C2004/1452, Transcript of Proceedings [2004] AIRCTrans 5042 (23 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Unit 13-14, Westlane Arcade, Darwin City Mall DARWIN NT 0800
(GPO Box 3544 DARWIN NT 0801) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 1093

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/1452

LIQUOR, HOSPITALITY AND MISCELLANEOUS
UNION-NORTHERN TERRITORY BRANCH

and

DARWIN CITY COUNCIL

Notification pursuant to section 99
of the Act of a dispute re alleged
breach of clause 15 of the certified
agreement re demotion of Nathan
Garrod

DARWIN

9.00 AM, WEDNESDAY, 15 DECEMBER 2004

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, I will take appearances please.

PN2

MR G. HULL: If it please the Commission I appear on behalf of the Liquor, Hospitality and Miscellaneous Workers Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Hull.

PN4

MR G. ROUSSOS: Your Honour, I am a solicitor at Cridlands in Darwin and I seek your leave to appear for the Darwin City Council. MS KELLY HOFFMAN is here also, the Human Resource Manager.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Is there any objection to leave, Mr Hull?

PN6

MR HULL: Thank you Senior Deputy President. The Liquor, Hospitality and Miscellaneous Workers Union opposes the application by counsel to appear in this hearing today. We do so on the grounds that section 42(3)(2)(3) of the Workplace Relations Act only provides for a party to be present in lieu of counsel, solicitor or agent by way of the following circumstances:

PN7

a) by leave of the Commission with the consent of all parties;

PN8

b) by leave of the Commission granted on application by a party if the Commission is satisfied that having regard to subject matter of the proceedings that there are special circumstances, that the party may so be represented; or

PN9

c) by leave of the Commission granted on application by a party if the Commission is satisfied that the party can adequately be represented by counsel, solicitor or agent.

PN10

We challenge all of the above circumstances on the grounds that a) we do not require consent, b) there are no special circumstances and c), your Honour, that Darwin City Council has a perfectly competent Human Resource Manager in Ms Kelly Hoffman who has been closely involved in the decision making process of this particular matter. Ms Hoffman is also currently working to develop a licensing policy for the Darwin City Council in the event this situation should arise again. She has intimate knowledge of the policies and the workings of Council and we believe that the introduction of legal counsel and this stage will only disrupt the proceedings here today and we request that you reject the application and allow the parties to discuss the matter.

PN11

THE SENIOR DEPUTY PRESIDENT: Mr Hull I am a bit unsure as to what the nature of the matter is other than being a section 99 notification concerning a demotion. I wonder if you could elaborate on what the nature of the matter is and also how you wish to proceed, that is, are you seeking some form of order or a conference?

PN12

MR HULL: It would be a determination we would be seeking today, Senior Deputy President and the matter is in relation to a member of ours who has been demoted recently for an offence that he was caught drink driving, a first offence, has an exemplary record over 10 years driving. He has been demoted by Council and we question the authority of Council to do that under the enterprise agreement. There is no provision under the agreement to demote. That is - - -

PN13

THE SENIOR DEPUTY PRESIDENT: So it will go in part to the operation of the agreement, is that correct?

PN14

MR HULL: Yes, Senior Deputy President.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Roussos, why should leave be granted in this matter?

PN16

MR ROUSSOS: Your Honour, the union has called an industrial dispute in this matter. The Council, and Ms Hoffman, seek assistance to navigate through it because it appears to in fact relate to an industrial dispute. We are trying to work out in fact the avenue chosen to resolve the matter of Mr Garrod and his apparent demotion. Your Honour, we are basically - the Council and Mr Garrod are in disagreement over a difference of I think $15 or so. He has dropped in pay from $669.49 - he has dropped in pay from $676.43 to $663.42. The question is, well, what do we do about that? The union has called this an industrial dispute and the Council has contacted us for assistance in resolving the application today which is why it seeks our involvement, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: Why is Ms Hoffman not able to appear herself and represent the Council in the matter?

PN18

MR ROUSSOS: Your Honour, it is not a question of not being able to appear as such but rather until the matter is clarified and Ms Hoffman has clarity as to where this is going and what it involves and what it means for the Council and what exposures there are, there is obviously a natural reluctance to, I suppose, make the wrong decision or wrong move, or not make the right decision. At this stage this is somewhat new, it has not happened before, as far as I understand it, as far as Ms Hoffman has informed me, and this approach adopted, that is to call an industrial dispute over this matter is new to the Council and until that is settled and clarified they sought assistance, your Honour. Otherwise, there is no issue for Ms Hoffman to deal with the matter.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, very well. What I propose to do is not immediately deal with the issue of leave. Perhaps I will hear from you in opening, Mr Hull, so that I can further clarify the nature of the matter, and the Council can do that, and then I will deal further with the application for leave.

