C2005/5304, Transcript of Proceedings [2006] AIRCTrans 1198 (9 November 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16002-1

SENIOR DEPUTY PRESIDENT DRAKE

C2005/5304

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
AND
AUSTRALIAN POSTAL CORPORATION
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/5304)

SYDNEY

10.07AM, FRIDAY, 27 OCTOBER 2006

Continued from 14/11/2005

PN1

MR I BRYANT: There is no change in appearances on our side, your Honour, I appear for the CEPU. With me, I think, an unchanged appearance, is MR J METCHER.

PN2

MR W GIBSON: Good morning, your Honour, I appear for Australia Post together with MR P DOBSON and MS K SCHMIDTKE.

PN3

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

PN4

MR BRYANT: Your Honour, my understanding on the last occasion this matter was before you - well, there’s a notification arising from our New South Wales branch. In fact, it was a national issue and I think on the last occasion there were outstanding issues right round the country. I think I should report in the first instance that at this stage the issues have been resolved in all states and territories except for New South Wales, ACT and while there have been some discussions between the parties over the matter at issue, which is essentially clause 6 of attachment A of EBA6, the part-time preference and how it might work, there have been a number of discussions. I think some of those discussions have been reported previously.

PN5

Quite simply there is still the situation where there is not agreement between the parties. The CEPU’s position is that we need a part-time - or arrangements around part-time preference that not only meet the terms of clause 6 of attachment A of the EBA and that’s - I just for the record restate that, and that simply says that:

PN6

Priority will be given to permanent part-time employees when applying for permanent full-time vacancies in accordance with agreed guidelines.

PN7

The point to us of course is “priority” - we say it’s a very strong statement and there can’t be anything in the arrangements that seek to diminish that priority. Also, we say there cannot be anything in the arrangements around part-time preference that result in unfairness or break down that priority. We also say, your Honour, that the arrangement needs to be understandable and transparent to people and that in effect will aid that issue - or ensure that there is fairness.

PN8

The CEPU since the last occasion in its discussions with Australia Post has moved some ground. Your Honour, we understand that on reflection we ..... doesn’t stand with idea of, as we were proposing, the ..... of facility - by facility. Perhaps arrangements were not possible and so we have moved from that. Our position now is that while we still strongly resist they can work in a network level, which has been discussed on previous occasions, we believe there is an opportunity to make the arrangements on the same basis as the designated work groups that apply in the Commercial Division. That’s a known arrangement, or an existing arrangement, and the size of those designated work groups mean that you have somewhere between eight, ten, perhaps a dozen individual outlets and they’re reasonably well-known amongst themselves, obviously, because designated work groups have some connection to each other. We also believe - just as Mr Metcher reminds me, designated work groups are the designated work groups for the purposes of the Occupational Health and Safety Act, so there is some connection.

PN9

We put a proposal to Australia Post modified to that designated work group concept that is similar to what happens in the Mail and Network Division of Australia Post. The idea of creating the priorities would be to have a list of people, people put their name on a list in terms of what their ambitions are and they go on list at a date and it operates to that date. We say it’s not a seniority arrangement, simply because you put on date - the date you put yourself and the list that the date operates form, the arrangements work very well in Mail and Network as a result of a situation where what was fairly lacking in transparency became much more transparent and is seen to be equitable and certainly understandable.

PN10

Basically what happens here is if you’re a part-timer, you’re on the part-time list; if you’re full-time, if you’re after a transfer you’re on the transfer list. It operates so that neither list gets priority over the other, take it in turns. We can go into that a bit later if we need to but basically we’re saying that there is an arrangement, or there are potential arrangements adapted to the retail or the commercial environment on the basis of the designated work group arrangement. Then using an arrangement it’s basically in operation elsewhere in the company and is seen, certainly from the union, we believe by all parties seen to be a fair and transparent system.

