AG2002/2855, Transcript of Proceedings [2002] AIRCTrans 4012 (9 October 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2002/2855

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Fresenius Medical Care Australia Pty Limited
and Another for certification of the Fresenius
Medical Care Australia Pty Limited South
Australia Nurses (ANF) Enterprise Agreement
2002-2004

ADELAIDE

11.00 AM, WEDNESDAY, 25 SEPTEMBER 2002

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, can I have the appearances, please.

PN2

MS K. EDWARDS: I appear on behalf of the Australian Nursing Federation SA Branch.

PN3

MR E. DAVIS: I appear on behalf of Fresenius Medical Care Australia Proprietary Limited.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Davis, I think as the applicant you have the honours.

PN5

MR DAVIS: Thank you, sir. Sir, this is an application pursuant to division 2 of the Workplace Relations Act 1996 to certify the Fresenius Medical Care Australia Proprietary Limited South Australia Nurses (ANF) Enterprise Agreement 2002 to 2004. Sir, the employer provides outpatient facilities in Adelaide. This agreement covers all employees of Fresenius Medical Care Australia Proprietary Limited who are engaged in work covered by the Nurses ANF South Australia Private Sector Award 1999. This is some 25 employees.

PN6

The employees of Fresenius Medical Care Australia Proprietary Limited were represented by the Australian Nursing Federation during the negotiations for this agreement and meetings, consultations were held with all employees. All the employees were provided with a copy of the agreement as required by section 170LR of the Workplace Relations Act some 14 days before the employees endorsed the agreement. A ballot was held amongst the employees and of the 25 who were eligible to vote some 25 voted to support the agreement.

PN7

This agreement provides for a number of significant increases for the work group. In particular it provides at clause 13 and appendix A, a significant increase in wage rates for the employees such that there is in effect parity with the public - South Australian Public Sector at the completion of the enterprise agreement. Further, it provides at clause 14 for salary packaging arrangements for employees and thirdly, it applies a new career structure which is provided at appendix B at page 16 of the document.

PN8

What in effect that does provide, sir, is it provides for an expansion of the enrolled nurse classification range with the additional pay points some 6 and 7 and outlined in appendix B is the process by which those pay points will be applied. Secondly, it applies an additional incremental point for registered nurse levels 1. Thirdly, it applies a new nurse specialist classification range which is also contained on page 16, appendix B.

PN9

As I put to you, sir, this agreement provides for a significant expansion of terms and conditions and rates of pay for employees, for those employees that are employed under the Nurses (ANF) South Australian Private Sector Award 1999. This agreement has a life until 1 August 2004 and we would say that it would not result in any reduction in the overall terms and conditions of employment for employees of Fresenius Medical Care. If the Commission pleases.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Davis. I should indicate to you I have a couple of brief questions in relation to the agreement but I might hear from Ms Edwards first of all, thank you. Ms Edwards, this is your opportunity to pre-empt my questions.

PN11

MS EDWARDS: I will try. Sir, I have not much further to add and I don't believe I can pre-empt your questions other than our members were very supportive of this and the process has been conducted in a fair and reasonable manner. Thank you.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Edwards. Ms Edwards, whilst I will address my questions to Mr Davis, please feel free to jump up and answer them if you wish to. Mr Davis, I should indicate that my questions are not designed to trip up the process of certification but rather reflect the desire I have to ask questions now rather than regret in the future that I didn't ask them.

PN13

MR DAVIS: Certainly, sir.

PN14

THE SENIOR DEPUTY PRESIDENT: Can I also indicate that the questions are clearly designed to clarify the intent of the parties, they are not designed, nor indeed will they, propose changes to the document that was endorsed by the employees. Clause 6G on page 3 of the document proposes that the assistance of the Australian Industrial Relations Commission might be drawn on. In addition, clause 8 on page 3 at step 4 proposes that once again the Industrial Relations Commission might be called upon. Given the existence of those two references to the Australian Industrial Relations Commission, can you tell me what the intent of the parties was in terms of the action that might be taken by the Commission in the event that a matter that is not agreed is referred to it.

PN15

That is, because of the way in which step 4 is worded I want to clarify that the parties intend that the Commission would initially try to resolve a matter through a conciliation process, or is it the intent of the parties that we would go directly into an arbitral role? If you want to talk with Ms Edwards in that regard I'm very happy for you to do so.

