C2002/2369, Transcript of Proceedings [2002] AIRCTrans 2450 (2 July 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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


O/N VT04512
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2002/2369

HEALTH SERVICES UNION
OF AUSTRALIA

and

KIRKBRAE-KILSYTH AND ANOTHER

Notification pursuant to section 99 of the Act
of a dispute re alleged liability of employers
for outstanding shift allowances

MELBOURNE

8.37 AM, MONDAY, 17 JUNE 2002

PN1

MR L. ATKINSON: I appear for the Health Services Union.

PN2

MR M. WESTAWAY: I appear for Primelife Corporation Limited.

PN3

MR G. MORGAN: I appear for Kirkbrae.

PN4

THE COMMISSIONER: Thank you. Mr Atkinson. I must say that there are currently on file - there is on file correspondence from the legal firm McCracken and McCracken. Mr Morgan, do you know about this correspondence?

PN5

MR MORGAN: Yes, I do, I am the author of it, Commissioner.

PN6

THE COMMISSIONER: Right.

PN7

MR MORGAN: I made the approach to - - -

PN8

THE COMMISSIONER: Sorry, are you a solicitor?

PN9

MR MORGAN: Yes.

PN10

THE COMMISSIONER: Okay, so you seek leave to appear?

PN11

MR MORGAN: I seek leave to appear, yes.

PN12

THE COMMISSIONER: Are you a solicitor as well?

PN13

MR WESTAWAY: Yes, Commissioner, but I am an in-house counsel at - - -

PN14

THE COMMISSIONER: So you are directly employed?

PN15

MR WESTAWAY: I am directly employed.

PN16

THE COMMISSIONER: Okay, well, that is a bit different.

PN17

MR MORGAN: I have MRS M. ARMSTRONG here.

PN18

THE COMMISSIONER: Okay, all right. Firstly, Mr Atkinson, Mr Westaway, do either of you have any objections to Mr Morgan seeking leave?

PN19

MR WESTAWAY: No. No, Commissioner.

PN20

MR ATKINSON: No, Commissioner.

PN21

THE COMMISSIONER: All right, leave is granted, Mr Morgan. Okay, so you are the author of the correspondence, Mr Morgan?

PN22

MR MORGAN: Okay, yes, Commissioner.

PN23

THE COMMISSIONER: Okay, I was not aware of that, because you introduced yourself as from Kirkbrae, not from a legal firm representing Kirkbrae.

PN24

MR MORGAN: Okay, I apologise.

PN25

THE COMMISSIONER: That is all right. I will hear from Mr Atkinson first, and then we will come back to you. Thank you.

PN26

MR ATKINSON: Thank you, Commissioner. Commissioner, the union brings this matter to you to ask the Commission's help in trying to determine which particular company here, whether it is either Kirkbrae or Primelife, are liable for entitlements payable - award entitlements payable to members of the union. Commissioner, if I can give you a brief bit of history about this. There is a nursing home down in the Geelong region which was the name of Kirkbrae, it is now Tannockbrae, as it was sold around about 8 August last year to Primelife.

PN27

Prior to the sale, Commissioner, I did a wages inspection and discovered that the staff were not being paid correctly. I met with management to discuss this situation, a Mr Andrew Johnson, and he told me that he would look into it. The sale proceeded and then again I asked Mr Johnson what was happening with the claim. He said the sale of Kirkbrae to Primelife was a priority and he would look into it. There was quite a few phone calls throughout the rest of - the remainder of last year, Commissioner, and in frustration, on 8 January 2002, I rang Mr Duncan MacGregor who was the convenor of the sale.

PN28

I explained my frustration to him in tracking down the parties who would be relevant to deal with, and we exchanged correspondence which I have copies here, Commissioner, if it please. We talked and then we agreed to meet with Ms Marjorie Armstrong, who is in court today, to deal with the issue, on the proviso that I bring the claim and how I came to it with them; which I did, and Mr Morgan was there as well. Commissioner, there just seems to be a dispute over which company should be paying these award entitlements. Kirkbrae is saying Primelife, the new owners, are to pay it. Primelife is saying no, because it was done well before the sale, and that Kirkbrae are to pay it. And I am just asking the Commission's help in trying to determine which company would have to pay these entitlements, because I am getting nowhere.

