C2005/255, Transcript of Proceedings [2005] AIRCTrans 2323 (8 November 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13297-1

SENIOR DEPUTY PRESIDENT DRAKE

C2005/255

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
AND
AUSTRALIAN TAXATION OFFICE
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/255)

SYDNEY

10.12AM, WEDNESDAY, 26 OCTOBER 2005

PN1

MR R MCPHEE: Your Honour, with me is MR J LAPIDOS, we appear for the Australian Services Union.

PN2

THE SENIOR DEPUTY PRESIDENT: From the union?

PN3

MR MCPHEE: Yes, an employee of the union.

PN4

MR A MILLETT: Your Honour, I'm an Australian Taxation Officer and my colleague from the office is MS P THORNELOE.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Millet. Yes?

PN6

MR MCPHEE: Your Honour, this dispute arose on 23 March 2005 when a member of ours, Mr Paul Mirabello, asked management for a support person in a rehabilitation meeting. That support person was Mr Max Simpson, who's a member of the union. Management refused to release Max from duty to attend that meeting as a support person. Management said that a rehabilitation meeting was not a formal meeting within the meaning of clause 4 of our ATO General Employees Agreement 2004; however, management did permit Max to attend that meeting as a support person, but provided he did so of his own time, which is what he did.

PN7

As a result, the union notified a step 1 dispute under clause 145 of the agreement. I'd like to tender a copy of that step 1 dispute notice if I could.

PN8

THE SENIOR DEPUTY PRESIDENT: Sorry, what my associate gave ….. notice of listing do you mind if we have Mr - - -

PN9

MR MCPHEE: No, no.

PN10

THE SENIOR DEPUTY PRESIDENT: Have you a copy, Mr Millett?

PN11

MR MILLETT: I do, thank you, your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes.

PN13

MR MCPHEE: If I could get that marked.

EXHIBIT #ASU1 STEP 1 DISPUTE NOTICE

PN14

MR MCPHEE: Your Honour, just to explain that notice. Step 1 notice is at the very top of the first page of that ASU1, but it comes on top of a series of emails between - cover the issues of release of our member Max Simpson to attend that meeting. I won't go into now, but there's a series of emails where the history of the application for him to be released from duty to attend that meeting is discussed between - Paul Mirabello, ASU management in the particular area, and Max Simpson.

PN15

The issue for us, your Honour, is that where members of the union are asked to act as a support person for another member in a rehabilitation meeting that that person be released from duty to attend that meeting so in effect they are getting paid while carrying out that task and that there is also a release from that person to speak to the member before and after a meeting if necessary or it's desired and similarly they would be released on duty to do that for a reasonably short period of time or whatever is required.

PN16

So, the resolution of this dispute is about application of clause 4 of the agreement. I don't know if you have a copy of our agreement.

PN17

THE SENIOR DEPUTY PRESIDENT: No, I actually don't. I've certainly seen it before, but I don't have it with me at the moment. I won't mark the agreement.

PN18

MR MCPHEE: No, no. If you could just turn to clause 4, the key provision here is of course 4.1. I'll read that:

PN19

Employees may have to support another person ...(reads)... management process of alleged breach of code of conduct.

PN20

So, subclause 4.1 sets out the application of clause 4, that is, when employees are entitled to have a support person. It sets out and describes the circumstances in which that is the case. For completeness I'll note that when clause 4.1 talks about a review of employment actions, that's a review of actions under the Public Service Act, which is not relevant to the dispute here. When it talks about an alleged breach of the code of conduct well that's also a matter dealt with by the Public Service Act and associated with the policies of the ATO, so that's not a relevant situation in this particular instance.

PN21

In brief, our argument is that a rehabilitation meeting is to be about a performance management process or a formal interview. We say, in those circumstances, an employee is entitled to have support. For further subclauses of clause 4 - - -

PN22

THE SENIOR DEPUTY PRESIDENT: Are any of these matters defined in the agreement?

PN23

MR MCPHEE: Formal interview is not defined, neither is a performance management process. I think that at clause 135 there are definitions of grievance. Grievance is said to mean a ….. review of an employment action as per the Public Service Act 1999. Where misconduct is defined, as well, that means a breach of the APS code of conduct. Apart from that, there's no definition of formal interview or performance management process. What we say is that those words should have their plain and ordinary meaning in the context of clause 4 and the agreement as a whole.

PN24

THE SENIOR DEPUTY PRESIDENT: All right.

PN25

MR MCPHEE: Subsequent provisions of clause 4 talk about the nature of the support person role, which is covered in clause 4.2. It starts off saying:

PN26

Such a person may attend any interview between the employee and management.

PN27

Clause 4.3 says:

PN28

Time spent on such activity -

PN29

That is, acting as a support person:

PN30

Shall be regarded as time on duty. Release from normal duty will be subject to operational requirements and prior approval from the employees team leader.

PN31

Clause 4.4 says:

PN32

A period of release will extend to the time of the actual interview, plus a reasonable time to assist the other employee before. and after the interview

PN33

Clause 4.5 merely notes that a member of the union can seek this type of support from a representative of the organisation. Whether that's a reference to a union official or a union employee is not particularly relevant here.

PN34

Your Honour, we'd like to call the two members, Mr Paul Mirabello and Mr Max Simpson to give evidence and if I could call Paul Mirabello.

PN35

THE SENIOR DEPUTY PRESIDENT: To what issue is their attendance here? Is it to establish the factual matters that occurred, is there some dispute that they were not allowed, that Mr Simpson was not allowed to attend except in his own time?

PN36

MR MCPHEE: I don't think there's any dispute about the factual matters, no.

PN37

THE SENIOR DEPUTY PRESIDENT: It's about the context of the meeting.

PN38

MR MCPHEE: Yes, it's to describe the nature of the meeting and what these meetings are about, in this instance.

PN39

THE SENIOR DEPUTY PRESIDENT: Okay. Is that not a matter on which you could agree?

PN40

MR MILLETT: I confess I'm uncertain as to what the witnesses will add.

PN41

THE SENIOR DEPUTY PRESIDENT: Well, why don't you have a conversation with that, both of you, it seems to me that what goes on in a rehabilitation meeting, the breadth of the issues likely to arise, etcetera, ought to be a matter easily resolved. If not, I'll hear the evidence, of course, but I'll give you five minutes to have a discussion, if you can't resolve that in five minutes we'll hear the witness evidence.

PN42

MR MCPHEE: Your Honour, I don't think there's any dispute about the factual matters. The purpose of giving this evidence was to describe the nature of what a support person does in those circumstances and the need for a support person in this type of meeting.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes, well, is the need for the support person disputed or just the obligation to pay for the support person?