PN11

That’s the proposal we have put to Australia Post. Unfortunately that’s not agreed to. Australia Post are still operating - or still pursuing a view that there should be merit or some merit issues between people moving from part-time to full-time. We say that any issue about competency or about ability is sorted out when you get the job. This is not about moving from one level to another. This is about moving increasing hours and we say there shouldn’t be a second test to pass for a person moving from part-time hours to full-time hours. It simply should be on the availability and proper process to get those hours. There should be no other test.

PN12

THE SENIOR DEPUTY PRESIDENT: Is that a merit issue between different applicants for moving - to decide who moves from part-time to full-time, or whether someone does at all?

PN13

MR BRYANT: Could I ask you to repeat that, sorry?

PN14

THE SENIOR DEPUTY PRESIDENT: Is that a merit test that is to apply to competing applicants to move from part-time to full-time, or simply for any single person to move from part-time to full-time? So, if there are a number of part-timers who want to move to full-time, is it your understanding of Australia Post’s position that they apply a merit test to decide which of those part-timers will move to full-time?

PN15

MR BRYANT: Yes.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes?

PN17

MR BRYANT: Yes.

PN18

THE SENIOR DEPUTY PRESIDENT: All right. Go on.

PN19

MR BRYANT: Your Honour, just to - we’re obviously still strongly resisting that. We’re not keen on that for - our experience I think on previous occasions we dealt with the situation of Ms Richards from Canberra. We’re also aware of other situations where - or have become aware of other situations where we believe that similar unfairness has arisen because of the - similar to what’s happened with Ms Richards. We believe that we can get around the situation, of the Ms Richards type situation by the creation of these lists and the management through the list system.

PN20

Obviously there are some tests that go with those lists that people obviously are going to clearly express their preferences. If you change your preferences in terms of adding to them, that affects your position on the list. Conversely, obviously, if you were to reduce your preferences, there’s no change but that’s we’re basically coming from, your Honour. I think that’s all I need to say at this stage. We propose - we still think there is a possibility of settling this. However, we would - if that’s not done soon I think we need to push on and have the matter arbitrated.

PN21

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. Mr Gibson.

PN22

MR GIBSON: Good morning, your Honour. This matter does go back approximately 12 months. I think I was up here 12 months ago.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes.

PN24

MR GIBSON: Australia Post took some counsel from yourself in terms of the matter of Ms Richards.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes. I think we decided to get rid of the little matter and concentrate on a major problem - well, not “problem”, whichever, the dispute.

PN26

MR GIBSON: We did, your Honour, and we agreed without prejudice to that process, that we’d go and have further discussions which we duly did. And in fact we have had those discussions in all states and I’m not quite sure whether Mr Bryant is speaking from a New South Wales centric perspective today or whether he’s talking nationally, because certainly the designated work groups have not been spoken about from a national perspective. In the discussions that state HR colleagues have had with their respective state HR secretaries, they have been happy with Network. The assistant secretary of the national office has confirmed as much to myself.

PN27

I think in the last correspondence that we wrote to you, your Honour, at the end of March, it was dated 31 March 2006, and it was from Catherine Walsh, the manager of employee relations at Australia Post. It basically said:

PN28

To date there appears to be general agreement the existing retail networks for the purpose of applying the part-time preference guidelines are operating effectively in Victoria, Tasmania, Western Australia and South Australia. A telephone hookup with Queensland on 28 March also confirmed that parties were comfortable with the consultative framework arrangements on the basis its term and year is to be covered.

PN29

It went on then to note that there were further discussions in New South Wales and there was to be some further analysis provided to the New South Wales ranch of the CEPU on one of the networks in terms of how the part-time preference application was undertaken. That further analysis was provided by Mr Dodson to Mr Metcher at the end of March. There was a follow-up letter at the end of June in terms of seeking any feedback because the issue of part-time preference continued to be without incident and comment save and except for Mrs Richards’ case 12 months ago, across Australia.