PN29

THE COMMISSIONER: I thought it would have been a relatively simply question and a simple answer. Let us see what the other parties say. Let us see whether their answer is similar to mine.

PN30

MR ATKINSON: Thank you, Commissioner.

PN31

THE COMMISSIONER: Mr Morgan.

PN32

MR MORGAN: Mr Commissioner, we have made - or we would make an application for this matter to be adjourned. There is the issue that Mr Atkinson has referred to. There is also the issue as to whether in fact - or what in fact the section dealing with shift work means and how it is to be interpreted. And the reason for contacting Mr Atkinson in the middle of last week was to point out that there is a matter before Commissioner Kaufman - - -

PN33

THE COMMISSIONER: I do not think he would like to be demoted. He is a Senior Deputy President.

PN34

MR MORGAN: Senior Deputy Commissioner Kaufman, which deals with this very issue. And I understand that you, Commissioner, have had some experience with this particular - - -

PN35

THE COMMISSIONER: But that issue before the Senior Deputy President is not shift work; it is a change of shift allowance.

PN36

MR MORGAN: Well, that is in fact what we are talking about in this case, the change of shift allowance.

PN37

THE COMMISSIONER: Is it just the change of shift allowance, or is it all other allowances? Mr Atkinson?

PN38

MR ATKINSON: Commissioner, it is the change of shift allowance, split shift allowance and on-call.

PN39

THE COMMISSIONER: Okay, so it is a number of allowances?

PN40

MR ATKINSON: Correct.

PN41

THE COMMISSIONER: So it is just not change of shift?

PN42

MR ATKINSON: No, Commissioner.

PN43

THE COMMISSIONER: Yes. Sorry, Mr Morgan.

PN44

MR MORGAN: We have never been advised it is anything other than a change of shift allowance, and therefore we - - -

PN45

THE COMMISSIONER: So why - what is the - - -

PN46

MR MORGAN: And therefore we think it is highly relevant to await the outcome, and I submitted to Mr Atkinson, I think on Thursday when I had a discussion with him, that the appropriate course of action was for us to have this matter adjourned until after that determination, and then to deal with the matter at that stage, because it seemed to me to be a waste of everyone's time if in fact, depending on what the result was, before any other matter, it may make a significant difference as to whether we should be here or not.

PN47

THE COMMISSIONER: But there is a number of matters in terms of the change of shift allowance. As you would be aware, the change of shift allowance, there is a process in the award to obtain a change of shift allowance. The difficulty has been that that process in a number of instances has not been complied with in terms of written request, and there have been changes of shift that have occurred. Some have occurred at the initiative of the employer, some occurred at the initiative of the employee. It is a question then of people claiming that they are entitled to the change of shift allowance, when the employer in some instances is saying that that was at the initiative of the employee, not the employer.

PN48

But if you have got a split shift allowance and another allowance, then they can be dealt with quite separately in terms of the change of shift. You do not have to defer those. But even if there is a matter that might be on foot in terms of change of shift, if Mr Atkinson can identify that the change of shift has occurred at the initiative of the employer then, regardless of what happens before Senior Deputy President Kaufman, you are obliged to pay. Is that right?

PN49

MR MORGAN: Well, we do not believe that that is the way in fact the matters are being put in the other matter, and it just seems to us - - -

PN50

THE COMMISSIONER: No, no. One of the applications before the Senior Deputy President is to make a retrospective variation to the award, to the extent I think maximum statute of limitations is six years.

PN51

MR MORGAN: Yes.

PN52

THE COMMISSIONER: But that still does not alter the fact that if, in accordance with the current wording of the award, there has been a change of shift at the initiative of the employer, then you are responsible for the payment of change of shift allowance.

PN53

MR MORGAN: Well, my discussions with the people who are involved in actually putting the matter to the Commission suggested that - - -

PN54

THE COMMISSIONER: Mr Rahilly? Mr Michael Rahilly?