PN44

MR MILLETT: Your Honour, through our health and safety area we recommend very strongly to managers it's our ….. that the managers use their discretion. We believe that this matter rests around the application of clause 4 of the agreement. We believe it does not pertain to return to work meetings.

PN45

THE SENIOR DEPUTY PRESIDENT: All right, in that case we'll hear that. So, Mr McPhee, do you think it's convenient to agree to those matters or do you think it's best served by calling the witnesses. It's your case.

PN46

MR MCPHEE: We would prefer to lead that evidence, yes.

PN47

THE SENIOR DEPUTY PRESIDENT: All right, let's do that. Do you want to call Mr - who?

PN48

MR MCPHEE: Paul Mirabello.

PN49

THE SENIOR DEPUTY PRESIDENT: Mirabello.

<PAUL MIRABELLO, SWORN [10.25PM]
<EXAMINATION-IN-CHIEF BY MR MCPHEE [10.25AM]

PN50

MR MCPHEE: Would you state your full name for the Commission please?
---Paul Mirabello.

PN51

And where do you work?---At the ATO call centre at Penrith.

PN52

Did you prepare a statement for these proceedings?---Yes I did.

PN53

Is that a copy of the statement?---Yes it is.

PN54

Is that statement true and correct?---Yes it is.

PN55

Can you tell the Commission what happened on 26 November 2004?---On that morning I was on the phone performing my normal duties and I received a series -in the one call - a series of acoustic shocks through the headset, which resulted in me feeling very ill, a dazed feeling, headaches and some other symptoms as I've mentioned in my statement there, including tinnitus as well, and I was feeling quite ill afterwards, later on after that I was asked to fill out an incident report form which is a normal procedure after that happens and I was assisted by Max Simpson to help me to fill out that and just give me some general support from there, before I then later went to a hearing examination at Health Services Australia at Parramatta.

PN56

Why in particular Max Simpson, do you know?---Because I'd known - Max was in my team at the time and I'd known Max for a while and I felt comfortable discussing it with him and I also knew that he'd had several incidents in the past of the same sort of nature as what I've experienced and I knew he would understand what I was going through and would give me a bit of support to bear with that because I knew him to be a pretty good bloke just in general.

PN57

All right, so you went to the doctor after you had the acoustic shock?---Yes, I went to my GP later that day and he issued me with a certificate and removed me from those duties and I returned to work - it was a Friday morning as I recall - and I didn't return to work until the Tuesday, which I think was the thirtieth after that.

PN58

So you got a certificate from your GP?---Yes, he gave me a medical certificate for the day off that I had and also a work cover certificate taking me off phone duties.

**** PAUL MIRABELLO XN MR MCPHEE
PN59

All right, so the certificate said you shouldn't do phone duties?---That's correct, no headset work.

PN60

So did your duties change, after that?---Yes, I was given other duties to do after that and then I returned to phone work on the, I think it was 14 December for three days, but I had some severe symptoms, headaches, etcetera, and I had to come back off. I then received another work cover certificate which then covered me from there onwards and I haven't been back on those duties since.

PN61

All right, and then what happened in March 2005?---In March I was speaking to Fiona Penfold who had just become my case manager at that time and she informed me that there was going to be a meeting, she had just informed me who Robin Piccard was, who was my rehabilitation provider, who was to be my provider, informed me of what his, just basically what he was, like, what his job was, and that we'd be having a meeting to, sort of basically just get to know, an information meeting to, basically a rehabilitation meeting to start the formation of any return to work plan that might be necessary, etcetera.

PN62

So, that happened in March 2005?---Yes.

PN63

The incident?---Was in November, yes, 2004.

PN64

Was that the first rehabilitation meeting?---Yes, that was the first time I even knew about rehab providers, etcetera.

PN65

All right, so that was four months later?---That's correct.

PN66

Do you know why that might have been the first one you had?---No, I don't really know, no, I expressed a couple of times that I was hoping things would start rolling, because I didn't know what my status was, or, you know, how that was going, but there wasn't really, didn't really have any idea as to why the delay was as long as it was.

PN67

All right.

PN68

MR MILLETT: Your Honour, I'm a little puzzled as to why we're going through the rehabilitation process as opposed to …..

PN69

THE SENIOR DEPUTY PRESIDENT: Well, it may be relevant background, I don't know yet Mr McPhee, but I won't let it go on too long. Yes, for the purposes of the meeting, I understand rehabilitation.

**** PAUL MIRABELLO XN MR MCPHEE
PN70

MR MCPHEE: Yes, no doubt.

PN71

Did you ask for a support person at that meeting?---Yes I did.

PN72

And who was that?---Max Simpson

PN73

And why Max, well firstly, why did you think you need a support person - - -

PN74

THE SENIOR DEPUTY PRESIDENT: Mr McPhee, I've read the statement.

PN75

MR MCPHEE: All right.

PN76

THE SENIOR DEPUTY PRESIDENT: Really quickly.

PN77

MR MCPHEE: Yes.

PN78

THE SENIOR DEPUTY PRESIDENT: All those matters are covered in the statement. You should only ask those questions if they aren't covered very extensively in the statement.

PN79

MR MCPHEE: All right, well, it may be best if we could just tender that.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes, so you don't need to take me through it. Mr McPhee have you had an opportunity to read it - Mr McPhee - having a terrible morning with my appearances - - -

PN81

MR MILLETT: Must be the M words, your Honour.

PN82

THE SENIOR DEPUTY PRESIDENT: Mr Millett, have you had an opportunity to read it?

PN83

MR MILLETT: Yes, I have, your Honour.

PN84

THE SENIOR DEPUTY PRESIDENT: Thank you. Are you in a position to cross examine, is there anything you want to ask about it?

**** PAUL MIRABELLO XN MR MCPHEE
PN85

MR MILLETT: If I could just ask one question of Mr Mirabello.

PN86

THE SENIOR DEPUTY PRESIDENT: Certainly.

<CROSS-EXAMINATION BY MR MILLETT [10.30AM]

PN87

MR MILLETT: You mentioned in your statement that you found the meeting to be an atmosphere that was relaxed and amicable?---Amicable.

PN88

Sort of saying it wasn't an overly severe type of meeting, it wasn't formal in its nature in the way the meeting was?---There was no doubt that it was a formal meeting because that's how it was worded and told to me and also the questions that were being asked. There was no doubt that what I was answering were formal questions, but it was a relaxed amicable atmosphere in that there was no, there was no, like adversarial type things happening, there wasn't any up, you know, any uproar in that way and I believe that's because Max was there and I was a bit more relaxed about the process because of it.

