C2005/1552, Transcript of Proceedings [2005] AIRCTrans 574 (8 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10667

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2005/1552

s.99 - notification of an industrial dispute

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
Walker Crash Repairs
(C2005/1552)
Vehicle Industry - Repair, Services and Retail - Award 2002

ADELAIDE

1.32PM, FRIDAY, 25 FEBRUARY 2005

PN1

MR M EMMERSON: I appear on behalf of AMWU and appearing with me today is MR R WEBER, a member of the union.

PN2

MR I LAW: I appear for the Motor Trade Association of South Australia Incorporated and with me today, I have MR J WALKER, the Managing Director of Walker Crash Repairs.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Emmerson, I have listed this matter for a hearing today because the section 99 dispute notification cites the relevant award as the Vehicle Industry, Repair, Service and Retail Award 2002. It does not reference an agreement with an alternative dispute resolution process. In terms of that award I have a copy of the dispute resolution procedure detailed at clause 44 and I have a copy of clause 28, which is the personal carer's leave clause. Beyond that I am in your hands.

PN4

MR EMMERSON: Basically we are seeking the assistance of the Commission today in resolving and ever growing refusal by Walker Crash Repair to honour the legible medical certificates supplied by Raymond Weber and including Walker Crash. Basically the days on the medical certificate are for absenteeism on the 24th and 25th days of January this year. I do have a copy of that medical certificate to hand up if so required, Commissioner. The refusal of the company to pay Ray's personal sick entitlements, we believe, is quite a clear breach of the relevant award and that being the award that the Commissioner has just outlined.

PN5

We argue that the medical certificate issued for Raymond Weber by his local medical practitioner meets and satisfies all the criteria made out in the said award. The company, on the other hand, basically argue that Ray's certificate is not descriptive enough and descriptive enough proof that he was absent due to illness on the said days and have subsequently refused to pay him on the grounds, once again, that it does not describe his illness in detail. Ray has stated by way of medical certificate authenticated and signed by his doctor that he was unable to attend work on the mentioned days due to illness and that illness is of a personal nature.

PN6

There is a clear distinction we believe made between personal injury by accident but an illness that with a couple of days rest will probably see Ray recover from his illness. The company therefore, we would argue, would not be at risk of giving Ray duties that could possibly exasperate an injury, if that was why he had the two days absenteeism, so there would be no fear of the company basically giving Ray duties that would exasperate an injury if it was not quite fixed. What is stated earlier, the medical certificate completed by Ray's doctor, treating specialist, basically I would state that the company are bringing the doctor's authority to question. She, the doctor, has also determined that Ray's medical condition is of a personal nature and has filled out the certificate as she thought appropriate.
The award is also clear on its interpretation as stated in personal sick leave (ix) section (1):

PN7

All medical certificates shall comply with the following criteria. Certificates shall be legible and state the employee is unfit for duty on account of personal illness or injury by accident and the expected duration of the disability.

PN8

Therefore, even though we believe it is clear, the company then argued that they introduced a sick leave policy back in August 2003. We do not believe that there was much consultation on the implementation of that policy. It was more like, this is what is going to happen, and that document, at this stage, Ray is not sure whether he even signed that document. But the policy that Mr Walker and
Mr Law from the MTA talk about is a document that the company would like its employees to follow. We would also argue that the medical certificate falls in line with the so called policy in all the clauses listed, especially clause 3.

PN9

Once again, Commissioner, I do have a copy of the sick leave policy to hand up, if need be. This is a clause that the company argue, Ray has not followed, especially at dot point 4 of that clause and that being his certificate not being descriptive enough. Ray's certificate states it was illness, but specifically once again, that it was personal. The company say medical condition is not specific enough and I would attend to agree with that assumption as most people, we believe, and as we know, do tend to suffer from sort of medical condition whether it be ingrown toe nails or bodgey knees.