PN30

So that follow-up letter was sent on 30 June. To date we have not had any formal response from the CEPU at a state level or a national level in relation to the analysis that was undertaken by New South Wales in terms of the application in that network. And in the last correspondence at the beginning of July that I wrote to Ms Herrington at the national office, I said that to advance matters it might be appropriate to have some comment back on the analysis that Australia Post did, given there has been no further issues from our point before the matters are brought back before yourself.

PN31

With respect to the issue of merit, Mr McDonald - your Honour, could I hand something up to you which is a - - -

PN32

THE SENIOR DEPUTY PRESIDENT: Before you do that, is the situation then in every other state, except New South Wales, the process operates under the same basis, that is the basis still operating in New South Wales by Australia Post?

PN33

MR GIBSON: Basis on the retail network.

PN34

THE SENIOR DEPUTY PRESIDENT: Retail network.

PN35

MR GIBSON: Yes.

PN36

THE SENIOR DEPUTY PRESIDENT: And that you say that it has been resolved with every other branch of the CEPU on the basis of the network?

PN37

MR GIBSON: I do.

PN38

THE SENIOR DEPUTY PRESIDENT: Is that the case, Mr Bryant? Is the problem still a matter of perception in New South Wales or application in New South Wales rather than nationally. I want to understand what the basis of the resolution in the other states is.

PN39

MR BRYANT: My understanding is that - I’ll just let my mind go round in geographical order. In Western Australia, South Australia Victoria, the situation has been resolved on the network basis.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MR BRYANT: My understanding in Queensland, which was the more recent resolution - the resolution up there is on the same boundaries as do apply for the consultation arrangements under the consultation clause.

PN42

MR GIBSON: That’s correct, your Honour.

PN43

MR BRYANT: Which is something that looks like it’s been - when you look at the map it looks like it’s been done by the Queensland Surveyor General to me but it’s how they have done their arrangements for consultation, where the people - because it’s consultation arrangements under clause 3 of the agreement right across all divisions and levels through the enterprise. And because the geographical spread and the situations, and political considerations in Queensland the boundaries for retail obviously doesn’t relate to just an individual site. It relates to groups of sites and the way it’s done takes in various - - -

PN44

THE SENIOR DEPUTY PRESIDENT: What about Tasmania?

PN45

MR BRYANT: Tasmania is the three - there’s south, there’s north and
north-west, and I understand that’s very - either networks or very close to the networks. There might be some marginal fiddle off that in the - - -

PN46

THE SENIOR DEPUTY PRESIDENT: Mr Bryant, my difficulty in this matter is that what you’re asking the Commission to look at, and what I thought might be resolved nationally in this process is to distinguish New South Wales. Australia Post - there has to be some arguments about national arrangements with a national organisation such as Australia Post and whilst you say you have these concerns, it seems to me that there has to be some overwhelming argument to distinguish New South Wales arrangements from the other states. What do you say they are?

PN47

MR BRYANT: We say that the networks - the issue about the way the networks are designed. I mean, obviously - - -

PN48

THE SENIOR DEPUTY PRESIDENT: Are they designed differently in New South Wales, do you say? So there’s something that distinguishes them or makes them less or more disadvantageous than other states in the arrangements?

PN49

MR BRYANT: Your Honour, I might let Mr Metcher explain. He’s got a better grip on the - - -

PN50

THE SENIOR DEPUTY PRESIDENT: No, no, you’re appearing. We’re not doing tag team here, Mr Bryant. It’s your job, you do it.

PN51

MR BRYANT: Well, my understanding is that the problem with the networks in New South Wales, some of them are very large. You could be - - -

PN52

THE SENIOR DEPUTY PRESIDENT: Larger than Victoria and Western Australia and South Australia?

PN53

MR BRYANT: Well, we’re talking about corporate outlets here, we’re not talking about all - - -

PN54

THE SENIOR DEPUTY PRESIDENT: All right. Mr Bryant, I’ll give you an opportunity to talk to Mr Metcher and come back and answer to those matters. I’ll wait for you. I don’t expect - you can go outside and do that and have a conversation because I can otherwise hear you. We’ll go off the record, thank you.

