C2005/4357, Transcript of Proceedings [2006] AIRCTrans 103 (31 January 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13980-1

COMMISSIONER FOGGO

C2005/4357

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
AND
AUSTRALIA POST
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/4357)

MELBOURNE

10.17AM, MONDAY, 16 JANUARY 2006

Continued from 27/9/2005

PN1

MR P HURREY: I ask for leave to appear with MR G LEAN on behalf of the CEPU.

PN2

MR M HARRINGTON: I seek leave to appear and I also seek leave for
MR M TAMVAKOLOGOS from Australia Post to appear with me, Commissioner.

PN3

THE COMMISSIONER: Yes, leave is granted in both cases.

PN4

MR HURREY: Thank you, Commissioner.

PN5

MR HARRINGTON: Thank you, Commissioner.

PN6

THE COMMISSIONER: Why has there been a delay?

PN7

MR HARRINGTON: I will explain that Commissioner. It's my learned friend's application so of course he is entitled to go first but if I may just thank the Commission for the indulgence in the last 15 or 20 minutes. I handed to my learned friend, Mr Hurrey, at about five to 10 today a one page document with an attachment which seeks to make an open offer to settle the dispute as an offer on the record. Commissioner, my learned friend obviously needed some time to consider that.

PN8

THE COMMISSIONER: I see.

PN9

MR HARRINGTON: So in that respect I am responsible however as you might be aware my learned friend also provided to me slightly amended submissions of the applicant and I was given - I then had the opportunity to quickly breeze through that, Commissioner. Commissioner, if I may hand up to you the Australia Post offer to settle the dispute and I am instructed to put this offer on the record. It is written form to assist you, Commissioner.

EXHIBIT #AP1 AUSTRALIA POST OFFER TO SETTLE DISPUTE

PN10

MR HARRINGTON: Thank you. Commissioner, going to the document AP1 that you have just marked, Australia Post offers to settle this application on the following basis, making no concession to the assertion by the CEPU that the Commission has jurisdiction to determine the alleged dispute between the CEPU and Australia Post as notified by the CEPU on 12 August 2005:

PN11

Australia Post makes the following offer on the record to settle the current application before the Commission. 1. Upon Ms Rachelle Lee signing a medical release authority by 12 pm on Tuesday 17 January 2005 in the revised form communicated to the CEPU after Commissioner Foggo recommended on 3 October 2005 and contained in correspondence dated 6 October 2005, Australia Post will expunge from Ms Lee's personal file all written references to the counselling of Ms Lee by Mr Hayes on 29 July 2005. 2. Upon the satisfactory response from Ms Lee's treating doctor Australia Post will approve the application for leave in respect of 30 June and 1 July 2005.

PN12

Attached to the open written offer that has been provided to you AP1, is a letter addressed to you Commissioner dated 6 October 2005 and it was also - it was sent by Daniel Proietto, the lawyer from Australia Post. It was also copied to the CEPU, you will see on the second page of the letter, Commissioner. The relevant part of the letter dated 6 October 2005 is at the bottom of page 1 and italics is set out the terms of the authority. Commissioner, that letter came three days after your recommended which Australia Post was happy to accept. Its genius was if you like inspired by some of the comments that you made in your recommendation. My learned friends may or may not agree with that but that's why Australia Post sought to amend the authorisation in the way it did.

PN13

That offer is put on the record. It's been communicated to my learned friends. As I understand it the CEPU rejects that offer, Commissioner. Is there any matter that you would like me to address in respect of the offer?

PN14

THE COMMISSIONER: Yes, I do want to go to this letter dated 6 October and make it absolutely clear for the record that I did not respond in a formal way regarding the wording of the authority. It was not in my view, an instance where the Commission should be endorsing or not endorsing policy that had been proposed by Australia Post and I made that quite clear to Ms Doyle and to
Ms Porter when I had an informal discussions with them, I believe it was earlier this year or late last year

PN15

MR HARRINGTON: I believe it was last year - - -

PN16

THE COMMISSIONER: I can't quite recall but it has been the last couple of months. I asked them to come to chambers and I indicated to them that I was not going to accept or reject the information that had been provided by Australia Post. I did no more than note it and I reiterated my view as expressed during earlier proceedings that I believed that the wording in the authority raised some problems and I think I said to the parties that it made me feel very uncomfortable in terms of how far I believed it went. I said I intended to do nothing further in relation to the wording and that is - that continues to be my position in relation to this. I understand from the proposal however as it is attached to the document that have marked as AP1 that the first paragraph is in the same terms as the previous authority and then there is the addition of that second paragraph which clarifies issues.