PN89

Yes, and were you also told the purpose of the meeting?---That it was to, that it was a rehabilitation meeting and that it was for my rehabilitation provider to just get background information on what he might need to form a plan. And basically, yes, it was a rehab meeting, but that was all I was really told, I wasn't given a lot of detail about the rest of the other purpose of the meeting except for those things that I've pointed out there in my statement.

PN90

All right, thank you. Thank you, your Honour.

PN91

THE SENIOR DEPUTY PRESIDENT: Thank you, anything else?

PN92

MR MCPHEE: No, I don't think so, your Honour, can we just get that marked as evidence.

PN93

THE SENIOR DEPUTY PRESIDENT: The statement?

PN94

MR MCPHEE: Yes.

**** PAUL MIRABELLO XXN MR MILLETT
PN95

THE SENIOR DEPUTY PRESIDENT: I thought I had marked, I've only just quietly marked it to myself here and not told you.

EXHIBIT #ASU2 STATEMENT OF PAUL MIRABELLO

PN96

MR MCPHEE: There's no further questions.

PN97

THE SENIOR DEPUTY PRESIDENT: Yes, you are excused, thank you very much.

<THE WITNESS WITHDREW [10.32AM]

PN98

THE SENIOR DEPUTY PRESIDENT: Do you have a statement from the next witness?

PN99

MR MCPHEE: We do, and I'd like to put that into evidence as well. So, could we call - - -

PN100

THE SENIOR DEPUTY PRESIDENT: Perhaps if you call him and perhaps if I read that first.

PN101

MR MCPHEE: All right.

<MAXWELL SIMPSON, SWORN [10.33AM]

PN102

THE SENIOR DEPUTY PRESIDENT: All right.

<EXAMINATION-IN-CHIEF BY MR MCPHEE [10.33AM]

PN103

MR MCPHEE: Would you please state your name to the Commission?---My name is Max Simpson.

PN104

What do you do?---I work at the ATO at Penrith.

PN105

Have you prepared a statement for these proceedings?---Yes, I have.

PN106

Is that a copy of the statement?---Yes, it is.

PN107

THE SENIOR DEPUTY PRESIDENT: Tender that statement?

PN108

MR MCPHEE: I will, yes, is it true and correct?---It is.

PN109

I see it's not dated, do you recall when it was signed?---Yes. Yes, I done this on Monday, which would have been 24 October 2005.

PN110

Thank you, could I tender that, your Honour, please?

PN111

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #ASU3 STATEMENT OF MAXWELL SIMPSON

PN112

THE SENIOR DEPUTY PRESIDENT: Do you wish that to be the witness's evidence in chief, subject to any further questions you might want to ask him?

PN113

MR MCPHEE: Your Honour, I don't think it's necessary to do so.

PN114

THE SENIOR DEPUTY PRESIDENT: All right, in that case I'll read the statement and then we'll allow Mr Millett to cross examine. Yes, thank you,
Mr Millett?

PN115

MR MILLETT: I just have one quick question, please, your Honour, of Max.

**** MAXWELL SIMPSON XN MR MCPHEE
PN116

THE SENIOR DEPUTY PRESIDENT: Certainly.

<CROSS-EXAMINATION BY MR MILLETT [10.35AM]

PN117

MR MILLETT: In your statement you said you emailed Colin back to bring his attention to the rehab policy which states that all have the right to have an employee representative - - -?---Right, yes.

PN118

- - - and you just said you also have the right to have a representative at the meeting. Could you tell me how you came to that conclusion?---What's that.

PN119

That all have a right to have a representative?---How did I come to that conclusion, was, as I said, reading the rehab policy, that was what I'd said in the email, that I don't have in front of me, that goes through that.

PN120

Okay, so, was it specifically in the dot point that says participate in the design or change of their return to work plan with or without the assistance of their employee representative?---I don't quite understand what you're asking.

PN121

Well, you're working on the belief that Paul had a right to be at the meeting, I'm trying to establish why you believe that was the case, so if I could perhaps show the witness a copy of his email, would that.

PN122

THE SENIOR DEPUTY PRESIDENT: I've got a spare copy.

PN123

MR MILLETT: They're the dot points you sent to Colin I believe?---Yes, I just took that out of the rehab policy and I sent that to him. Probably the reason that was sent to him, because initially when they're saying okay I can go to a meeting but have it be in my own time so what I was pointing out to him that, you know, Paul has got the right to ask for someone to go along with him. I was the person that they asked, Paul had approached and asked, so I was trying to point out to him that, yes, if Paul was asking for me to go I wanted to get paid for the time, but he, and that's why I put it in the email there at the end, if you require me to attend in my own time I will, so I was just highlighting to him that under the rehab policy they weren't going, they're saying under the agency agreement I couldn't go and get paid, so under the rehab policy I said well, look, Paul's got the right to ask someone to go and I was that person.

PN124

And what was the ….. dot points, specifically, that you were referring to?---I just think the whole thing, that if you're asking me to be specific, employees have right of access to employees - participate in the design or change of their return to work plan with or without the assistance of their employee representative, so that was probably the one I was referring to, yes.

**** MAXWELL SIMPSON XXN MR MILLETT
PN125

Okay, that's the one you believe meant that Paul had the right to have a support person?---That's correct, yes.

PN126

Thank you. Thank you, your Honour.

PN127

THE SENIOR DEPUTY PRESIDENT: Thank you, anything arising?

PN128

MR MCPHEE: No, your Honour.

PN129

THE SENIOR DEPUTY PRESIDENT: Thank you, you are excused.

<THE WITNESS WITHDREW [10.38AM]

PN130

THE SENIOR DEPUTY PRESIDENT: Subject to addresses, is that your case?

PN131

MR MCPHEE: I beg your pardon?

PN132

THE SENIOR DEPUTY PRESIDENT: Subject to final addresses is that your case? There's no other witnesses?

PN133

MR MCPHEE: There are no other witnesses, no, there's some other evidence we'd like to alert you to, though.

PN134

THE SENIOR DEPUTY PRESIDENT: Yes?

PN135

MR MCPHEE: That particular incidence where we notified step 1 of a dispute notice. It's not an isolated incident. There have been a number of situations where members have requested support persons to attend the rehabilitation meetings and either management has refused to release that person from duties to attend, or has released the person to attend but refused to release them from duty to speak with the person before and after the rehabilitation meeting. I'd like to tender evidence in relation to that if I could.

PN136

THE SENIOR DEPUTY PRESIDENT: Yes, ASU4, what will I call this exhibit?

