C2004/1011, Transcript of Proceedings [2004] AIRCTrans 724 (25 February 2004)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL O/N 1401

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

C2004/1011

THE AUSTRALIAN WORKERS' UNION

and

TRANSADELAIDE

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

ADELAIDE

10.37 AM, THURSDAY, 12 FEBRUARY 2004

PN1

THE COMMISSIONER: Perhaps we will take appearances, to begin with. I follow the normal practice in these matters of just getting the basic facts on the record and adjourning to conference, but I think this is your notification, Mr Braithwaite?

PN2

MR J. BRAITHWAITE: Yes. I appear for the Australian Workers' Union. Appearing with me is MR JUSTIN HANSON and with me is MR KLAJIC, whose matter is before the Commission.

PN3

MS L. GENTILCORE: I appear for TransAdelaide and appearing with me today is MR P. WELSBY. Thank you.

PN4

THE COMMISSIONER: Okay, Mr Braithwaite, what is this all about?

PN5

MR BRAITHWAITE: Thank you, sir. As per the notification, the dispute relates to the failure by TransAdelaide to grant Mr Klajic sick-leave for 18 January. Attached to the application was an application for leave for one day. Also attached to the notification was a certificate of sickness from Mr Klajic's medical practitioner and also attached to the notification was a letter from TransAdelaide titled: Sick-Leave Reversal. TransAdelaide, as I understand it, granted Mr Klajic sick-leave for 18th. They then wrote to him on 30 January, indicating - and I will just read it:

PN6

I refer to your application for sick-leave 18 January and subsequent payment of this leave. TransAdelaide has further considered this payment and wish to advise that the payment will be reversed. TransAdelaide does not accept backdated medical certificates and this forms the basis of our decision.

PN7

Essentially, I took from that, that TransAdelaide had a policy of not accepting backdated certificates. When that was investigated at the joint liaison consultative committee, with the general manager, I find that there is no policy in relation to backdated certificates. The situation with Mr Klajic is that he is an isolated individual whereby TransAdelaide has determined not to grant him sick payment for 18th. It needs to be noted that Mr Klajic has about 160 hours accrued sick-leave which suggests there has been no abuse of sick-leave. We would say that clause 14 of the TransAdelaide Infrastructure Certified Agreement 2001 - and I'm not sure whether the Commission has got a copy - - -

PN8

THE COMMISSIONER: I don't have a copy.

PN9

MR BRAITHWAITE: I've just taken the clause 14 sick-leave from the agreement and it states:

PN10

In any financial year, an employee may have paid sick-leave, subject to the employee having sufficient paid sick-leave entitlement -

PN11

which he has -

PN12

for two single day absences without the production of a medical certificate. All other entitlements to paid sick-leave will require the production of a medical certificate. The number of single day absences will revert to 4 in the event that the sick-leave clause is abolished during the life of the agreement.

PN13

Mr Klajic has fulfilled his obligation to paid sick-leave, based on the fact that he has presented a medical certificate. He has advised the employer of his illness and for TransAdelaide to refuse payment, is totally unreasonable and I contend that essentially, TransAdelaide are discriminating against Mr Klajic.

PN14

THE COMMISSIONER: Was this his first or second single day absence or has he had more?

PN15

MR BRAITHWAITE: I'm not sure.

PN16

THE COMMISSIONER: In the current financial year?

PN17

MR BRAITHWAITE: Two - he has had two single days.

PN18

THE COMMISSIONER: So this was the third one?

PN19

MR BRAITHWAITE: This would have been - - -

PN20

THE COMMISSIONER: This was the second one. Okay, so, well, if this was the second - in any financial year, an employee may have paid sick-leave for two single day absences without the production of a medical certificate. Well, I will get TransAdelaide to verify - - -

PN21

MR BRAITHWAITE: Verify it. If that is the case, then the issue of a certificate falls over. Notwithstanding that, he has provided a certificate. This matter, sir, is also before the Worker's Comp Tribunal. Not so much the Sunday, 18th, but a dispute over the rehabilitation plan. I've been provided with a book of documents from TransAdelaide in relation to that matter. In that book of documents, there is, I would say, further evidence of the discrimination against Mr Klajic and I would seek the Commission's permission just to read a paragraph from one of those documents. If the Commission would like to hear it off transcript, I am happy to - - -

PN22

THE COMMISSIONER: Any objection?

PN23

MS GENTILCORE: It is not really what we are here for today, though, Commissioner.

PN24

THE COMMISSIONER: Yes. Perhaps when we get into discussion, if need be.

PN25

MR BRAITHWAITE: Sir, we would seek a direction from the Commission that TransAdelaide pay Mr Klajic his sick-leave payment for 18th, based on the fact that he has fulfilled his obligations in respect to the enterprise agreement and the award, if the Commission pleases.