PN10

Also in the policy they then go on to state the recent decisions handed down by the SAIRC, add weight to their policy that non descriptive terminations will not be allowed, but unfortunately the evidence that they provide basically only entails medical condition and is strictly limited to medical condition and not why we are here today. Therefore we do seek the Commission's assistance to determine and recommend a decision where award standards and conditions are maintained and that Ray be entitled to his sick leave provisions. As I stated earlier, Commissioner, I will hand up to you a copy of the sick leave policy and Ray's certificate of sickness and I shall also hand up the case law in questioning the sick leave policy. Thank you, Commissioner.

EXHIBIT #AMWU1 CERTIFICATE OF SICKNESS OF MR WEBER DATED 24/01/2005
EXHIBIT #AMWU2 WALKER CRASH REPAIR SICK LEAVE POLICY

PN11

THE SENIOR DEPUTY PRESIDENT: I will not mark the two authorities that you have provided me with because in both cases they appear to reflect direct decisions of the South Australian Industrial Relations Court. Can I take it that you have provided copies of all those documents to the employer?

PN12

MR EMMERSON: I apologise, Commissioner, no I have not. I have another sick leave policy and I also have the certificate of sickness, but I dare say the company would have that.

PN13

THE SENIOR DEPUTY PRESIDENT: I see. But you have not given copies of those two cases to the employer?

PN14

MR EMMERSON: I apologise Commissioner, I have not.

PN15

THE SENIOR DEPUTY PRESIDENT: Have you got spare copies?

PN16

MR LAW: Your Honour, that may not be necessary, if the cases are Corcoran and Serco and - - -

PN17

THE SENIOR DEPUTY PRESIDENT: Curtain and Callergis

PN18

MR LAW: Yes, Commissioner, I do have copies of those. The only difference might be the pagination of it.

PN19

THE SENIOR DEPUTY PRESIDENT: All right. Thank you.

PN20

MR LAW: So if we are referring to them we should, I think, for consistency refer to paragraphs. Would that be appropriate, your Honour?

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Mr Emmerson, can I just ask a couple of questions first of all. What are you actually seeking from me today?

PN22

MR EMMERSON: Today, Commissioner, we would like to see the award provisions for sick leave entitlements upheld.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes. I understand that is the outcome that you want to achieve but what are you seeking from the Commission?

PN24

MR EMMERSON: Your assistance in determining today's case with the other because basically, Ray being an apprentice in the workplace, has confronted the manager about this before, but has in the past got nowhere with this issue. So we have spoken with both Mr Walker and Mr Law on several occasions and we just can't seem to find upon common ground and therefore if Ray, is successful today we would seek his payment for those two days absent.

PN25

THE SENIOR DEPUTY PRESIDENT: I see. Then can I take you to that dispute resolution procedure set out in clause 44 of the award, should I understand that there have been those discussions between Mr Weber and his immediate supervisor?

PN26

MR EMMERSON: Initially about sickness and service.

PN27

THE SENIOR DEPUTY PRESIDENT: If I look at the next stage in the process which includes more senior management where appropriate, and a union official where appropriate, or where requested. Has that occurred?

PN28

MR EMMERSON: I have had dealings verbally with Mr Walker and with
Mr Law, from the MTA.

PN29

THE SENIOR DEPUTY PRESIDENT: I see. And the next stage which envisages the problem being referred to higher management and a more senior union official?

PN30

MR EMMERSON: Mr Walker, I believe is the most senior manager at the business.

PN31

THE SENIOR DEPUTY PRESIDENT: I see. And in terms of your union?

PN32

MR EMMERSON: I have discussed the issues with Mr John Willow from the union and he has authorised me to continue on.

PN33

THE SENIOR DEPUTY PRESIDENT: I see. Thank you Mr Emmerson.
Mr Law?

PN34

MR LAW: Yes, thank you, your Honour. Firstly on a matter of procedure as your Honour has been looking at dispute resolution procedure, we would have not dispute that the union has the right to bring this matter here. However, we would flag that the primary venue for dealing with disputes of this nature is found in clause 28(c) (3) of the award.

PN35

THE SENIOR DEPUTY PRESIDENT: I do not have a copy of that with me
Mr Law.

PN36

MR LAW: I do have a copy of the relevant provisions of clause - - -

PN37

THE SENIOR DEPUTY PRESIDENT: Sorry. Yes I do have 28, sorry, 28 (c). 28(c)(3) is what you are referring me to, is that right?

