C3560/600, Transcript of Proceedings [2002] AIRCTrans 3561 (17 September 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N VT05515
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C No 35606 of 2000

VICTORIAN HOSPITALS INDUSTRIAL
ASSOCIATION AND OTHERS

and

HEALTH SERVICES UNION OF AUSTRALIA

Notification pursuant to section 99 of the Act
of a dispute re section 97 employees

MELBOURNE

11.36 AM, WEDNESDAY, 28 AUGUST 2002

PN1

MR D. STEPHENS: I appear for the HSUA.

PN2

MR R. MEDINA: I seek leave to appear on behalf of Golden City Residential Support Services and with me is MR I. McLEAN, who is the Chief Executive Officer of Golden City.

PN3

MR C. McDONALD: I appear for the Department of Human Services, with me today is MS M. ALY.

PN4

THE COMMISSIONER: Thank you, Mr McDonald. Does anybody have any objections to Mr Medina seeking leave to appear?

PN5

MR STEPHENS: No objection, Commissioner.

PN6

MR McDONALD: No, Commissioner.

PN7

THE COMMISSIONER: No. Thank you, leave is granted, Mr Medina. Mr Stephens.

PN8

MR STEPHENS: Thank you, Commissioner. If the Commission pleases, this is a matter involving something which has been before the Commission of fairly recent times at least anyway, or the subject matter has, and that is a question of offers of employment being made to employees who are classified, if you like, as section 97 employees. An offer of employment being made to those employees by the agency to whom they have been essentially allocated to as the result of a process called mainstreaming.

PN9

The Commission has some understanding of the process of mainstreaming but, with respect to this particular organisation and the employee concerned, I will briefly explain the circumstances and the history as to what has happened here. Mainstreaming, of course, is a process where former government provided psychiatric services were handed over, if you like, to other agencies, including public hospitals and other organisations, including organisations like the Golden City Support Services, to manage and to run.

PN10

And of course, Commissioner, in 1997 there was a very significant decision of the Federal Court, upheld on appeal as well I might add, in relation to the transmission of business of awards applying with respect to those crown provided psychiatric services now being provided by agencies such as Golden City. Mr Geyer, in this instance, is an employee who has a long history of employment with respect of Bendigo Psychiatric Services, which it was then a crown service, or a government service. As part of the mainstreaming process, Bendigo Psychiatric Services was mainstreamed with a number of organisations, two in particular, what is now known as the Bendigo Health Care Group, of which probably 99.9 percent of the Bendigo psychiatric centres employees were transferred to, and the Golden City Support Service, which is the matter before the Commission today.

PN11

One employee, Mr Chris Geyer, was transferred to the Golden City Support Services under section 97. With respect to this particular issue that you have before you today, and I will briefly explain what it is in a tick, but it is noteworthy that if Mr Geyer had followed all of his colleagues from Bendigo Psychiatric Centre to Bendigo Healthcare Group, we wouldn't be here with you today because he would have received all of his wage increases and all of his entitlements. It is a simple fact that because he is with the Golden City Support Services that he is incurring the difficulties that he is at the moment. In 1997, Commissioner, agreements were reached involving the HSUA, the Department of Human Services, the PHIA and a number of other organisations to provide for a mechanism to transfer to direct employment employees who are seconded as section 97.

PN12

At the time of that agreement being reached, it was the intention of all of the parties that every organisation that provided, if you like, section 97 services and every employee who was classified section 97 would be covered. Bearing in mind that it was the single intention, or the motivating factor of the government at that time, was that it wanted to transfer all existing employees off its books and onto the direct employment of those employees who they were being seconded to. As a result of what has happened with Mr Geyer, he is now being disadvantaged.

