C2002/225, Transcript of Proceedings [2002] AIRCTrans 5016 (12 December 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N WT05655

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

C2002/225

AUSTRALIAN NURSING FEDERATION
- WESTERN AUSTRALIAN BRANCH

and

MINISTER FOR HEALTH and ANOTHER

Application under section 170LW of the Act
for settlement of dispute re payment of
paid parental leave

PERTH

10.03 AM, THURSDAY, 28 NOVEMBER 2002

PN1

MR N. FERGUS: I appear on behalf of the Australian Nursing Federation, WA Branch, the applicant in this matter and with me is MR C. NOBBS.

PN2

MR C. GLEESON: I appear on behalf of the respondents.

PN3

THE DEPUTY PRESIDENT: Well, look, I have listed this matter for hearing. As you are both aware it is a section 170LW application, it was actually preceded by a section 99 application, which is discontinued. We have under the auspices of both of those matters had a couple of conferences. It was hoped at the last conference and in fact my recollection is at that conference the parties agreed to accept a recommendation arising out of any proceedings and the form of those proceedings was intended to be by written submissions. As it turns out the Minister did not accede to that as a process that he was happy with.

PN4

I have therefore listed the matter for hearing. I do, however, have both of your submissions, if you like, in written form but I will ask you to expand on that, what you have provided. I should have added that in those conferences, at least to the best of my recollection, no view or opinion was expressed by me as to the merits of the matter. So on that basis I think it is over to you, Mr Fergus, if you have got anything to comment on.

PN5

MR FERGUS: Thank you, Deputy President. I think the first thing, for ease of reference I have two bundles of evidence, one which I would like to provide obviously to the respondent and one to yourself for the purposes of following through the evidentiary part of our case. Clearly, in the absence of either party calling witnesses what I will do is refer to each document as and when I go through them. They are tagged by appendix and there is a catalogue of evidence at the outset also which hopefully will assist us in following through the evidentiary part of these proceedings.

PN6

I would, I guess, suggest for the purposes of our proceedings, if the respondent has any issues as to the veracity of any of the documents that I provided I am more than willing for them either to agitate those at outset or as we go through and I refer to specific documents.

PN7

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Fergus.

PN8

MR FERGUS: The Kimberley Health Service, Mr Deputy President, has refused to meet a request for paid parental leave on the basis of advice given by the Department of Health, that advice being that the relevant clause does not operate until the date of the Nurses WA Government Health Services Agreement 2001 was certified by the Commission. The Full Bench of the Commission certified the agreement on 9 August 2001, paragraph 109 of the transcript of these proceedings, recalled Justice Munro referring to clause 5. His Honour states that:

PN9

The terms of clause 5 of course cause the agreement to operate, at least as we understand it, from 2 May 2001 but the Act prescribes that the agreement actually comes into force from the date which it is certified -

PN10

that is appendix A is the Full Bench decision, appendix B is the transcript from those proceedings.

EXHIBIT #A1 BUNDLE OF PAPERS

PN11

MR FERGUS: Thank you, Mr Deputy President. The applicant contends that in not meeting the request for paid parental leave the Health Service is in breach of the agreement. While the agreement comes into force from the date of certification retrospectivity is assured by reference within the agreement, this being confirmed by the Full Bench on certification. Under subclause 20.4 of the agreement six week's paid parental leave is granted to the primary care giver, subclause 20.4 is appendix C. Clause 5: Duration of the Agreement, states that the agreement shall operate from 2 May 2001, this is found at appendix D.

PN12

The applicant submits that the agreement commenced on 2 May 2001 in accordance with clause 5. This reflects the written commitment of the Minister for Health provided to the ANF during negotiations. Dated 10 April 2001 the Minister states that the operative date for the agreement will be 2 May 2001, and that correspondence is appendix E. This letter was provided following a request for clarification by the ANF State Secretary, Mark Olson, regarding the Government's position during negotiations. The position had been put by the senior representative of the Health Department negotiating team that an operative date had been approved of, 2 May 2001, which would allow the offer to be considered without affecting the date on which improvements to pay and condition can be made.

PN13

Appendix F, is correspondence from Mark Olson, the State Secretary of the ANF, and appendix G is correspondence from Christine O'Farrell which preceded that letter. It is important to note that reference is made to improvements. The applicant does not accept that the provision of an operative date of 2 May 2001 should cause recovery of entitlements that were lost under the new agreement.

PN14

Mr Deputy President, three nurses, Nicola Dixon, Amanda Smith and Kyra Ingle all employed at Derby Health Service within the Kimberley Health Service first raised the matter on 2 October 2001. A joint application for paid parental leave was sent on this date to the Director of Nursing, Kay Atfield. The correspondence from Nicola Dixon is appendix H. Of those parties to the original application Kyra Ingle had left the employment of the Health Service prior to the date of certification of the agreement. Nicola Dixon and Amanda Smith are permanent employees engaged on a full-time basis and employed at the date of certification of the agreement, that being 9 August 2001.

PN15

Nicola Dixon commenced employment with the Health Service on 21 April 1999 on a permanent full-time basis. Parental leave commenced 4 September 2000 ending on 3 September 2001. Amanda Smith commenced employment with the Health Service on 16 September '96 on a permanent full-time basis. Parental leave commenced on 26 December 2000 ending on 27 December 2001.

PN16

In accordance with clause 11 of the Nurses Metropolitan Health Services Board Enterprise Agreement of 1998, subsequently subclause 36.2.1 of the Nurses WA Government Health Services Agreement 2001, casual shifts were undertaken between 21 June 2001 and 19 October 2001. Paid parental leave cannot be claimed during the period of casual employment. Appendix I is clause 11 of the '98 Agreement and appendix J is subclause 36.2.1 of the 2001 Agreement.