PN38

MR LAW: Yes. And my friend has said the dispute is largely over the issue of crevicular satisfaction of the employer and we have a dispute over that and the award provides that ultimately if the dispute cannot be resolved by other means it is up to a board of reference to determine that matter, so I just flag that we are happy to look at conciliating on this matter but I put it to your Honour, that if it cannot be settled here then that is the appropriate venue for it to go to if it's not agreed.

PN39

Put that to one side for the moment, because we are here largely to see what we can do to settle this. The facts in this matter are that, to a large extent as my friend has outlined to you, however, when the worker in this case started with Walker Crash Repairs, he did sign a copy of what is in effect, a contract of employment.

PN40

There are two copies of some documents which contain the certificate that you already have, the company staff induction and sick leave policy, so I might tender those if I may.

PN41

THE SENIOR DEPUTY PRESIDENT: I will mark these documents as a bundle if you want me to.

PN42

MR LAW: That would be fine, your Honour.

EXHIBIT #W1 BUNDLE OF DOCUMENTS INCORPARTING A SICK CERTIFICATE, WALKER CRASH REPAIRS COMPANY STAFF INDUCTION CHECK LIST AND THE WALKER CRASH REPAIRS SICK LEAVE POLICY

PN43

MR LAW: If I could say to you, your Honour, to the second page, to the company staff induction, and in particular to paragraph 15, this induction
Mr Walker instructs me to place over a period of about two hours, these are the key issues that were discussed and explained to Mr Weber and he signed on the 10 July to say that he, amongst other things, has received a copy and understood the sick leave policy. Now the sick leave policy which is contained in the next couple of pages has been development in line with some work that we have done with our members and, if I can go just a little bit to the background of it, it has come about because of a concern for some our members about people taking sick leave when they were not genuinely ill.

PN44

It has also been designed to take into account some comments that come back from the metal trades case in [1942] CthArbRp 63; (1942) 46 CAR 472. In that case there is an introduction to - - -

PN45

THE SENIOR DEPUTY PRESIDENT: Sorry, that was [1942] CthArbRp 63; 46 CAR 472. A very long time ago.

PN46

MR LAW: It was indeed.

PN47

THE SENIOR DEPUTY PRESIDENT: I do not remember that one.

PN48

MR LAW: It was before my time. In that case, his Honour has referred to it as the metal trades case and it is my understanding, I do not have the full case, I have some extracts from it, but it is my understanding it's the introduction of what is now the Metal Engineering Workers Union Award - it has gone through various manifestations as the Metal Trades Award and it had a provision very similar to the one that you see before you, particularly clause 28 of the Vehicle Industry Repair Services and Retail Award. His Honour, made the point though, relating to the nature of proof and he said:

PN49

The nature of proof is accordingly at the discretion of the employer and technically he may require production of a doctor's certificate in all cases.

PN50

He went on to say:

PN51

As at present advised, I feel that to do so would be unreasonable and an employer should exercise a discretion and refrain from putting employees unnecessarily to the expense of incurring medical expenses.

PN52

Now, we had that in mind when we put together a policy that we say is open line with the award where that discretion of the employer is paramount to seek the appropriate authentication of the absence and to balance it with not being overly descriptive, so you will see in the sick leave policy in (3), the requirement to provide satisfactory evidence and stating the kinds of things that are required.

PN53

Now the third dot point goes to details of the nature and extend of your illness or injury and certificates with non specific details, and it gives one example, such as medical condition are not acceptable. I will take you to, if you want me to, or I can leave it for you to look at them at another time, but there are two key cases in the South Australian jurisdiction, one of which deals with the South Australian Metal Industry Award, which is very similar again in terms to the original Federal Decision and the Vehicle Industry Repair Services and Retail Award.

PN54

I will take you to the second page, your Honour, there are some exceptions to providing a certificate and they are two single day absences but that does not include single day before or after a weekend or public holiday and in those circumstances the employee is expected to prove by appropriate means that they absent on, out of illness or injury. Now, I will perhaps go to just while they are taking this line of the relevant cases, I will take you to the one total relevant case which is Curtain and Con Callergis Pty Ltd and unfortunately we do not have paragraph numbering in this but probably the key thing is a very short decision. In this decision, the applicant Mr Disatavas, the first paragraph, and was seeking the sum of $155.20 in respect to two days unpaid sick leave.

