AG2001/5920, Transcript of Proceedings [2001] AIRCTrans 3082 (14 November 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 1008
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

AG2001/5920

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LK of the Act
by Australian Home Care Services Pty Limited
for certification of the Australian Home Care
Services Pty Limited Certified Agreement 2001

MELBOURNE

10.32 AM, TUESDAY, 30 OCTOBER 2001

PN1

MR D. FELDMAN: I appear on behalf of the applicant, Australian Home Care Services Pty Limited.

PN2

THE COMMISSIONER: Yes, thanks - you seek leave. Leave is granted, Mr Feldman.

PN3

MR FELDMAN: This is an application for certification of an agreement made directly with the employees, combined with an application for designation of an award. With regard to designation, we seek to have the Home Community Care Award 2001 designated as the award for determining whether the certified agreement passes the no disadvantage test. The reasons that award should be designated are that the applicant operates a home and personal care business in the State of Victoria. That is the same as is covered by that award.

PN4

The employees engaged under the proposed agreement perform work classified under the award. This includes home carers, who provide domestic care to disabled or infirmed patients in their homes. Home carers provide services essentially the same as those outlined for band 1 employees under the award. The employees - the applicant also engages personal carers who provide domestic care, as well as personal care services. Personal carers provide services essentially the same as those outlined for band 2 employees under the award.

PN5

Now, that ends my submission in relation to designation. Would you like me to move automatically - directly to the procedure adopted in making the agreement, Commissioner?

PN6

THE COMMISSIONER: No. No, Mr Feldman, it wouldn't be right to assume any automaticity. And of course you are not - your client is not respondent to this award.

PN7

MR FELDMAN: That is right, it is not a named respondent.

PN8

THE COMMISSIONER: No.

PN9

MR FELDMAN: Previously, when that was entered into, Australian Workplace Agreements covering some of its employees, that has been the award that has been by the employment - Office of the Employment Advocate for determining a no-disadvantage.

PN10

THE COMMISSIONER: Has the award been applied, Mr Feldman, in a - I understand what the position is on the ground in relation to respondency, but has the award, has it been applied in a general sense by the employer?

PN11

MR FELDMAN: Well, a number of these employees would have previously been engaged under Australian workplace agreements that were underpinned by that award which have now expired.

PN12

THE COMMISSIONER: Yes, and how long has there been employees of this type employed by Australian Home Care Services Proprietary Limited?

PN13

MR FELDMAN: For a number of years now, although in the last three to four years there have been a number of mergers and takeovers at other entities and other companies where employees were simply paid in accordance with minimum conditions or as set out in minimum wage orders or are now expired certified agreements.

PN14

THE COMMISSIONER: There was an expired certified agreement, do you say?

PN15

MR FELDMAN: There is now an expired certified agreement; I believe it is called the Rehabilitation Home Services agreement. It is one of the entities that has subsequently been taken over by Australian Home Care Services and it is proposed this agreement will now merge the employees of the previous two entities into the one to be covered under the one agreement.

PN16

THE COMMISSIONER: And was that organisation - if I followed you, there has been - taken over or purchased or subsumed into Australian Home Care Services.

PN17

MR FELDMAN: Yes, yes.

PN18

THE COMMISSIONER: Was that organisation a respondent - in relation to which certified agreement was an award - was there an XF determination made or was that entity respondent to the award?

PN19

MR FELDMAN: That was both entities, both the Australian Home Care Services before it merged with Rehabilitation Home Services, they engaged their employees under AWAs which have now expired.

PN20

THE COMMISSIONER: I follow that.

PN21

MR FELDMAN: Rehabilitation Home Services engage their employees under a certified agreement that was underpinned by the Home and Community Care Award.

PN22

THE COMMISSIONER: All right, and is that - was that done through an XF determination or was Rehabilitation Home Services respondent to the award?

PN23

MR FELDMAN: I am sorry, no, it was done through a 170XF. It is my understanding that they weren't a named respondent to that award.