PN17

The response from Kay Atfield dated 31 October 2001 advised that the clause for paid parental leave did not come into effect until 9 August 2001. A draft Health Department document dated 31 August 2001 and titled: Nurses WA Government Health Services Agreement 2001, Summary of Dates From Which Provisions Apply was attached to support this provision. I have attached both those documents, appendix K is the correspondence from the Director of Nursing, appendix L is the summary of dates from which provisions apply.

PN18

The Health Department draft document dated 31 August 2001 was subsequently revised to become application guidelines for the Nurses WA Government Health Services Agreement 2001 on 18 October 2001, this is at appendix M. There is no material difference between the advice contained in these drafts and the revised document as they relate to the issues of entitlement to paid parental leave under subclause 20.4 of the agreement or the position of the Health Department, that is it is only payable from the date of certification.

PN19

The Health Department guidelines do clarify one important issue of relevance to this matter, Mr Deputy President, that being subclause 20.4 of the agreement does not specify when the paid portion of leave must be taken within the overall entitlement. Up to 52 weeks unpaid leave as prescribed by clause 27: Personal Leave, of the Nurses ANF WA Public Sector Award 2002 may be taken by an eligible employee. Essentially, the paid leave accessible through the agreement can be taken at any time during the 52 week period.

PN20

The guidelines also establish the principle of payment for those who return to work within six weeks of the date of the clause becoming operational. The Health Service determined that Nicola Dixon was entitled to receive paid parental leave from 9 August 2001 to 3 September 2001 and Amanda Smith, 19 November 2001 to 27 December 2001. On 22 November 2001 in accordance with subclause 19.1.2 of the agreement Nicola Dixon wrote to the Health Services Manager, Paul Fitzpatrick, requesting a review of the decision to refuse full payment of paid parental leave, and this is appendix N.

PN21

This request highlights an important point in establishing when paid parental leave operates from. Other entitlements within the agreement, specifically the increased night duty allowance of clause 14 and the on-call rate of subclause 16.1.1 were both paid from 2 May 2001. This is confirmed by Health Department advice headed: Summary Of Dates From Which Provisions Apply In the Document Application Guidelines for the Nurses WA Government Health Services Agreement 2001.

PN22

In examining this interpretation of the agreement the question arises as to how these conditions can be payable from 2 May 2001 yet not others, particularly paid parental leave. This interpretation produced an inconsistency in application that should not exist. As stated, the duration of the agreement is clearly defined as operating from 2 May 2001 in clause 5 of the agreement. As a commencement date has been explicitly stated in this agreement this is the date from which the agreement operates. The date of certification is a date from which the provisions of the agreement come into force and can be enacted where appropriate to the particular date or dates specified within the agreement by the parties.

PN23

If it were the case that the parties to the agreement had dealt with the date of operation in an alternative way then the agreement might have commenced from the date of certification or other such date or dates as agreed between the parties and expressed within individual clauses. Paul Fitzpatrick, the Health Services Manager, wrote back to Nicola Dixon on 4 December 2001 endorsing the interpretation of Kay Atfield. In addition, the opinion of the Health Service Human Resource Co-ordinator, David Williams, was provided which support the departmental interpretation that paid parental leave cannot be paid prior to 9 August 2001. Correspondence from Paul Fitzpatrick is appendix O and appendix P is the memorandum from David Williams.

PN24

The opinion of the Human Resource Co-ordinator reflects on one of the justifications for paid parental leave operating from 2 May 2001, this being that the hourly on-call payment operated from 2 May 2001. The assertion that all changes to the leave entitlement clause, clause 20, are effective from the date of certification ignores two issues, that the duration of the agreement commenced 2 May 2001 and that no other operative date is contained within clause 20.

PN25

A further examination of the Health Department interpretation of pay elements in the agreement applying from 2 May 2001 and the conditions from the date of certification suggest that paid parental leave could even be considered as a pay element as it has a cash component distinct from the other leave entitlements in clause 20. The ANF was advised on 10 December 2001 that the dispute remained unresolved after subclauses 19.1.1 and 19.1.2 of the agreement had been followed.

PN26

On 10 January of this year, Mr Deputy President, the ANF faxed correspondence in accordance with subclause 19.1.3 of the agreement to Mr Ian Smith, the General Manager of the Health Service, to request further review of the decision to refuse paid parental leave. That correspondence is appendix Q. As no response had been received from the Health Service within seven working days stipulated by subclause 19.1.4 of the agreement further correspondence was subsequently sent by fax on 21 January this year, that is at appendix R.

PN27

In response to the ANF letter of 21 January David Williams contacted the ANF to advise the letter of 10 January had not been received, a copy was immediately faxed the same day. Correspondence was then subsequently received 14 February 2002 dated 1 February from Ian Smith advising the Health Service were to seek a legal opinion from the Department of Health. A legal opinion was suggested as being necessary due to the whole of industry implications based on the position put forward by the ANF in this matter, that is appendix S, correspondence from Ian Smith.

PN28

On 19 February the ANF e-mailed Graham Edwards, Co-ordinator of Labour Relations at the the Department of Health seeking a time frame to provide the legal opinion. On 14 March Graham Edwards provided a verbal summary of the legal opinion, essentially re-stating the position that paid parental leave did not operate until the date of certification. That agreement can only come into force when certified and then only the wage elements of the agreement can be back-dated.

PN29

In response to an ANF e-mail request on 21 March David Williams faxed a copy of the legal opinion provided by the Department of Health. The correspondence dated 7 March 2002 from Craig Gleeson, Labour Relations Officer at the Department of Health, summarised the legal opinion put by the Crown Solicitor's Office, that is appendix T, the fax from David Williams together with the correspondence from Mr Gleeson. The CSO assert that there is no clause that gives general retrospectivity to the application of the agreement. Further, that section 170LX(1) of the Workplace Relations Act 1996 makes clear a Certified Agreement comes into operation only when it is certified, appendix U is 170LX of the Act, Mr Deputy President.