PN16

MR DAVIS: I think Ms Edwards and myself are of one, sir. Well, I hope we are of one. My understanding and certainly the agreements that we have done with the ANF in the past and I believe reflected in this agreement is that the parties would use their best endeavours to resolve the matter prior to requesting the matter be referred to the Commission. In the first instance, however, if a matter was referred to the Industrial Commission we would seek the Commission to conciliate on the matter. We would not be seeking arbitration in the first instance and I believe that is a consistent approach that we have taken in the past both with ourselves and the ANF. That is certainly the clear understanding.

PN17

THE SENIOR DEPUTY PRESIDENT: Ms Edwards, you are in agreement with that?

PN18

MS EDWARDS: Yes, sir.

PN19

THE SENIOR DEPUTY PRESIDENT: Clause 10E on page 4 references a company policy which I presume relates to interstate work.

PN20

MR DAVIS: Yes, that is correct, sir.

PN21

THE SENIOR DEPUTY PRESIDENT: Now, company policies have a habit of changing from time to time. Is it necessary that we clarify that the company policy position is established by way of a reference or provision of that policy to the Commission now or are the parties satisfied that the company policy structure is such that the company policy as at now can always be established in the event of a disagreement?

PN22

MR DAVIS: I believe it is the latter, sir. In fact, normally I would recommend to an employer not to make a reference to company policy for the very reasons that you have raised. However, it is interesting the fact the employees in the negotiations sought to build in a measure of clarification and it was at the employees' insistence that the provision be inserted as it is and we respected the rights of the employees to clarify that in writing in the document but certainly it is the latter that the Commission has identified as the provisions at the time of the endorsement or approval of the enterprise agreement.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you. You are comfortable that in the event of a debate the company policy position as at now can always be affirmed?

PN24

MR DAVIS: I believe so, sir.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you. Again, Ms Edwards, you are happy in that respect?

PN26

MS EDWARDS: Absolutely. That was certainly the intention of the agreement.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to page 7, Mr Davis, clause 17 and simply ask a topical question in this day and age. 17A commits the centre to ensuring that sufficient permanent staff are employed to meet projected demands. Can I be confident that the employer is going to be able to deliver in terms of that undertaking given what appears to be a global and certainly a national and certainly indeed a state-wide shortage of nurses. What happens, for instance, in the event that despite the employer's best endeavours sufficient permanent staff are not attracted?

PN28

MR DAVIS: This is a rare - I should say, whether it is an oddity or a rarity that in fact the employer tells me that they are in the unique position of having more staff and having more applications for their function than any other operation in South Australia. Obviously won't go into those reasons but - - -

PN29

THE SENIOR DEPUTY PRESIDENT: You had better not tell the Health Minister that. She might go and try and recruit them.

PN30

MR DAVIS: No. It is quite unique in that sense. There was significant debate with the parties in respect of the whole of the contents of 17. The employer was clearly of the view that they can meet that expectation and they have been able to do so for the years of operation in South Australia. So they are in a fairly unique position in that respect.

PN31

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, I will work on that basis. Final question on page 13 relates to clause 28. It is just a question of clarification of the intent. Clauses A to D establish the methodology to be applied for the purpose of determining the entitlement to increments. Can I take it that I read clause 28E in a slightly different context so that in effect the purpose or the intention behind 28E is to simply recognise previous service under a nursing award for the purpose of calculating the increments?

PN32

MR DAVIS: That is correct, sir, that is the very intention of the clause.

PN33

THE SENIOR DEPUTY PRESIDENT: Thank you. Again, Ms Edwards, you are in agreement with that interpretation?

PN34

MS EDWARDS: Absolutely.

PN35

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN36

MS EDWARDS: And we support it absolutely as well.

PN37

THE SENIOR DEPUTY PRESIDENT: I rather thought you might. Thank you, Mr Davis.

PN38

MR DAVIS: Thank you, sir.

PN39

THE SENIOR DEPUTY PRESIDENT: Having considered both the statutory declarations and the information provided to me today, I am satisfied that the agreement was reached through a process consistent with the Act so that the employees who are to be covered by it were able to make an informed decision to support and endorse the agreement. I'm satisfied that the agreement itself meets the requirements of the Act. It clearly does not contain provisions which are contrary to the Act. It has the necessary dispute resolution provision. It is of a duration envisaged by the Act and it meets the requirements of the no disadvantage test.

PN40

I will certify the agreement with effect from today. The certificate will be forwarded out to the parties some time within the next week. It remains for me to congratulate the parties on reaching this agreement and to express my wish that it operates to benefit both the employer and the employees. I adjourn the matter on that basis.

ADJOURNED INDEFINITELY [11.20am]