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[2008] AIRC 1174
Australian Industrial Relations Commission
2008-07-29
Original judgment source is linked above.
Alleged dispute concerning various clauses of the agreement.
[1] Ms Georgia Sklavenitis is a Sales and Service Advisor with the National Australia Bank Limited (NAB). She has been employed by NAB for 19 years.
[2] Ms Sklavenitis is a member of the Finance Sector Union of Australia (FSU) and, through the FSU, she seeks to raise a grievance about the proper application of a number of clauses in the NAB Enterprise Agreement 2006 - 2009 (the Agreement).
[3] The issues relate to the payment of salary and the ability to balance work and life in the duties given to her by NAB.
[4] NAB raised jurisdictional arguments but they will be dealt with during the course of the decision as they go to the proper characterisation of the dispute as well as whether or not an issue was capable of determination by the Commission.
[5] FSU submit that there essentially two matters which fall for determination about the proper application of the Agreement. The first relates to the payment of wages (at overtime rates) during a period where Ms Sklavenitis returned to duty from sick leave to attend a training session. The second relates to a proposed transfer of Ms Sklavenitis from her branch in Oakleigh to another branch. From the point of view of the FSU this matter involves an examination of what is meant by the words "work and normal" in the dispute settlement provisions of the Agreement as well as a provision in the Agreement which commits NAB to ensuring that employees balance their work and personal commitments.
[6] I will deal firstly with the claim for payment of wages for a period when Ms Sklavenitis returned to duty from sick leave to attend a training session.
[7] Clause 18 of the Agreement provides that where work is performed in addition to the employee's ordinary hours of work and which is authorised by the employee's team leader, then overtime will be paid. No issue of jurisdiction arises on this matter.
[8] It was the evidence of Ms Sklavenitis that she was on sick leave when her Branch Manager Ms Di Natale advised her that she was to attend a training course. It was the evidence of Ms Sklavenitis that:
[9] It was the evidence of Ms Di Natale that Ms Sklavenitis willingly took time off in lieu and did not ask for overtime. [1] When Ms Di Natale was asked if there existed any documentation to confirm that time off in lieu was taken she responded that none existed.
[10] There is no issue that the time spent at the training course would have attracted either overtime or time off in lieu. In this connection evidence was also given by Mr R Meehan who ran the training course. His evidence was that there were four sessions each of a two hour duration. Ms Sklavenitis believed she attended for a longer period.
[11] There are clear clashes in the evidence in relation to this matter. In so far as the time spent at the courses is concerned I prefer the evidence of Mr Meehan. Mr Meehan was confident about the course and its length, whereas Ms Sklavenitis was unsure and could not be definite. I find that the courses were conducted on 26 July 2007, 9 August 2007, 23 August 2007 and 13 September 2007. I also find that each course was of a two hour duration.
[12] The next matter for determination is whether or not Ms Sklavenitis enjoyed time off in lieu for the time she spent at the courses. As to this matter, both Ms Sklavenitis and Ms Di Natale are confident in their evidence. However, I am going to prefer the evidence of Ms Sklavenitis that she has not taken any time off in lieu. Whilst I accept that there can always be some informality about these matters, it is nonetheless important that proper records are kept. NAB was not able to demonstrate the relevant working hours for Ms Sklavenitis and it is more likely that an employee would notice a failure on the part of the employer to provide a benefit than the employer would remember if it had been provided. In matters where rights are affected it is important to keep records.
[13] I am fortified in this conclusion by the provisions of the National Australia Bank Group Award 2002 (the Award) which is called up, in terms, into the Agreement. [2] The award provides[3] that time off in lieu is at the request of the employee and with the approval of the NAB. The default position is that overtime is paid. It is only where the employee elects to receive time off in lieu that it can be agreed by the NAB.
[14] It follows that I find that Ms Sklavenitis is entitled to be paid overtime for the time she spent at the training sessions as described by Mr Meehan.
[15] I now turn to consider the circumstances of the proposed transfer of Ms Sklavenitis. An examination of this matter involves consideration of what is meant by the term in the Agreement that work shall continue as normal in the dispute settlement provisions together with what are said to be obligations under Clause 22 of the Agreement that NAB is committed to ensure that employees balance their work and personal commitments.
[16] In addition, FSU rely upon clause 2.5 of the Agreement which states that: we actively promote the health and well-being of our employees with a balance between personal and work life.
[17] It is perhaps important to deal with a proposition raised by NAB that these are only principles aimed at guiding behaviour and expectations. [4] NAB submits that a statement of intent does not create an obligation but rather, is a description of the intention behind the entire agreement which includes provisions on job sharing, salary averaging and work loads.
[18] Clauses in agreements are put there for a purpose. The question is whether or not a clause has any real work to do. Sometimes these clauses are referred to as aspirational clauses.
[19] In Shop, Distributive and Allied Employees Association v Big W Discount Department Stores [5] the Full Bench found that the clause in relation to occupational health and safety went beyond an aspirational concept and committed parties to pursuing a particular outcome. The language used in clause 22 of the Agreement uses the words "committed" and "ensure". I am satisfied that the language of the Agreement permits an examination of the factual circumstances to allow conclusions to be reached about the commitments given.
[20] It appears that the actions of NAB may be tested against these commitments and therefore the character of the dispute is easily identified.
