C2003/6579, Transcript of Proceedings [2004] AIRCTrans 64 (8 January 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N F5821
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2003/6579

HEALTH SERVICES UNION
OF AUSTRALIA

and

BALLARAT HEALTH SERVICES

Notification pursuant to section 99 of the Act
of a dispute re employee's application for
leave without pay.

MELBOURNE

10.19 AM, MONDAY, 15 DECEMBER 2003

PN1

MR T. RICHMOND: I appear for the Health Services Union of Australia with MR A. CASHIN.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Richmond. Have you any idea why there is nobody here from the Ballarat Health Services?

PN3

MR RICHMOND: Your Honour, we are not aware of any reasons why the Ballarat Health Services have yet to make an appearance this morning. However, Mr Cashin did recognise an employee of Ballarat Health Services in the foyer of the Commission building as we were walking in, so we do suspect that they are nearby.

PN4

THE SENIOR DEPUTY PRESIDENT: Well, they should be here. Anyway, go ahead. What is this all about?

PN5

MR RICHMOND: Thank you, your Honour. This application relates to one employee, Mr Ambrose Cashin, who is a registered psychiatric nurse in the Ararat Region, or the West Grampians area, of the Ballarat Health Service. Mr Cashin has been a psychiatric nurse for 15 years, working in various locations, but for a significant period of time in the Ararat area. Throughout the course of 2003, he has undertaken, in his own time, a course in paramedicine, for which he has now applied for 12 months leave without pay to consolidate his training and take up a temporary position with the Rural Ambulance Service. Your Honour, it is submitted that this request is consistent with the decision of Commissioner Blair in print T1223.

PN6

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

PN7

MR RICHMOND: Yes, I do. I have got a copy of the section that is relevant. The decision deals with a number of matters.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN9

MR RICHMOND: If I could take you to the bottom of the second page, your Honour. It states that:

PN10

The parties are to develop and agree a facilitative arrangement for the application and granting of leave without pay for...

PN11

and then there are four dot points underneath, and obviously we say in relation to Mr Cashin's request that it is consistent with the first two being professional development and study and career opportunities.

PN12

The Ballarat Health Service declined Mr Cashin's request for leave without pay on the basis that they didn't believe it was consistent with flexible working arrangements or leave taking arrangements with their Service. The union contends, however, that there are a number of reasons why it would in fact be beneficial to Ballarat Health Services to grant Mr Cashin his leave. The first is that, your Honour, Mr Cashin is not proposing to take a position with a completely unrelated occupation. Indeed, he would be remaining within the health sector.

PN13

His professional work would benefit, in our submission, from the experience that would come with working as a Rural Ambulance officer, and indeed there are some similarities between the work of a psychiatric nurse and the work of an ambulance officer. They are both required to make assessments about the mental state of particular clients, to provide crisis treatment, and accident and emergency assistance. So we say that the opportunity for Mr Cashin is also an opportunity for Ballarat Health Service to indeed have a better qualified employee.

PN14

The opportunity also arises with Mr Cashin's absence to have an employee fill his position with the Ballarat Health Service, and indeed the Health Service has the opportunity to assess Mr Cashin's replacement in terms of their suitability for the service without actually having to offer them a full time, ongoing position. And indeed, your Honour, it goes without saying that we are talking about a part of Victoria that doesn't have a large supply of experienced psychiatric nurses applying for positions, and it has been in the past, and were they here today I am sure they would agree that it has been, in the past, difficult to fill - - -

PN15

THE SENIOR DEPUTY PRESIDENT: Can you just excuse me a moment. Lisa, there are some people at the door. See if they are from the Ballarat Health Service, will you? Yes, keep going.

PN16

MR RICHMOND: So in our submission, your Honour, it is in fact a mutually beneficial request that Mr Cashin is making. He would have the opportunity to be exposed to a different work environment, to acquire new skills, to make a contribution to his community in a different way to that which he has done up until now, and the Health Service have the benefit of assessing a new employee in Mr Cashin's role, with a view to perhaps employing that person on an ongoing basis in the future.

PN17

So we say that there isn't a cogent operational reason why Mr Cashin's request has been refused, and indeed the Ballarat Health Service, as we understand, have in fact granted leave without pay applications to various employees over recent time. The argument that they have put forward for refusing the leave is that Mr Cashin intends to pursue a permanent job with the Rural Ambulance Service, and whilst, your Honour, we are not going to deny that that is a possibility, we would say that there is some - well, there is a flaw in the logic of the refusal, because effectively what they are forcing Mr Cashin to do is make a decision now and indeed he would need to resign pretty much today, your Honour.

PN18

And I thank the Commission for listing this matter at such short notice, but it really doesn't seem to make a lot of sense, your Honour, to say to an employee, "Well, there is a possibility of you taking on this other position, but we want to make it a certainty by forcing your hand, as it were." So, your Honour, I don't propose to add to those remarks at this point in time, unless you would like me to do so, but that is the basis upon which we have made this application, and sought an urgent hearing of it.

PN19

THE SENIOR DEPUTY PRESIDENT: Is there a certified agreement binding the employer and the HSU?

PN20

MR RICHMOND: There is, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: And is there anything in the certified agreement that requires the employer to provide leave without pay?

PN22

MR RICHMOND: There isn't, your Honour, and that is why I referred you to the Blair decision. The - - -

PN23

THE SENIOR DEPUTY PRESIDENT: The opening to that decision indicates that it was intended that a certified agreement incorporate these matters.