PN55

MR MORGAN: Yes.

PN56

THE COMMISSIONER: Yes.

PN57

MR MORGAN: Suggested that the matter was such that it would encompass the whole of the claim that we were - we have been - that has been put to Kirkbrae at this stage. And it just seemed to me to be wise in the circumstances, because of the concern that has been expressed by the Commission on a number occasions about the operation of this particular provision, for us to await the outcome, so that we have some clear guidance from the Commission as to how the matter is to be viewed.

PN58

THE COMMISSIONER: Well, there is also - I am not sure whether you are aware, there is also an award variation that has occurred?

PN59

MR MORGAN: I am aware of that, yes.

PN60

THE COMMISSIONER: Right. Is your - - -

PN61

MR MORGAN: We do not believe that we are party to that.

PN62

THE COMMISSIONER: You have not been made a party to that; you were not sought to be a party?

PN63

MR MORGAN: No, I think it was a default situation at the start of this year, as I understand it.

PN64

THE COMMISSIONER: It was what, sorry?

PN65

MR MORGAN: It was a situation where VECCI I think were encouraging people to be involved - SIAG, sorry.

PN66

THE COMMISSIONER: SIAG, yes.

PN67

MR MORGAN: But we were not a party to that.

PN68

THE COMMISSIONER: No. Mr Westaway. Well, there appears to be two issues - sorry, Mr Westaway - there are two issues. One is whether or not an adjournment on the basis of change of shift only allowance should be adjourned to allow the matter to proceed before Senior Deputy President Kaufman, but the second issue is, and it is the issue raised by Mr Atkinson, is actually who has the responsibility in terms of meeting any commitments.

PN69

MR MORGAN: Yes, Commissioner, the point of the exercise is that if in fact there is no obligation, depending on the defining of any other matter, it seems to us to be irrelevant or premature is probably the best way of putting it - - -

PN70

THE COMMISSIONER: What about the split shift allowance?

PN71

MR MORGAN: Well, again, we have got no details of any split shift allowance claim. We have got details of a change of shift allowance, that is all that is referred to in the one letter that we have got, change of shift allowance, not paying - that is what the first sentence of Mr Atkinson's one and only letter involving this matter refers to.

PN72

THE COMMISSIONER: Well, put that aside for a minute; if there is an issue regarding split shifts, and what was the other shift allowance, Mr Atkinson?

PN73

MR ATKINSON: Split shift allowance and on-call.

PN74

THE COMMISSIONER: Split and on-call allowance. If they were two other allowances that needed to be sorted out between the parties, who do you say is responsible for any liability there?

PN75

MR MORGAN: Well, Commissioner, this is the first time we have been aware of any issue along those lines.

PN76

THE COMMISSIONER: Well, I understand that, but who do you say - if there is an obligation to pay, who do you say is responsible in terms of retrospective payment?

PN77

MR MORGAN: Well, our position is fairly clear. We have made that clear to Mr Atkinson and also to Primelife, that on the basis of the contract provisions they - Primelife have given us an indemnity in relation to employees that they have taken over.

PN78

THE COMMISSIONER: Right, so they take over all liabilities?

PN79

MR MORGAN: That is our basic position.

PN80

THE COMMISSIONER: Yes, yes, thank you.

PN81

MR MORGAN: As I said before, Commissioner, this is the first time that there has been any reference and I was there at the discussion on 7 February as Mr Atkinson said, and there was no reference to any split shift allowance or any on-call allowance in any of those discussions. And all we sought - what we seek is an appropriate period of time for the determination matter which has been listed, as you know, or you may not know, on the week commencing 24 June. It seems to us that that will significantly help us understand the operation of this particular provision.

PN82

THE COMMISSIONER: Thank you. Yes, Mr Westaway.