PN55

The magistrate notes that prior to the incident which led to the claim, the respondent, the employer of this case, had given notice to its employees that it would not recognise any certificates which attested to a medical condition, so it was more specific that our members policy but in similar nature. In this case the certificate had the words, medical condition, and there was a dispute over it. The company submitted that they had not been satisfied with the reasons given and therefore the employee was not entitled to sick leave.

PN56

Now in the decision at an examination of the award which follows shortly below there, we get to subclause 3 of clause 24 where it shows:

PN57

And he shall prove to the satisfaction of his employer or in the event of a dispute, a board of reference unable to attend on account of illness or injury.

PN58

The last two paragraphs on the page that they appear which are I think the third and fourth to last, one that starts, further I do not see how an employer could be satisfied within the meaning of subclause (a)(3) that a worker is incapacitated as a result of illness or injury unless it is equated with the nature of that illness or injury. Subclause (a)(3) places the onus squarely on the applicant to prove such a connection to the satisfaction of the employer and is clearly fair obliged to discharge it.

PN59

His Honour, went on to note that he recorded that he was of the opinion that the respondent was well within its rights to reject the certificate that an employee is unfit for work due to a medical condition. I can see that the words add nothing to the certificate, they are certainly of no assistance in ascertaining whether the condition is due to an illness or injury, even though it can be assumed that the condition was incapacitating and must be something more than dandruff. I think that an employer is entitled to know something, why his employee cannot perform his assigned duties if for no other reason than management of this staff, the appropriateness and duties.

PN60

So we say that the situation you have before you is much the same as the one in Curtain and Con Callergis. It's modified by the effect that the applicant,
Mr Weber, has signed a contract of employment where he has agreed to specific terms of the sick leave policy and that sick leave policy is in line with both the award and the authorities that relate to this particular area. Now my friend has suggested that there was no consultation over this. Well, we say that is not the case and that there was quite an extensive consultation that employees, all employees including Mr Weber, were given a copy of a draft policy and it was explained to them and they were given the opportunity to ask questions about it before it was implemented and this was in August 2003, the current claim.

PN61

So in the circumstances we say that we are surprised that the union has brought it here. We have offered Mr Weber the opportunity to either go back to this doctor, and my friend has outlined the nature of the problem and we suggest that if he is concerned about specifics that he simply get his doctor to record that it was a stomach disorder or alternatively that he complete a stat dec and Mr Walker has given me undertakings that if he had a stat dec that said he was absent on account of a stomach disorder that he would be paid for the two days.

PN62

So we say this matter can be settled right now by him giving an undertaking and signing that stat dec and we can get on our way. That is largely all I have for you at the moment, your Honour, unless you have any questions.

PN63

THE SENIOR DEPUTY PRESIDENT: No. Thank you, Mr Law.
Mr Emmerson, what do you say about the information that Mr Law has given to me?

PN64

MR EMMERSON: Thank you, Commissioner. I do notice the sick leave policy as stated by my learned friend to be the 1 August 2003. The company started induction and Ray was asked to sign and in which he did. It is dated the 10/7/03, so I am just wondering whether there was a different sick leave policy in place at the time or whether he was referring to this one because the dates don't seem to match up.

PN65

Just on behalf of - the awards in question between - my friend stated the awards, the Metal Awards and the Vehicle Awards are very similar in their terminology of sick leave provisions. I believe it to be quite vastly different. I shall not go into it today on where I think they are different, but in the argument put forward it is stated medical condition, that is not why we are here today, Commissioner. Basically we understand that medical condition isn't appropriate to be putting on medical certificates, but Raymond has gone to his medical practitioner with a personal complaint. His doctor has found it appropriate that he states personal illness to keep the matter private for Ray's concerns. I understand that the Statutory Declaration or altering medical certificate to state stomach disorder, if that was what was appropriate but it still does not fix the problem at hand.