PN137

MR MCPHEE: Well, it's information about support people and rehabilitation meetings. It's a kind of complex document, it was provided to the
Commission - - -

EXHIBIT #ASU4 INFORMATION ABOUT SUPPORT PEOPLE AND REHABILITATION MEETINGS

PN138

THE SENIOR DEPUTY PRESIDENT: Information about other examples of refusal to pay.

PN139

MR MCPHEE: Yes. I should briefly explain its nature. It's a ….. as a result of discussions in relation to this dispute it's….. Commission in that context, I should say from Mr Andrew Nott from the Tax Office to your associate.

PN140

Firstly, on the first page, it sets out data about rehabilitation meetings in the Tax Office this year, the number of those meetings in which there's been a support person there, and further whether that person was released from work time. You'll see in relation to New South Wales that there have been 230 rehabilitation meetings since 1 March 2005, in 28 of which a support person has been present, in three of those cases the support person was not an ATO employee. In those cases where the support person was an ATO employee there was only two cases where the person was not released on work time. There's similar data given in relation to Western Australia, ACT, some of it quite sketchy but at page of that 2 document and page 3 there's a listing five - paragraph 1, 2 - numbered 1, 2, 3, 4, 5. Five instances where one of our members have been asked to be a support person and either management have refused to release them from duty to attend or have given the release but not release to speak with the employee before or after the meeting.

PN141

In particular, paragraph 1 is the situation of Paul Mirabello and Max Simpson. You can see that, in the second paragraph there, there's I guess an answer in a different font and a different size that is the answer of the ATO in relation to the question of why for instance Max Simpson had not been released from duty and there is - reiterate the quote:

PN142

That the meeting being held today is to facilitate the discussion ...(reads)... not considered a formal interview as per ATO general employees agreement, clause 4.

PN143

I also refer to, over the page, there is a reference to, in those paragraphs numbered 3 and 4, they are situations where an ATO employee, Megan ….. had asked for Mr Max Simpson to be her support person for such a meeting and those meetings are referred to in the statement of Max Simpson, ASU3, and in those cases Max had been released to attend the meeting as a support person but as I understand it not been released to speak with Megan before or after that meeting.

PN144

Now, the ATO's argument is that a rehabilitation meeting is not a formal meeting. We say it is a formal meeting. We say it is part of their performance management process. For that argument, your Honour, I'd like to refer you briefly to the structure of rehabilitation and return to work plans in the Safety Rehabilitation and Compensation Act.

PN145

THE SENIOR DEPUTY PRESIDENT: Yes.

PN146

MR MCPHEE: If I could hand up to you copies of the key sections in relation to that.

PN147

THE SENIOR DEPUTY PRESIDENT: Exhibit ASU5

EXHIBIT #ASU5 COPY OF CONSTRUCTION OF REHABILITATION AND RETURN TO WORK PLANS

PN148

MR MCPHEE: The key sections in the Safety Rehabilitation and Compensation Act are sections 36 and 37 which are extracted there in ASU5. If an employee has a compensable injury under the Act then these sections can apply. Section 36 is about the assessment, medical assessment of whether an employee is able to medically undertake the rehabilitation program and in effect the employer can require the employee to undergo such an assessment, but if the employee refuses or fails then their rights to compensation under the Act are suspended until they do comply. That matter is covered in subsection 4 of section 36.

PN149

If then an assessment said an employee can undergo rehabilitation then section 37 applies. Section 37 is about the development of a rehabilitation plan. Subsection 1 provides that a rehabilitation authority, being in this case Commonwealth employee, ATO, may make a determination that an employee who has suffered an injury resulting in an incapacity for work or impairment should undertake a rehabilitation program and where that's the case then the rehabilitation authority makes arrangements to approve the program provided for the provision of the rehabilitation program for that employee.

PN150

There we have mention of the rehabilitation provided as a contract of the ATO to develop the rehabilitation plan. Subsection 3 of section 37 mandates the relative considerations in making such determination in subsection 1. Those factors are listed at paragraphs a to h and they include the obvious matters, for instance c the cost of the program, d, any improvement of the employee's opportunity to be employed after completing the program, e, the likely psychological effect on the employee if not provided with the program, and importantly, and naturally, and obviously, f, the employee's attitude to the program.

PN151

Similarly, subsection 7 provides that where an employee refuses or fails without reasonable excuse to undertake a rehabilitation program then their rights to compensation under the Act are suspended until the employee begins to undertake the program. Now, these sections recognize that an employee may refuse to comply, either with the determination that under section 36 they are capable of undertaking rehabilitation or refuse to provide in relation to a particular rehabilitation plan the ….. for that employee. If that's the case, then it provides a mechanism for a review to resolve that conflict of that - provides a mechanism whereby the employee can get those determinations reviewed and that is referred to in section 38 which is also extracted there but I won't go into that just to note that to you, your Honour.

PN152

There is the legislative basis, structure, in which rehabilitation is undertaken. We say that gives the ….. formality, both to the process itself, and to the context in which the employee meets their rehabilitation provided. Now, the Safety Rehabilitation Compensation Act provides the legislative bones, the flesh to the process is provided by various guidelines and policies. I'll briefly refer to those.

PN153

THE SENIOR DEPUTY PRESIDENT: ASU6

EXHIBIT #ASU6 REHABILITATION GUIDELINES FOR EMPLOYEES

PN154

MR MCPHEE: The document here, your Honour, is the Comcare document, for rehabilitation guidelines for employers. …… The authority of the Act as you'll see on the cover there in section 31 of the Act ….. this document tells Commonwealth employers, such as the Tax Office, that they have to have a rehabilitation policy and directs them to the types of matters that should be included in such a rehabilitation policy as well as explaining the purpose and nature of rehabilitation under the Act. Of course your Honour's well aware of rehabilitation so I don't propose to go into very much detail at all, if I could draw you to just several elements of it.

PN155

Page 4 defines the definition of a return to work plan. It says it means:

PN156

The injured employees' plan or ..... or maintenance of works, setting out goals, services to be provided, responsibilities and timeframes as issued under section 37 of the Act.

PN157

A bit further in this document, page 7, is an explanation of the rehabilitation system in that boxed explanatory note. It says in terms of a medical examination, quote:

PN158

An assessment should be included at interviews ..... examination from the general employee, will take into account the …(reads)… of that employee.

PN159

Page 8 of the document explains what a rehabilitation program is in standard terms. It says, for instance:

PN160

Close communication and cooperation between the case manager of the injured employee ...(reads)... a return to work plan as part of the rehabilitation program.