PN24

MR RICHMOND: That is true, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: But that hasn't happened.

PN26

MR RICHMOND: The certified agreement has not yet been certified, I understand it is working its way through the system, but as of now, and to the best of my knowledge, the only reference to leave without pay provisions is from print T1223. I stand to be corrected on that issue, but certainly in the discussions that have taken place between the Union and the Health Service, that is the only reference that has been referred to.

PN27

THE SENIOR DEPUTY PRESIDENT: Well, why should I interfere with the management prerogative to determine whether to grant leave without pay or not?

PN28

MR RICHMOND: Well, your Honour, we are seeking the powers of the Commission to conciliate - - -

PN29

THE SENIOR DEPUTY PRESIDENT: What powers?

PN30

MR RICHMOND: Rather, sorry, we are seeking the assistance of the Commission to try to conciliate this matter, because we believe that some sensible discussion with your assistance may in fact lead us to a resolution. We do respect that the employer has the right to refuse various types of leave, applications as they are made by employees, but we believe, respectfully, in this case, that the basis for their refusal is not a valid one.

PN31

And that unless there are, as I said, operational reasons why Mr Cashin ought not be granted the leave, that the spirit of the Blair decision is that he should be granted such leave. Were the Ballarat Health Service to come here to day and say that it was impossible for them to replace Mr Cashin, then I guess we would understand that, and we would respect that, however that is not the position as I understand it.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Richmond.

PN33

MR RICHMOND: Thank you, your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes, some other people have sat down at the bar table about five or six minutes ago. I assume they are representing the employer. Is there an appearance?

PN35

MS P. ROBINSON: I appear on behalf of the Victorian Hospitals Industrial Association with MR K. STEWART and MR T. OLSEN. Our apologies, your Honour, for our lateness in getting here. Unfortunately I was briefed - - -

PN36

THE SENIOR DEPUTY PRESIDENT: I don't need a reason. 10.15 is 10.15. If you are not here, we start. Now, why doesn't the employer want to grant this gentleman leave without pay for a year.

PN37

MS ROBINSON: The gentleman in question - having only been briefed 15 minutes ago - has a sufficient amount of annual leave and long service leave. My understanding is that he was granted permission to access two days a week - and I will have to refer to my clients if I have got this incorrect - two days a week since January to undertake study leave for his ambulance training, and then when he completed that training leave he has then asked his line manager if he could take leave without pay.

PN38

A consultation was had with management in relation to this and it was denied on the basis that it wasn't relevant to his position within the Health Service. However, the Health Service was happy or pleased to discuss arrangements to be flexible about his existing annual leave and long service leave entitlements, because I understand that he has got quite a lot of outstanding entitlements in relation to that leave that could be provided to allow him the time that he wants off to undertake a position as an ambulance office, and we understand it is a position for only six months, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: I thought it was 12 months. I think Mr Richmond said he wanted leave for 12 months.

PN40

MS ROBINSON: All right, sorry. I stand corrected, your Honour.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes.

PN42

MS ROBINSON: Your Honour, we would foreshadow that in relation to following a grievance procedure in relation to this we understand the time commitments, but in relation to the application there has only been, I suppose, two steps in relation to the grievance procedure that has been adhered to, in that it has been referred to the line manager, it was denied by the line manager, and then there was an application made for review of that. So certainly it hasn't - - -

PN43

THE SENIOR DEPUTY PRESIDENT: An application for review by whom?

PN44

MR STEWART: The application was directed to the Chief Executive Officer, your Honour, and an internal review was conducted involving discussions with Mr Cashin to try and resolve the matter. In the course of those discussions, as Paula has alluded to, an offer was made to use the leave that Mr Cashin had available as a means of resolving the matter, but that wasn't an option that could or would be taken up.

PN45

And so on that basis, given that the role that Mr Cashin seeks to undertake we believe has no bearing on the position he is employed within the Health Service, and in effect he appears to be making a decision in relation to his future career direction, we felt that - the Chief Executive who has the discretion to approve such leave for a length of 12 months was certainly of the view that it wasn't one that he felt able to support.

PN46

MS ROBINSON: Your Honour - so in any event, we would submit that the grievance procedure hasn't been fully facilitated in relation to this issue.

PN47

THE SENIOR DEPUTY PRESIDENT: Well, until somebody gives me a copy of the certified agreement, I don't know what the grievance procedure requires. We weren't able to unearth a copy this morning in the time available. I would have thought, Mr Richmond, that it might have been desirable if you handed up a copy of the certified agreement.

PN48

MR RICHMOND: Your Honour, I had similar problems in terms of extracting a copy of the certified agreement, and I apologise for the fact that I wasn't able to supply you with a copy of it.

PN49

THE SENIOR DEPUTY PRESIDENT: Do you have one, Ms Robinson?

PN50

MS ROBINSON: Your Honour, I do, but it is my only copy because I flew out of the office.

PN51

THE SENIOR DEPUTY PRESIDENT: What does the - - -

PN52

MS ROBINSON: But I can tender up the grievance procedure.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, please. Just pass it to me. In any event, Mr Richmond wants to go into conference. What do you say about that?

PN54

MS ROBINSON: We are happy to proceed into conference, your Honour, in relation to this matter.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes, well there do seem to be some steps that haven't been taken in the grievance procedure. Well, shall we adjourn this matter into conference? Yes. We will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED