C2008/2220, Transcript of Proceedings [2008] AIRCTrans 87 (11 March 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18197-1

COMMISSIONER SMITH

C2008/2220

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Finance Sector Union of Australia
and
National Australia Bank Limited
(C2008/2220)

MELBOURNE

2.17AM, THURSDAY, 21 FEBRUARY 2008

PN1

MR A LESZCZYNSKI: I appear on behalf of the FSU, with
MRS G SKLAVENITIS and MR P MANGAN on behalf of the FSU.

PN2

MS K IRWIN: I appear on behalf of National Australia Bank and appearing with me this afternoon, Commissioner, is MS M SCOUTAS, regional executive, retail, and MS C CARROLL, case manager.

PN3

THE COMMISSIONER: Thank you. Yes.

PN4

MR LESZCZYNSKI: Commissioner, essentially there are three different matters that are in dispute in this case here. The first relates to the fact that Mrs Sklavenitis was required to work outside her normal working hours and was unpaid for this which clearly breaches clause 23.1 of the NAB enterprise agreement which states that a person's work load should be able to be worked within their normal working hours which in this case obviously it wasn't. The second matter refers to the transfer of Mrs Sklavenitis from the Oakleigh branch of NAB to the Hawthorn branch of NAB which was something that was basically placed upon Mrs Sklavenitis without any consultation with her and without taking into account her family and personal commitments which contravenes clauses 2.5 and 22 of the agreement and the third matter relates to things not continuing as normal while there is a dispute and I suppose in this case it was the fact that Mrs Sklavenitis's shifts were cut from seven down to six, even though we were in dispute and I suppose this breaches clause 47 of the agreement. I think that pretty much sums up the matters at hand.

PN5

THE COMMISSIONER: What do you want me to do?

PN6

MR LESZCZYNSKI: I suppose, Commissioner, from Mrs Sklavenitis's point, I suppose, in the case of the unpaid training, that obviously we request that NAB pay her for the training that she did attend outside of her normal work hours. In terms of the matter of the work continuing as normal, we believe that in the circumstances, Mrs Sklavenitis should have been paid for seven days a fortnight instead of six, so in those circumstances we believe that Mrs Sklavenitis should actually be paid for that one extra shift a fortnight over the length of the agreement. I suppose the big issue here is the one relating to the potential transfer of Mrs Sklavenitis from the Oakleigh branch to the Hawthorn branch.

PN7

THE COMMISSIONER: That has occurred, hasn't it?

PN8

MR LESZCZYNSKI: Mrs Sklavenitis hasn't actually attended work at the Hawthorn branch, so technically I suppose it hasn't actually happened, Commissioner.

PN9

THE COMMISSIONER: Practically, it hasn't happened, technically it probably has.

PN10

MR LESZCZYNSKI: Obviously, for Mrs Sklavenitis, she does not want to go to work at the Hawthorn branch. Initially, she did want to continue to work at the Oakleigh branch. I suppose in the last couple of weeks, the more this matter has dragged on, she's been speaking to her doctor, I suppose, and the doctor has sort of indicated that it might not actually be in her best interests to go back to the Oakleigh branch like we initially put in the application and in those circumstances, Commissioner, we would ask that another suitable position be found for Mrs Sklavenitis in one of the five branches we had previously indicated to NAB.

PN11

THE COMMISSIONER: All right. Thanks. Ms Irwin.

PN12

MS IRWIN: Thank you, Commissioner. Commissioner, I would like to put a fairly detailed submission at this point in time, if I may, particularly in response to the detailed application made by the FSU in relation to this dispute.

PN13

THE COMMISSIONER: Sure.

PN14

MS IRWIN: Mrs Sklavenitis commenced with NAB on 28 December 1988 and works as a part-time sales and services adviser or SSA. Georgia had been engaged at the Oakleigh branch and is currently on unpaid sick leave. There is currently a vacancy for Georgia to perform her role as an SSA part-time at the Hawthorn branch. In relation to the issue raised by Mr Leszczynski in relation to the training course, in March 2007 Georgia was identified as an SSA who did not have home loan capability and so required appropriate training. Georgia was certainly aware, I believe, of the importance of being able to deal with home loans and I've been instructed appeared to be quite enthusiastic about attending a lend smart accreditation course to become home loan accredited.

PN15

Certainly it was seen as important for her work at the Oakleigh branch. This course occurred in about April 2007. It was a seven-day course and Georgia took time off in lieu on the days that she attended the course, but would not normally have been rostered to work. In July 2007 I understand that Georgia had a operation on her wrist which the business supported her through. Prior to Georgia's operation, Mary Scoutas, the regional executive covering that Oakleigh branch visited Georgia at the branch to check on her progress associated with completing the training course.