PN161

So, that sets out the policy and nature of rehabilitation. This document, ASU6, was issued in September this year. There's been similar documents through the year about this nature. In any case, the Tax Office has a rehabilitation policy.

PN162

THE SENIOR DEPUTY PRESIDENT: ASU7.

EXHIBIT #ASU7 REHABILITATION POLICY

PN163

MR MCPHEE: Your Honour this policy sets out the roles, responsibilities, the rights of various people involved in the rehabilitation process and so on. At page 2 of that policy you'll have a statement of the senior management responsibilities, responsibilities of managers and team leaders. On page 3, employee responsibilities, employee responsibilities are dot-pointed there. The second dot point says:

PN164

Be actively involved in the development and rehabilitation of a return to work program and comply with the agreed rehabilitation program.

PN165

In the next dot point, dot point three, it says:

PN166

Advise their manager or team leader and the case manager of the changes in circumstances that may affect their rehabilitation.

PN167

So, obviously, the rehabilitation process is an ongoing process. The rehabilitation plan is not something set in stone; it has to be adjusted from time to time, as the employee returns to work and ….. work may manage or react with their injury restrictions and so on. The ATO policy, rehabilitation policy, also states employee rights which has been referred to previously in relation to Mr Max Simpson and there it says, dot point three, it says, relevant paragraph says:

PN168

Employees employed ..... legislation, dot point three, participate in design or change of the return to work plan with or without the assistance of an employee representative

PN169

What we say about that, your Honour, is that the employee may have an employee representative, it's indicative of and persistent with the proposition that meeting in relation to rehabilitation is not some informal chat that occurs in the workplace. It's consistent with the nature of a formal interview in the sense that the Act itself in terms of section 37 says about the rehabilitation program being developed after taking into account the views of the employee. It's a matter of obvious common sense that to develop a rehabilitation plan it's necessary to speak to the employee to develop that plan, because the issues that are at stake are the nature of the employee's injury, how that injury restricts an employee carrying out various duties, and if that's the case then the rehabilitation provided has to be aware of the various capabilities of that employee or they may have done in the tax office in the past.

PN170

I'll need to speak to the employee about what the employee has got to say about their injury, prognosis. So there are a number of matters, a number of areas of information which the rehab provider has to gather from the employee directly and the way to do that is have a meeting. We say that such a meeting has all the characteristics of a formal meeting. We put these propositions about the nature of that meeting or interview in the workplace between a rehab provider, a case manager, and the employee. We say that such a meeting is effectively required by section 37 of the Act whilst the views of the employee need to be taken into account in the development of the rehabilitation program. We say it's a planned and scheduled meeting and you'll see that from ASU1 that in effect that's how it happens. The employee's case manager tells the employee, in the last page on that ASU1, or the second last page I beg your pardon.

PN171

There's an email from Fiona Penfold to Robin Piccard, who happened to be the ….. 10:58:51 that case, cc'd to Mr Paul Mirabello, telling Mr Robin. Piccard yes that Fiona Penfold had spoken to ….. 10:59:04 and that the meeting was prearranged between him and Paul Mirabello to discuss Paul's case.
So we say it's a planned or scheduled meeting in that sense, it has to be arranged, it's not some meeting that happens by happenchance as people are walking through the office. The meeting is about specific subject matter, the employee's injury status and work restrictions. It covers well-defined topics, including employee's injury, what the employee's doctors say about the injury, and the prognosis, about all those kind of matters relating to the person's injury and their work restrictions. It's a meeting which involves people performing specified tasks, different interests, responsibilities, and objectives. So, you've got a case manager, an employee, and a ….. 10:59:59 employee supervisor or manager.

PN172

Characteristically, but perhaps not in all cases, there are notes taken at that meeting, which is indicative of it being a formal meeting, that meeting, we say, is an essential step in the development of a formal document which is the return to work plan. So we say it's a formal meeting, it's a formal interview. There are questions that need to be asked. There are questions that need to be answered. There are questions asked for specific purposes by people who have an obligation to ask those questions. It is a very important meeting in terms of the employee's employment. It is about their health at work. It can be a meeting which has a degree of conflict in it and that's part and parcel of a situation where an employee has been injured and needs to return to work, because people are scared about whether the work is going to further injure them.

PN173

Hopefully the meeting will occur in that happy atmosphere, collaborative atmosphere, but that's not necessarily the case in reality. The mere fact that at meeting may be consensual and there's a lot of agreement and sharing of emotion doesn't alter the fact that this meeting is a formal interview, or a formal meeting. It is a meeting in the context of a performance management process, in this sense, at issue is the employee's performance. They have an injury that affects their ability to do the task they're required to do. It may be that they cannot do the task they wish to do and need to …... 11:02:08. It's about what that person will do over a period of time, for instances in the circumstances of a return to work plan, or a graduated return to work plan, which will set out how often they will work, how many hours over the day and over the week.

PN174

It is a process whereby the employee's performance is managed so that they are able to be rehabilitated at work. Now, within that context, personally, there was this meeting. It's an interview, in that sense. It's a formal interview. It's a formal interview in relation to the employee's performance in the broad understanding of performance.

PN175

Now, we say, under those circumstances, at clause 4, the employee has a right to have a support person with them at that meeting. That support person attends for the benefit of the employee. It is at the request of that employee. We also say it's in the interests of the ATO to have a support person there. The role of support person is not just to provide emotional support, comfort, or camaraderie to the employee. The support person is also there to advise the employee about the nature of the process. The employees are integral to developing a rehabilitation plan.

PN176

We say, if the injured employee has concerns or questions about potential areas of conflict in relation to the developing of a return to work plan then it's better that those matters come out directly and openly in meetings about the rehabilitation plan so that they can be either exposed as what they are, so people can discuss those issues, and that they can be resolved between the people, so the plan is developed which the employee can actually engage with and go through with. It's in everyone's interests that that be the case.

PN177

We say the support person is not acting in a private capacity, as a friend of the employee. Although, an employee may ask for a family member to be there, if the support person is an ATO employee then that support person is really engaged in ATO business. The business is assisting another employee to develop a rehabilitation plan. It's attending a formal interview for that employee. It's a work relations - and for those purposes, clause 4 in effect says if a person is performing that role then they are released from their immediate duties to attend such an interview, a formal interview, and further that to do that they will also be released from duty before and after the meeting to talk to the employee about the nature of what's going to happen and then to debrief and to discuss with that person after the meeting.