PN20

MR ROUSSOS: Thank you, Senior Deputy President.

PN21

MR HULL: Senior Deputy President, this matter is brought before you today pursuant to section 99 of the Workplace Relations Act and is an alleged breach of clause 15 of the Darwin City Council Certified Agreement 2002.

PN22

THE SENIOR DEPUTY PRESIDENT: Clause 15 is the disciplinary procedure?

PN23

MR HULL: Correct. We aim to show today that the Darwin City Council was operating outside of its bounds to the current certified agreement when it made a decision to demote our member, Mr Nathan Garrod. We aim to also show that Mr Garrod's loss of licence has an inconsequential affect on the Darwin City Council or the team Mr Garrod works in.

PN24

Mr Garrod was recently charged with driving under the influence of alcohol and had his driver's licence suspended for a period of six months and fined a total of $580.

PN25

THE SENIOR DEPUTY PRESIDENT: And that was in what circumstances? Driving his personal vehicle, out of hours?

PN26

MR HULL: Yes it was. This was Mr Garrod's first offence over 10 years of driving and he admits that he made a stupid mistake on the night that he chose to drive and was charged. Mr Garrod immediately notified his supervisor the next day and told that he would face disciplinary charges in his workplace over the loss of his driver's licence. On 15 November 2004, Mr Garrod was handed a letter stating that his position required him to - - -

PN27

THE SENIOR DEPUTY PRESIDENT: I am sorry, what date?

PN28

MR HULL: 15 November.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN30

MR HULL: He was handed a letter signed by the parks manager, Mr David ....., stating that Mr Garrod's position required him to hold a licence to operate medium rigid vehicles or the ability to obtain. The letter went on to say:

PN31

The loss of your driver's licence has immediately reduced your capacity to perform the full range of duties as an assistant arborist and therefore impacts on the logistic arrangements in operation of the urban forestry management team.

PN32

The Council demoted Mr Garrod from the top increment at Level 4 to the increment of a Level 3 and this was a pay loss of approximately $40 per week. After protests from this union Mr Garrod was handed a further letter on 7 December 2004 stating that Council had reviewed their decision and Mr Garrod was now to be demoted to a Level 3, increment 3, for a period of one month and for the remaining five months Mr Garrod is to be paid at the Level 4, increment 1 rate of pay.Council has also declared - - -

PN33

THE SENIOR DEPUTY PRESIDENT: Sorry, can I just run over that again? Where did he start? At what level was he prior to the driving incident?

PN34

MR HULL: He was at the top increment of a Level 4 which is, I believe, increment 3.

PN35

THE SENIOR DEPUTY PRESIDENT: Increment 3. And then he was demoted on the 15th to what level?

PN36

MR HULL: Level 3, increment 3.

PN37

THE SENIOR DEPUTY PRESIDENT: Level 3, increment 3.

PN38

MR HULL: It is a full level drop.

PN39

THE SENIOR DEPUTY PRESIDENT: And then that was changed to Level 3 - sorry, I'm not with you. What was the - - -

PN40

MR HULL: The second letter stated - - -

PN41

THE SENIOR DEPUTY PRESIDENT: No, the first letter, where did that have Mr Garrod?

PN42

MR HULL: As a Level 3, on increment 3.

PN43

THE SENIOR DEPUTY PRESIDENT: All right, sorry, and the next letter then changed that to Level 3, increment 3 for one month, and Level 4, increment what?

PN44

MR HULL: Increment 1.

PN45

THE SENIOR DEPUTY PRESIDENT: Thereafter?

PN46

MR HULL: Yes.

PN47

THE SENIOR DEPUTY PRESIDENT: And how do the increments work? What is the basis of the incremental movement within the - - -

PN48

MR HULL: I believe it is a yearly correction.

PN49

THE SENIOR DEPUTY PRESIDENT: And that arises out of the 24(2)(1) which is referable to the Municipal Employees Award.

PN50

MR HULL: Yes, that is correct.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN52

MR HULL: Council has also declared that Mr Garrod is also to attend a mandatory five counselling sessions in his own time and as a further aspect of the - - -

PN53

THE SENIOR DEPUTY PRESIDENT: Mandatory what counselling session?

PN54

MR HULL: Alcohol and drug counselling session.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes.