PN30

The statement that section 170LX(1) of the Act precludes the capacity for an agreement to be given a retrospective date of operation is misleading. The Act is in fact silent on this point. Equally, the suggestion that clause 5 can only determine the date from which the first wage increase or wage associated elements are payable is also without foundation in the absence of any reference within the agreement itself. The ANF acknowledges that a Certified Agreement can only come into force from the date of its certification, this point is not in dispute.

PN31

However, agreements can deal with the issue retrospectivity simply by including operative dates, either as a specific clause such as clause 5 or within other individual clauses in the agreement. If this were not the case then the on-call and night duty increases would have no basis to be applied from 2 May 2001 as the agreement does not contain dates that allow them to operate retrospective to certification. However, the respondents to the agreement have applied retrospectivity to these clauses and the entitlement to them was back-dated to 2 May 2001. Appendix V is clause 14 and clause 16 of the 2001 Agreement.

PN32

Mr Deputy President, the provisions relating to retrospectivity are unique to Certified Agreements and distinct from that which apply to awards. Section 146(1) and (2) of the Act states that:

PN33

An award shall be expressed to come into force on a specific day and unless the Commission is satisfied that there are exceptional circumstances the date specified shall not be earlier than the date of the award.

PN34

Certified Agreements, however, reflect the position of the parties during negotiations. The applicant was advised by the Minister for Health that the agreement would commence on 2 May 2001 and this commitment did not quarantine any part of the agreement from this particular date. The applicant lodged a notification of alleged dispute under section 99 of the Act on 9 April this year seeking the assistance of the Commission in resolving this matter, that application is at appendix W.

PN35

The applicant received the formal response from the Health Service on 12 April 2002 dated 25 March. This reiterated the advice of the Crown Solicitor's Office that the Health Service had applied the correct interpretation, that is at appendix X. The matter was then subject to conciliation during which the position of the respective parties was put. The applicant outlined those clauses in addition to paid parental leave that could not in all practical terms operate from 2 May 2001 and those accept it could not.

PN36

Appendix Y is correspondence from Mark Olson and appendix Z is correspondence from Graham Edwards setting out those respective positions. I just reiterate the point there, Mr Deputy President, I may have got my comments round the wrong way there. The applicant outlined those clauses in addition to paid parental leave that could in all practical terms operate from 2 May as opposed to those which we accept could not operate from 2 May 2001 simply because they did not exist, an example of which would be the deferred salary scheme.

PN37

Despite an offer of a without prejudice settlement to resolve the dispute the Department of Health maintained section 170LX(1) made operation prior to certification incapable. The applicant sought the assistance of the Commission and lodged form R47 on 15 October 2002, which is appendix AA. The applicant again offered a without prejudice resolution on 28 October this year setting out the interpretation of the agreement and the Act, however, this was again rejected by the respondent who seeks resolution to not only the provision of paid parental leave but to what they submit is the underlying argument, that is the date from which the agreement can operate which clearly the applicant says is 2 May 2001.

PN38

Further correspondence appendix BB and CC, correspondence between the State Secretary, Mark Olson, of the ANF and Graham Edwards at the Department of Health. The Commission may wish in its deliberations to consider the intent of the parties during negotiations. The ANF State Secretary, Mark Olson, has provided a statutory declaration which may assist the Commission in this task, that is appendix DD. Mr Deputy President, the Department of Health also submits that section 170LC(5), the effect of a multiple business agreement, causes the agreements in operation preceding the 2001 agreement, those being the Nurses Metropolitan Health Services Board Enterprise Agreement 1998 and Nurses Kimberley Health Services Board Enterprise Agreement 1999 to remain in operation.

PN39

The relevance of the Metropolitan Health Services Board Agreement to this matter, Mr Deputy President, is there is an identical dispute which exists at King Edward Memorial Hospital involving a member of the ANF by the name of Jane McRobert. The applicant submits that this interpretation is not only contrary to the commitments obtained during negotiations but also to the intent of the Act itself. The nominal expiry date of each agreement was 1 May 2001. This meets the requirements of section 170LY(1)(b) that a nominal expiry date must have passed for revised agreement to have any effect.

PN40

The applicant submits that on certification of the Multiple Business Agreement covering the Public Sector came into force. Within that new agreement the clause caused the agreement to operate in its entirety from 2 May 2001 following the nominal expiry date of the previous agreements. That the department suggests entitlements such as increased on-call rates and the night duty penalty were paid in good faith is a tenuous argument at best and not supported by the facts in this dispute. It would be highly unusual for a Government to endorse payments on good faith when these entitlements could very clearly and easily have been articulated within the agreement to commence from a particular time.

PN41

The reason that this was not done is simply there was no need to as clause 5 causes the agreement to commence from 2 May 2001 and this was clearly understood by the parties at the time as expressed by the correspondence between them. The applicant respectfully submits that the interpretation of the agreement by the Health Service provided by the Health Department and supported by the Crown Solicitor's Office is incorrect. The duration of the agreement is determined in accordance with clause 5 on 2 May 2001 when on certification by the Full Bench it came into force on 9 August 2001.

PN42

In relation to paid parental leave, subclause 20.4 operates from 2 May 2001 and registered nurses are entitled to receive the full six weeks or pro rata entitlement if returning to work within six weeks of 2 May 2001, that being 12 June 2001. The Commission may wish to note that there are other elements of the agreement that are not currently applied from 2 May 2001 that will be affected by a favourable outcome. The applicant seeks in the event of a favourable outcome, Mr Deputy President, an order from the Commission that compels the Department of Health to communicate to all the respondents of the agreement advising that the date of operation of the agreement is 2 May 2001 and identifying each element within the agreement that may have been incorrectly applied. Additionally, that an amendment be circulated to the document Application Guidelines For the Nurses WA Government Health Services Agreement 2001 be issued. May it please the Commission.

PN43

THE DEPUTY PRESIDENT: Well, just a couple of issues on your last point, Mr Fergus.

PN44

MR FERGUS: Mr Deputy President?

PN45

THE DEPUTY PRESIDENT: Do you have any views on the powers I have to issue an order?

