AG2002/4512, Transcript of Proceedings [2002] AIRCTrans 4087 (15 October 2002)

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TRANSCRIPT OF PROCEEDINGS

O/N VT230
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

AG2002/4512

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170MD(2) of the Act
by Benchmark Healthcare Pty Limited for
certification of the Australian Nursing
Federation (Victorian Branch) and Benchmark
Healthcare Pty Limited Certified Agreement
2001-2004 re part-time employment

MELBOURNE

11.30 AM, WEDNESDAY, 2 OCTOBER 2002

PN1

MR A. HOLMES: I appear for the applicant in this case, Benchmark.

PN2

MR R. BURROWS: I appear on behalf of the Australian Nursing Federation.

PN3

THE COMMISSIONER: Thank you. Mr Holmes.

PN4

MR HOLMES: Sir, this is an application to vary a certified agreement in the name of the Australian Nursing Federation and Benchmark Healthcare Pty Limited Certified Agreement 2001 to 2004. Sir, the agreement itself was certified at the commencement of 2001 and over the period of the operation of the certified agreement, the parties to it have considered the applicability and appropriateness of seeking a variation to it relating to the permanent part-time employees who are covered in operation under clause 18 of the agreement.

PN5

Sir, it is felt by the parties that both equity and applicability would be served by allowing those permanent part-time employees to take up casual shifts that might be available to them and, as you can see by the current provisions of the clause, those permanent part-time employees are in a preferential position to be offered additional shifts as they might become available. Clearly, some of the people who are permanent part-time employees would prefer to take up those shifts, not as extensions of their permanent part-time employment capacity, but equally because of personal circumstances, they would care to take them up as casual shifts.

PN6

The parties have considered what might need to take place with regard to varying the agreement and agreement has now been reached as to both the process which would apply in the circumstances and the appropriate level of security which needs to obtain in respect of preserving the rights of those permanent part-time employees as and when they might be offered and by their own election take up any additional work as casual shifts. Sir, the agreement itself is only varied to that extent and there has been full consultation with the employees in each of the sites covered by the agreement with respect to the variation.

PN7

THE COMMISSIONER: The statutory declaration says, 6.4:

PN8

Would the Commission be required to certify the agreement as varied if it were a new agreement whose certification was applied for?

PN9

And it has been answered, yes.

PN10

MR HOLMES: Yes.

PN11

THE COMMISSIONER: So two things. Does that mean that the operative date of the agreement is now changed and the expiry date of the agreement is changed and, secondly, if the variation were to mean that it is to apply as to a new agreement, does the 21-day period in which the vote were taken, after the vote were taken and the period in which it is to be lodged in the Commission is to apply also?

PN12

MR HOLMES: Sir, in respect to the first matter, the operative date of the agreement, there has been no change to the operative date of the agreement. What we would be seeking is that the variation clearly date from the date when the Commission approves of the variation which in turn would mean that the termination of the agreement, the date on which it would normally expire, would also remain the same.

PN13

THE COMMISSIONER: Right, so what date is it due to expire?

PN14

MR HOLMES: I don't have the precise date in front of me, except that I can refer to the agreement itself. The nominal expiry date, sir, is 31 December 2003.

PN15

THE COMMISSIONER: Right. Now, what about the 21-day time limit?

PN16

MR HOLMES: Sir, the vote was taken over a particular period of time, obviously because of the need to cover a number of sites and meetings took place at different dates. In the statutory declaration, I think 11 July was nominated as the date on which the final vote was taken. Sir, we do understand that the lodgement date of the documents were somewhat out of time if we were taking 21 days from that date and if the Commission requires, we would be obliged to make an application to extend the date for lodgment of those documents. I can confirm, if that is the Commission's requirement, sir, that I have rechecked the staff numbers and the disposition of those numbers of staff and they have not varied such that the vote would be any different from the date when the documents were lodged.

PN17

THE COMMISSIONER: Thank you. Yes, Mr Burrows.

PN18

MR BURROWS: The ANF would simply support the submissions of Mr Holmes. There has been consultation with the membership and the necessary documentation has been filed with the Commission and also we would support the application pursuant to the Act for an extension of time. The documents were filed I think on 18 September from memory, Commissioner. They were beyond the 21 days. My information is the same as Mr Holmes', that there has been very little change in the composition of the staff and that the vote would not have been affected. If the Commission pleases.

PN19

THE COMMISSIONER: Thank you. This is an application under section 170MD(2) to vary the Australian Nursing Federation and Benchmark Healthcare Pty Limited Certified Agreement 2001-2004 to the extent that clause 18, part-time employment clause, is proposed to be varied. The Commission is satisfied based on the material provided to the Commission that the requirements of the Act have been met in terms of consultation with employees and a vote was taken to allow the variation to occur. The Commission is prepared to use its discretionary powers under section 111(1)(r) and grant the extension of time in which the application for certification, in this instance variation, was to be made. The Commission is prepared to vary the agreement in the terms sought. The variation shall be operative from today's date, 2 October 2002 and will expire with the remainder of the agreement on 31 December 2003. No further business. The Commission wishes you a good morning and stands adjourned.

ADJOURNED INDEFINITELY [11.39am]