DEPUTY PRESIDENT: Well, in that case no doubt you will continue those discussions. What powers do you say that 11.1.4 of the award allows me to exercise in relation to this? 11.1.3 suggests that the dispute resolution process can involve one only employee, and then 11.1.4 envisages the involvement of the Commission. In what way?

PN115

MS PORTER: Sir, it is my submission that 11.4.1 does give the Commission the - - -

PN116

THE SENIOR DEPUTY PRESIDENT: 11.1.4?

PN117

MS PORTER: Sorry, 11.1.4 does give the Commission jurisdiction to deal with a matter if it has been raised by the union or by a group of employees, but it does not actually give the Commission jurisdiction to deal with a matter being brought by an individual.

PN118

THE SENIOR DEPUTY PRESIDENT: Why not? The whole process talks about "an employee" or "employees", then 11.1.3 says:

PN119

If the issue involves more than one employee, the employees involved may...

PN120

do something, and then 11.1.4 says:

PN121

If the matter remains unresolved, the Commission can take action consistent with its powers.

PN122

Are you saying that when there is only one employee involved that clause 11.1.4 has no work to do?

PN123

MS PORTER: That is our submission, sir.

PN124

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, anything?

PN125

MS PORTER: No, sir. Thank you.

PN126

THE SENIOR DEPUTY PRESIDENT: Yes, well, I am going to need to reserve on this jurisdictional matter. I commend to the parties that they continue their discussions. Mr Chapman, I suggest that you contact Mr Hopkins and Mr Lunt again, because it appears that your communication may have got lost in the post, as it were, and those gentlemen apparently should be involved according to the dispute-settling procedure.

PN127

MR CHAPMAN: May I respond?

PN128

THE SENIOR DEPUTY PRESIDENT: But you seem to have got to a level at any stage where you are now in discussions with the HR department, so that may be - it may not be necessary to go to those levels, but Australia Post may or may not seek to raise that as an objection. If I find that there is jurisdiction, and so you need to resolve that issue between you, but I commend that the parties engage in further discussion. I am unlikely to be able to issue a decision on jurisdiction in the immediate short term in any event.

PN129

There are decisions that relate to the powers of boards of reference and the power of the Commission in relation to section 170LW of the Act that have not been referred to that, no doubt, have some bearing or may have some bearing on the issue, and I will need to research those matters. Mr Chapman, I understand you are not in a position to assist me because you are a layman. Is there anything else? We will adjourn this matter and if the parties reach a resolution, would you please notify my chambers.

ADJOURNED INDEFINITELY [11.44am]