PN24

THE COMMISSIONER: Yes, all right. Thanks, Mr Feldman, thank you. Yes, it is necessary in relation to this application to make a determination pursuant to section 170XF of the award and that is to determine a designated award for the purpose of a certified agreement. And in relation to Australian Home Care Services Proprietary Limited I do make a determination that the Home and Community Care Award 2001 is the appropriate award for the purpose of deciding whether the agreement I am about to consider, or any other agreement, passes the no disadvantage test.

PN25

In due course I will make a formal determination to that effect but, pursuant to section 170XF(2) I inform the employer that that is the award. So now, Mr Feldman, we will move to the application, the LK application.

PN26

MR FELDMAN: Thank you. I will briefly outline the procedure that was adopted in making the agreement, and then run through some of the main terms and conditions for the purpose of the no disadvantage test. The applicant has approximately 1268 employees who will be covered by the proposed agreement. The procedure adopted in making the agreement, as set out in the statutory declarations, complies with the requirements of section 170LK. To inform each of its employees about the agreement and seek their consent, the applicant carried out the following procedure.

PN27

Firstly, in early June Mickie Swindon, a human resources consultant engaged by the applicant, requested the applicant's supervisors to each nominate a list of employees who may be interested in becoming employee representatives. These supervisors nominated 20 employees, of whom four accepted the role: namely Janina Bower, Barbara Millard, Maureen O'Brien and Julianna Lawford. Each of these representatives were notified of the hearing date today and invited to attend. The applicant sent a letter to each employee who was to be covered by the proposed agreement, dated - - -

PN28

THE COMMISSIONER: Well, Mr Feldman, before you go on, I don't mean to interrupt you but it might be easier if I asked the questions now. Sometimes I forget the question if I allow you to go on. Did those four people designated by their supervisors or in some way sought to be volunteers, did they, in fact, volunteer to be shop representatives?

PN29

MR FELDMAN: They were approached and they chose to become those employee representatives. It was just partly because there is a diverse workforce and there aren't necessarily automatic supervisors. It was some level of appointment but the processes I have set out certainly made provision for other employee representatives to volunteer at a later stage, but it was certainly voluntary on the part of those four. They were simply approached by the employer and then they chose to become employee representatives.

PN30

THE COMMISSIONER: Were any other employees advised that the opportunity arose for them should they be interested?

PN31

MR FELDMAN: Yes, yes. Yes, thank you. I will just run through the process in its chronological sequence. On 27 June a letter was sent to all of the employees by the applicant advising employees of the company's desire to enter into an agreement with them; the names and contact details of those four employee representatives who had initially been appointed, or selected; the names of the managers involved in the process; and the dates and venues for a series of meetings throughout Victoria to discuss the process of making agreement, and consulting with employees about the contents of the agreement.

PN32

These meetings were then held throughout July at the applicant's head office and each regional office to discuss the agreement and at these meetings, as well as discussing the contents of the agreement, the employees who attended these meetings were asked whether they, too, were interested to become employee representatives or whether they accepted the four representatives who had previously volunteered after being contacted by their supervisors. And at these meetings the employees indicated that they were - that the four employee representatives who had been initially selected were acceptable to them, and no other employees came forward to take on the role of employer representative in the making of an agreement.

PN33

The applicant then on 19 July sent a letter to all employees with a summary of the major clauses of the proposed agreement and advised at two further meetings to discuss thee content of the agreement. Following these meetings, on 2 June 2001 the applicant sent a letter to each employee notifying them of their intention to make a certified agreement and enclosing a copy of the proposed agreement in final form.

PN34

THE COMMISSIONER: And that was the first time that the employees had seen the agreement in totality?

PN35

MR FELDMAN: That was - draft copies of the agreement had been provided at the various meetings that were held and there was discussion taken about those agreements and some - as a result of that discussion, some minor amendments were made. So that was the first time that the agreement in final form was seen by all employees.