PN83

MR WESTAWAY: Thank you, Commissioner. We neither oppose or are for the adjournment application. Our reason for being here is to dispute Kirkbrae's submission that we are liable for any of the allowances that are being claimed by the union. We deny - disagree with the submission that the contract or the business sale agreement in this case provides that we have to indemnify the vendor or the Church, being the Church, in respect of these claims. The contract provides that if employees accept our offer of employment, then we are obliged under the contract to take on the responsibility for accrued entitlements, and the issue is do these allowances fall within the scope of accrued entitlements?

PN84

And in the ordinary sense of sale of businesses, accrued entitlements include sick leave, long-service leave, and also annual leave. And the wording of the contract does not - there is no definition of accrued entitlements other than saying accrued entitlements arising out of legislation, award, agreement or otherwise howsoever. What we say to this is that these allowances crystallised before the sale occurred and should have been paid to the employees at the time that their - in the respective pay period in which they crystallised.

PN85

And there is further provision under the contract, Commissioner, that says that the vendor is liable for all outgoings and expenses up to and including the date of completion, and that the vendor will indemnify us for any of those outgoings and expenses not so paid. Where Mr Morgan is relying upon, he is saying that we have to indemnify in respect of any entitlements, and what we say to that is, well, how can we indemnify you for these allowances when they are not entitlements?

PN86

THE COMMISSIONER: Allowances are an entitlement.

PN87

MR WESTAWAY: Well - - -

PN88

THE COMMISSIONER: If they were - - -

PN89

MR WESTAWAY: But they are not an accrued entitlement in the true sense of an accrued entitlement. These all crystallised before the sale occurred.

PN90

THE COMMISSIONER: But they are an entitlement by law. If they are identified in the award and they are not - although there is always an issue, ongoing issue, about whether the wages have been appropriately paid and all the rest of it, but if it is identified that they have not been paid in accordance with the award, it is an entitlement. It may not be an accrued entitlement, but if there has been a breach of the award by the failure of non paying, it is an entitlement that they are entitled to get, that they are entitled to pursue up to a maximum statute of limitations of six years.

PN91

MR WESTAWAY: Well, in the - under the wording of the business sale agreement, Commissioner, I mean, the indemnity arises out of the provision dealing with accrued entitlements. Yes, it may - they may be entitlements by award and accrued, but surely the fact that they had crystallised before the sale and therefore constitute a liability to the business, an expense of the business one might say, surely that should remain with the Church, not with the new owner. Why should we be penalised for that? We certainly took on - because the contract further provides that with accrued entitlements there is supposed to be a split adjustment whereby the Church takes on 66 per cent of the liability and we take on the balance.

PN92

THE COMMISSIONER: Right.

PN93

MR WESTAWAY: On the basis that we will obviously pay those entitlements as and when they crystallise down the track, but in this case these entitlements had already crystallised before the sale had been completed. Surely the Church should have - should be made liable for those expenses.

PN94

THE COMMISSIONER: Thanks, Mr Westaway. Mr Atkinson, under what provision of the Act do you say that the Commission is able to firstly - well, identify who is the body responsible for incurring the liability? I am not aware that - I mean, I would have thought that that was a jurisdictional - sorry, a judicial requirement.

PN95

MR ATKINSON: Commissioner, in answer to your question, I have not got a clue.

PN96

THE COMMISSIONER: No.

PN97

MR ATKINSON: I am sorry, but instead of my members probably putting on an industrial dispute, I wanted to bring it before the Commission - bring this case before the Commission to try and determine which avenue the union actually could go on this. If we have to seek - I guess, go down the judicial path, we would have to actually go through that. But this has been going on well over - well, nearly 12 months, Commissioner.

PN98

THE COMMISSIONER: Yes.

PN99

MR ATKINSON: I have got a letter here signed by Ms Marjorie Armstrong dated 23 January 2002, actually asking for a five to six week extension when we met, so that they could go through these rosters. Now, we agreed to have that, and then Easter happened and then I went on leave, Commissioner, so this is probably why the delay is happening. But, as I have said to Mr Morgan on the telephone, the case before Senior Deputy President Kaufman was not on the table when this claim was on the table.