PN16

Mary also explained to Georgia that to reinforce the learnings from that course, there would be fortnightly meetings of about two hours in duration with the credit manager, but given Georgia's operation and required absence as a result of that, Georgia's follow-up meetings with the credit manager would be rescheduled until she had returned from her leave. Georgia then offered to come to the fortnightly meetings, as she felt she did not want to miss out and fairly contrary to Mr Leszczynski's dispute notification, certainly Georgia was not forced or required to attend those meetings during her absence. Georgia's sick leave covered the period at that time from 6 July to 6 August. Meetings were held on 26 July, 9 August, 23 August and 13 September that I am aware of.

PN17

On that basis, Commissioner, Georgia only attended one of those meetings during the course of her sick leave and was provided with time off in lieu to cover that time, as well as provided with time off in lieu to cover other times when she attended these meetings on days that were not her normal working days. For the record, Commissioner, the first I was certainly made aware of this particular issue being in dispute was when I read Mr Leszczynski's application to the Commission in this matter.

PN18

Having said that, Commissioner, I certainly do not believe that NAB has breached section 23.1 of the NAB agreement as it says that work loads should be capable of being completed in ordinary working hours and I believe that is an all things being equal, it does not say that work loads will be capable of being completed. Commissioner, we say that Georgia's attendance at the additional meetings was voluntary. She was not required to attend during her sick leave. She offered to attend and was compensated for that time through the provision of time off in lieu which I understand she utilised to attend other medical appointments and personal issues.

PN19

It should also be noted at this point, Commissioner, that in spite of the home loan accreditation training provided to Georgia and the ongoing support through the meetings with the credit manager, I've been instructed that Georgia did not actually put her training into action at the Oakleigh branch. In relation to the change of shift issue, Commissioner, on about 21 August Mary Scoutas visited the Oakleigh branch in response to concerns raised by the branch manager, a lady by the name of Chris De Natale, regarding Georgia's performance and the impact of Georgia's personal issues.

PN20

The branch manager discussed with Mary that there were contributing factors impacting on Georgia's performance that had occurred external to NAB, in particular Georgia's conduct at her daughter's local school and the ripple effect that that had had on the branch, the community and within Georgia's own family. This discussion then became a catalyst for Mary suggesting to Chris, the branch manager, that she ask the SSAs and particularly Georgia is there was any interest in changing hours, whether that was an increase to four shifts per week or perhaps a decrease to three shifts per week.

PN21

Mary also felt that the option of reducing the number of shifts worked may be of particular interest to Georgia given her personal difficulties at this time. I've been instructed that Georgia indicated a preference to decrease her shifts to three per week. However, this did not actually occur at the time. It's fair to say, Commissioner, that Mary Scoutas is aware of the terms of the enterprise agreement at clause 19 in relation to change of hours and is aware that she could not make Georgia change her hours. The change to three shifts per week was voluntarily agreed to by Georgia. Again, Commissioner, for the record, the first I was made aware that this particular issue was in dispute was when I read Mr Leszczynski's application.

PN22

In terms of the change of branch, Commissioner, there had been a planning day on 4 September 2007 where Mary and her team of branch managers reviewed its operations to ensure that the right capabilities were in the right places. During this process, it was identified that there were certainly some instances where capability could be improved. The review highlighted various gaps at that particular branch. Given Georgia's personal issues, her poor performance which was attributed to her personal issues as she had previously been a solid performer and her apparent reluctance to implement her home loan training, it was decided to put the need to move branches to Georgia.

PN23

Mary decided that given Georgia's previous work history had always been solid, that personal issues were severely impacting her work and that she would perhaps be better suited to a smaller branch where her skills could be utilised whilst working the three days per week that had been previously agreed, it was felt that a change of branch would provide Georgia with a fresh start. As such, in early September Georgia's branch manager discussed moving to another branch with Georgia, offered her three options, namely moving to either Hawthorn, Burwood or Camberwell.

PN24

I understand that Georgia conceded that moving away from the Oakleigh branch was required and in the circumstances elected to move to Hawthorn. I've also been instructed that at some time after this, Georgia had even contacted the branch manager at Hawthorn and informed her that she was going to be joining the team. We certainly strongly disagree with that the issue of moving branches was raised with Georgia in a performance appraisal in August 2007 as indicated by the FSU in their application.

PN25

We would further refute, Commissioner, that Georgia was needed in Hawthorn to perform a training role, particularly given that Georgia was actually assessed in her performance appraisal for the July period which wasn't actually conducted until around the week commencing 20 September and that delay is due to an issue around figures becoming available, but she was in fact rated at that time as being a developing contributor, so certainly we would suggest that it's not actually logical that the business would move an employee who is not satisfactorily performing all of the elements of their role, or all of the requirements of their role, to a position where they are training other staff.

PN26

On 13 September, Commissioner, Georgia was attending a training session at Mary Scoutas' office. Mary met with Georgia on this day to discuss her reasoning behind the move. Georgia also talked about the stress that she had been under during the year and agreed that her performance had been lacklustre. Mary explained that this was an opportunity for Georgia to reinvent herself and to put the issues from her local community behind her. Georgia did not raise any specific objection to the move during this meeting, although she admitted to not being entirely happy with moving to Hawthorn, but certainly indicated that she would give the move a go.