PN56

MR HULL: As a further aspect in assisting any drug and alcohol or potential problem he may develop as an employee. That was stated in the second letter. I have since learned, informed just this morning, a few moments ago that Council no longer require Mr Garrod to do that. Council then docked Mr Garrod's pay without his consent to recover the monies which had been paid between the time of the first and second letters. There had been no docking of the pay until just recently when they docked his pay and demoted him.

PN57

Senior Deputy President, Mr Garrod works in a gang of nine workers all of whom hold the appropriate current driver's licences that are required by Council, however it is only four of these men who are actually required to drive these Council vehicles and the situation has never arisen where it is absolutely necessary for Mr Garrod to drive a Council vehicle. Mr Garrod is never required to work alone either and this being the case I cannot see a reason why Council should claim a loss of any sort. Mr Garrod has never been in trouble with the law prior to this incident, his driving record has been excellent for over 10 years and he is a well respected member of his work team and who poses no threat to Council, his co-workers or the public, Senior Deputy President.

PN58

Mr Garrod is currently paying a mortgage on a unit he purchased earlier this year and he has financial commitments on his own private vehicle. He is currently working three jobs to meet his financial commitments. Senior Deputy President, we say that Mr Garrod's loss of his driver's licence has no detrimental affect on the Darwin City Council or the work that he is employed to do as an assistant arborist. Mr Garrod is required to undergo mandatory counselling as a pre-requisite to getting his licence back and we are very happy that Council has seen the need to withdraw the five counselling sessions, the mandatory ones that they were insisting upon.

PN59

Senior Deputy President, we say that the law has dealt appropriately with Mr Garrod, he has suffered the loss of his driver's licence, the substantial fine and the humiliation of now having a criminal record and we say that the matter rests there. We say that the Council has no authority under the Darwin City Council Certified Agreement to make the decision to either demote Mr Garrod nor to dock his pay. No where in the certified agreement does it state that demotion is part of the disciplinary code and we seek assistance from the Commission today to determine our position. If it please the Commission.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, very well. I intend to grant leave to Mr Roussos. This appears to go to interpretation or the operation of the agreement and is probably more properly brought as a section 170(L)(W) application, but it is here now. I will grant you leave, Mr Roussos.

PN61

MR HULL: As the Commission pleases.

PN62

THE SENIOR DEPUTY PRESIDENT: Mr Roussos, what is the position of the Council?

PN63

MR ROUSSOS: Your Honour, as I understand Mr Hull the contention is that other employees have a direct industrial interest in the attitude and practices adopted by the Darwin City Council. I am not sure if that is the basis for referral as an industrial dispute.

PN64

THE SENIOR DEPUTY PRESIDENT: Well I think the basis of the matter in coming here is a dispute arising out of the operation of the agreement. As I indicated I think it would be more properly brought under section 170(L)(W) as a dispute as to the operation of the agreement, presumably by way of the, and I am assuming there is one, there must be if it was certified; the dispute resolution procedure of the agreement. I think it is brought on on that basis rather than trying to enliven an industrial dispute by reference to the other employees.

PN65

MR ROUSSOS: Yes, thank you, your Honour. I sought to clarify that because we were not sure whether the point was that there were a bunch of employees that were interested in this matter. Your Honour, simply, the Council has a job description and a position statement for each employee, including Mr Garrod. His position is Assistant Arborist, Level 4. There are certain objectives and key responsibilities to that position and one of the required skills is to be licensed to drive medium rigid trucks. As a result of his loss of licence that obviously is now absent for a period of time and during that period the Council, in recognition of the fact that Mr Garrod is now not able to perform his full functions, and I understand Mr Hull's point that there are other guys around that can do the work.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes. Was he ever performing that function of driving those vehicles?

PN67

MR ROUSSOS: I understand he was, yes. Your Honour, naturally we are happy to go away and review the situation. We received notice of this yesterday for today's hearing so we have not gone into the details of the certified agreement and the relevant provisions, in particular clause 15 and what that means, and whether in fact in encompasses an ability for the Council to do what it did.

PN68

THE SENIOR DEPUTY PRESIDENT: Well, what seems to have occurred is that Mr Garrod has been moved from a Level 4 position to a Level 3 for one month and after one month resumes at a Level 4 but at a lower increment.

PN69

MR ROUSSOS: Yes.

PN70

THE SENIOR DEPUTY PRESIDENT: The increments are unrelated to the substantive duties are they not? If you like, service related.