PN66

We will find this managed, just keep on reoccurring if it has just been fixed up with a stat dec. Now, if Ray was to go back to his doctor, he is going to be charged another consultation fee, one that the company would not be prepared to pay. The statutory declaration we understand is an easy fix but like we said earlier it does not fix the problem at hand and that problem is basically that we would like to see the award as it stands upheld, because we believe he has met all criteria of the award and quite possibly the sick leave policy as well.

PN67

THE SENIOR DEPUTY PRESIDENT: Mr Emmerson, does that not raise the question as to how we actually define what the parties are in dispute over. You see if you are dispute over Mr Weber's particular circumstances, then it appears to me that there a couple of ways of resolving that dispute. One is, as Mr Law has said, that the matter might be resolved by way of the statutory declaration approach. The second would be that in accordance with clause 28(c)(3) the possibility appears to exist for that disputed matter, but don't forget I am defining the dispute at the moment as Mr Weber's particular circumstance, to be referred to a board of reference.

PN68

Now if it is to be referred to a board of reference then you are going to need to do some hard talking to get me to go too far into it today, because I may have it returned to me conceivably once the board of reference has looked at it. If the matter in dispute is in fact not so much defined as Mr Weber's particular circumstance but rather the extent to which the company is able under the terms of the award to have a sick policy, which requires more detailed explanation to be provided on a certificate, if that is what is in dispute, then it would appear on the face of it that that particular dispute could be referred to the Commission.

PN69

In which case I am probably going to want to hear from both parties as to why it is that that generic policy should or should not be allowed to operate under the domain of clause 28 of the award. So that is a second issue. There is a third one and that is to the extent that the union consider that the employer was in breach of the award, by virtue of that policy and its application. The option obviously exists for the union to pursue any such breach of the award but that is a matter for the court rather than the commission.

PN70

So the first issue that I would like to clarify with you is whether or not you define the matter in dispute as Mr Weber's particular circumstances, which again give rise to the question as to the possible resolution of the matter by virtue of that statutory declaration approach, or the reference of the matter to a board of reference or whether the matter that you really want to pursue with me today is the question of that sick policy. And if it is the question of the sick policy, as distinct from Mr Weber's circumstance, then there is another set of questions there that go to the extent to which the matter has been that issue, has been the subject of discussions between the union and the employer as a precursor to a reference to the Commission.

PN71

It is a very long winded question for you, so if you need me to clarify any issue associated with that, I am happy to do so. But in essence the question I am asking to you first of all, what is actually in dispute?

PN72

MR EMMERSON: Well, in summing up both of your questions to meet his role, Ray Weber's entitlement to sick leave is obviously in dispute, but I dare say it could be encompassed, the fact of the sick leave policy also is in question because of the award standards. We would say it does to a certain degree possibly breach the award standards. Although that is not the main issue why we are here today, I dare say the main issue we are here today is sought Ray's ongoing refusal to get his sick leave entitlement.

PN73

THE SENIOR DEPUTY PRESIDENT: If that is the case, if the primary issue in dispute at the present time is Mr Weber's situation, then can you tell me why either of the statutory declaration approach or the board of reference approach, would not be an appropriate way around the problem. Don't get me wrong, you may still have a dispute over the application or the policy but that is a different creature.

PN74

MR EMMERSON: Well, I think it goes back to a few other matters. Now, as we are aware, Ray is an apprentice in the workplace at the moment. It goes back to a few other problems. Now, Ray has tried to speak with the manager on a number of occasions about a number of issues, but does not seem to be able to get anywhere on any of them. Whether it be regarding training matters, sick leave matters, basically Ray is not getting his voice heard and we believe this is possibly the only forum where he is only to get it heard.

PN75

THE SENIOR DEPUTY PRESIDENT: But that is not what the dispute notification is about.

PN76

MR EMMERSON: No. The dispute notification is not about any of those issues. Yes, we are strictly here today about the sick leave. But I was just trying to paint a picture for the Commission, that Ray does have trouble discussing problems at work. We believe this is the best forum to fix it. What we say, because we believe the award standards are not being upheld and if I brought today to the wrong arena, I apologise, but I thought this was the only course of action to make today.