PN46

MR FERGUS: Clearly, the formula in which any outcome from this proceeding will take, Mr Deputy President, is a matter clearly that you will need to determine. As far as the applicant is concerned we are more than willing, as of course the dispute clause, clause 19, of the agreement stipulates, to accept your ultimate decision in this matter. As to how that is expressed, whether that be by way of an order or as in previous proceedings you have issued a declaration I have no real issue with how that is expressed, Mr Deputy President. Clearly, our position here is to agitate for an outcome which is applicable to the respondents to the agreement which causes the agreement to operate from 2 May.

PN47

THE DEPUTY PRESIDENT: Yes. Well, there are a number of steps I think I'm required to go through in a matter of this nature. The first step, as I see it, is to determine whether this is a matter over the application of the agreement. From what you've said, and I suspect Mr Gleeson will not dispute this if he does he should ensure that he articulates that, but on the face of it, it is a matter over the application of the agreement. Then if it is a matter over the application of the agreement it is a question of whether it is a dispute or a grievance within the meaning of the dispute settlement procedure and again from what you've said, Mr Fergus, this matter would fall within those meanings.

PN48

It is then a question of whether the procedures have been followed, and that is more I suppose a procedural thing of it getting here. Again, from what you've said on the face of it, it would appear that that has occurred. It is then a question of what form of outcome there can be. Some members have a practice and the general practice is of matters of this nature issuing recommendations and then it is a question of what the status of that is given that we do not have the power in any proceedings here to act in a judicial capacity.

PN49

So my preliminary thinking, subject to what Mr Gleeson has to say, is the outcome of this would be confined to the facts of the matter that you've presented, assuming those facts again are not disputed, and issuing a recommendation. It is then a question for you and the other party as to the status of that. If it falls within the status of the provisions of 19(1)(v) then a recommendation has been issued. That is a decision and it is a question for the parties as to where they take that if there is then any enforcement related issues, but on my preliminary thinking it would be inappropriate for me to issue an order because that would have all the portents of being a judicial decision. Do you have any comment on my preliminary thoughts on that?

PN50

MR FERGUS: Mr Deputy President, I think that so far as the jurisdictional question is concerned we believe that very clearly 20.4 is a clause within the 2001 EBA, therefore the provisions of section 170LW can be enlivened in that. It is a matter arising clearly out of the operation of an agreement.

PN51

THE DEPUTY PRESIDENT: Yes. Yes.

PN52

MR FERGUS: So far as the following of clause 19, the dispute settlement process is concerned, as I hope I have demonstrated each clause has been fully complied with and certainly as far as the applicant is concerned at the point through which we attempted to reach a conciliated outcome between the parties did more than enough to attempt to reach and accommodate an outcome without having to bring the matter through for your attention. As far as the articulation of the outcome is concerned, I think that given certification of the 2001 Agreement of which clause 19.1.5 I believe it is, which stipulates the fact that arbitration will be considered binding on both parties.

PN53

I believe that is the point which we are at. I'm certainly comfortable if you consider, Mr Deputy President, that the provision or recommendations which both parties would accept as being an arbitrated outcome in this matter, and clearly that is a matter for Mr Gleeson and I'm sure he will cover that in his submissions, to acknowledge as to whether or not the respondent in this matter is willing to accept that form of outcome.

PN54

Certainly, we would have an expectation that given we have followed the dispute process, that we're at a position where an arbitrated outcome is applicable and we would fully expect that given the commitment of the parties to the 2001 Enterprise Bargaining Agreement that the respondent in this matter would respect your recommendations and would act upon them without question.

PN55

THE DEPUTY PRESIDENT: Yes. It then becomes a question if they don't whether the outcome is enforceable, that is what I'm really getting at, but I can't enforce the agreement, my preliminary view of it, I can only issue a decision over the issue here and if it is properly here and that is the way I think of it.

PN56

MR FERGUS: As far as a point of clarification, Mr Deputy President, just to play that scenario out for a moment, if you did find that a recommendation would be the appropriate way to articulate an outcome here and for argument's sake if the respondent determined that they would not follow those recommendations are we then saying that it would be appropriate for the applicant in this matter to return to seek the Commission's assistance in enforcing some sort of order.

PN57

THE DEPUTY PRESIDENT: Well, a matter of an enforcement is not for here, is what I'm saying. On my preliminary view of it, the only thing that is for here is issuing a decision that is final and binding on the parties; that decision following arbitration required to resolve the dispute. Now, beyond that, it is not a matter for here is what I'm saying.

PN58

MR FERGUS: Okay, all right.

PN59

THE DEPUTY PRESIDENT: Now, that decision usually in matters of this nature takes the form of a recommendation rather than an order, as you raised the prospect of me or requested an order issue.

PN60

MR FERGUS: Sure.

PN61

THE DEPUTY PRESIDENT: What I'm alerting you to is I don't think I have the capacity to do that.

PN62

MR FERGUS: If I may, Mr Deputy President. Maybe a more appropriate term for any articulation of an outcome here might just simply be a decision as opposed to referring to it as an order then.

PN63

THE DEPUTY PRESIDENT: Or a recommendation. What you're saying is then to be entirely consistent with the agreement it talks of a decision, issue the outcome as a decision.

PN64

MR FERGUS: Yes. All right. Thank you.

PN65

THE DEPUTY PRESIDENT: Yes. Okay. But if you have any further view on that, Mr Fergus, maybe you can think of it and after you have heard Mr Gleeson you might add to that.

PN66

MR FERGUS: Most certainly. Thank you.

PN67

THE DEPUTY PRESIDENT: Thank you. Yes, thanks, Mr Gleeson?

PN68

MR GLEESON: Mr Deputy President, if just on the matter in regards to the issuance of a decision or otherwise, if I could just go to that point first.

PN69

THE DEPUTY PRESIDENT: Certainly.

