C2003/6343, Transcript of Proceedings [2004] AIRCTrans 38 (8 January 2004)

AUSCRIPT PTY LTD
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 10731
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2003/6343
C2003/6344
C2003/6345

COMMUNITY AND PUBLIC SECTOR UNION

and

DEPARTMENT OF JUSTICE and OTHERS

Notifications pursuant to section 99 of the Act
of an industrial dispute re alleged failure of
the employer to adhere to the provisions of the
Commissions Exceptional Matters Order of 31 October
2003 in matter C2003/368

MELBOURNE

10.03 AM, FRIDAY, 12 DECEMBER 2003

PN1

MR P. EWER: I appear on behalf of the Community and Public Sector Union, together with MS K. DOUGLAS.

PN2

MR L. FREEBURN: I seek leave to appear for the Department of Justice.

PN3

THE COMMISSIONER: Thank you. Any objection to the application for leave?

PN4

MR EWER: Yes, Commissioner, the CPSU objects strongly to the appearance of counsel in this matter. The Union was only advised at 9.30 of the Department's intention to engage counsel for these proceedings. And secondly, we believe the matter to be one of administrative process in the first instance, and for that reason, believe that the conference with Commission will take the parties some way forward. If the Commission pleases.

PN5

THE COMMISSIONER: Mr Freeburn.

PN6

MR FREEBURN: Well, in light of what Mr Ewer has just said, it is probably not necessary for the Commission to determine the question at this stage, as to leave. Mr Ewer is going to seek the Commission to adjourn into conference. The basis upon which we seek leave is that the allegation which is made against the Department is that the Department has failed to adhere to the terms of an order made by the Commission, and that is a serious allegation that the Department takes very seriously.

PN7

Involved in that allegation would be questions of interpretation of the exceptional matters order, which we are alleged to be in breach of. Associated with that, is that there has been no allegation of industrial misconduct. It is simply a beach of the order which seems to have been alleged. The breach of an order raises serious legal consequences, and in those circumstances - - -

PN8

THE COMMISSIONER: And not a matter for me.

PN9

MR FREEBURN: And not a matter for you, Commissioner.

PN10

THE COMMISSIONER: In the first instance.

PN11

MR FREEBURN: Yes.

PN12

THE COMMISSIONER: Yes, I follow.

PN13

MR FREEBURN: So there are those other considerations which, while we say leave should be granted, but, as we say, if the intention is to adjourn into conference it is probably not necessary that the Commission determine this issue at this stage.

PN14

THE COMMISSIONER: Yes. What is the intention, Mr Ewer?

PN15

MR EWER: Our intention, Commissioner, would be to place our contentions on transcript in the first instance. Presumably the Department will wish to reply on the same terms, and then seek an adjournment into conference.

PN16

THE COMMISSIONER: Very well. Well, I won't yet rule on Mr Freeburn's application, but I will hear what you have to say about what you say is going on. What gives rise to the application - the notification.

PN17

MR EWER: If the Commission pleases. Could I hand up a piece of correspondence from the Department of Justice to members of the CPSU? And we would tender that, Commissioner.

PN18

THE COMMISSIONER: Yes, thank you.

EXHIBIT #CPSU1 LETTER FROM DEPARTMENT OF JUSTICE TO MEMBERS OF CPSU

PN19

MR EWER: I have, to protect the innocent, removed the name and address of the person who received this correspondence for obvious reasons, but I think it would be agreed between the parties that the CPSU1 is representative of the art. Our contention, Commissioner, is that the letter that people are receiving in the Department of Justice is not in accordance with the Commission's Exceptional Matters Order, and in particular clause 4.2 of the order dealing with the over-grade reviews.

PN20

As we comprehend CPSU1, it is a generic letter, a broadcast letter, if you like, which has gone to everybody who is, by virtue of their salary equation, falling within the potential over-grade review category, and that the Department has failed to adhere to the terms of clause 4.2 in the Commission's Exceptional Matters Order, which, as you will recall, Commissioner, places the over-grade review process in conditional terms, not absolute terms, as CPSU1 indicates. And if I could take you to clause 4.2 of the exceptional matters order for a moment:

PN21

All positions classified in a band that have been identified by the relevant manager as having a pre-translation salary level that falls within a higher grade maybe subject of review.

PN22

And you will see the terms of CPSU1 are couched such that you will be subject to an over-grade review by virtue of the salary point on - of migration, if you like, to the new structure. So we say that the conditional nature of the over-grade review process has not been fully explained to people. And then if I take you to the double asterisks which attach to the relevant paragraph in 4.2, which takes us to the final paragraph in the exceptional matters order.

PN23

Firstly, of course that annotation rests the work value presumption in favour of the employee, but then secondly, the notification of an over-grade review must follow a prima facie case that the work value of the employee does not meet the requirements of the new descriptors, in the opinion of the manager. We say that that process has not been conducted in the terms of CPSU1 and that CPSU1 therefore fails to adhere to clause 4.2 of the exceptional matters order. If the Commission pleases.

PN24

THE COMMISSIONER: Very well. Well, you are content to adjourn into conference?

PN25

MR EWER: Depending on whether the Department wishes to - - -

PN26

THE COMMISSIONER: Well, I haven't granted Mr Freeburn leave yet, so I can't hear him.

PN27

MR EWER: To facilitate matters, we would be prepared to move into conference, yes.

PN28

THE COMMISSIONER: Very well. We will adjourn into conference, and your rights will be retained, of course, Mr Freeburn.

PN29

MR FREEBURN: Yes, Commissioner. I note that while the Union has put their position, we haven't yet put our position in respect to these matters - - -

PN30

THE COMMISSIONER: Yes.

PN31

MR FREEBURN: And we would reserve our rights, of course.

PN32

THE COMMISSIONER: Of course. The matter is adjourned into conference.

SHORT ADJOURNMENT [10.11am]

RESUMED [11.40am]

PN33

THE COMMISSIONER: I have conferred with the parties in conference and a proposition has come forward that will mean - from the Department, that will give rise to an absolute focus being placed upon those persons who would not be the subject of any doubt in relation to the translation to the new structure, and could therefore be advised that they were no longer on the over-grade review, some priority could be given to those persons, and answers given prior to 26 December. I make no observations about the relative merit of the issues that are between the parties, although I haven't heard publicly yet from the employer. But I believe the approach that is going to be adopted is a prudent one.

PN34

What I propose to do is simply adjourn at this stage, and I will if necessary, re-list the matter prior to Christmas to determine the issues raised by the Union should that be necessary. If, for example, the Department is able to advise people prior to the 26th that there can be confirmation to the new position because of a prima facie examination of the work that they do, then it may be that no issue arises. I leave it to the parties to advise me as to whether or not a further hearing is necessary.

PN35

I will ask Auscript if they would produce this transcript as quickly as possible and I will ask the - just the final announcement - as quickly as possible, and I will ask the Registry to put the transcript on the Net as quickly as possible, so that all can access it. Fortunately I can call upon the spirit of Christmas and goodwill from Auscript at this time of the year. Other than that, if I don't see the parties between now and Christmas, I wish them the Compliments of the Season and a safe and exciting 2004. The matter is adjourned.

ADJOURNED INDEFINITELY [11.44am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU1 LETTER FROM DEPARTMENT OF JUSTICE TO MEMBERS OF CPSU PN19