PN27

Also in the circumstances, it was suggested that Georgia may like to access the EAP in light of her personal circumstances. It was as a result of Georgia's preparedness to move to Hawthorn that Mary the commenced making a series of moves required to ensure that Georgia could be accommodated at Hawthorn. We further refute that Georgia's position was made redundant, Commissioner. There continued to be a position for a part-time SSA at Oakleigh, so we would certainly submit that this is not a redundancy situation as the position of SSA with home loan capabilities continued to exist.

PN28

In fact, it was not until Georgia conceded that she needed to move that the staffing requirements of Oakleigh were reviewed and initially there had been a part-time person pencilled in to actually go into that role. However, that move didn't eventuate and the position was advertised and both full-time and part-time people were invited to apply for that position, the focus being on getting the best qualified and skilled person to fill the gap, rather than whether or not they were full-time or part-time.

PN29

As it turned out, a person who was already working full-time was appointed to that position. Certainly it was the impact of Georgia's personal issues on her performance in the branch that drove the decision to suggest a change of branch to her. It should be noted, though, Commissioner, that neither the NAB agreement nor the NAB award cover the issue of moving people between branches and sites. It is, however, a contractual term that NAB can require an employee to perform their duties at a place or places as directed.

PN30

Georgia was provided with three branches in which to work. Of those, Georgia selected Hawthorn. It was also determined not to implement Georgia's agreed change of hours until she had moved to the Hawthorn branch. Commissioner, I also believe that it is fair to say that if Georgia had not been having personal issues which were impacting on her performance and therefore the branch, then the issue of change of branches would not have come up. At the time of confirming the move with Georgia, she was due to commence at Hawthorn on 26 November. However, this was moved forward to 19 November and it was not until Georgia was notified of that change of date that Georgia indicated in an email to Mary that she wanted Mary to reconsider the move.

PN31

On 31 October there was an email which Georgia sent to Mary outlining her concerns regarding dropping off children and being able to get to work on time and in that email, Georgia also indicated that she was unable to get after school are on Friday afternoons for her children, as her husband was no longer in a position to be able to pick them up. In respect to that particular point, Commissioner, even if Georgia had remained at Oakleigh branch, the issue of picking up her children on a Friday afternoon would still have been an issue for her.

PN32

Mary responded to Georgia by email on the 1st indicating she was not in a position to be able to assist her at that stage, as the other moves had already been made to accommodate Georgia in Hawthorn. She did, however, suggest that perhaps the Burwood branch might be an alternative, but didn't think that that would actually assist Georgia. Mary also indicated that she had already assisted Georgia by reducing the number of days that she wanted to work. Mary and Georgia actually spoke on 2 November about Georgia's concerns and it was during this discussion that Mary reiterated that Georgia was not actually required to attend work until 9.30 and that should provide her with sufficient time to get from Oakleigh to Hawthorn.

PN33

Georgia suggested that this time frame would stress her, so it was suggested that Georgia commence work at 10 am as an alternative. In relation to the issue of Georgia being able to pick up her children on a Friday afternoon, the suggestion was made that Georgia finish her work at 3 pm and if needed, could make up whatever hours or time that was missing on an alternative day. On the basis of the above, Commissioner, we absolutely refute the FSUs contention that we failed to discuss or consult with Georgia over the move or failed to make any attempt to accommodate her particular concerns.

PN34

Furthermore, Georgia was informed that if she were able to find another position in a branch that she felt was closer to her home, that certainly she would be released to work in that role. I understand there was a further meeting held between Mark, Cathy Carroll, branch manager Chris, Georgia and Mr Paul Mangan from the FSU, but this failed to resolve the matter. Georgia has been on sick leave since 5 November and has been on unpaid sick leave since 4 February.

PN35

Commissioner, NAB has at all times attempted to support Georgia and to take on board her concerns, including providing alternative suggestions for her to consider. NAB certainly believes the actions taken in response to Georgia's concerns are consistent with the principles described at clause 2.5 and take into account clause 22, which is the balance provision of the enterprise agreement. We are happy to break into conciliation, Commissioner, in an attempt to resolve this matter, if it please the Commission.

PN36

THE COMMISSIONER: Thanks, Ms Irwin. What do you want to do? Will we go into conciliation and see whether we can resolve this matter?

PN37

MR LESZCZYNSKI: Yes. Commissioner, obviously we disagree with almost everything that Ms Irwin has said and we believe that NAB have deliberately at times not actually put anything into writing so that it does give them the flexibility to change their attitude to things whenever it suits them and NAB has shown a total unwillingness to try and resolve this matter. I have put forward a number of suggestions to NAB which they have basically dismissed out of hand, but, your Honour, we want to try and obviously resolve the matter, so, yes, I would like it to go into conciliation. Thank you.

PN38

THE COMMISSIONER: I will adjourn the matter into conciliation.

<NO FURTHER PROCEEDINGS RECORDED