PN36

On 17 August 2001 the applicant sent a letter to all employees proposed to be covered by the agreement which contained a ballot paper and a request that they vote on whether to accept or reject the agreement by completing the ballot paper and returning it in a stamped, self-addressed envelope to the applicant by Wednesday, 29 August 2001. The employees, therefore, had more than 14 days - they had the agreement for more than 14 days in its final form before they were asked to vote. The votes were counted on 31 August 2001 by Fran Boyd, the Human Resource Manager of the applicant, and scrutinised by the employee representatives.

PN37

Of the 1268 ballot papers that were sent out to the applicant's employees, 571 of those ballot papers were returned and, of those, 498 voted in favour of the agreement. Therefore, 87 per cent of those employees that chose to vote voted in favour. No employee requested an organisation to represent them - this was set out that they had this right in the communications that were sent to them in July - and no organisation has otherwise approached the applicant regarding the agreement.

PN38

THE COMMISSIONER: That was in July you say, was it?

PN39

MR FELDMAN: Yes, the letter of 19 July.

PN40

THE COMMISSIONER: The declaration seems to suggest that was in the 2 August correspondence.

PN41

MR FELDMAN: Yes, I am sorry, it was in the final correspondence with the memorandum that went out with the final agreement. I am sorry for that error. So it is certainly our submission that all employees had the proposed agreement explained to them at the initial meetings and Mickie Swindon, the human resource consultant, and Fran Boyd, the company's Human Resource Manager, were available to discuss or explain the agreement at those meetings and at other times. It is our submission that the procedure adopted complies with the requirements of section 170LK.

PN42

THE COMMISSIONER: Do you have a copy of the 2 August letter there, Mr Feldman?

PN43

MR FELDMAN: I believe so.

PN44

THE COMMISSIONER: Thank you.

PN45

MR FELDMAN: Sorry, there is a pile of correspondence. I am just trying to find the correct letter. Commissioner, I believe it may have been the first letter and, unfortunately, I don't appear to have a copy with me. I certainly have a copy back at my office which sets out that employees had a right to contact the union about the agreement. It appears to be - - -

PN46

THE COMMISSIONER: Well, Mr Feldman, I am looking at the letter of 27 June so I might just take a moment to read that.

PN47

MR FELDMAN: Certainly.

PN48

THE COMMISSIONER: Well, the declaration says that a letter was sent on 2 August to each employee notifying him or her of its intention to make a certified agreement, enclosing a copy of this finalised agreement, and the Commission's requirement, of course, is that the declaration respond - the person making the declaration respond to these questions. Did the notice given by the employer of intention to make the agreement state that:

PN49

If any person whose employment will be subject to the agreement is a member of any organisation of employees ...(reads)... and conferring with the employer about the agreement.

PN50

And, of course, that is the provision, the detailed requirements of section 170LK(4) of the Act. So it will be necessary, of course, to see that because I want to see how the declaration is made out and I have looked at the correspondence of 27 June. I have got 1 August letter from Mr Chincotta and it is not that which the declaration deals. It is another - it is a communication which has another purpose.

PN51

MR FELDMAN: Commissioner, it appears to me that that sentence, making that declaration was omitted from the written communications. I have just been instructed by the Human Resource Manager of the applicant that at the meetings that were conducted with employees explaining - to discuss the agreements that those representations were verbally made to those employees in attendance.

PN52

THE COMMISSIONER: Yes, thanks, Mr Feldman. We are going to go off the record now, have a conference.

SHORT ADJOURNMENT [10.53am]

RESUMED [11.03am]

PN53

THE COMMISSIONER: Well, we have had a conference in this matter and I hope it was a helpful one in the sense that some views have been expressed. And the position is, as I understand it, at the conclusion of the conference that, Mr Feldman, your client will consider its position.

PN54

MR FELDMAN: That is right.

PN55

THE COMMISSIONER: Yes. I will adjourn sine die. Thank you.

ADJOURNED INDEFINITELY [11.04am]