PN17

MR HARRINGTON: Yes, Commissioner, I wasn't meaning to suggest in any way that you had directed or recommended anything in respect to the wording.

PN18

THE COMMISSIONER: No, no, but you can understand why I want to make it absolutely clear.

PN19

MR HARRINGTON: Yes. Yes, you want to make it clear.

PN20

THE COMMISSIONER: Yes.

PN21

MR HARRINGTON: And paragraph 39 of the recommendation you point out as you have done today that you raise some concerns with the terms of investigation regarding employee seeking verification of doctor's certificate, Australia Post undertaking to review the wording, and that's all that has occurred and that explains the nature of the offer that's being put today. So it's merely explanatory in that sense.

PN22

THE COMMISSIONER: Yes.

PN23

MR HARRINGTON: Commissioner, that is all I wish to say on that matter at this time.

PN24

THE COMMISSIONER: Yes, thank you.

PN25

MR HURREY: Commissioner, I do have - if I could hand up or tender a document, a medical release authority that was drafted which the CEPU is happy with. I can indicate, Commissioner, that the CEPU would accept the offer based upon the signing of that medical authority. The CEPUs view, your Honour, that does address the concerns that were further expressed. It allows Australia Post to carry out their investigation, so (1), whether the person did attend and (2), that that doctor did issue that certificate. We say anything more and particularly in the second paragraph of the offer doesn’t add anything to or doesn’t clarify. In fact, it just indicates that confidential information is being - - -

PN26

THE COMMISSIONER: Which paragraph are you referring to?

PN27

MR HURREY: The second paragraph of Australia Post's offer of AP1, your Honour. It particularly says:

PN28

That for the purpose of - - -

PN29

THE COMMISSIONER: Of April 1?

PN30

MR HURREY: I beg your pardon?

PN31

THE COMMISSIONER: Of April 1?

PN32

MR HURREY: AP1.

PN33

THE COMMISSIONER: AP, sorry.

PN34

MR HURREY: That's all right.

PN35

THE COMMISSIONER: The second paragraph. Are you talking about the second paragraph of the letter or the second paragraph of the first page?

PN36

MR HURREY: The penultimate paragraph on page 2 which commences - - -

PN37

THE COMMISSIONER: So it's the letter of the 6 October?

PN38

MR HURREY: Correct, your Honour. It commences:

PN39

The purpose of the contact with your doctor is to confirm -

PN40

And it then goes on. We say that that just merely indicates that in fact they are going to be seeking confidential information by the agent of Australia Post. It doesn’t matter whether he is a medical practitioner or otherwise. He is just the agent of Australia Post, stands in the shoes of Australia Post for the purpose of that inquiry and we think that the inquiry does breach the privacy agreements, Commissioner, and raises serious issues. In other words the authority that they have redrafted doesn’t take it any further. In fact in our view it makes it worse in once sense. That's the terms of our counter offer if you like, your Honour.

PN41

THE COMMISSIONER: Yes.

PN42

MR HURREY: We'd accept that subject to signing.

PN43

THE COMMISSIONER: Commissioner.

PN44

MR HURREY: Commissioner, sorry.

EXHIBIT #CEPU1 CEPU OFFER

PN45

MR HURREY: Thank you.

PN46

THE COMMISSIONER: I'm treating this as a new case and so I'm not running on from the series of exhibits which were provided on the last occasions given that that was a conciliation conference and this is quite clearly a hearing of a different nature.

PN47

MR HURREY: Do you want me to briefly open, Commissioner?

PN48

THE COMMISSIONER: Well to what extent have these two been discussed between the two of you?

PN49

MR HURREY: It's been discussed. It was the terms of the earlier offer were the current - sorry. The terms of both offers have been discussed back and forth between the parties and their position appears to be, unfortunately, they can't agree upon the word there, that it doesn’t address, obviously it doesn’t address our concerns.

