C2005/5177, Transcript of Proceedings [2005] AIRCTrans 2535 (19 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13591-2

SENIOR DEPUTY PRESIDENT DRAKE

C2005/5177 C2005/5798 C2005/5802

AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION
AND
CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/5177)

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION-PSU GROUP, VICTORIAN REGION MR RON LEVER
AND
AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/5798)

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION CPSU, THE AND OTHERS
AND
AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/5802)

SYDNEY

10.08AM, FRIDAY, 02 DECEMBER 2005

PN1

MR A BARWICK: I am a solicitor and in relation to the first two mentioned matters, I'm seeking leave to appear on behalf of the Community and Public Sector Union. In relation to the third matter which is set for hearing today, I'm appearing as before by leave of the Commission on behalf of the CPSU. I understand Mr Davies may have something to say about the issue of leave in relation to the first two matters.

PN2

THE SENIOR DEPUTY PRESIDENT: First of all, could you tell me something about the first two matters.

PN3

MR BARWICK: Yes your Honour. The first thing to be said is that in general terms there's an interrelationship between the facts in all three disputes in a sense, which have been notified to the Commission. That is because they all relate to the one and the same member of the CPSU, namely Mr Ronald Lever who's present here today. One of the disputes that has been notified relates to the issue of the return to work provisions and procedures under the ANSTO Enterprise Agreement 2002. Your Honour, in a nutshell we say that ANSTO has failed to follow the provisions of the enterprise agreement in effecting a return to work arrangement for Mr Lever following his going off work in relation to a Comcare Workers' Compensation claim.

PN4

Obviously that is a matter that directly relates and is a dispute that has been notified by ANSTO that's also before your Honour today. The second matter your Honour, is more discreet in a sense and in a factual sense. It relates to what we say is ANSTO's failure to follow the breach of duty provisions under the enterprise agreement. Your Honour, the CPSU had some while ago written to ANSTO seeking for ANSTO to activate the breach of duty provisions under the enterprise agreement in relation to certain ANSTO officers that related to their conduct in relation to the member Mr Lever. In a nutshell then, that one your Honour - ANSTO appears to have taken the position that it has a discretion as to whether or not it will pursue the breach of duty provisions under the enterprise agreement. So there's an argument there about interpretation and meaning and application of the breach of duty provisions under the enterprise agreement.

PN5

THE SENIOR DEPUTY PRESIDENT: Is it your view Mr Barwick that either of those matters have to be determined together with or before the determination of the matter that I've listed for hearing today?

PN6

MR BARWICK: Your Honour, I would submit that in relation to the first one I mentioned, namely the return to work dispute that there could be some benefit your Honour, in having that matter dealt at the same time as the dispute notified by ANSTO in that there's a closer factual relationship. I am cognisant of the facts your Honour, that the ANSTO dispute has been listed today and that the parties are ready to have that dealt with. In relation to the other matter your Honour, no that is not a matter which we would regard as necessarily needing to be dealt with at the same time as the other notified disputes. No doubt Mr Davies has a view on that matter too, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you. It seems to me, the reason I asked that question Mr Davies just so you understand my position prior to addressing me on it, that there might be some convenience to all of the parties to have the matters dealt with simultaneously at least just to the first matter.

PN8

MR R DAVIES: Do you want me to make an appearance your Honour first for the record?

PN9

THE SENIOR DEPUTY PRESIDENT: I just assumed your appearance. I can see you, I knew you were there.

PN10

MR DAVIES: That's fine your Honour. If I could make a couple of comments then, in relation to all of these issues that have been raised. Obviously these two matters that Mr Barwick has just raised are obviously recorded for mention today and I've only had a brief look at these when I checked my email last night at 7 o'clock so I'm not in a position to make much of a comment other than to make a couple of observations, your Honour. First, in relation to hearing the hearing of ANSTO's application, your Honour we press that it's heard and there's a very good reason why it's heard and determined. I don't think that prejudices the applicant's position in relation to the matter of return to work.

PN11

The reason I would say - the reason I would give in relation to the meaning of the fitness for duty clause is that currently ANSTO is finalising its enterprise bargain negotiations for an agreement which would cover the next three years. It's the intention of the parties to have that agreement in the Commission by on or around 19 or 20 December for certification. Now obviously it would assist ANSTO and I believe assist the other parties if we could understand clearly what the fitness of duty clause means or what it doesn't mean. In my submission your Honour, obviously we've relied on that clause for any number of years and indeed in the negotiations thus far it hasn't been raised as an issue except by myself. So I guess my only comment your Honour, is that ANSTO sees some utility in having this matter determined.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Barwick, given the employer's position on that matter and I think it's appropriate that the two later notifications be stood over to be heard after this matter. Whilst there would be some convenience in having them heard, that balance of convenience has to suit both parties and it doesn't suit Mr Davies and I don't think that's an unreasonable position given the late notice of the matters and the fact that he's doing the advocacy himself. Therefore, he has to have some time to prepare and I don't think there's any utility in having this matter adjourned. It may simply make it a shorter matter for determination on the other matters later on should they arise.

PN13

MR BARWICK: Thank you your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: Is there anything now, having taken both appearances, you wish to put to me in addition to the matters set out in your submission? I say that because I'm going to cut you off at the knees if you go on about what's already there.

PN15

MR BARWICK: That's alright your Honour, I do have a few brief comments to make in response to ANSTO's written submissions but you'll be relieved to hear I hope that I only propose to speak for about three or four minutes just to make a few brief points. I think, well hopefully to some degree they are already substantially already covered in the written submissions. Just firstly - just briefly your Honour, I'll just on this point that ANSTO in their submissions have sought to make criticism I suppose of the CPSU for raising the particular context and facts of Mr Lever's circumstances in relation to this dispute and have made the point that obviously the nature of this notified dispute is the interpretation of the clause.