PN100

THE COMMISSIONER: Yes. Look, I mean prima facie it seems to me that Kirkbrae are responsible for liability in terms of allowances. If they were aware prior to the sale that there was an issue regarding the non-payment of allowances that employees believe that they are entitled to and have avoided their obligations in addressing that issue then I would have thought Primelife would have a reasonably strong argument to say well, they are not bound by any liability in terms of outstanding entitlements because Kirkbrae have avoided their obligations and simply tried to get rid of those obligations by the sale of the business, although that would not have been the prime intent, of course, but that is obviously one of the outcomes. Mr Morgan?

PN101

MR MORGAN: Well, I was going to raise the issue of the jurisdiction of the Commission to actually deal with it if you were against me on the adjournment point because it doesn't seem to me that there is any jurisdiction for the Commission, it is a Federal Court matter as such. But just to address your issue - - -

PN102

THE COMMISSIONER: Well, if there is a breach of the award - if there is an alleged breach of the award, of course, it can be pursued in a Magistrates Court.

PN103

MR MORGAN: Indeed, indeed. Until Mr Atkinson raised the matter with my client - and he has made reference to a couple of discussions - or letters from Mr Duncan MacGregor and also Marjorie Armstrong. My client wasn't aware of the issue outstanding and the reason we had the meeting with Mr Atkinson earlier on was because of his insistence that the matter had been outstanding for some time. We then heard what he had to say then I looked at the contract to see what the provision in the contract says about the matter. Then we wrote off to Mr Atkinson within the time frame that he requested just pointing out that our understanding of the contract is that there are basically two ways of dealing with employees, employees who don't go across in the process of the sale we were to be responsible - that is the church was to be responsible.

PN104

And listed there are - is a definition of entitlement in the contract. It's all holiday pay, long service leave and any entitlement of any other remuneration, compensation or benefit arising out of employment or the termination of employment. With regard to those employees who go across and were taken up by Primelife there are two ways in which that is dealt with. Accrued entitlements, that is long service leave and holiday pay those which have been accrued but are not payable straight away, we have to pay or allow 66 per cent of those amounts. As for the rest the contract provision provides that - complete indemnity to my client against all claims and respectivity entitlement against the vendor by such employees.

PN105

So I repeat, against all claims in respect of any entitlement against the Vendor for the employees. Our simple proposition is having taken over the employees that they are responsible for those employees. We provide for accrued entitlements to be adjusted and they take the risk for the rest.

PN106

THE COMMISSIONER: You say that the issue was not raised prior to the sale?

PN107

MR MORGAN: We had - our management had no understanding of the issue until we were contacted in about January 2000.

PN108

MR WESTAWAY: Commissioner, may I speak on this issue?

PN109

THE COMMISSIONER: Mr Westaway.

PN110

MR WESTAWAY: I have got a copy of minutes of meeting dated 9 May 2001 which is - the sale was completed on 8 August 2001.

PN111

THE COMMISSIONER: Right. What date is that meeting?

PN112

MR WESTAWAY: 9 May.

PN113

THE COMMISSIONER: Right.

PN114

MR WESTAWAY: Attending at the meeting is the Manager of the retirement village, the Manager of the hostel and also one Keith Johnston who I understand is - was the very senior person within the church. They say - this is a report about staff:

PN115

Union to present a claim that change of shift allowance, on call allowance and split shift allowance should ...(reads)... Primelife are faced with it and are moving on workplace agreements.

PN116

I say to you, Commissioner, that they were aware of it and it seems to me a little bit convenient that they are relying on the contract construction - which I say is wrong - to get out of their responsibilities.

PN117

THE COMMISSIONER: Right. What you simply say, Mr Westaway, endorses the comments that the Commission made earlier.

PN118

MR WESTAWAY: Correct.

PN119

MR MORGAN: Commissioner, this is the first that I have ever heard. I had a discussion, I have had two or three letters with Mr Westaway. this is the first time he has ever made any reference to a meeting in May and my submission is that certainly the current management from whom I am getting instructions is not aware of that meeting.

PN120

THE COMMISSIONER: Where did you get the minutes from, Mr Westaway?