PN13

He, like all employees who are covered by those certified agreements from '97, were entitled to receive wage increases in the order of 11_ percent between the period of 1997 and 2000. They were also entitled to receive wage increases in the order of 12.5 percent from October 2000 to March 1994, and that 12_ percent arises out of a recommendation of the Commission as currently constituted in C No 35606 of 2000, ie a 111AA recommendation in relation to psychiatric services. Mr Geyer hasn't received that. So compared to something like 4000 other employees across the state he has been significantly disadvantaged.

PN14

Now, as we apprehend the situation, and confirmed as recently as this morning in discussions before we commenced proceedings, the objection, if you like, of the employer to make available those wage increases but moreover the offers of employment, is premised on two circumstances. The first is that it contends that it hasn't received sufficient guarantees from the Department of Human Services that the Department of Human Services will fund all of the - or I guess, the total employment costs associated with Mr Geyer's employment including wage increases and other issues that it has identified progressively over the last three or four years that this matter has tried to be resolved, including things such as sick leave and long service leave and, more recently, issues in relation to redundancy, should that be contemplated, heaven forbid I might add.

PN15

The other issue that the organisation has been concerned about is that it contends that there is no instrument, no industrial instrument, in which it is bound by that first of all would give effect to the offers of employment, that would bind the ongoing relationship between the relevant employees and the employer, in particular to give effect to the recommendation of the Commission in October 2000 of which you handed down yourself in that 111AA matter. If I might at this stage, Commissioner, tender a bundle of documents which refer to the types of concerns that I have just referred to. And I tender those Commissioner.

EXHIBIT #HSUA1 BUNDLE OF DOCUMENTS

PN16

MR STEPHENS: Thank you, Commissioner.

PN17

THE COMMISSIONER: If you submit another bundle, we will go HSUA2.

PN18

MR STEPHENS: I am impressed. And you notice I didn't say that with respect, I am impressed.

PN19

THE COMMISSIONER: That is right. Yes, you remember what I said last time.

PN20

MR STEPHENS: That is right. So I trust that with respect you acknowledge my respect.

PN21

THE COMMISSIONER: That is right.

PN22

MR STEPHENS: Can I just take the Commissioner through the first letter, which is a memorandum I should say, at the top. And I referred to the two objections that the employer has in relation to this matter and in particular can I take you to what is called the issues and it is dot point 3, where they refer to:

PN23

Golden City is not a party to the heads of agreement nor the certified agreements.

PN24

That followed:

PN25

Regarding the majority of section 97 staff.

PN26

Then it goes to 4. This is, I should say, is a memo from Mr McLean who is before the Commissioner today, to Mr Geyer. It also then goes on to say that:

PN27

You are not eligible to receive the increments negotiated between DHS and your union unless you become a Golden City employee through a certified agreement negotiated between the union and Golden City for all Golden City Support Services psychiatric services staff and the HSU, Health Services Union, or sign an AWA.

PN28

Well, we won't go to that. The fifth point, of course, is that question of funding:

PN29

That Golden City has no guarantee from DHS but DHS will fund current liabilities such as sick leave etcetera.

PN30

We then go to the action by the employer as it proposed, and that is at the bottom of basics in 7, where Mr McLean refers to:

PN31

On his return from holidays he will arrange a meeting with Mr McDonald.

PN32

Who is also before the Commission:

PN33

to negotiate payment of liabilities.

PN34

And secondly and importantly, that:

PN35

Golden City Support Services has a copy of the certified agreement.

PN36

And the certified agreement that is referred to there is the Psychiatric Services - sorry, Commissioner, the Psychiatric Services Certified Agreements that were negotiated from '97 to 2000. And that they will:

PN37

And Golden City will prepare a draft agreement using the relevant sections from the certified agreement as a template.

PN38

Now we then go through the document further, Commissioner, onto the second page and it refers there in the letter to one of the HUAs organisers, Ms Lovell, where the letter from Mr McLean confirms again the question of concerns about funding and meeting the liabilities. It is also noteworthy, Commissioner, at the very last paragraph that Mr McLean states in the letter that he will be pleased to have Chris, ie Mr Geyer:

PN39

transferred to our agency from his section 97 status.

