AG2002/999, Transcript of Proceedings [2002] AIRCTrans 1622 (13 May 2002)

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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT03795
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

AG2002/999

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Ramsay Health Care (Vic) Pty Ltd
and Another for certification of the
Albert Road Clinic and the Health Services
Union of Australia No 4 Branch Enterprise
Bargaining Agreement 2001

MELBOURNE

10.05 AM, FRIDAY, 22 FEBRUARY 2002

PN1

MR B. MEGENNIS: I appear on behalf of the Health Services Union of Australia.

PN2

MS K. PHILLIPS: I appear on behalf of the Albert Road Clinic.

PN3

THE COMMISSIONER: Yes, who is going to lead today?

PN4

MS PHILLIPS: Commissioner, accompanying the signed agreement is a statutory declaration signed by Sue Feeney, chief executive officer of the Albert Road Clinic, confirming that all requirements of the Workplace Relations Act have been met in the making of the agreement. The agreement covers 13 employees at Albert Road Clinic whose terms and conditions are regulated by the Health Services Union of Australia Private Sector Award 1993.

PN5

On 7 January 2002 the agreement was approved by a valid majority of employees following circulation of the agreement for at least 14 days prior. Additionally, the employer explained the agreement and set aside opportunities for staff to ask questions about the agreement. The agreement specifies a nominal expiry date of three years from the date of certification and has procedures for the settlement and prevention of disciplinary disputes as in clause 36. I therefore request that the Commissioner certify this agreement. If the Commission pleases.

PN6

THE COMMISSIONER: Yes, Ms Phillips. Yes, Mr Megennis?

PN7

MR MEGENNIS: Yes, thank you, Commissioner. I concur with Ms Phillips' submissions and I would add that the appropriate statutory declarations from Ms Rosemary Kelly, secretary of the HSUA Branch No 4, comply with the relative provisions of the Act for the purpose of certification. And I can also add that I did have extensive discussions with both the Albert Road Clinic management and also with the employees who are to be covered by the terms and conditions of this agreement.

PN8

And on the basis of concluding those discussions, employees had an appropriate period of time pursuant to the provisions of the Act to consider the documentation. And at the end of that - after the expiry of 14 days they did vote to accept the terms and conditions of that agreement. If the Commission pleases.

PN9

THE COMMISSIONER: Yes, we will go off the record.

OFF THE RECORD

RESUMED [10.19]

PN10

THE COMMISSIONER: We have had a conference in this matter about some aspects of the material that is on the file. And the first issue is the citation given at 3.2 as to the parties bound. And Mr Megennis, I think - is it right, perhaps you can put this to me - but the HSUA is the party bound and I think you indicated that you would send a replacement page along, that having been a slip. It is made clear, I might say, in Ms Feeney's declaration - I am sorry, in Ms Kelly's declaration. So can you say - can you put - tell me what your position is, please?

PN11

MR MEGENNIS: Yes. Thank you, Commissioner. The situation is that in relation to section clause, that is 3.2, the Health Services Union of Australia No 4 Branch is not the registered organisation. That is in fact a technical error in the sense it is the Health Services Union of Australia which is the registered organisation and is the party to the agreement. And I think that is also illustrated by way of the statutory declaration as provided by the secretary of the Health Services Union Branch No 4, Ms Rosemary Kelly.

PN12

THE COMMISSIONER: Yes. And, Mr Megennis, thank you for that. And you will provide that, will you?

PN13

MR MEGENNIS: Yes. I will, Commissioner.

PN14

THE COMMISSIONER: All right. I don't think it affects the titles as much. I am not troubled by the title but it is really the citation at 3.3 - 3.4. All right. Now then the next issue to which I was going to refer is the - 36.2. I am sorry. At 9.5, the section of the agreement that deals with productivity gains - section 9 does, productivity gains. At 9.5 the agreement envisages where there are difficulties:

PN15

Where there are issues where agreement cannot be reached, either party may seek the assistance of the Industrial Relations Commission.

PN16

And I think I am right - and I would like either of you to tell me, Ms Phillips or Mr Megennis, if this is wrong - that by 9.5 it is intended to invoke the dispute settling procedure in the award, and we will come to that shortly, but that is the intent of 9.5. Is that right, Ms Phillips?

PN17

MS PHILLIPS: Commissioner, that is the intent of 9.5.

PN18

THE COMMISSIONER: Yes, thank you. Do you agree with that, Mr Megennis?

PN19

MR MEGENNIS: Yes, and I agree.

PN20

THE COMMISSIONER: All right. And then at 36, the dispute settling procedure - and this has been the area of our more detailed conversation - at 36.2 it indicates that the parties to the agreement will observe the grievance procedures as prescribed in the award:

PN21

In the event of an industrial dispute or disagreement is occurring about matters arising under this agreement at the enterprise level...

PN22

And that is the end of the quote. Of course the parties have to provide a procedure in the agreement which both prevents and settles issues arising during - that are covered by the agreement during its terms. And so, Mr Megennis, are you able to say something about how it is that - and again this is designed to avoid any ambiguity or uncertainty into the future - what your understanding of 36.2 is if a matter is unable to be agreed in the normal way between the parties at the - as they go through these first few steps of the dispute procedure, what then occurs?

PN23

MR MEGENNIS: Yes, Commissioner. We envisage that the procedures that are invoked are linked to section 170LW of the Act. And in our view, what may arise in the normal course of employee/employer relations may result in a dispute or a grievance from time-to-time. It is certainly our view that if a matter does require the intervention of the Commission that we would expect in the normal course of events that the matter would be conciliated by the Commission and, if necessary, determined by the Commission if the matters remain unresolved.

PN24

THE COMMISSIONER: Yes. Thanks, Mr Megennis. Ms Phillips, are you in accord with that?

PN25

MS PHILLIPS: I agree with Mr Megennis. Thank you.

PN26

THE COMMISSIONER: Yes. Thanks, Ms Phillips. Well, this application made under section 170LJ(6), certification of the Albert Road Clinic and Health Services Union of Australia No 4 Branch Enterprise Bargaining Agreement 2001 - on the information that is available to me I can see no reason why the agreement can't be certified. Particularly having had the benefit of the additional views today of Mr Megennis and Ms Phillips and the clearer citation of the parties bound, that is the Health Services Union of Australia.

PN27

And I will include the replacement slip of paper - page of paper when Mr Megennis provides it. The agreement is to operate from the date of certification for a period of three years and operates conjunctionally with the Health Services Union of Australia Victoria Private Sector Award 1993. The disputes procedure, in my view, is a satisfactory one. There is no disadvantage. The employer is a constitutional corporation. I find that the agreement passes the no disadvantage test and it was made in accordance with section 170LJ and a valid majority of persons generally approved the agreement.

PN28

There being no other reasons as why I might refuse to certify the agreement, I will certify the agreement with effect from today's date to operate in accordance with its terms. In due course I will sign a formal certification to that effect. In fact, I will do that now and give it to the parties.

ADJOURNED INDEFINITELY [10.26]