PN178

For all standard understandings of what it is for the employee at work to have assistance of other people to help them through and with difficult situations in their employment, whether it be misconduct, whether it be review the actions of management ….. . In those kind of formal meetings where management have a particular decision to communicate or make and they will call a formal interview to do so. It could be ….. to counselling that we say, as well, ….. natural plain ordinary meaning where people in the workplace sit down with an employee who has been injured to develop a formal document and that's the nature of our submission.

PN179

THE SENIOR DEPUTY PRESIDENT: I'll take a short adjournment.

<SHORT ADJOURNMENT [11.06AM]
<RESUMED [11.35AM]

PN180

THE SENIOR DEPUTY PRESIDENT: I do apologize for having kept you waiting an extra ten minutes; I had something to attend to. Mr Millett? Thank you.

PN181

MR MILLETT: Thank you, your Honour. If I could start by saying that very recently I had a discussion with the director of the area both Mr Mirabello and
Mr Simpson work in, which is the small business call centre in Penrith, and as a result of that discussion I contacted the ASU and stated that the ATO intends to in fact recompense Mr Simpson for his absences in this matter and that by doing that I believe the dispute is settled, because Mr Simpson will then have attended the return to work meeting on paid time.

PN182

The ASU indicated that they didn't believe that that would settle the matter.

PN183

THE SENIOR DEPUTY PRESIDENT: As I understand it, it wasn't so much a dispute confined to the circumstances of Mr Simpson and Mr Mirabello but a dispute about the application of the agreement generally and whether it affected rehabilitation meetings more widely than those particular circumstances.

PN184

MR MILLETT: That's correct, your Honour, I just wanted to inform the Commission that in fact Mr Simpson will receive pay for that time.

PN185

THE SENIOR DEPUTY PRESIDENT: Thank you, and is that an indication of a change in your position more generally that does resolve the wider dispute or is it simply a matter that having reviewed the facts there you thought it was appropriate in that single case?

PN186

MR MILLETT: No, it in fact reflects the ATO's recommendation to managers, anyway, when they're using their discretion, but it doesn't change our position about the application of clause 4. Perhaps if I could go on - - -

PN187

THE SENIOR DEPUTY PRESIDENT: Yes, all right, thank you.

PN188

MR MILLETT: I'll come back to some of the comments made in his submission by Mr McPhee shortly, but the ATO's position is that we see it as advantageous for employees involved in return to work meetings to have the facility of a support person and in fact we strongly recommend through our health and safety area to managers that they use their discretion and release employees who have been requested to be a support person for that purpose on work time, but in doing that we believe that it is not a matter for clause 4 of the agreement, but is rather good practice or good common sense as far as the ATO as an employer is concerned and our concern to try and facilitate that employee returning to work in the quickest practicable time and to ease them through that process in any way we can.

PN189

The reason we don't believe clause 4 applies is that we believe clause 4 is primarily orientated towards issues that pertain to an employee's employment under the Public Service Act and the wording of the clause itself, which your Honour has, you have a copy of the agreement?

PN190

THE SENIOR DEPUTY PRESIDENT: Yes.

PN191

MR MILLETT: In fact, points us in that direction, because we're talking about a review of employment actions as performance management process are all in breach of the code of conduct, all of which are issues dealt with under the Public Service Act. Further, we believe that clause 4.1 in fact should be read in its entirety and that the issue of a formal meeting draws on the rest of the clause which are about those types of issues, being the review of action, code of conduct, or performance management process.

PN192

I was concerned as to intent and how the clause in fact came into being, on research I found that it actually appeared in the first general agency agreement that was negotiated in 1988 - 1998, sorry, I stand corrected - and subsequently in a couple of agreements has been amended to reflect changes in things like the public service legislation. Then, speaking to one of the people involved in those early agreements, his recollection - and this is certainly the ATO's position - was that it was to try and give some guidance to the role of the support person under government policy around freedom of association and it was to articulate the fact or enshrine the fact that not just unions but anyone could provide that role. So, it goes into some detail that it can be anyone not just a representative of an organisation of employees. It also, in doing that, sought to establish that it was not about advocacy, it was about support of the person. So, it was separating those two functions quite deliberately. So, it was about helping the person, giving them support, not necessarily advice or being their advocate, not necessarily raising issues but just being there to support the person.

PN193

We believe that that's very important, because when you look at clause 4.1 it's talking about issues that really are adversarial in nature, or potentially adversarial. They have a potential negative employment consequence and a return to work meeting or conference just does not have that. In fact, it's quite the opposite; it's about supporting the person and trying to facilitate their return to work as quickly as is practicable and in the best interests of the employee. We propose - - -

PN194

THE SENIOR DEPUTY PRESIDENT: Are there not circumstances where a person may not - they might be a dispute between the employer and the employee about their readiness to return to work or if they are ready to what particular work?

PN195

MR MILLETT: Thank you for actually asking that question, your Honour. One of the things that we were relieved to find is the nature of a return to work conference is and the process is that it in fact is a partnership and both the employer and the employee rely on the advice of the doctor and that is the determinant about the employee's fitness for duty. It's not the employer who would be undertaking that role. So it is the doctor who gives an indication as to what duties the employee is capable of.

PN196

THE SENIOR DEPUTY PRESIDENT: I understand that Mr Millett, this is not the first time I've had matters of this kind with the ATO before me, so I understand that that's how it operates within the ATO, but - and that's how you expect it to work in situations where a situation has arisen where a treating doctor had provided the report delineating the circumstances in which a person could return to work from a medical perspective and there was a meeting between the parties to arrange that - I was more addressing a situation where there might be a disagreement between doctors from the tax office and treating doctors for the worker that needed to be resolved or what constituted compliance with the direction of the treating doctor might be in dispute, whether in fact if there was a particular work specified, whether the work offered was within that work definition or not. I think that there would be, on occasions, or in fact the ATO would never ever have a disputation about such matters, when such matters might arise. A dispute, a difference of opinion, a matter to be resolved in the meeting, that is, is the work being offered or proposed in the meeting work within the certificate, perhaps something of that nature. They're the situations that I was thinking about.

PN197

MR MILLETT: Yes, as I understand the process, and I might defer to my colleague if I get it wrong, but as I understand the process where there is that sort of concern we would go back to the doctor outlining the proposed duties and get a report on their appropriateness or otherwise. I also should refer to one of the documents that Mr McPhee handed up, which is section 38 of the Act, which allows an appeal process about return to work plans, as well, if the employee feels that they are inappropriate.

PN198

We would, as a matter of course, defer to a doctor's opinion. So, if there is an issue raised by an employee that they don't believe the duties are appropriate for their condition we would refer that back, we don't make those sorts of decisions ourselves, we look for guidance. That's the policy that we work under.