PN121

MR WESTAWAY: Commissioner, I spoke with the manager on late Friday. As a result of speaking to Lee Atkinson he made me aware of various discussions with the manager and Mr Morgan had said to me in an earlier conversation that day that they were not aware of any of these matters prior to the sale. And I then contacted the manager who is still - who was taken on by Primelife after the sale was effected. I said to him could you please provide me with all documentation and minutes of meetings etcetera that were held. He subsequently e-mailed those to me on Saturday I think it was and I have them here now. before that I wasn't aware of them so the first I became aware of them was on Friday afternoon after 5 o'clock.

PN122

THE COMMISSIONER: Who was at that meeting in May?

PN123

MR WESTAWAY: The persons attending were Andrew Johnson, who was the Retirement Village Manager, Gabrielle Bachan, who was the Hostel Manager and one Keith Johnston who was a very senior person within the church.

PN124

THE COMMISSIONER: Mr Morgan, Ms Armstrong - what position does she hold?

PN125

MR MORGAN: Well, Commissioner, all I can say is that this is the first news that we have of that meeting. Marjorie Armstrong wasn't on staff at that stage.

PN126

THE COMMISSIONER: Right.

PN127

MR MORGAN: And all I can do is have a look at the material in due course to see whether - the strength of it but - - -

PN128

THE COMMISSIONER: Who is advising you, Mr Morgan, who is your instructor?

PN129

MR MORGAN: My instructions are from Mrs Armstrong.

PN130

MR WESTAWAY: Commissioner, can I just - am I able to ask a question - when did Ms Armstrong become a member of the church because my understanding was that she has been there for some time.

PN131

THE COMMISSIONER: Right. Mr Morgan?

PN132

MR MORGAN: Just to clarify, I didn't - sorry, I was seeking instructions from Mrs Armstrong. She was in charge of the Kirkbrae Institution, Kilsyth, not the Geelong Institution and - - -

PN133

THE COMMISSIONER: So - but they were part of the one organisation?

PN134

MR MORGAN: They are two parts of the mission - of the church in aged care.

PN135

THE COMMISSIONER: Right.

PN136

MR MORGAN: One was sold off one is continuing.

PN137

THE COMMISSIONER: Would there have been meetings between the two groups, Kirkbrae in Kilsyth and Kirkbrae in Geelong about issues that would affect the broader administration of both facilities or do they simply operate in isolation to each other?

PN138

MR MORGAN: Excuse me, Commissioner. There were some discussions between the parties but generally they were separately organised.

PN139

THE COMMISSIONER: But I would have thought that if Kirkbrae in Geelong were made aware that there was a possible liability in terms of allowances - and it does make mention of split shift, on call and change of shift - - -

[9.07am]

PN140

MR MORGAN: I can't instructions on a matter that has just been put to me this morning other than through Mrs Armstrong. That is the first that we have heard of this issue. Which is all the more reason, I would submit, Commissioner, that this matter ought to be adjourned.

PN141

THE COMMISSIONER: Yes. Mr Atkinson.

PN142

MR ATKINSON: Commissioner, Mr Morgan states that this is the first time about the split shift and on call allowance has been raised to him. Commissioner, when I gave them a copy of these rosters - and I have a copy also for you, if you wish - they told me that they would investigate the rosters. They took photocopies of the rosters.

PN143

THE COMMISSIONER: When was that?

PN144

MR ATKINSON: January, February this year. And after that they wrote to me asking for a six week extension to go through the rosters. The rosters are very clear that there are split shifts in there, and also on call, especially for the catering staff. Now, when I did ask for the rosters going back for six years, I was given rosters going back for two or three years. I wasn't given the complete set.

PN145

So,m Commissioner, I say that when we did meet with Mr Morgan and Ms Armstrong, the main emphasis was on change of shift allowance, but I am pretty sure that I did mention split shifts.

PN146

THE COMMISSIONER: Well, it would appear from the minutes that the organisation is aware, and was aware in May 2001 that there were three separate issues of allowances, on call, split shift, and change of shift allowance.