<OFF THE RECORD

PN55

THE SENIOR DEPUTY PRESIDENT: We’ll go back on the record. Yes, Mr Bryant? So what is it that distinguishes the New South Wales position from the resolution in Western Australia, South Australia, Victoria and Tasmania?

PN56

MR BRYANT: Well, the first thing is we say the arrangements those other states have continue to work on an equitable basis.

PN57

THE SENIOR DEPUTY PRESIDENT: They do?

PN58

MR BRYANT: Yes. The second thing we say, in particular to focus on New South Wales, is that the concerns with the size of the networks, or certainly some of them, is that if you’re talking about being a part-time person we’re faced with a - you have one location in the offer, you know, that the full-time position, we’d be facing very considerable distances to be moving to take up that full-time position. Some of the country regions, we’re talking about quite substantial - - -

PN59

THE SENIOR DEPUTY PRESIDENT: But if you turn that down you don’t necessarily go off the list, do you? You just move down the list until something more favourable comes up.

PN60

MR BRYANT: At the moment you’re not on a list. So the problems - at the moment and ..... there’s no arrangement. These are very informal arrangements. We’re saying there should be a list in the future but there’s currently no list.

PN61

THE SENIOR DEPUTY PRESIDENT: And the vacancies are advertised.

PN62

MR BRYANT: Yes.

PN63

THE SENIOR DEPUTY PRESIDENT: And is there anything that would prevent you from applying for the ones that were geographically more possible?

PN64

MR BRYANT: If you’re aware of them, not at all.

PN65

THE SENIOR DEPUTY PRESIDENT: And how wouldn’t you be aware if they’re advertised?

PN66

MR BRYANT: We are aware of situations currently where there’s - well, the advertising is very uneven. It’s like people are not aware. We’re aware that currently the person who’s a fixed term - sorry, a relieving person, he’s been a relieving person for 16 years and is keen to get off that list and get a fixed place. ..... for 16 years, moving around on a place-to-place basis. That person is applying for jobs as they can find them. We’ve also been aware of positions till - having been aware they were vacant in the area where that person would have been looking for.

PN67

THE SENIOR DEPUTY PRESIDENT: So, Mr Bryant, so I can make sure that I understand what the complaint is, do you say that the system as a whole should be changed in New South Wales or that its operation has quirks that - or failures in its application that don’t occur elsewhere?

PN68

MR BRYANT: I’m saying the latter. I’m saying the latter.

PN69

THE SENIOR DEPUTY PRESIDENT: Mr Gibson, it seems to me that what Mr Bryant has now elucidated is different to what I understood the original position, that there are failures in operation that make it difficult, that don’t occur elsewhere. I can’t imagine why that would be - that it would be if those matters occurred in New South Wales they would occur elsewhere.

PN70

MR GIBSON: Your Honour, if I could hand some correspondence up between the parties. It doesn’t take account of the correspondence the parties that may have sent to you. Your Honour, if I could take you to - I’ll just get my own bearings here. If I can take you to attachment F, which is dated 4 January 2006 and it’s a letter from Australia Post, Rod McDonald to Sherelle Herrington.

PN71

On that letter, at the very last attachment to that letter, attachment 2, it details the networks which was one of the requests in our discussions at the national level to deal with this matter because one of the positions that the national office would see the view put to Post was that, well, how do we have any trust in Post in networks change tomorrow, if we all suddenly decide to have one network across Australia Post - a fair comment, probably not a practical situation but a fair comment.

PN72

So what we said is that we will give you a breakdown of how the networks operate at the moment, potentially as you see those. I mean there is a little bit of variation but there’s nothing unique to New South Wales. We also said in that letter from Mr McDonald that should the networks change in the future with respect to the part-time issue, then we’ll come back and consult with the CEPU. But those networks haven’t changed since that letter has been provided in January. So that information has been available to the CEPU since January this year.