PN40

And then we go to the last letter, Commissioner, which is a letter from Mr Tim Lee from the Department of Human Services, which is dated 15 November 2000, again to our organiser, Ms Lovell, and if I can take the Commissioner in particular to the second paragraph, I won't read it all, but the essence of it is in the first line of that second paragraph where it is:

PN41

I can confirm that the Department will ensure Golden City is funded to maintain Mr Geyer -

PN42

etcetera. Now we say, Commissioner, that the undertakings of the DHS ought to resolve the employer's concerns and we have also been handed a copy of a letter, and I guess Mr McDonald will tender this for you when he gets to his feet, dated 10 July where those assurances - 10 July 2002, those assurances are given again in very similar or the same terms. Now with respect to the other issue that Mr Geyer refers to - sorry, Mr McLean refers to in his memorandum, which is at the top, is the question of an instrument, an industrial instrument to bind the employer to facilitate the transfer and to then establish an ongoing employment relationship, which is contained in the covering letter of HSUA1. That is not a problem, Commissioner. What happened in 1997 and 2000, as indicated before, was that it was the intention of the parties negotiating those agreements to ensure that all employees were covered by - sorry all section 97 employees were covered and all those agencies that provided the services were also to be bound. What happened with Golden City was that it was inadvertently omitted from the list. It was a mistake and it was an error and it should not have happened and if we are able to take ourselves back to 1998 it would have been fixed.

PN43

Now, with respect to addressing that, the Commission has an opportunity open to us, and indeed the parties have a unique opportunity open to us to deal with this particular issue. Commissioner, on 12 January 1996 Commissioner O'Shea issued a decision on a finding of dispute and that was in C No 34580 of 1995 and indeed print M8484. Now, Golden City Support Services is a respondent employer to that finding of dispute. So for all intents and purposes, that finding then became - that finding of Commissioner Blair then became the basis - - -

PN44

THE COMMISSIONER: O'Shea.

PN45

MR STEPHENS: Did I say - - -

PN46

THE COMMISSIONER: The finding of Commissioner O'Shea.

PN47

MR STEPHENS: Commissioner, did I say Blair, did I?

PN48

THE COMMISSIONER: Yes.

PN49

MR STEPHENS: I am sorry. You haven't been around that long, I would appreciate.

PN50

THE COMMISSIONER: '96?

PN51

MR STEPHENS: '96.

PN52

THE COMMISSIONER: I was here.

PN53

MR STEPHENS: You were here?

PN54

THE COMMISSIONER: Yes.

PN55

MR STEPHENS: Well the finding of Commissioner O'Shea, who predeceased yourself, formed actually the basis of all of the certified agreements in relation to psychiatric services between 1997 and 2000, including those of course that provided for the transfer of employment of section 97 employees. As indicated, Golden City Residential Services is a respondent employer to that finding of dispute. Therefore the jurisdiction - - -

PN56

THE COMMISSIONER: Right.

PN57

MR STEPHENS: - - - and indeed the vehicle, is established.

PN58

THE COMMISSIONER: Right.

PN59

MR STEPHENS: It is there. And we say, Commissioner, that that addresses the second concern of the employer, that is a means to establish the industrial instrument to give effect to what needs to be done here.

PN60

THE COMMISSIONER: So why, I mean, I don't mean to cut you off in your stride.

PN61

MR STEPHENS: Yes.

PN62

THE COMMISSIONER: But what is the difficulty?

PN63

MR STEPHENS: Well the difficulty is that we have been trying for three or more years to facilitate the transfer and the difficulty has been based on those two issues identified before, the employees resisting in respect of the funding commitments and the instrument.

PN64

THE COMMISSIONER: Right.

PN65

MR STEPHENS: We have in fact prepared a proposal as to how we can take this forward, Commissioner, and I might tender that and a copy has been provided to the other sides.