PN26

THE COMMISSIONER: Thanks. Ms Gentilcore?

PN27

MS GENTILCORE: Thanks, Mr Braithwaite. Commissioner. The facts today here from TransAdelaide, are that Mr Klajic has been employed as a rail worker since 6 January 2003. He was previously re-deployed following the loss of the bus business in April 2000. As Mr Braithwaite mentioned, he is employed under the TransAdelaide Infrastructure Certified Agreement 2001 and the Rail Industry TransAdelaide Award 2002. The sequence of events, as understood by TransAdelaide, are as follows: at the end of a meeting on 17 January 2004, Mr Klajic was asked by his supervisor if he would like to work Saturday as an overtime shift. Mr Klajic agreed.

PN28

At the end of working his Saturday overtime shift, Mr Klajic indicated to his supervisor that he would see him on Monday. At that time, his supervisor explained to Mr Klajic, that Saturday was, in fact, an overtime shift, as he had indicated on the previous day and he was required to work Sunday as his normal rostered work. Mr Klajic was rostered to work from 6 am on Sunday, 18 January, as his normal work rostered pattern, which he has been working since January 2003, with the exception, when they work Saturday nights and when he is on Worker's Compensation.

PN29

Four other employees also worked Saturday, as an overtime shift and Sunday as their normal rostered work. Mr Klajic called his supervisor on Sunday, 18 January, at approximately 7 am, to inform him he was not going to be at work as he was not feeling well. There was no mention of a sore wrist, shoulder or neck at that time. It should be noted, Commissioner, that Mr Klajic did not provide TransAdelaide with any notice prior to his commencement of his shift, which was due to start at 6 am. TransAdelaide's personal and other leave policy, which I have an exhibit if you would like that, Commissioner.

PN30

THE COMMISSIONER: Now, what am I looking at here?

PN31

MS GENTILCORE: Yes. I will just get to where we are looking at. We are looking at point number 23. No, sorry - - -

PN32

THE COMMISSIONER: Now, I've got corporate policy and human resource policy. They - - -

PN33

MS GENTILCORE: Sorry. We are looking at the procedure, point number 6 of the procedure - so page 1 of 2 of the procedure. It should be at the back there.

PN34

THE COMMISSIONER: When you say the procedure, now, I've got a corporate policy here and I've got a human resources policy. Which is the procedure?

PN35

MS GENTILCORE: Yes. The procedure should be at the back of the policy, at the last two pages.

PN36

THE COMMISSIONER: The human resource policy?

PN37

MS GENTILCORE: Policy and procedure.

PN38

THE COMMISSIONER: Okay.

PN39

MS GENTILCORE: Have you got that one.

PN40

THE COMMISSIONER: Well, what are you referring to here? Clause?

PN41

MS GENTILCORE: Clause 20 to - no, clause 6. Page 1, clause 6, of the procedure.

PN42

THE COMMISSIONER: Yes.

PN43

MS GENTILCORE:

PN44

Unless business awards - unit awards and agreements state otherwise, employees are required to provide a minimum of 2 hours notice, where practicable, to their manager if they will be absent due to illness, and indicate the time and day that they will resume work, on the day prior to resuming work.

PN45

MR BRAITHWAITE: Excuse me on this one. Where are you? I just can't find that.

PN46

MS GENTILCORE: On the yellow tab.

PN47

MR BRAITHWAITE: On the yellow tab. Yes.

PN48

MS GENTILCORE: The second page to the back. Page 1 of 2.

PN49

MR BRAITHWAITE: Page 1 of 6.

PN50

MS GENTILCORE: Yes. So go to the end of the document and the procedure should be there. Sorry. Excuse me. Procedure - so it is the highlighted clause, Commissioner.

PN51

THE COMMISSIONER: Yes.

PN52

MS GENTILCORE: On Monday 19 January 2004, according to the supervisor, Mr Klajic approached him and asked if the Saturday overtime worked could be paid as the normal rostered Sunday work. The supervisor declined this as Mr Klajic had called in sick and unfit for duty and requested that Mr Klajic provide a medical certificate to get Sunday as paid sick-leave. Mr Klajic was required to provide a medical certificate for his absence as he has already used his two single day absences without a medical certificate, allowing - - -

PN53

THE COMMISSIONER: In the current financial year.

PN54

MS GENTILCORE: Correct - in the financial year, in accordance with that clause 14 of the certified agreement. I do have payroll records here to substantiate that as well, if the Commissioner would like. The medical certificate, which I believe all parties are in possession of - - -

PN55

THE COMMISSIONER: Yes.

PN56

MS GENTILCORE: - - - received by his supervisor on Thursday 22 January 2004, is actually five days after and including the day of the actual absence. The supervisor signed the application of leave form and forwarded it to payroll for payment. The certificate was subsequently queried with human resources for advice on the payment as the certificate was substantially backdated and unusually amended by the certifying medical practitioner.