PN70

MR GLEESON: The major concern from what Mr Fergus originally was seeking was that any recommendation, decision, order issue flow outside of the application of clause 20.4, which the respondent understands if the whole basis of the dispute before you - - -

PN71

THE DEPUTY PRESIDENT: Well, all I can do, Mr Gleeson, if I can short-circuit you and I think I indicated to Mr Fergus, on the facts before me and the issue before me, it is in relation to parental leave and the application of parental leave, and unless Mr Fergus wants to expand the application that is what I will be confining any outcome to if I've got the power for an outcome and you may wish to address me on that. Do you have a comment there, Mr Fergus?

PN72

MR FERGUS: If I may, Mr Deputy President. Clearly, we fully accept that this matter before you relates solely to that of paid parental leave. What we have done is in our application just acknowledged the fact that as was demonstrated in conciliation the respondent in this matter has highlighted their preference that the underlying argument, that of the operative date of the agreement, also be resolved. Clearly, I would expect that there will be some form of flow on here but for our purposes we are only agitating the issue of paid parental leave.

PN73

THE DEPUTY PRESIDENT: Yes. I appreciate what in effect you were doing was alerting me to the potential implications for other issues that might arise out of this set of facts. Yes, thank you, Mr Fergus. Mr Gleeson? I don't think we need to take it any further.

PN74

MR GLEESON: No. I'm very comfortable with that now, sir.

PN75

THE DEPUTY PRESIDENT: Yes.

PN76

MR GLEESON: Sir, if I can just briefly go through. The matter is an application pursuant to section 170LW of the Workplace Relations Act 1996 for the settlement of an industrial dispute arising out of the application of the Nurses WA Government Health Services Agreement of 2001, I would like to hereafter refer to that agreement as the 2001 Agreement. The matter in dispute relates to the employer applying provisions relating to the payment of paid parental leave as prescribed by subclause 20.4 of the 2001 Agreement from 9 August 2001, which was the date on which the agreement was certified.

PN77

Sir, we do say that the provisions of clause 19, the dispute settlement procedure of the 2001 Agreement, have been followed in relation to the progress of the dispute. We also say that the matter has been the subject of a number of conciliatory conferences and such conciliation proceedings have been unsuccessful in resolving the issue say that in accordance with the provisions of subclause 19.1.5 of 2001 Agreement which provides that should the matter remain in dispute after the processes within clause 19, dispute settlement procedure, been exhausted either party may refer to the matter to the AIRC for conciliation and if necessary arbitration.

PN78

If arbitration is required to resolve the dispute the decision of the Commission shall be final and binding on all parties. We would therefore indicate that we understand that the powers of the Commission in this matter to be and we would be seeking your arbitration on the matter in dispute.

PN79

THE DEPUTY PRESIDENT: And a decision on that arbitration?

PN80

MR GLEESON: And a decision on that arbitration.

PN81

THE DEPUTY PRESIDENT: And the form of that, do you have any comment on what the form of that should be, purely a decision or an order or a recommendation or what?

PN82

MR GLEESON: We would say that a decision would appropriate and as alluded to by Mr Deputy President is consistent with the wording in fact of 19.1.5 of the agreement.

PN83

THE DEPUTY PRESIDENT: Thank you.

PN84

MR GLEESON: Sir, the exhibit book or exhibit A1, as produced by Mr Fergus, contains a number of exhibits that I would seek to also provide or refer to, to merely seek the approval of the Commission to refer to the ANF - - -

PN85

THE DEPUTY PRESIDENT: I think it would be neater if you did it that say, Mr Gleeson, rather than produce further documents unless there is other documents that aren't already in this exhibit.

PN86

MR GLEESON: Thank you, sir. Sir, the respondent believes that it has acted in good faith throughout the process of implementing the Nurses 2001 Agreement, which was printed as at AG809781. The 2001 Agreement was certified as a multiple business agreement under section 170LC of the Workplace Relations Act. The certification documentation issued by the Commission dated 15 August 2001 and as provided for at exhibit, appendix A. This provides that:

PN87

In accordance with section 170LT of the Workplace Relations Act the Commission hereby certifies the ...(reads)... from 9 August 2001 and shall remain in force until 1 May 2004.

PN88

So section 170LX(1) of the Act provides that:

PN89

A Certified Agreement comes into operation when it is certified and subject to this section remains in operation at all times afterwards.

PN90

Clause 20 of the 2001 Agreement contains leave entitlements, in particular subclause (4) provides paid parental leave and it provides that:

PN91

Six weeks paid parental leave will be granted to the primary care giver.

PN92

Clause 20 of the 2001 we submit, sir, does not provide for the leave mentioned in the clause, including paid parental leave to be retrospectively available from 2 May 2001. Section 170LX of the Act is clear, the Certified Agreement comes into operation when it is certified. That precludes, the respondent submits, the capacity for the agreement to be given a retrospective date of operation. Clause 5 of the 2001 Agreement provides that:

PN93

The agreement shall operate from 2 May 2001 and shall remain in force until 1 May 2004.

PN94

Clause 8, wages of the 2001 Agreement, provides in part the wage increases provided by this clause apply to all classifications and subsume any subsequent adjustments arising from safety net reviews awarded by the Australian Industrial Relations Commission during the life of the agreement and at the first dot point says:

PN95

A 5 per cent wage increase payable from 2 May 2001 and payable on certification of the agreement.

PN96

Clause 5 provides that:

PN97

The agreement shall operate from 2 May and remain in force until 1 May 2004.

PN98

The respondent submits that the use of 2 May 2001 to determine the date from which the first wage increase, clause 8 wages, is payable does not flow through to the other conditions contained in the agreement. The respondent submits the provisions of clause 5 accommodate the commitment of pays and the recommendations of the Commission that the first pay increase payable under the agreement take effect immediately after the nominal expiry date of the replaced agreements, that being 2 May 2001.

PN99

The respondents to the 2001 Agreement have also applied changes to wage related allowances effective from 2 May 2001 in good faith, including the implementation of enhanced on-call rates and the implementation of the 20 per cent night shift penalty rate.