PN73

THE SENIOR DEPUTY PRESIDENT: All right. Mr Bryant, it seems to me that if there are failures as the kind outlined out by you, then there are failures - micro failures rather than macro failures. It seems to me that if people are advertising jobs - or failing to advertise jobs that are being taken by a person to know of them is clear advertising across the network then that’s a matter that ought to be addressed. Have you particularised that to Mr Gibson, that particular failure, for instance?

PN74

MR BRYANT: Your Honour, the discussions we have had have been more focused on the statement. That’s what - we have been attempting to resolve it and Mr Metcher tells me that there has been numerous discussions between himself or officers of the New South Wales branch and New South Wales Commercial Division representatives. I don’t think we see any - we’re not inhibited from having any further discussions if we’re going to resolve it.

PN75

THE SENIOR DEPUTY PRESIDENT: All right. Is there any reason why, if you have - it seems to me that what you’re saying is that the system is the same in New South Wales as in everywhere else but Queensland where it has some idiosyncratic arrangements, that however the unfairnesses that operate - that occur in New South Wales haven’t occurred anywhere else and that those unfairnesses are why you say you’re agitating this application, is that right?

PN76

MR BRYANT: Yes.

PN77

THE SENIOR DEPUTY PRESIDENT: All right. Well, I think that you should particularise those unfairnesses to Mr Gibson, he’s appearing in this matter now, rather than the state Commercial Division. Because this is the system that has, with the exception of Queensland, applied nationally and there has to be some good reason to change an entire state’s operation in a national organisation. But if there are failures of process, micro failures that lead to an unfairness in New South Wales, then they need to be particularised.

PN78

I’m going to list this matter before me to review your provision of those particulars and Mr Gibson and others in his organisation’s responses in early December and then I’ll list the matter if those matters cannot be resolved. The difficulty I have with the concept is that whilst unfairnesses in process in the application of this system in New South Wales can be addressed, it would be quite a heavy burden on you to argue that there should be a different system in one state, unless there were political or other considerations that you seem to accept are reasonable in Queensland that I don’t need to understand here.

PN79

So I’m going to list this matter for mention for return to me for conference on 12 December, if that’s a suitable date to you, and by then I expect that you will have had particularised every single failure because most of those things mean good practice. I can’t imagine that there’s not an obligation to advertise the jobs, Mr Gibson, if there are permanent jobs that might be available to part-timers. If there are and those are not being followed, then they should be. It must result in unfairness. I don’t want you to think I have pre-decided that, but I have.

PN80

MR GIBSON: I agree, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: So if those matters are in practice in New South Wales it may very well explain why Mr Bryant quite properly says it doesn’t work. So we will meet in conference on the 12th by which time I expect there to be a full and frank exchange of those views and if we are not able to resolve the matters on the 12th I will list the matter for arbitration. Are you free on the 12th, Mr Bryant?

PN82

MR BRYANT: Can I just check my diary, your Honour?

PN83

THE SENIOR DEPUTY PRESIDENT: You certainly can.

PN84

MR BRYANT: The only possibility might be the 11th.

PN85

THE SENIOR DEPUTY PRESIDENT: You’re not available on the 12th or is there some - I don’t care one way or the other. Are you free both days? The 11th is better for you? All right.

PN86

MR BRYANT: Your Honour, can I just double check the time of the day?

PN87

THE SENIOR DEPUTY PRESIDENT: 10 o’clock, if that suits.

PN88

MR BRYANT: No, that’s good.

PN89

THE SENIOR DEPUTY PRESIDENT: I don’t care if we make it a bit later, if you want to fly up in the morning, Mr Gibson.

PN90

MR GIBSON: I’m happy to get a 7 o’clock flight, your Honour.

PN91

THE SENIOR DEPUTY PRESIDENT: 10 o’clock, and we’ll either resolve it or set it down. I want that material exchanged and some meetings held. Thank you.

<ADJOURNED ACCORDINGLY [10.39AM]