PN50

THE COMMISSIONER: Yes. All right, I'm going to adjourn these proceedings and have discussions with the parties in relation to these proposals that have just been put forward but do so in a manner that hopefully will leave it open for me to continue arbitration today if we can't agree on the terms.

PN51

MR HURREY: Certainly, your Honour, Commissioner.

PN52

THE COMMISSIONER: We will adjourn into conference.

<SHORT ADJOURNMENT [10.28AM]
<RESUMED [2.27PM]

PN53

THE COMMISSIONER: Mr Harrington?

PN54

MR HARRINGTON: Thank you, Commissioner. It's been some hours since we were on the record and in that time we've endeavoured to negotiate a settlement to the application that is before you today. Australia Post wish or I am instructed by Australia Post to put the following offer on the record to settle the current application before the Commission and Australia Post has redrafted the medical release authorisation that it would like Ms Lee to sign and the medical release authorisation is in a form that I will hand up to you now but I will read it into the transcript. It reads as follows:

PN55

I, (employee's full name) authorise my employer, Australia Post, to contact
Dr blank (the medical practitioner) who issued the attached medical certificate dated blank relating to my absence from work on / between blank and blank for the specific purposes of confirming that:

PN56

1. I consulted the medical practitioner on the date stated in the certificate.
2. The certificate was issued by the medical practitioner.
3. The purpose of the contact will be to confirm that my absence from duty was necessary for the management of my medical condition in the context of the circumstances that raised doubts about the bone fides of the sick leave application.
This consent does not authorise the disclose of my medical condition.

PN57

And then there is the employee's signature. Australia Post is prepared or offers that to Ms Lee to sign and if she does so sign it there will be - excuse me - her personnel record will have expunged from it all written material referring to a counselling session on 29 July 2005. And it follows:

PN58

That depending on the outcome if the authorisation is signed if the relevant medical practitioner who treated Ms Lee confirms the need for her absence then the policy, namely 14.12.13 will apply and leave will granted for 30 June 2005 and 1 July 2005.

PN59

I hope Commissioner that's clear but that's the nature of the offer that's being made to resolve the dispute and notwithstanding that offer Australia Post reserves all its rights in respect of arguing that there is no jurisdiction in the Commission to hear this application. And I am instructed to put that offer to my learned friends who represent the CEPU here today.

PN60

THE COMMISSIONER: Yes, thank you. Mr Hurrey?

PN61

MR HURREY: Thank you, Commissioner. I'm instructed by the CEPU to reject that offer of settlement, your Honour. At this stage I'd be asking if the Commissioner if you'd excuse yourself under section 105 in respect to the further proceeding in relation to the matter.

PN62

THE COMMISSIONER: Yes.

PN63

MR HURREY: Yes.

PN64

THE COMMISSIONER: Yes, thank you Mr Hurrey. Is there anything else
Mr Harrington?

PN65

MR HARRINGTON: Commissioner, we are simply disappointed that the application for you to remove yourself has been made but that it is a right that is open to the union and I am instructed to extend my thanks to you for your assistance up until this point of time in this application.

PN66

THE COMMISSIONER: Thank you, Mr Harrington. I will withdraw from further proceedings in the matter pursuant to the application which is made by the union. Can I say I understand precisely why that has been made. I have been very involved in conciliation over this for at least several hearings and issued a detailed recommendation in relation to it which has not been accepted by the union. I'll refer the matter to Vice-President Lawler for reallocation within the panel. I beg your pardon, I didn’t mark the final offer which was made,
Mr Harrington.

EXHIBIT #AP2 REVISED FINAL OFFER FROM AUSTRALIA POST

PN67

MR HARRINGTON: Thank you, Commissioner.

PN68

MR HURREY: Thank you, Commissioner.

PN69

THE COMMISSIONER: These proceedings are now adjourned.

<ADJOURNED ACCORDINGLY [2.32PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AP1 AUSTRALIA POST OFFER TO SETTLE DISPUTE PN9
EXHIBIT #CEPU1 CEPU OFFER PN44
EXHIBIT #AP2 REVISED FINAL OFFER FROM AUSTRALIA POST PN66