PN16

That is certainly true your Honour, that is the nature of the notified dispute. What however ANSTO - that made reference to Mr Lever's particular circumstances in the notified dispute. So there is a context to the dispute and we would submit that the circumstances of Mr Lever's position are useful context to enable the Commission to rule on the meaning of the clause and particularly to understand the dichotomy between clause 27.9 under the enterprise agreement, which provides for determination of fitness for duty as opposed to the purpose of the Safety, Rehabilitation and Compensation Act which provides for a return to work plan. I make that point because it is ANSTO in their correspondence that have sought to characterise the purpose of the appointment to be for the latter and not necessarily for the former.

PN17

The second point I wanted to make your Honour, relates to this. On page 4 of ANSTO's submissions there is a statement that there is no limit on the range of purposes which ANSTO may exercise this power and I would submit that this is at the nub of the dispute and the meaning of the clause because we would submit that that just cannot be correct. Clearly clause 27.9 does have a purpose, it does have a context. It has the heading Fitness for Duty, it's stated within the body of the clause that the purpose of the clause is to determine the fitness for duty and not otherwise. It doesn't state there that it's, for example, to determine and implement a return to work or rehabilitation plan and there is a difference. The third thing is this, and I think this is also perhaps an important part of determining what the meaning of clause 27.9 is.

PN18

Insofar as it refers to a reference to a medical employee of the Australian Government Health Services, ANSTO have made the point in their submissions that the last made referral namely to a Dr Lewin, I think it's conceded that he's actually a consultant to the Australian Government Health Services not actually an employee of the service. If as ANSTO wish that we shouldn't be splitting hairs on the meaning of words in the clause or reading things into it that are not there, then equally the meaning of the words in the clause should be given their ordinary meaning. So if it says medical employee that's what it should really be, it should be a medical employee of the Australian Government Health Service, not a consultant.

PN19

Finally your Honour, there's also one other thing referred to in the submissions, namely about ANSTO's practice of referring employees - relevant employees under clause 27.9 and also making the point that the SRC Act does not have any application in a claim that is not - where liability has not been accepted. Your Honour, I do - and I'm making this submission in response so obviously this paperwork hasn't been included in the submissions document, but I'm instructed there's at least one other case of a CPSU member who after lodging a Comcare claim for psychological injury was in fact referred by ANSTO under section 36 of the Safety, Rehabilitation and Compensation Act and before a determination had been made by Comcare in regard to her claim. I can if necessary hand up a letter that has been released to us by consent of the relevant member which demonstrates that that referral was made by ANSTO, occurred back in February of this year. I'm not sure whether you - - -

PN20

THE SENIOR DEPUTY PRESIDENT: That's a matter for you if you wish to tender it and it's not objected to.

PN21

MR BARWICK: If that's the case, I might seek to hand it up. I won't make mention on the record of the person's name but I have a copy for Mr Davies, who may well be aware of the relevant matter anyway. Your Honour, they are the matters I wish to submit unless there is anything else you wish to hear from me?

PN22

THE SENIOR DEPUTY PRESIDENT: No, that's fine. Mr Davies.

PN23

MR DAVIES: Thank you your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Do you wish to add anything to your submissions?

PN25

MR DAVIES: No your Honour. ANSTO will rely on its written submissions. Summarised, we believe the clause says what it says. It gives rise to certain actions which occur under the clause. I don't believe your Honour, or I would submit that there is no dichotomy. ANSTO is using the clause for a fit and proper purpose and irrespective of whether another employee at some point in time was referred under the SRC Act does not of itself change the nature of this application or the arguments in support for ANSTO's position, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: I'll reserve my decision in relation to matter 2005/5177. In relation to the two other matters, 5802 and 5798, I'll list them for mention to obtain a date in January so that the parties can consider their position, hopefully whilst in possession of my decision in this matter. How about Tuesday, 17th? Anyone on leave, either of you?

PN27

MR DAVIES: Your Honour, could I suggest we book it for Tuesday, 17th and could we advise your office?

PN28

THE SENIOR DEPUTY PRESIDENT: Why don't - I'll allow that as a mention time at 10 o'clock but I won't diarise it and you can both telephone my chambers and advise whether it's a suitable date. Is it suitable to you, Mr Barwick?

PN29

MR BARWICK: It is your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: We'll make it a telephone conference so you don't have to come in.

PN31

MR BARWICK: Very well, thank you. Your Honour, I appreciate that you've indicated to reserve your decision. I did just receive some later instructions there in response to one matter that Mr Davies had brought and they relates to this.
Mr Davies has correctly pointed out that there is a new enterprise bargaining agreement the subject of negotiation and that there will be a clause in that agreement, fitness for duty clause. I think it should be pointed out though in fairness and for the sake of completeness that the presently drafted wording of the proposed clause is actually different to the clause which we're looking at here in the 2002 agreement.

PN32

THE SENIOR DEPUTY PRESIDENT: I don't think Mr Davies puts it any higher than it be convenient for the parties to know the answer before the clause is settled. Depending on what my answer is, you both may have a different view.

PN33

MR BARWICK: Quite right, thank you your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: Is there anything else? No, well the 17th - it doesn't really matter to me what date the mention is, I'm back from leave on Monday, the 16th and so anytime in January to have it in for mention to decide where you want to go with the other two notifications is suitable to me. So I'm not pressing you should you have any personal commitments. Is there anything else? Have a merry Christmas.

<ADJOURNED INDEFINITELY [10.26AM]