PN199

THE SENIOR DEPUTY PRESIDENT: All right, thank you.

PN200

MR MILLETT: As I said, we believe that the process itself is collaborative, or the partnership, and in fact we take note of the guidelines distributed by Comcare, which Mr McPhee handed up earlier, but also there are associated references or guides for senior managers, supervisors, case managers, even the employee, which I draw to your attention.

PN201

THE SENIOR DEPUTY PRESIDENT: ATO1.

EXHIBIT #ATO1 RETURN TO WORK GUIDELINES

PN202

MR MILLETT: Specifically, I was looking at the responsibilities as a supervisor on the first page, your Honour, and the fourth dot point which talks about keeping in close contact with the injured employee, being supportive, identifying assistance available to enable a return to work, it then goes on and says the case manager will coordinate the process. Then, it also talks about working with a case manager to identify suitable duties and provide ongoing support. It also says of the supervisor that you need to be involved and contribute to the development of the return to work plan for the injured employee. So, it's not that you will develop, or that the ATO will develop, but we have the supervisor being involved and contributing to the development.

PN203

Similarly, on the third page of the document, under the responsibilities as an injured employee, it says that you should:

PN204

Actively participate in the return to work programme

PN205

and for the case manager it says that the case manager should:

PN206

Organise a return to work programme if necessary ...(reads)... the return to work plan.

PN207

It also says:

PN208

Put any decisions you make about a ...(reads)... injured employee is giving suitable employ.

PN209

Then, finally, the provider, it requires, or says that they should provide:

PN210

Expert objective advice to the case manager ...(reads)... development and implementation of a tailored return to work plan.

PN211

All of which we believe point 2, the collaborative nature of the process, and the fact that this initial meeting around the return to work plan, is in fact a meeting to ascertain information about the employee. It is not adversarial, it is a cooperative and collaborative process and we believe it is totally outside the intent of clause 4.1

PN212

Similarly, the rehabilitation policy which has been referred to and quoted in that email from Mr Simpson which the ASU handed up earlier, points to the fact that it currently states that the employee's rights, it says that:

PN213

Employees have the following rights under the legislation.

PN214

The third dot point is:

PN215

Participate in the ...(reads)... assistance of their employee representative.

PN216

Now, that dot point doesn't specifically provide a right to have a representative in the meeting and in fact what the ATO is saying is that it is good business sense and is in the interests of the employee to allow the employee to have a support person in the meeting and we actively encourage that and recommend to managers that they release staff for that purpose.

PN217

In my email of August which was handed up by the ASU we gave some indication of the numbers of staff that were involved, or the number of meetings that were involved in a number of the states. It's interesting to note two things, one that the support person option was not used in the majority of cases, but even where it was used there were only the two instances that we've been able to ascertain where the role was carried out by an ATO employee and they weren't at least at that time paid whilst carrying out that role. So, given the decision I was able to obtain from the manager of the area, that will bring it to no instances where the employee has not had release on work time.

PN218

We believe that in exercising their discretion as the employee's delegate the manager is taking into account the normal requirements of operational necessity in whether they can release the person and once they decide they can release them it should be on work time. I should point out that we have since had information back from both Victoria and Queensland that rounds out the picture for Australia and that is that they can't identify any instances where an ATO was not released from work for a support person role.

PN219

So, we have a situation where the ATO is in fact without relying on the clause 4 releasing the employees to provide the support person role and if I could come back to the submission by Mr McPhee I think in his submission he raised the question of whether the conference around the return to work plan was part of the performance process and in that I have to say that we really do not believe it is part of the performance process at all and in saying that we go to clauses 108 and 109 and clause 1.25 of the agency agreement, if I can find the right submission I will hand it up.

PN220

I've just extracted those for your convenience, your Honour, but they do give a very clear indication that when it's talking about performance the agreement is talking about in fact performance in the job and the ATO does not regard anyone who has suffered a compensable injury or is ill as undertaking something that is part of the performance system. We don't believe performance is judged about attendance at work, performance is how your perform at work.

PN221

THE SENIOR DEPUTY PRESIDENT: Where does this document come from again?

PN222

MR MILLETT: From the AGSC agreement.

PN223

THE SENIOR DEPUTY PRESIDENT: From the A - - -

PN224

MR MILLETT: Which you have a copy of, I believe, from the ASU.

PN225

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN226

MR MILLETT: So we think it's very important that in fact when someone's absent from work on a compensable injury that they are not subject to the performance system because that in itself we believe removes it from the application of clause 4. In fact, I notice that in the email that was handed up by the ASU that was attached to the step 1 request, which was exhibit ASU1, I noticed the language that was used by the case manager, Fiona Penfold, that was sent to the rehabilitation provider, saying that Mr Mirabello is happy to have you contact him and discuss is situation, which doesn't lend itself, I believe, to a sense of formality about it. It is really about a process of collaboration to get the person back to work.

PN227

In his submission, Mr McPhee indicated that he believes the support person was not just a comfort but was there to advise on the nature of the process and to raise issues. I believe that that comes to the nub of this whole matter. That is not the role of the support person, in my submission. That is very very close to an advocacy role, or an industrial representative role, which is not what we would hope the return to work process is about. The return to work process is about the employee, it's about supporting the employee, it's about getting the employee back to work as quickly as they safely can come back to work. It's about making decisions about how we can adjust work so that we can facilitate as early as a return to work as possible.

PN228

It's not an adversarial process and our real fear is that if clause 4 is read to extend beyond those potentially pejorative processes around performance or misconduct then it will become an adversarial process and that is something that we really are desperately trying to avoid because this is about a supportive process it is not about trying to do something that is not in the interests of the employee because ultimately that's not in the interests of the ATO. Our interest as an employer is to help that person come back to work. Our interest as an employer is to make certain that we make the adjustments to the workplace that facilitate that return to work. That's what we're trying to do through the process, that's why we use under the Act a rehabilitation provider, that's why our processes are aimed at taking the advice provided to use by medical practitioners about the capability of the employee at the time and providing information for those medical practitioners about what the work involves so that that practitioner can advise us on exactly what the employee can do in the workplace and then having received that advice we seek to implement it.

PN229

We don't make decisions in our own right around the development of a return to work plan, it is a result of input by the doctor, input by the supervisor and the employee and the advice and development input by the external rehabilitation provider.

PN230

I think that that is the nub of our case. We really do contend that the nature of a return to work process is removed from the nature of the processes envisaged by clause 4, which by the terms of clause 4.1 are primarily around work performance or misconduct, are primarily about matters reviewable under the Public Service Act, and primarily matters that have the potential to have a pejorative outcome as far as the employee's ongoing employment is concerned, which is not the nature of the return to work process.