PN66

THE COMMISSIONER: Right.

PN67

MR STEPHENS: And I might just these proposed directions to you. In the first instance it notes basically what has been put this morning, that there are several certified agreements providing for the transfer, that is a matter of fact. The Commission notes that there was an intended time limit in negotiating the agreements, that it was intended to apply to all employees and all employers, that again is a matter of fact. The Commission notes, in accordance with the covering letter on the memorandum from Mr McLean that the employer has no objection to offering Mr Geyer direct employment in similar terms as all others, it is said in the memorandum on the bottom there.

PN68

However, again that there are two concerns, one relates to funding and one relates to the legal instrument. With regards to the question of funding, over the page, we note that the employer's concerns have been met and significant assurance has been given. With respect to the instrument, down to paragraph 3, there is a finding of dispute, of which Golden City is a respondent employer, and that finding of dispute, like it did with all the other psychiatric services certified agreements, provides the vehicle or the jurisdiction to settle this matter so that Golden City Residential Services can, as it says in its memorandum, wishes to be a party to.

PN69

We propose, Commissioner, that at 4, subject to all of the funding concerns being resolved by the employer, we propose 4 that the employer and the union sit down and negotiate an agreement, a certified agreement or indeed an award - - -

PN70

THE COMMISSIONER: Right.

PN71

MR STEPHENS: - - - to settle this particular issue, entirely consistent with the expressed wishes of the employer in its memorandum in April 1999. But finally, Commissioner, we propose that until all of that is done so that Mr Geyer is no longer disadvantaged, and he does get his pay increases, that an interim arrangement be entered into to facilitate, if you like, the administrative payment of wage increases and the administrative offer and acceptance of employment for Mr Geyer, and I might just tender that proposition as well, Commissioner.

EXHIBIT #HSUA2 PROPOSED DIRECTIONS

PN72

MR STEPHENS: Thank you, Commissioner. Now I should say, Commissioner, that this - leaving aside the covering letter, attached to the letter is a, what is something that is headed: heads of agreement between the Health Services Union, Golden City Support Services and the Department of Human Services. And, essentially, this is an administrative process to facilitate the making of an offer, the acceptance of an offer and the payment of the wage increases and the back pay of the wage increases as Mr Geyer we say is entitled to do so.

PN73

It is an administrative process that would be entered into pending, we say, the conclusion of a formal instrument between the HSUA and Golden City Support Services to address the very concerns identified by the employer in regards to an industrial instrument, both to give effect to and secondly, as an ongoing mechanism to bind the employment relationship. And that particular provision is dealt with in paragraph 7 of the proposed directions that we provided Commissioner. As I say, what we propose is designed to address what has been a long term unfairness.

PN74

Every other employee has received wage increases, including those employees who continue to be section 97 arising out of your own decision in October 2000, except Mr Geyer. And the action that we propose by way of these directions we say, Commissioner, is consistent entirely with the intent of the parties in 1997 and 1998. It treats all affected employees equally in Victoria, including bringing Mr Geyer up to this level. And thirdly, it is entirely consistent with the undertakings and the express wishes of the employer in this memorandum of 1999.

PN75

THE COMMISSIONER: Why has this taken so long?

PN76

MR STEPHENS: The reason why this has taken so long is because, essentially, and the employer can speak for itself, but as we see it, there has been an ongoing argument between the Department of Human Services and the employer with respect of funding that we have never been able to get over the hurdle of. And that, Commissioner, is despite - - -

PN77

THE COMMISSIONER: Well, I mean, the letter from the Department in terms of assurances on funding goes back to November 2000.

PN78

MR STEPHENS: Correct, Commissioner. And it seems that not even that letter was enough to satisfy the concerns of the employer. To me it seems, I have got to say, pretty clear that it is almost an unequivocal undertaking.

PN79

THE COMMISSIONER: Yes.

