AG2002/585, Transcript of Proceedings [2002] AIRCTrans 1184 (9 April 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BARTEL

AG2002/585

THE ADELAIDE CLINIC, KAHLYN PRIVATE HOSPITAL AND FULLARTON PRIVATE HOSPITAL (ANF) NURSES AGREEMENT 2001-2004

Application under section 170LS of the
Act by Australian Nursing Federation -
South Australian Branch re an agreement
about industrial dispute (Division 3)

ADELAIDE

3.43 PM, MONDAY 25 MARCH 2002

PN1

THE COMMISSIONER: Thank you, I'll take appearances.

PN2

MS K. EDWARDS: If it pleases the Commission, I appear on behalf of the Australian Nursing Federation SA Branch.

PN3

MR E. DAVIS: If the Commission pleases, I appear on behalf of Adelaide Clinic, Kahlyn Private Hospital and Fullarton Private Hospital.

PN4

THE COMMISSIONER: Thank you. Yes?

PN5

MR DAVIS: Yes, thank you Commissioner. Commissioner, if the Commission pleases, this is an application pursuant to division 3 of the Workplace Relations Act 1996 to certify the Adelaide Clinic, Kahlyn Private Hospital, Fullarton Private Hospital, ANF Nurses Agreement 2001-2004. Commissioner, the employer are a group of hospitals that provide psychiatric services across three sites in Adelaide, South Australia.

PN6

The Australian Nursing Federation, SA Branch, is a party to the agreement. This is the third enterprise agreement for Adelaide Clinic, Kahlyn Private Hospital and Fullarton Private Hospital and it covers all of the employees of the hospitals here engaged in work covered by the nurses ANF South Australian Private Sector Award '99. The employees of the hospitals were represented by the ANF during the negotiations for this agreement and meetings and consultations were held with all employees during those negotiations.

PN7

All employees were provided with a copy of the agreement as required by section 170LR of the Workplace Relations Act, 14 days before the employees endorsed the agreement. A majority of employees voted to approve the agreement and this agreement provides, in addition to a significant increase in the wage rates, currently provided to the employees, but also provides an opportunity for employees to avail themselves of salary packaging arrangements. This agreement will have, as a nominal expiry date, 30 September 2004 and we say will not result in any reduction in the overall terms and conditions of employment for employees of the respective hospitals, if the Commission pleases.

PN8

THE COMMISSIONER: What is the name of the actual employer that runs the three sites that are set out in the agreement?

PN9

MR DAVIS: Yes, it is a company called Ramsay, the Ramsay Group of Companies.

PN10

THE COMMISSIONER: They are not named in the stat decs or in the agreement.

PN11

MR DAVIS: No, the actual hospitals themselves are independent, my understanding is that there are three separate companies. They fall under the umbrella of the Ramsay Group of Companies. It is my understanding they are all separate legal entities. In fact in the stat dec at 2.2 it actually physically names the businesses as those separate hospitals. So it is my understanding is they all have separate - they are all separate legal entities as such, but nonetheless, fall under the umbrella of that one company.

PN12

THE COMMISSIONER: The reason I ask is that under the Act, under section 170LB, a single business can be defined as employers that are related within the corporations law, or Corporations Act, but if they are not related corporations for the purposes of that Act, then any certification of the agreement has to go to a full bench as a multi-employer agreement, so I'm just not sure what being part of a group actually means in terms of corporation's legislation, whether that makes them related companies or not.

PN13

MR DAVIS: I note, Commissioner, the whole issue of how this matter was to proceed before the Commission was subject to some debate between myself and the company and the ANF and the parties basically believed that in terms of the document presented to you and the process that was adopted, was in accordance with the Federal Act.

PN14

THE COMMISSIONER: Yes, that may be so, but you are not explaining why. You don't have any documentation you can show me about the companies themselves or the Ramsay Group.

PN15

MR DAVIS: Not about the group per se. My understanding was that it wouldn't appear - - -

PN16

MS EDWARDS: I've got some letterhead with the Ramsay Group and the hospitals named underneath it. That is not going to help you though.

PN17

THE COMMISSIONER: I think it is more the actual Board of Directors and whether there is commonality of directors.

PN18

MR DAVIS: Yes, well, as I said, Commissioner, if you go to clause 3, parties bound, I don't know if that necessarily sheds any light on it but the employers - sorry, the employer and the ANF attempted to clarify the nature of the various entities in clause 3, subclause (a) where it actually defines the Adelaide Clinic Holdings Proprietary, trading as the Adelaide Clinic and Ramsay Health Care SA, trading as Kahlyn Private Hospital and Fullarton Private Hospital.

PN19

THE COMMISSIONER: It just - unless there is some - unless the Adelaide Clinic Holdings Proprietary Limited and Ramsay Health Care SA Proprietary Limited are related corporations, then under the Act, it would have to be referred to a full bench. So in terms of them being related corporations, I probably need to know who were the directors - but I'm probably showing my ignorance about cooperation law as well - - -

PN20

MR DAVIS: No.

PN21

THE COMMISSIONER: - - - and what the definition of the way the company is, but that is the matter that I would need to be satisfied on in order for me to be able to - I don't think, you know, that it would present any problem - - -

PN22

MR DAVIS: Yes.

PN23

THE COMMISSIONER: - - - in terms of approval, it is just where it gets approved basically.

PN24

MR DAVIS: What I could offer to the Commission, to assist the Commission, is to actually put a formal document to the Commission, clarifying the relationship between those companies and outlining the directors of the companies so that the Commission had formally on file, documentation to satisfy the Commission, should that question ever be posed or raised to the Commission.

PN25

THE COMMISSIONER: Well, that is fine, if we proceed today and I will just withhold making a determination subject to receiving the relevant documentation and if I do still have an issue with the documentation, then at least it is all on the record.

PN26

MR DAVIS: Yes.

PN27

THE COMMISSIONER: But in terms of what you provide me, you would need to basically satisfy section 170LB(2)(b), which talks about two or more cooperations that are related to each other for the purposes of the cooperations law. So it would be helpful to me if you would address that aspect of the legislation - - -

PN28

MR DAVIS: Yes, yes.

PN29

THE COMMISSIONER: - - - and then explain how the company actually meets that test set out under the Act.

PN30

MR DAVIS: All right, certainly, Commissioner.

PN31

THE COMMISSIONER: So, all right, well, I will take you submission, I also just note for the record that I have on file a letter from the ANF dated 6 February 2002, requesting an extension of time in relation to the lodgment of the application and the letter notes that there has been no substantial change to the work-force in the period of the delay and to the extent that that is required, I will grant an extension of time pursuant to section 111(1)(r). Yes, Ms Edwards?

PN32

MS EDWARDS: Apart from just highlighting the out of date, I have nothing further to add, unless you have any questions.

PN33

THE COMMISSIONER: Thank you for that. Well, look I need to get back to the parties, so I am satisfied that the statutory requirements are met with that one proviso as to whether the companies named as parties to the agreement are in fact related cooperations for the purposes of cooperations law. On that basis, I won't approve the application for certification today, but on receipt of written information, that satisfies that section of the Act, I will issue a certificate to the parties.

PN34

Should I still have concerns with that, I will either refer the matter back to the parties or I will - well, I will probably do that in any event to see which way you wish to go with the application. Thank you, the Commission stands adjourned.

ADJOURNED INDEFINITELY [3.53pm]