PN231

Having said that, I would like to raise with your Honour one matter of concern that we had about this process, and that is that - and it does go to the potential for this process to become adversarial - I would like to hand up to your Honour a copy of an ASU email to its members on another matter involving health matters, but in the email there is a statement on the second page which says the ATO has been refusing to allow staff to have an employee support person at meetings held under its rehabilitation policy and the ASU is before the Industrial Relations Commission in Sydney on 26 October about this refusal and the ASU has found a small number of health management staff - who shall remain nameless - that seem poorly trained and prefer to bully staff into agreeing to their proposed return to work staff than negotiate a plan that addresses their needs and interests.

PN232

Two matters about this, your Honour, I believe one it shows an intent on the ASU's part to be adversarial under this process and two - - -

PN233

THE SENIOR DEPUTY PRESIDENT: This process, or the other process?

PN234

MR MILLETT: No, under the return to work process, sorry.

PN235

THE SENIOR DEPUTY PRESIDENT: Yes, all right, thank you.

PN236

MR MILLETT: And two it's a misstatement. We are not refusing staff to have an employee support person. In fact, we're encouraging that process. I believe it's a knowing misstatement, because we have in all our discussions with the ASU told them that we recommend to employees that if they want a support person we are perfectly happy for them to have one and in fact we recommend to our managers that if they are ATO staff they would like there that they be released on work time.

PN237

Secondly, we take offence at the statement that says that the health management staff are poorly trained. They are all fully trained by Comcare. They also have subsequent internal training. They are people with high workloads. They are people who take a great deal of personal pride and ownership about the process, and that really is a very gratuitous remark that I believe shows that the stance of the ASU about the return to work process and their view that it is an industrial matter rather than a health matter.

PN238

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN239

MR MILLETT: Nothing other than that, thank you very much, your Honour.

PN240

THE SENIOR DEPUTY PRESIDENT: Anything you wish to add?

PN241

MR MCPHEE: One or two matters, your Honour. So far as Mr Millett is talking about conversations concerning the interpretation of clause 4, the basic conversations he had with people who had negotiated previous agreements, we reject that totally. It's not our recollection of what clause 4 was about, in any case we say it's not relevant to the proper instructions of the clause. Yes, referring to clause 108 in the agreement, the clause under that is about under performance, well it's headed performance counselling, it's in a situation where an employee's performance is below standard. Clause 108.2 says employees should be given help to improve their work performance to a satisfactory levels, with fair procedures protecting the interests of the ATO, its employees, and its clients.

PN242

I put this proposition to you, and it happens in real life, well, ATO life, an employee's performance is not good, a manager says to the employee 'your quality output is not to standard,' the employee says 'well, the reason it is not to standard is, as you would know, I suffer from a longstanding - - -

PN243

THE SENIOR DEPUTY PRESIDENT: What your submission is that there might be occasions when the performance and incapacity arising from an injury might overlap.

PN244

MR MCPHEE: They do and often do. There would be a meeting about that, as clause 4 says, in effect, if there is a meeting about that the employee is entitled to have a support person, again, clause 4.5:

PN245

That support person may be a member of a union.

PN246

Clause 4.2 says:

PN247

The persons role is to provide support and advice to the employee and ensure that the employee's able to raise all matters of relevant concerns with the process.

PN248

So the 108 situation, clause 108 situation, the argument might be presented, that's by the employee, "The problem I'm not up to performance standards is because I've got a problem with my health", and there should be a fair procedure to address that. Now, it's not in the union's interest to have disputation about rehabilitation measurements. Disputation doesn't arise or conflict doesn't arise in the circumstances because the union wants it to arise, it arises because the employee has concerns about what's going to happen. For instance, their doctor says "you're too ill to work on the phones again" and another doctor, the ATO doctor, says "this person is fine".

PN249

There is a conflict here and no wonder in those circumstances the employee may not be happy about what may occur out of that meeting. That is the cause of potential conflict of a regulatation[sic] matter. They may well say, "I've got concerns about this, I'd like to have someone there with me". So, my position, my point of view, I'll be advised, I'll have someone there to help me and talk to them before and after about the issues involved and give advice about is there anything I can do. There are things that can be done to resolve the conflict, the act sets down procedure. I obviously hear what Mr Millett says about the ATO's policy in relation to conflicting medical advice, all we can say is in some practical examples we've come across that is not the case.

PN250

THE SENIOR DEPUTY PRESIDENT: That's not really a matter that concerns me in the resolution of this matter.

PN251

MR MCPHEE: That's correct.

PN252

THE SENIOR DEPUTY PRESIDENT: I think Mr Millett seemed to want to put his position on the record.

PN253

MR MCPHEE: Yes, so in relation to the email that's been put before you - - -

PN254

THE SENIOR DEPUTY PRESIDENT: Well I think that that also is a matter that Mr Millett simply wanted to put his position on the record.

PN255

MR MCPHEE: Yes, thank-you Your Honour.

PN256

THE SENIOR DEPUTY PRESIDENT: Is there anything else?

PN257

MR MCPHEE: I could give him some instructions.

PN258

THE SENIOR DEPUTY PRESIDENT: No don't. I'll reserve my decision, thank you. The Commission is adjourned.

<ADJOURNED RESERVED FOR DECISION 12.08 PM

PN259

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 STEP 1 DISPUTE NOTICE PN13
PAUL MIRABELLO, SWORN PN49
EXAMINATION-IN-CHIEF BY MR MCPHEE PN49
CROSS-EXAMINATION BY MR MILLETT PN86
EXHIBIT #ASU2 STATEMENT OF PAUL MIRABELLO PN95
THE WITNESS WITHDREW PN97
MAXWELL SIMPSON, SWORN PN101
EXAMINATION-IN-CHIEF BY MR MCPHEE PN102
EXHIBIT #ASU3 STATEMENT OF MAXWELL SIMPSON PN111
CROSS-EXAMINATION BY MR MILLETT PN116
THE WITNESS WITHDREW PN129
EXHIBIT #ASU4 INFORMATION ABOUT SUPPORT PEOPLE AND REHABILITATION MEETINGS PN137
EXHIBIT #ASU5 COPY OF CONSTRUCTION OF REHABILITATION AND RETURN TO WORK PLANS PN147
EXHIBIT #ASU6 REHABILITATION GUIDELINES FOR EMPLOYEES PN153
EXHIBIT #ASU7 REHABILITATION POLICY PN162
EXHIBIT #ATO1 RETURN TO WORK GUIDELINES PN201