[21] To the extent that these clauses are said to be aspirational, I adopt, with respect, the observations of His Honour Chief Justice Black:
The difficulty is that the statement in issue is not explicitly contractual in its language and could be seen as merely aspirational. It appears in a document of mixed content and purposes and, although these include contractual purposes, at least the primary repository of the employment contract is unambiguously elsewhere. The context is, however, decisive. In the context of WWU as a whole, if the statement that the firm "will take every practicable step to provide and maintain a safe and healthy work environment for all people" were no more than an aspirational representation, imposing no obligation on the maker, it would be seen as an exercise in hypocrisy. The statement is a reflection of, and is central to, WWU's expression of the "culture" of the firm and its approach to its staff, and its aspirations about the approach its employees will take to each other. The language used, taken in the context as a whole, points to the statement embodying a contractual obligation and the trial judge was correct in holding that it was a term of the contract. [6]
[22] It is against that background that I examine the context and setting [7] of the Agreement as it relates to the factual circumstances of this case.
[23] The following is a brief chronology of events:
[24] I propose to pause here and consider the impact of that chronology of events. For the purpose of my consideration I will assume that Ms Di Natale properly rated Ms Sklavenitis as a "developing contributor".
[25] A number of conclusions can be drawn. The first is that the decision to transfer Ms Sklavenitis was taken without her knowledge or approval. Such a transfer would impact upon her personal life as subsequent events have demonstrated. I am not reaching any conclusion about the nature of that impact and the mutual obligations which might arise as between employer and employee in trying to balance personal and work life, but there was to be an impact.
[26] The question is whether or not NAB has implemented clauses 2.5 and 22 in reaching that decision.
[27] The reason for the decision to transfer Ms Sklavenitis was based upon her personal issues which NAB believed resulted in a drop off in performance. [16] Ms Scoutas made it clear the emphasis she gave to matters in arriving at her decision:
Well, that gets back to the earlier question that I asked you. Is it usual to transfer someone if their performance is poor in any given assessment period?---Well, no, not unusual to do - I wouldn't be moving them. I would assess them and do a performance action plan but there was more issues here than just the performance.
And it's those other issues, the personal issues which you say bore upon your decision?---A heavier weighting, yes. [17]
[28] The chronology of events may at least demonstrate that NAB was seeking to assist Ms Sklavenitis in what it perceived were difficult personal times leading to a problem with her performance. Indeed, it could be said that the efforts made by NAB to accommodate Ms Sklavenitis following the decision to transfer her were consistent with its concern to balance employee's personal and working lives. On many occasions NAB sought to engage with Ms Sklavenitis about her work and location.
[29] However, the fact remains that NAB took a serious decision to transfer Ms Sklavenitis without discussing the matter with her first. Ms Sklavenitis was faced with a course of action that would impact upon her work and life. This was more important given the circumstances which caused her stress in the workplace in the first place.
[30] I find that by making a decision which impacted upon her work and life without discussing the matter with her prior to the decision being made, NAB has not properly applied particular terms of the Agreement. At clause 2.5 "We actively promote the health and well-being of our employees with a balance between personal and work life" and at clause 22, Balance, "NAB is committed to ensure that employees balance their work and personal commitments".
[31] In making these findings, I do not criticise NAB's motives, but it reached conclusions and made a decision effecting Ms Sklavenitis without consulting her.
[32] Subsequent consultation and attempts to accommodate Ms Sklavenitis were against the background of a course of action which was unable to be reversed. I am not suggesting that any particular course of action was or was not available to NAB. The Agreement however, at the very least, would require NAB to consider a persons view about the impact of any decision it makes on a persons life outside of work. There are many aspects of work-life balance contained in the Agreement which NAB drew to my attention and these would come into play when consideration is given to the views of employees who believe they are likely to be affected by any proposal. NAB thought it would make a decision in her best interests without talking to her.
[33] I now turn to the final matter which falls for determination and that relates to change in the payment to Ms Sklavenitis during her period of sick leave. The change in the payment resulted from a reduction in the number of shifts which Ms Sklavenitis was notionally working.
[34] I say notionally because Ms Sklavenitis was on sick leave at the time her payments were changed.
[35] FSU argue that clause 47 - Dispute resolution procedure provides that; "without prejudice to any party involved in a dispute, work shall continue as normal pending resolution of the matter" and that NAB should not have altered the terms of employment which were in dispute pending a resolution of the matter.
[36] NAB argues that the dispute was in the context of the move to the Hawthorn branch and therefore the working as normal would have been the new rostered hours.
[37] Whether or not the alteration was caught up in a "status quo" argument appears to be unnecessary given that the focus on an alteration to hours of work contained in clause 19 of the Agreement. A review of that provision could not lead to the conclusion that hours of duty should or could be altered whilst Ms Sklavenitis was on sick leave. This view is fortified when consideration is given to the terms of clause 34.4. If it were possible to alter hours of work during a period of illness and thus impact upon payment then the scheme contained in clause 34.4 could be subject to unfair manipulation.
[38] I find that Ms Sklavenitis is entitled to be paid overtime for the time she spent at the training sessions as described by Mr Meehan.
[39] I find that by making a decision which impacted upon her work and life without discussing the matter with her prior to the decision being made, NAB has not properly applied clauses 2.5 and 22 of the Agreement.
[40] I find that Ms Sklavenitis should be paid sick leave on the basis of her normal hours of work prior to proceeding upon sick leave.
A Leszczynski for the Finance Sector Union of Australia.
K Irwin on behalf of the National Australia Bank Limited.
[2] Except in the case of inconsistency where the Agreement prevails
Printed by authority of the Commonwealth Government Printer
Finance Sector Union of Australia
National Australia Bank Limited [2008] AIRC 1174;