PN100

THE DEPUTY PRESIDENT: Just a moment please, Mr Gleeson. Sorry, Mr Gleeson, thanks.

PN101

MR GLEESON: That is fine, sir. Mr Deputy President, if I can refer you to the ANF exhibits, A1 at appendix L, which that does set out the summary of dates from which provisions within the agreement have been applied by the respondent. Sir, we submit that the scheme of the Act in relation to Certified Agreements that they are incapable of operating before certification. Certification of the agreement in question did not take place until August of 2001 and operates from that date by virtue of section 170LX(1) of the Act. Further, sir, section 170LX(2) of the Act provides that:

PN102

An agreement ceases to be in operation if: (a) its nominal expiry date has passed and it is replaced by another Certified Agreement.

PN103

So section 170LC(5) of the Act provides that in spite of section 170LY, which deals with the effect of a Certified Agreement in relation to awards and other Certified Agreements a multiple business agreement has no effect insofar as it is inconsistent with any other agreement that is certified under Division 4 that is not a multiple business agreement. Sir, the Nurses Kimberley Health Service Board Enterprise Agreement 1999, C No 60197 of 2000, print N1153, which I would like to tender to the Commission.

PN104

THE DEPUTY PRESIDENT: Yes. Thank you. Won't be any necessity to mark that.

PN105

MR GLEESON: Was an agreement certified in accordance with section 170LT of Division 4, which was not a multiple business agreement. Furthermore, the Nurses Metropolitan Health Service Board Enterprise Agreement 1998 and the reason why I'm referring to that agreement, sir, is that I understand the document or the letter to the Health Department dated 28 October 2002 which forms ANF appendix BB is in fact the applicant's outline of forms, the applicant's outline of submissions received prior to the agreement and it refers to an issue relating to a nurse employed at King Edward Memorial Hospital.

PN106

We say, sir, that that agreement was also an agreement certified in accordance with section 170LT of Division 4 and it also is not a multiple business agreement. The Nurses WA Government Health Services Agreement is a multiple business agreement certified in accordance with section 170LC. The agreement was certified by the Full Bench as has previously been submitted on 9 August 2001. The respondent submits that nurses employed by the Kimberley Health Service Board who returned to work following a period of parental leave prior to 9 August 2001 the conditions applying for that period of leave were in accordance with clause 14: Parental Leave, of the Nurses ANF WA Public Sector Award of 1994.

PN107

Clause 5, relationship to awards of the Nurses Kimberley Health Service Board Enterprise Agreement provided this agreement shall be read and interpreted in conjunction with the Nurses ANF WA Public Sector Award 1994 which provided that:

PN108

Where there is inconsistency between this agreement and the award this agreement shall prevail to the extent of any consistency.

PN109

Similarly, those nurses who are on parental leave as at 9 August 2001 and were primary care giver were paid for that period that were absent between 9 August 2001 and return to work or 6 week's payment, whichever occurred first. Sir, also if I could just refer to the ANF exhibit appendix DD, which is a statutory declaration signed by Mr Mark Olson, State Secretary of the Agreement. We would seek that that not be accepted into evidence on the part of the applicant's case.

PN110

First two reasons for that, sir, is: (1) that Mr Olson has made references to basically opinion of what at placitum 6 is "in our view" opinionated. I don't have any means of confirming or questioning that. Furthermore, sir, at AA - sorry, sir - - -

PN111

THE DEPUTY PRESIDENT: But if you don't have any means of challenging that, why should that exclude the acceptance of it? Just a different question as to what weight is given to it, but what are you saying there? That you can't cross-examine?

PN112

MR GLEESON: Yes, sir. I think it - well, it is - there is one, as I will show you as regards to - there is, on the applicant's exhibit book, there is a reference to a couple of pieces of correspondence between the parties, which I do have submissions in response to those. The difficulty I have is in regards to what may or may not have occurred during verbal - so maybe I rephrase from seeking to have it - but I suppose, submit that, it should be given little weight by the Commission.

PN113

THE DEPUTY PRESIDENT: Well, it may not need to be gone to at all, but yes, I will leave it in the exhibit book. If it needs to be considered and weight given to it, I will attach what I consider the appropriate weight.

PN114

MR GLEESON: Thank you, sir. In relation to appendix E and G of the applicant's, it refers to correspondence dated 9 April and 10 April between the parties. We would say that that was in relation to an offer that was presented to the ANF on or about 10 April 2001, which was then later - near that date was actually rejected by the Federation. We would say that Government and the department in providing advice in regards to the application of this agreement has been consistent with the respondent's position in regards to negotiations that the nurses have not had a pay rise. They were due for a pay rise and that that pay rise was paid with effect from 2 May 2001, in the good faith of the Government.

PN115

In conclusion, Mr Deputy President, we would say that paid parental leave provided for under subclause 20.4 of the 2001 Agreement was only available to employees for periods of leave occurring after the date the agreement was certified. That is the date of its operation under the Workplace Relations Act, section 170LX(1). Furthermore, it is the respondent's submission in relation to the operation of the 2001 Agreement that the agreement can not operate retrospectively by virtue of section 170LC(5) of the Act. The conditions of employment for nurses covered under the terms of the agreements replaced by the 2001 were governed by those single business agreements until 9 August 2001.

PN116

THE DEPUTY PRESIDENT: Just on that last point, Mr Gleeson, you're saying it is inconsistent. I gather that is what you're saying with the previous agreement. Is that what you're saying?

PN117

MR GLEESON: We're saying, sir, that the single business agreements did not cease to operate until 9 August. That is the date from which they were replaced by the multiple business agreement. We would say that notwithstanding the provisions of 170LX(1), which we say precludes any retrospective application under the Act of a certified agreement is saying that furthermore, the relationship between a single and a multiple business agreement is also effective in - or also is rather than in this case.

PN118

THE DEPUTY PRESIDENT: I'm a little unsure of what you're saying. Are you saying - you refer to 170LC(5). Is that where you're referring to?