PN71

MR ROUSSOS: Yes, they are. That would need to be clarified your Honour. Both parties I can see are unclear as to the character of the increments so I think that is something we need to get definition on, but I take your point, your Honour, that if they are unrelated to his actual duties, well, there is an issue there.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, and that then raises a question in respect to the first month, of what is the difference between a Level 3 and 4. I cannot say it is immediately obvious from looking at the agreement.

PN73

MR ROUSSOS: Yes.

PN74

THE SENIOR DEPUTY PRESIDENT: Is there any definition in the agreement, either Mr Hull's or Mr Roussos'? Yes, there is, in schedule C. It is really a matter of whether there is an ability to determine - the type of work to be determined is being done by Mr Garrod, for example, to move him back to Level 3. I guess that is something that needs to be looked at more closely. Is there anything in the definition of Level 4 referring to motor vehicle - - -

PN75

MR HULL: Senior Deputy President, I do not believe that is the case. I believe it is in the duty statement.

PN76

THE SENIOR DEPUTY PRESIDENT: In the duty statement, I see, yes. Very well, yes, go on Mr Roussos.

PN77

MR ROUSSOS: Your Honour, now that those issues are clarified, your Honour, as a matter of logistics we would be happy to go away and examine those two issues. First of all what is the nature of the increment and what does it relate to? And second, what is the relationship between the levels? Third of course is does the certified agreement provide for this to occur in any event is the main issue. They I think, broadly, your Honour, and I have not articulated well, but I believe, broadly, they are the three issues to look into.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes. I mean there is a possibility of there being some overlap or I suppose an infinitesimal movement between classification issues and disciplinary issues and that needs to be clarified because clearly issues of clarification go to the agreement provisions in relation to the manner in which workers are classified within the employment of the Council and the disciplinary issues may well be totally unrelated to that classification process.

PN79

MR ROUSSOS: Yes. There is a fourth issue as well, your Honour, one that Mr Hull raised and that is the man has already been dealt with in one court and you know, you are dealing with him again adversely. I understand that point, I'm not sure that it is relevant, but we would be happy to throw it in as another issue to examine.

PN80

THE SENIOR DEPUTY PRESIDENT: Well I think there is also an issue of whether the - it is a six month period of loss of licence, is that correct? Whether that does have any real detrimental affect on the Council over that period of time. I do not know the answer to that because I am not out there with the gang and doing the work, so I have got no idea, but that is a real issue as well and I think that it is related to the point you just made, from Mr Hull, and if there is no real detriment then perhaps there is a case for saying he has erred in his own time, in his own vehicle and he has paid the price of the law and if there is no real detriment to the Council in terms of his ability to perform his work then perhaps it would be best being left at that. I do not know what the answer to that question about detriment to the Council is.

PN81

MR ROUSSOS: Thank you for that, your Honour, and certainly that is something that the Council can work on.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes, yes, very well. So you are suggesting that Council needs an opportunity to further consider the matter and have further discussions with Mr Hull?

PN83

MR ROUSSOS: Yes, I believe so, your Honour.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN85

MR ROUSSOS: I am happy to - to keep things organised and tidy I am happy to write down the issues, share them with Mr Hull and provide them to you, your Honour.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes.

PN87

THE SENIOR DEPUTY PRESIDENT: So that we know the questions we need to answer and we may be able to resolve it within a short space of time.

PN88

THE SENIOR DEPUTY PRESIDENT: That might be convenient so that I am at least aware of exactly what the parties are doing and obviously Mr Hull can bring the matter back either before myself or another Member if that is more convenient because I really have not gone far with the matter to date, and I have got to say I personally have a problem in January, or it is not a problem, it is leave, but it may be a problem for the parties if they require any further assistance in that period. There will be another member visiting, Commissioner Eames, in January in any case. Very well. Anything further from you, Mr Hull? Are you content to have the matter adjourned and have counsel further considers the matter raised and have some further discussions with you?

PN89

MR HULL: Certainly, Senior Deputy President.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Before I - well, I will adjourn and as I say the matter can be brought back on by yourself by advising my chambers and I will then discuss with you what will be the most appropriate means of bringing it back on, whether myself at a relevant time probably by video or whether by another Member visiting Darwin at the time.

PN91

Before adjourning I would like to note that due to administrative arrangements in the Commission this is in fact the last recording of proceedings by our Auscript reporters and I would just like to note my appreciation and to Pat and all her colleagues here in Darwin for the magnificent service that they have provided to the Commission and indirectly to the parties over a great many years. If you could pass that back to your colleagues I would be grateful.

ADJOURNED INDEFINITELY [9.25am]