PN80

MR STEPHENS: I don't cavil with that point. It is to me an unequivocal undertaking which the employer at the time, on 15 November 2000, still was not satisfied with. And it seems as if there may be some progress towards being satisfied with respect of the letter that I referred to earlier that has just been provided to me this morning, dated July 2002, which Mr McDonald may take you to, I guess. That is the reason why it has taken so long.

PN81

THE COMMISSIONER: Okay. Let us hear from Mr Medina.

PN82

MR STEPHENS: Thank you, Commissioner.

PN83

MR MEDINA: If the Commission pleases, perhaps I should say at the outset or just reiterate what my friend, Mr Stephens, has said is that my client, Golden City, was never a party to the original proceedings which gave rise to your decision in a private arbitration of 20 September 2000 and indeed I think it was largely unaware of that exercise. I think it is important to emphasise that Golden City employs exactly one section 97 employee in its organisation and it is not primarily an organisation that operates in that area of psychological service.

PN84

It is, as the Commission would probably be aware, a member of VICRAID, which is a peak organisation for people in the disability accommodation sector. Now, having said that, Golden City has been aware for some time of the fact that that one section 97 employee was, as it were, left out of the mainstream operation, and I imagine that is not unreasonable when one considers the extent of that exercise where I believe some 4000 odd employees were transferred from the public sector to the private sector. Now my client has never been opposed in principle to the direct employee, Mr Geyer, with Golden City.

PN85

The problem has arisen in the terms of that employment, and particularly with respect to funding of that employment and to the instrument that should be used to give effect to that employee's employment. Because, in our view, the certified agreement which arose out of your decision of 30 September is not particularly appropriate to the operations of Golden City, particularly with respect that we are talking about one employee.

PN86

THE COMMISSIONER: Why isn't it appropriate?

PN87

MR MEDINA: Well, we are looking at one employee and that certified agreement is quite detailed and prescriptive. It really has the, if I may say, public service approach to employment and includes a lot of matters that are, well they are certainly outside the allowable matters in awards that are - - -

PN88

THE COMMISSIONER: But hang on, wait on, sorry. There is no, as I understand it, there is no mecca agreement arising out of the 2000 recommendations yet.

PN89

MR MEDINA: Not presently.

PN90

THE COMMISSIONER: No. So the recommendations are binding recommendations and they are only that at this stage until such time as there is a mecca. So the previous certified agreement that goes from, I think, '97 to 2000, still remains in force. Regardless of whether you have one or one hundred, why couldn't the employer and the question - two questions, why couldn't the employer be bound by that, and secondly why has it taken so long to fix this?

PN91

MR MEDINA: Well, we are talking about one employee.

PN92

THE COMMISSIONER: So what. So what if it is a hundred, or if it is one, or it is half, if it is point five, so what.

PN93

MR MEDINA: Then what, Mr Commissioner, if it contains certain anomalies with respect to the majority of employees - - -

PN94

THE COMMISSIONER: But it only would be bound to one. If the others aren't covered by the outcomes of the agreement because they are covered by other certified agreements or other awards, what is the point. I mean, just have a look in acute hospital. I mean there are many and varied classifications and structures within an acute hospital and they are all not bound by the one agreement, there are various agreements that reflect those particular areas. So why would Golden City be any different?

PN95

MR MEDINA: Well it is a small organisation with one employee being treated significantly - - -

PN96

THE COMMISSIONER: I don't care whether it is small or large. Why has it taken so long to fix this - - -

PN97

MR MEDINA: Well - - -

PN98

THE COMMISSIONER: - - - and why is Mr Geyer being disadvantaged in terms of the wage increases that flow, not only from the recommendation but also back to '97.