PN57

THE COMMISSIONER: Sorry, and unusually?

PN58

MS GENTILCORE: Amended.

PN59

THE COMMISSIONER: How do you mean? I see. Yes. In his opinion, instead of "in my opinion". It is unusual, isn't it? Yes. All right.

PN60

MS GENTILCORE: Human resources referred to the policy and procedure, which I just handed out as an exhibit, for sick-leave absences. It also sought the opinion of the Australian Medical Association, the Medical Board and the Commissioner for Public Employment prior to determining that the sick-leave application should not be paid and advised payroll and Mr Klajic accordingly. The decision was based on the following: the AMA principles - which I also have a - that is the pink sleeve.

PN61

THE COMMISSIONER: Yes. AMA Principles.

PN62

MS GENTILCORE: Point 9.

PN63

THE COMMISSIONER: Now, this is a document that the AMA issues, is it - - -

PN64

MS GENTILCORE: Correct.

PN65

THE COMMISSIONER: - - - in regard to certificates.

PN66

MS GENTILCORE: Backdating of certificates and the Medical Board support that.

PN67

THE COMMISSIONER: Yes.

PN68

MS GENTILCORE: So whereby it does provide the medical practitioner the right to certify that a period of illness occurred prior to the date of examination, however careful consideration needs to be given, particularly for minor, short term illnesses which is demonstratable on the day of examination, and add supplementary remarks, where appropriate, to explain any discrepancy. Furthermore, where there is no evidence of the condition with which the patient claims to have suffered, the practitioner should consider completing a letter of support.

PN69

Based on the amendments made to the medical certificate, it appears that little if any consideration was given by the medical practitioner according to the statement - the AMAs position on the statement - as it would be difficult for any medical practitioner to certify five days from the date of absence. Neither was there any supplementary remarks on the certificate or a letter of support, provided by the medical practitioner to support the injury or illness, reinforcing TransAdelaide's decision to withdraw the payment made to Mr Klajic. It should also be noted that Mr Klajic worked on Saturday and made no mention that he had a sore wrist, shoulder, or neck pain.

PN70

Furthermore, Mr Klajic also worked on the Monday, Tuesday and Wednesday following the Sunday absence, without displaying any of the symptoms. Upon speaking with the Medical Board, they advised that the backdated certificates should be within 24 hours also, of the period absent. This certificate was the fifth day of absence, including the day of absence. Advice from the Commissioner of Public Employment, Government's determination number 6, leave - I have that here if you would like to see that as an exhibit.

PN71

THE COMMISSIONER: Yes.

PN72

MS GENTILCORE: I refer to "granting sick-leave", on page 10.

PN73

THE COMMISSIONER: Yes.

PN74

MS GENTILCORE:

PN75

The employer is to be satisfied that an employee is unable to perform duty because of illness. They must grant the employee sick-leave on full pay subject to the application being supported by providing a medical certificate or other approved certificate.

PN76

TransAdelaide is not satisfied, based on the evidence provided. In TransAdelaide's opinion, the medical certificate is inadequate and is not a true certificate, that is, it does not demonstrate that is in the certifying doctor's opinion. The doctor has modified the certificate to indicate that it was in the opinion of his client - patient - Mr Klajic, and that he, being the patient, claims that he was unfit for work on 18 January 2004. The dispute avoidance settlement procedure has not been used for this grievance and the process undertaken by Mr Braithwaite, from the Australian Workers' Union has been the following: he notified TransAdelaide Human Resources, on Thursday 5 February at approximately 1 pm, that correspondence had been received by his member, Mr Klajic.

PN77

Mr Braithwaite informed human resources that the reversal was illegal and unless the decision was reversed, he would be lodging a dispute with the Commission. TransAdelaide advised Mr Braithwaite that the matter would be looked into and they would be in contact within the next few days. TransAdelaide promptly followed up the matter and on Monday 9 February, left a message at the AWU office for Mr Braithwaite to return the call. On Tuesday 10th, the following day, at approximately 9.50, TransAdelaide received a fax from the AWU advising TransAdelaide of a notification of an alleged industrial dispute, under section 99 of the Workplace Relations Act.

PN78

An hour later, Mr Braithwaite returned TransAdelaide's call. Attempts were made to explain the reasoning for which TransAdelaide reversed the sick-leave payment, however it was quite obvious Mr Braithwaite was not prepared to discuss the matter. AWU advised that the matter would just have to be heard in the Commission. At 11.50 TransAdelaide received a subsequent fax from the Australian Industrial Relations Commission, advising of the hearing in the Commission for the alleged dispute lodged by the AWU. The relevant clauses in the dispute avoidance settlement procedure - I have a document here for that - that is the - - -

PN79

THE COMMISSIONER: I don't think any of these need to be made as exhibits. They are all awards, agreement and such like. So this is from - this is clause 24 of the - - -

PN80

MS GENTILCORE: Infrastructure Certified Agreement. Yes. That is correct, Commissioner.

PN81

THE COMMISSIONER: The certified agreement. Yes.

PN82

MS GENTILCORE: Do you need me to read through it? I have - - -

PN83

THE COMMISSIONER: Which particular one are you referring to?

PN84

MS GENTILCORE: Well, I'm looking from clause 24.2 to clause 24.5.

PN85

THE COMMISSIONER: Right. Well, let me just have a - yes, just read those through. Yes.

PN86

MS GENTILCORE:

PN87

Provided any grievance, claim or dispute relates to a local matter only and that settlement will not have a repercussive effect at other locations, the matter which is of concern will be discussed between the accredited local job representative and/or the employees concerned, and the immediate supervisor, who will make every effort to resolve the matter, including reference to management for assistance where necessary.

PN88

If the matter is not resolved by this means it will be referred to the organisation of the employee's delegate or official concerned, who will consult with the appropriate representatives of management who will, within 24 hours, or longer or shorter period as may be agreed, arrange a meeting to discuss the matter. 24.4:

PN89

In instances where the matter is not settled, the appropriate manager and organisations of employees, State or branch officers concerned, will be notified ...(reads)... the delegate concerned and by representatives of TransAdelaide.

PN90

24.5:

PN91

If the matter is not resolved in the manner set out above, TransAdelaide and the organisation of employees concerned will agree to seek the assistance of either ...(reads)... may be a member of the Australian Industrial Relations Commission.

PN92

To reiterate, the above dispute of procedure has not been followed by the AWU in the matter pertaining to Mr Klajic's sick-leave payment. No opportunity has been given to TransAdelaide by the AWU for TransAdelaide to resolve the issue without immediate recourse to the Australian Industrial Relations Commission.

PN93

Furthermore, if the grievance considered here today is lodged on the basis that Mr Klajic is not being treated fairly, then there is also a lack of procedure from Mr Klajic and the AWU in respect to TransAdelaide's fair treatment policy and procedures which I also have here as an exhibit, if the Commissioner would like.

PN94

THE COMMISSIONER: What is this exactly again?

PN95

MS GENTILCORE: The fair treatment - - -

PN96

THE COMMISSIONER: This is all part of the human source policies.

PN97

MS GENTILCORE: That is correct. So if they believe the matter is of a fair treatment nature we have got procedures to follow for that as well.

PN98

THE COMMISSIONER: There's a procedure for everything, isn't there? Yes, anything further?

PN99

MS GENTILCORE: TransAdelaide does not believe this matter constitutes an industrial dispute at this stage. I will just say, in summary, from the above it is quite clear that the AWU has made no attempt to follow the avoidance dispute settlement procedure that it has agreed to when signing certified agreement. I would submit that it is therefore premature for the Commission to be involved when the AWU has given TransAdelaide no opportunity to resolve the dispute. Thank you, Commissioner.

PN100

THE COMMISSIONER: Thanks, Ms Gentilcore. Anything you want to respond to there on the record, Mr Braithwaite?

PN101

MR BRAITHWAITE: I think it is important that I do make a couple of comments, sir. TransAdelaide say that we didn't file the disputes procedure. TransAdelaide issued a letter to the employee advising of a reverse of sick-leave arrangements. They were advised of the dispute. They continued to pursue that reversal and, we would contend, garnish wages in the next pay period that to me does not comply with the disputes procedure in relation to work that would continue normally. So irrespective of TransAdelaide's position, we believe we have fulfilled the obligations under the agreement and Mr Klajic has also.

PN102

The other thing I need to say in relation to the certificate, 18 January was a Sunday and the medical clinic was not open. Secondly, Mr Klajic had an appointment already arranged with regards to his workers comp, his wrist injury for the 22nd. The doctor issued a prescribed medical certificate on the 22nd indicating that:

PN103

After examining the worker, it is my opinion that he or she is suffering from shoulder -

PN104

I can't make that out now, shoulder and something something -

PN105

which is consistent with the medical certificate to the notification whereby in his opinion, being Mr Klajic, he was suffering from shoulder and neck pain.

PN106

Now, the practitioner didn't see Mr Klajic on the Sunday. Mr Klajic - Drago - woke up sore, took the view that he didn't feel well enough to attend work, and that fits with the prescribed medical certificate that the medical practitioner issued on the 22nd. If the Commission pleases. I have got something I want to say that supports the victimisation claims that I raised earlier, but I will do that off transcript.

OFF THE RECORD

NO FURTHER PROCEEDINGS RECORDED [11.01am]