PN77

THE SENIOR DEPUTY PRESIDENT: You don't need to apologise in that regard but you will need to help me out. If we define the issue in dispute as the non payment of sick leave to Mr Weber, then as I understand the employer position, it is that the employer is prepared to pay the sick leave if either of two things happen and I have no doubt that Mr Law will hop up and tell me if I have misinterpreted the employer position.

PN78

The first is that the requisite process relative to the statutory declaration is followed. The second is that in accordance with 28(c)(3) of the award, a board of reference is satisfied that Mr Weber was unable on account of a particular illness, to attend for duty on the day or days for which he claims the sick leave. Now if Mr Weber has got other problems with this employer or other issues of communication, then there are probably no prizes for your guessing that I am going to be saying to you have those issues be addressed in accordance with the dispute or grievance resolution procedures in the award prior to there being brought to my attention.

PN79

If may be that they ultimately come to me, I am not doubting that all, but the award actually establishes a process which is designed to try and make sure that the Commission is a last resort. So the question that I need to put back to you is what I am saying if the issue is defined as Mr Weber's inability, or the non payment of sick leave to Mr Weber, then why is it that either the statutory declaration avenue will not resolve it. Or why is it that the matter ought not go to a board of reference which appears to be envisaged under the award.

PN80

MR LAW: May I clarify, your Honour, that there is a third option and that third option my friend has discounted was, a further sick certificate, medical certificate.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes. I see, yes.

PN82

MR LAW: And I would speak from personal experience, whether Mr Weber's doctor is the same, but, I am sure with my own doctor if I rang and said, look there is a problem with the certificate could you issue me with another one, he would fax one through to me without requiring me to attend again, so I just put that that might be another option that would not entail any expense.

PN83

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. So there are those three, now three options there.

PN84

MR EMMERSON: Yes Commissioner I understand that, well it is true what
Mr Law states that in some instances, I have done it myself, where I have rang up and altered a certificate, although not every doctor sees it as simply as that. Some doctors feel that there authority has been brought into question and have refused in the past to do such an act. Although there still leaves two other options that I am aware of, but the statutory declaration, sure, it could be the one that finalises this matter completely, I understand that.

PN85

THE SENIOR DEPUTY PRESIDENT: It may resolve Mr Weber's situation. You may still have a dispute over whether or not the provisions of that policy are appropriate in the context of the award and it may be that you ultimately bring that matter to me. But the question that I am going to ask before I even go to that question is the extent to which you have had a debate with the employer of that in accordance with the dispute resolution process.

PN86

MR EMMERSON: Over the policy?

PN87

THE SENIOR DEPUTY PRESIDENT: Yes.

PN88

MR EMMERSON: Yes, Commissioner. Well, we would argue that the policy in place does contravene all standards - - -

PN89

THE SENIOR DEPUTY PRESIDENT: Yes. But can I take you back
Mr Emmerson. As I understood you to be saying to me that the key issue is the non payment of sick leave to Mr Weber.

PN90

MR EMMERSON: Yes.

PN91

THE SENIOR DEPUTY PRESIDENT: Now the issue for you to address me on is why one of those now, three options is, or none of those three options are available to you to resolve the matter because you see, I doubt on the basis of what you are telling me that I have in effect got any licence under the award to get involved in the specifics associated with Mr Weber's case. I am doubting on the basis of what I am being told that I have got a licence as the Commission at the present time to get involved in Mr Weber's particular case.

PN92

If what before me today was a dispute about the policy, and you debated that policy with the employer and the union was not able to reach agreement on the foundation for the policy, then that is a matter that might conceivably be bought to the Commission under the dispute resolution provisions of the agreement. But if the dispute here is Mr Weber's personal circumstance then the award appears to provide a very clear mechanism to resolve that dispute and that involves a board of reference.

PN93

Now the employer has put up two other options, either of which might also resolve the matter. One is the return to the doctor and the other one is the statutory declaration approach.

PN94

MR LAW: Yes. I see that perhaps we should use them.