PN99

MR MEDINA: Well - - -

PN100

THE COMMISSIONER: Secondly, VICRAID would have been aware, if not participated in, I don't think that they did but they most certainly would have been aware of government policy in terms of section 97 employees, they would have been aware that there were a number of conferences arising, trying to deal with those outstanding section 97 employees, try and get them into the mainstream, away from direct employment. So why has it taken so long to get Mr Geyer's issue fixed and why is there such an issue that he being one employee, there is an obstruction in terms of the appropriate instrument for him to be covered?

[12.04pm]

PN101

MR MEDINA: Well, as to the delay, and I can't address the Commission on how much VICRAID organisations knew about the transfer of section 97 employees from the public sector to the private sector because, by and large, the VICRAID organisations are not, as a rule, involved with section 97 employees. So I am unable to say how much attention they devoted to that mainstreaming operation, Mr Commissioner. As to the delay, well there has been - I think it has probably been dealt with in a desultory fashion and I don't excuse that because in a massive exercise only one employee was involved. And, I think, and my friend, Mr McDonald, will no doubt correct me if I am wrong, but I think the department was probably getting around to a mopping up exercise at some time after that. I am informed, also, that the letter written in November 2000 about the funding arrangements, I am advised by Mr McLean, that that wasn't actually written to Golden City but was written to the union.

PN102

THE COMMISSIONER: But it says:

PN103

Mr Ian McLean, Chief Executive Officer, Golden City Support Services, has been forwarded a copy of this letter.

PN104

MR MEDINA: Apparently, my client was informed of Mr Lovell's letter but there were also a number of ongoing issues that needed resolution at that time. Now, I am able to say and I reiterate that Golden City has no problem, in principle, with the employment of Mr Geyer and, indeed, the letter but there were problems about funding, as I have said, and to a large extent, if not completely, the letter of 10 July 2002 would appear to clear up the issue of funding. However, still of concern to my client would be the appropriate instrument to - - -

PN105

THE COMMISSIONER: But that is fixed, he is bound by a dispute finding made by Commissioner O'Shea, I think, in '95. So what is the issue?

PN106

MR MEDINA: I am not in a position to actually address you on that, except to say that I wouldn't have thought the dispute finding obliged my client to employ people or it would relate to people who were not employed by my client.

PN107

THE COMMISSIONER: Say that again.

PN108

MR MEDINA: I would not have thought that any dispute finding would apply to persons not employed - - -

PN109

THE COMMISSIONER: It doesn't make any difference whether they were employed at the time of the finding of the dispute or not. The fact is he has been bound by a dispute finding by Commissioner O'Shea. The fact that he subsequently employs, as he says, on secondment, still says that they are bound by that dispute finding. So what is the issue in terms of the instrument?

PN110

MR MEDINA: I am sorry. Golden City would have been party to the dispute as an organisation and party to any award made following the finding of that dispute.

PN111

THE COMMISSIONER: Right.

PN112

MR MEDINA: But how would that encompass the situation of someone who was not employed by that authority at the time. It would apply if they subsequently became employees.

PN113

THE COMMISSIONER: Isn't that what Mr Geyer did?

PN114

MR MEDINA: I am sorry?

PN115

THE COMMISSIONER: Mr Geyer says - it says that Mr Geyer was on secondment, is that right?

PN116

MR MEDINA: Yes, under section 97, I think, of the Mental Health - - -

PN117

THE COMMISSIONER: Right. So if Mr Geyer was offered direct employment, which was the wish of the department and subsequent recommendations arising from this Commission, wouldn't the dispute finding cover him?

PN118

MR MEDINA: He would be covered by any award made as a result of that dispute.

PN119

THE COMMISSIONER: So?

PN120

MR MEDINA: Well, as I say, I don't have the decision in front of me what award was made, Mr Commissioner?

PN121

THE COMMISSIONER: Well, there was a certified agreement, wasn't there, that followed from that?

PN122

MR STEPHENS: There was - - -

PN123

THE COMMISSIONER: The '97-2000 agreement.

PN124

MR STEPHENS: There was about 20 or 30 of them covering different employers, yes.