PN147

MR ATKINSON: That is correct, Commissioner, and according to telephone conversations with Mr Andrew Johnson, who is still down there at Geelong, what they have to do is send all their - I believe, I am not too sure - to send all their pay records or time sheets up to Kilsyth for processing, so the staff in Geelong can get paid.

PN148

THE COMMISSIONER: So there is one central processing point for pay?

PN149

MR ATKINSON: I believe so.

PN150

THE COMMISSIONER: Mr Morgan.

PN151

MR MORGAN: Commissioner, I am not able to make comment on the document without getting some instructions. I note that there does not seem to be any signature on the document. It just seems to be - - -

PN152

MR ATKINSON: It was e-mailed to me, Commissioner.

PN153

MR MORGAN: - - - an e-mail. I can't confirm whether they are accurate records of any discussion. But that highlights, I would submit, all the more the reason for this matter to be adjourned, so that I can get proper instructions and consider the matter.

PN154

THE COMMISSIONER: Well there are two issues. One is the - thanks, Mr Morgan. There are two issues: one is the - the Commission has touched on the jurisdiction of the Commission to determine the appropriate employer. However, the Commission has made a point that it believes that prima facie it would appear that the organisation responsible for the payment of the various allowances would appear to be Kirkbrae, and Mr Westaway has indicated that there are minutes that go back to May 2001 that indicate several months prior to the sale to Prime Life, that there was a potential liability in terms of on calls, split shifts and change to shift allowance.

PN155

So, therefore, in order to prove - if there was no agreement in terms of Kirkbrae meeting their liability, then, Mr Atkinson, it is a simple process to lodge an application in the Magistrates Court for a breach of the award, and it can be sorted out that way. Secondly, in terms of the change of shift allowance issue per se, again, that matter can be pursued through the Magistrates Court for a breach of the award, and can be done quite independently, although I would think that the court may need to take into account what variation to the award, if any, that SDP Kaufman may intend to do.

PN156

Until such a decision is in place, it does not prevent any organisation pursuing a breach of the award anyway, on behalf of their members, irrespective of what the Commission may do in terms of some retrospective decision: because there is no guarantee that there would be a retrospective decision. Other than that, I think the Commission cannot do anything this morning, other than - I would have to say, Mr Morgan, I have some sympathy for you, because you are either being left in the dark in terms of your instructions - - -

PN157

MR MORGAN: I have that feeling.

PN158

THE COMMISSIONER: Yes, either deliberately, or through incompetence; I am not sure.

PN159

MR MORGAN: I might explain that there has been a difficulty with Mr Andrew Johnson, who was a former employee of my client, and seems to have - well - - -

PN160

THE COMMISSIONER: Industrial amnesia.

PN161

MR MORGAN: Yes, he seems to have - this process of sale was a very difficult one. It was supposed to in fact have occurred around the end, I think it is 31 May was the proposed date, and because Prime Life couldn't get the approval of the relevant authorities to the change, it wasn't in fact finally settled until 8 August. There have been a number of difficulties we have had with Mr Johnson, who one would have normally thought would have been supportive of the Church's position. He seems to, because of his current position as continuing Manager of Prime Life, have caused some difficulties to the Church, which I would not have expected in a transaction of this sort. That is all I can say.

PN162

MR WESTAWAY: Commissioner, just in response to that, my understanding is that Mr Johnson's disputes with the Church concern matters which he thought the Church was acting wrongly, especially in relation to these allowance claims. The Church did not want to deal with it prior to the sale, and he felt that that was wrong. There were some other matters dealing with residents, where things were represented to residents, and the Church were denying that position. And that is where those issues arose from. Thank you, Commissioner.

PN163

THE COMMISSIONER: Right. Well, Mr Atkinson, I think you have got a reasonably clear position of what the Commission thinks you should do in terms of pursuing the issue. The Commission will simply stand adjourned. If either party thinks that the matter can be - or the Commission can be of some further assistance at some point in the future, then it is free to have the matter relisted. The Commission will stand adjourned.

ADJOURNED INDEFINITELY [9.14am]