PN119

MR GLEESON: That is correct, sir.

PN120

THE DEPUTY PRESIDENT: You're saying that a multiple business agreement has no effect insofar as it is inconsistent with any other agreement that is certified under division 4. Now, I'm trying to ascertain what you mean by that. What is the inconsistency you're saying? Where is the inconsistency?

PN121

MR GLEESON: We're saying that the inconsistency, sir, is that the provisions of the single business agreement in, for example the Kimberley Health Service Board Nurses Agreement was read in conjunction with the award. We say that the parental leave provisions were covered by, under that agreement, in total by the provisions in the Nurses ANF (WA) Public Sector Award. The entirety.

PN122

THE DEPUTY PRESIDENT: Yes, but clause 4 of the agreement says that this agreement prevails over any inconsistency, so where does that sit with relation to your 170LC argument?

PN123

MR GLEESON: We're saying that the inconsistency is that the single business agreement provided for unpaid parental leave.

PN124

THE DEPUTY PRESIDENT: Yes. Yes.

PN125

MR GLEESON: The 2001 Agreement provides for a paid component of - for paid parental leave. Therefore there is an inconsistency within the two instruments.

PN126

THE DEPUTY PRESIDENT: Yes.

PN127

MR GLEESON: So because there is such an inconsistency, the provisions of the single business agreement prevail over the multiple business agreement.

PN128

THE DEPUTY PRESIDENT: No, but that is only if there is an inconsistency between this agreement and the other agreement. Does not the inconsistency disappear by the prevalence established under clause 4 of this agreement? If clause 4 were silent on the prevailing of any inconsistency, if it were silent on any inconsistency, then 170LC(5) may have some application. But does 170LC(5), is there any inconsistency because of the provisions of clause 4 is what I'm asking?

PN129

MR GLEESON: Yes. I'm not particularly clear on the question that the Commission is asking. We're saying that - - -

PN130

THE DEPUTY PRESIDENT: Well, perhaps I will rephrase it. If clause 4 of the agreement made no comment about what will prevail under what circumstances, then one must ascertain, well, what prevails. The means of ascertaining what prevails, on your argument, would be 170LC(5). But does 170LC(5) come into play when the agreement itself establishes what prevails?

PN131

MR GLEESON: Sir, we would have no further submission on that point.

PN132

THE DEPUTY PRESIDENT: Okay. All right. The other question I ask you is, with respect to your argument about 170LX. Now, what you are saying is 170LX, if I understand you correctly, an agreement comes into operation when it is certified. But does not the agreement itself establish when it takes effect from?

PN133

MR GLEESON: Sir, we would say that the issue is in regards to which - if I could say that the issue is that we would say that by virtue of 170LX, that for the purposes of the operation of the agreement is that it is, it comes into operation when it is certified. It remains in operation at all times there afterwards.

PN134

THE DEPUTY PRESIDENT: Yes.

PN135

MR GLEESON: And it ceases when its nominal expiry date has passed and it is replaced by another certified agreement.

PN136

THE DEPUTY PRESIDENT: Yes.

PN137

MR GLEESON: If I could refer you to one authority that has looked at the question of the operation of section 170LX and its matter, the Maritime Union of Australia v Broome Port Authority. If I could take you to paragraph 15 on page 4 of the decision. If I just give the citation first, sir. It was published at PR914136. Commissioner Raffaelli said that section 170LX makes it clear that an agreement comes into operation when it is certified. The 2001 Agreement was certified on 30 August 2001. The order of the Commission made at the time relevantly provides that the agreement will come into force from 30 August 2001 and will remain in force until 30 August 2004. There are no provisions within the act that allow for the overriding of the clear effect of section 170LX(1). Retrospective operation of an agreement is not provided by the Act. Given the words of section 170LX(1), there is no agreement to admit another earlier date by implication or otherwise.

PN138

THE DEPUTY PRESIDENT: But it goes on to say a little more, doesn't it?

PN139

MR GLEESON: It does go on to say, sir, that parties will have decided to apply agreement prior to certification. In this case it is undoubted that the 2001 Agreement was applied by the parties from 1 July 2001. However, sir, an issue has now arisen in regards to when the agreement lawfully operated, and the decision of Commissioner Raffaelli was that it could only operate from date of certification. And sir, that is the primary submissions of the respondent in this matter.

PN140

THE DEPUTY PRESIDENT: It can only operate from then but the effect of it can be whatever the content of the agreement gives effect to, doesn't it?

PN141

MR GLEESON: Insofar as - - -

PN142

THE DEPUTY PRESIDENT: I mean, if we take, say, two agreements, and just so that I can understand your argument, say an agreement - we will call them Agreement A and Agreement B. If Agreement A operates from, say, 1 January 2000 and its expiry date is 31 December 2003, its nominal expiry date, agreement - and say it has a pay rate of $100 per week. If Agreement B is certified on 1 January 2004 but in it it takes effect from, say, 1 January 2003 and it has a pay rate of $200, why cannot both of those agreements for the period 1 January 2003 and 31 December 2003 not be still operating by complying with the later agreement?

PN143

MR GLEESON: And then, I think, the provisions of section 170LY in relation to the operation in accordance with another certified agreement.

PN144

THE DEPUTY PRESIDENT: But that only comes into effect if the agreement is not replaced. See, what you're saying is that Agreement A cannot expire until 31 December 2003.

PN145

MR GLEESON: We're saying it didn't cease until that date.

PN146

THE DEPUTY PRESIDENT: Didn't cease until that date. Even though there is another agreement that replaces it? Is that what you're saying?

PN147

MR GLEESON: Yes, sir.

PN148

THE DEPUTY PRESIDENT: So the effect of any provision in an agreement that has a effect date is meaningless, in your submission?

PN149

MR GLEESON: That is correct, sir, and the formulation of section 170LX(1).