PN125

THE COMMISSIONER: Yes.

PN126

MR STEPHENS: What we say, in respect of the finding of the dispute, it is the vehicle to make the certified agreement.

PN127

THE COMMISSIONER: That is right.

PN128

MR STEPHENS: That is all.

PN129

MR MEDINA: Was Golden City a party to that certified agreement?

PN130

THE COMMISSIONER: No, no, but they were bound by the dispute finding. They were bound by the dispute finding which give them the vehicle to put in place a certified agreement.

PN131

MR MEDINA: A certified agreement - - -

PN132

THE COMMISSIONER: Which they can do with Mr Geyer.

PN133

MR MEDINA: And with which my client was bound - was a party to the certified agreement?

PN134

THE COMMISSIONER: No, no, was bound by a dispute finding.

PN135

MR MEDINA: Yes, I follow that - - -

PN136

THE COMMISSIONER: Which then give the vehicle for the putting in place of a certified agreement, which you can do now, with Mr Geyer and get the funding that is required to ensure that the services of Mr Geyer becomes a direct employee of Golden City and Golden City aren't out of pocket in terms of entitlements that Mr Geyer has accrued whilst a section 97 directly employed by the DHS.

PN137

MR MEDINA: I am still not clear whether Golden City is a party to that certified agreement.

PN138

THE COMMISSIONER: No, you are missing the point - didn't say a certified agreement, said they were bound by a dispute finding which gave rise as the vehicle to put in place a certified agreement. Golden City don't have one, they don't have a certified agreement. What is being proposed is that the dispute finding, by Commissioner O'Shea, gives them, now, the avenue to put in place a certified agreement to cover Mr Geyer. And the DHS have provided the appropriate guarantees in terms of funding. Why can't we progress?

PN139

MR MEDINA: Well, I am not sure that we can't, Commissioner. I have merely said that Golden City would like to look at the appropriate vehicle.

PN140

THE COMMISSIONER: The vehicle is the dispute finding that they are bound by, in '95, not the certified agreement that flowed from that but the dispute finding.

PN141

MR MEDINA: Right.

PN142

THE COMMISSIONER: So, they are now - there are no hindrances to Golden City entering into a certified agreement in the same terms as flowed from the dispute finding in '95 ensuring that Mr Geyer is not disadvantaged. And that is the proposal, as I understand it.

PN143

MR MEDINA: If they consider that to be appropriate.

PN144

THE COMMISSIONER: Well, if they don't, what is appropriate?

PN145

MR MEDINA: Well, it may well be what has been suggested may be appropriate but there would be an issue at which the funding - of which the Commission is well aware, in this sector would be a question of funding.

PN146

THE COMMISSIONER: There is no issue of funding, that issue has been addressed. That issue has been addressed. It seems to me, it seems to the Commission that Golden City seemed to be too smart, by half, for whatever reason I am not quite sure, but they seem to be playing a little game which the Commission is not impressed with, I can tell you because the Commission has spent a considerable amount of time in private conferences and in hearings dealing with section 97s. And as late as a couple of months ago it issued a final recommendation in terms of dealing with those section 97s that still remain with the DHS. And I think there is something, I think it between 50 or 70 of them that are still outstanding, and even then some of them, following that, have been made offers of employment, direct employment.

PN147

It is up to them as to whether they accept it. If they don't then they understand the consequences of that because the recommendation makes it abundantly clear as to what should flow if they take up direct offer of employment. I am not sure why Golden City is seen to be hanging out in terms of offering Mr Geyer direct employment. There is the vehicle there to provide for a certified agreement. The letter, signed by Mr Tim Lee, says that there is no issue in terms of funding. Now, what is the difficulty?

PN148

MR MEDINA: In becoming a - in concluding a certified agreement, in much the same terms as the one that exists, presumably, is the Commission suggesting that would involve retrospectivity?