PN95

MR EMMERSON: Like I said earlier, the main reason we are here today is to Ray Weber's entitlement put back. I know there is a few options of the table. Maybe I have not looked into as thoroughly as yourself and I would have thought that the two issues are sort of standing together.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes. What I am going to recommend to you, Mr Emmerson, is that you engage in a discussion with Mr Weber about whether any of those three options are available and whether they might resolve the matter. If you still want to pursue this dispute in the sense that it particularly impacts on Mr Weber, then you will be able to ask for this hearing to be reconvened, but you will need to demonstrate to me when it is reconvened that I have got the authority under the award to delve into the specifics relating to
Mr Emmerson's case as distinct from simply saying go and arrange for a board of reference to deal with the matter.

PN97

Now, if at some stage in the future you bring back a different dispute to me which defined as the operation of the sick leave policy, then I am very happy to deal with that. But on the basis of your advice to me that is not why I am here today.

PN98

MR EMMERSON: No, that's correct, Commissioner, because we would not have exhausted the disputes resolution procedure on that matter at this stage as far as the sick leave policy goes. So I dare say you are correct on that but there probably could still be some discussion with that. I did think today was the appropriate forum to discuss about the personal sick leave entitlement for Ray but obviously maybe that is not the case.

PN99

THE SENIOR DEPUTY PRESIDENT: What I propose, Mr Emmerson, is I will leave the Commission's file open for a fortnight and if during that time you advise that you want to this hearing reconvened I am very happy to reconvene it. But once again, if the focus of the next hearing is on Mr Weber's personal situation then you will need to come along prepared to tell me why it is that I should be doing or dealing with that issue as distinct from a board of reference in accordance with clause 28(c)(3).

PN100

Now I can only add one other recommendation to that which is implicit I think in everything I have said to date. You have a capacity proven very commonly in the past to resolve these issues by sorting them through with the employer. It would appear to me to be logical for the parties to have a discussion about Mr Weber's personal circumstance, such that that could be separated out from any particular concerns that the union and its members may have about the operation of the policy. To do that you will need to actually eye ball each other and talk about it. Are you happy with that approach?

PN101

MR EMMERSON: I dare say at this stage I am happy .....

PN102

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Thank you. Mr Law, you were about to jump to your feet earlier.

PN103

MR LAW: I was not in any great hurry to, your Honour, but I was just wanted to add one thing and that is to reiterate the offer that I have made to my friend and that is that I am a JP, I have offered that if Mr Weber is of the mind to fill out a stat dec that I am more than happy to call Mr Walker's premises and witness it. Therefore to put him into the minimum inconvenience and put this matter behind us so that we can deal with other issues.

PN104

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Mr Law, can I say it does appear to me that there are two issues that there is an errant relationship between them. One is Mr Weber's personal circumstance here and the other is the extent to which there might be a broader dispute about the application of the sick leave policy. It appears to me to be logical that Mr Weber's personal situation is dealt with first of all but that if there are ongoing concerns about the extent to which the policy is sustainable then I would expect that Mr Emmerson will raise those concerns with you and that in accordance with the provisions of clause 44 of the award, that the parties would then discuss that policy and hopefully reach agreement either on the policy as it is or on changes to that policy.

PN105

In the event that agreement could not be reached on that basis Mr Emmerson has got the option of coming back to the Commission. The matter in dispute then is the policy as to distinct from Mr Weber. The process of resolving any potential issues associated with that sick leave policy is going to be dependant upon the parties sitting down and actually talking about those issues in both an open minded and constructive way, so that will require some degree of good will and cooperativeness between both parties. Mr Emmerson I am going to adjourn that matter on that basis.

<ADJOURNED INDEFINITELY [2.16PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMWU1 CERTIFICATE OF SICKNESS OF MR WEBER DATED 24/01/2005 PN10
EXHIBIT #AMWU2 WALKER CRASH REPAIR SICK LEAVE POLICY PN10
EXHIBIT #W1 BUNDLE OF DOCUMENTS INCORPARTING A SICK CERTIFICATE, WALKER CRASH REPAIRS COMPANY STAFF INDUCTION CHECK LIST AND THE WALKER CRASH REPAIRS SICK LEAVE POLICY PN42