PN149

THE COMMISSIONER: Well, yes, because the government says, the government has made it abundantly clear. And even the recommendation, as of a couple of months ago, from the Commission, says that if a section 97 directly employed by the DHS takes up an offer of employment, direct employment by whoever, then those wage increases are retrospective, they go back, I think it is to '97, they go back to '97 and accordingly, funding would be available.

PN150

MR MEDINA: Well, I think, if my client is satisfied that that is the case then I don't see a great deal of problem in concluding some sort of an agreement.

PN151

THE COMMISSIONER: I must say I find it very difficult because in dealing with the section 97s, in particular those that still belong to the DHS, there has never been an issue raised regarding funding, never. Those that offered employment and those that have taken up the employment understand very clearly that the funding was available in terms of retrospective pay increases.

PN152

MR MEDINA: Well, my client certainly had some concerns about funding, Mr Commissioner.

PN153

THE COMMISSIONER: So the way forward, in terms of Mr Geyer, understanding that there is no issue in terms of funding, that there is the appropriate instrument there to give, to provide the vehicle in which to put in place a certified agreement covering Mr Geyer. Now, is there anything else that I am not aware of?

PN154

MR MEDINA: No, I think not at this stage, Commissioner.

PN155

THE COMMISSIONER: Okay, right. Thanks, Mr Medina. Mr McDonald.

PN156

MR McDONALD: Commissioner, for the record I would like to table a letter, as recent as 10 July, with regard to the funding. The parties have been given a copy of that.

PN157

THE COMMISSIONER: Okay, thank you, yes. Mr Stephens forwarded that to me because Mr Medina was referring to it and I didn't have it, thanks.

PN158

MR McDONALD: Yes. And that is one signed as recently as 10 July by Angela Jurjevic, the Director of Mental Health.

PN159

THE COMMISSIONER: Thank you.

EXHIBIT #DHS1 LETTER SIGNED BY DIRECTOR OF MENTAL HEALTH ON 10 JULY

PN160

MR McDONALD: The only other point that I would wish to make, Commissioner, is the Department of Human Services is prepared to sign the Heads of Agreement which has been marked as HSUA2. Thank you.

PN161

THE COMMISSIONER: Right, thank you. Mr Medina, you heard that. The letter of 10 July 2002 deals with the issue of funding. DHS have indicated that they are prepared to sign, as DHS, the Heads of Agreement proposal. Can we go forward?

PN162

MR MEDINA: On the basis of the letter of 10 July 2002, my client is certainly prepared to go forward.

PN163

THE COMMISSIONER: All right. So the parties would understand that if the Commission issues the direction, as proposed by HSUA2, they understand the basis in which the directions are issued?

PN164

MR MEDINA: Yes.

PN165

THE COMMISSIONER: Yes.

PN166

MR MEDINA: Yes.

PN167

THE COMMISSIONER: Okay, all right. Well, the Commission will do that and we will issue them in due course. They will be dated today's date. If there is anything else, it is like that old Telstra commercial, you know, why didn't you give us a call; just pick up the phone and we will get you back to together. All right, thank you very much.

PN168

MR STEPHENS: Commissioner, just one matter, sorry.

PN169

THE COMMISSIONER: Yes.

PN170

MR STEPHENS: Just for the purpose of the directions proposed in 7, you will see there that we referred to a document that was tendered, HSUA** - - -

PN171

THE COMMISSIONER: That is 2.

PN172

MR STEPHENS: Yes.

PN173

THE COMMISSIONER: I know. Thank you very much. Thanks, Mr Stephens, thank you.

ADJOURNED INDEFINITELY [12.20pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #HSUA1 BUNDLE OF DOCUMENTS PN16
EXHIBIT #HSUA2 PROPOSED DIRECTIONS PN72
EXHIBIT #DHS1 LETTER SIGNED BY DIRECTOR OF MENTAL HEALTH ON 10 JULY PN160