PN150

THE DEPUTY PRESIDENT: So any agreements that come up here with any effect date, given that they're meaningless, I should be drawing that to the attention of the parties if the date it is intended to have effect or the parties are going to apply it is prior to the certification date? Is that what you're saying?

PN151

MR GLEESON: In regards to the provisions, I suppose that is - we are saying that under this agreement in the good faith of the parties is that a number of the provisions were applied from 2 May 2001.

PN152

THE DEPUTY PRESIDENT: Yes.

PN153

MR GLEESON: So far as pay increases and so on. Under the scheme of the Workplace Relations Act and specifically 170LX(1) is that an agreement cannot operate retrospectively. And insofar as we have a dispute in regards to the application of paid parental leave prior to the date of certification, now we are saying that it was lawful decision of, or application of the employers, to apply that condition or access to that condition with effect from 9 August 2001, which as the Commission certification stated, was the date of operation or the date the agreement came into force.

PN154

THE DEPUTY PRESIDENT: Yes. I understand your argument. Okay, do you have anything further to add?

PN155

MR GLEESON: No, sir.

PN156

THE DEPUTY PRESIDENT: Any questions? Mr Fergus, do you have anything to respond to?

PN157

MR FERGUS: Yes, Mr Deputy President, a number of matters arising from that that I would like to cover if it is of some assistance. I would like to deal with the Raffaelli decision first, if I may. There is a number of important distinctions to make between the discussions that were ongoing between the Maritime Union and the Broome Port Authority. If I may, I will just summarise those. The application concerned the date of operation of the 2001 Agreement replacing the 1996 Agreement causing access to broader dispute settlement provisions. That essentially was what the matter was concerned with. The 2001 Agreement in that case was - sorry, in that case was certified 30 August 2001.

PN158

A written agreement between the parties to give practical effect to the instrument existed from 1 July 2001. The dispute in that matter was then said to have arisen on 10 August. There were a number of other factors that were ongoing at that time. Commissioner Raffaelli makes a specific distinction between the word "arises" and "exist", the former seeming to exclude the dispute from being heard under the new provisions. Clause 5, date and duration of the 2001 Agreement, states that:

PN159

This agreement shall operate from the date of certification and remain in force for a period of 3 years.

PN160

The Commissioner states that there are no provisions within the Act that allow for the overriding of the clear effect of section 170LX(1). Retrospective operations of agreement is not provided by the Act and there is no room to admit another date, another earlier date either by implication or otherwise. The Commissioner then in this particular decision goes on to say:

PN161

The parties may decide to apply the agreement prior to certification, as in this case, 1 July 2001. However, that date does not emanate from the 2001 agreement. It clearly emanates from a separate understanding.

PN162

The significant difference, we submit, Mr Deputy President, is that in the case of the Public Sector 2001 Enterprise Bargaining Agreement, we have a date of operation and that makes it distinctly different from the matter that was before Commissioner Raffaelli. In terms of the other issues that were touched on by my friend Mr Gleeson. If it were the case that the wages were the only aspect of the enterprise bargaining agreement that were to operate from 2 May, why was then an operative date expressed between the parties? It does not make logical sense if the Government during negotiations were seeking just to quarantine the wages element of that agreement to 2 May, that it would not refer to that quarantine to any other aspect of the agreement, either within specific clauses other than those already noted such as some of the gratuity payments that have other operative dates.

PN163

We suggest that the operative date is anything other than expressed by the Department of Health in their position put to the applicant on 9 April and confirmed by the Minister himself on 10 April is a little bizarre, to say the least. Clearly there was a need to clarify the department's position within the negotiation process. That I think is without any doubt. A position was put by the department. Clarification was sought by the ANF and clarification was subsequently provided by the Minister. We suggest that that achieved an understanding between the parties which related to the date of operation as being 2 May and that was clearly dealt with in the exchange of correspondence.

PN164

The argument that the preceding agreements override the 2001 EBA as I note you have already acknowledged, Mr Deputy President, in terms of their inconsistency is not really consistent with the application or, we would suggest, the intent of the Act. The fact is that an application for paid parental leave could in fact only be made after 9 August 2001, which is when the agreement was certified. We're not suggesting for a moment that that condition existed, that it could be applied for prior to 9 August, just that when the agreement came into application, anyone who was employed at that time could then apply for a condition which would operate from 2 May, consistent with clause 5.

PN165

I would like to touch on, as it was mentioned, the weight that you would apply to the statutory declaration of the State Secretary of the ANF, Mr Mark Olson. Simply that I am quite sure you will apply to that evidence, Mr Deputy President, whatever weight you believe is appropriate, and we would not agitate that you treat it in any other way other than the fact that it is a statutory declaration, properly sworn before a Commissioner for declarations, which does express the applicant's view as to how we interpreted the position between the parties during the course of negotiations.

PN166

It may well be, as you have already noted, that it is not necessary to go into that depth of evidence. However, just for completeness, I think it is worth making that point. If the Government had sought to operate just the wage increases from 2 May, Mr Deputy President, then I don't think it too much to expect that that would have been properly articulated by not just the Department of Health during the course of negotiations but also by the Minister for himself. What we now are faced with is a position being agitated by the respondent that is inconsistent with that expressed during negotiations and also the letter from the Minister himself.

PN167

One final point, Mr Deputy President. To suggest that the effect of an operative date is meaningless within discussions between parties really does go to the heart of the principles behind enterprise bargaining between parties and what they can reasonably agree to between themselves. The fact is, in an enterprise bargaining agreement, I think it is often said, you can achieve by agreement anything that you so choose to providing it is lawful. The fact is that parties in this matter have through discussion arrived at an enterprise bargaining agreement covering public sector nurses.

PN168

The residual issues that arose between them in terms of the operative date were subject to correspondence and we suggest that does clarify the position of the parties. In fact was why the ANF agitated at that point for some clarification as to the meaning of the letter from Christine O'Farrell to Mark Olson, suggesting that the department's position which would allow nurses to consider at that point the offer from the Government in the knowledge that the pay and conditions - and I stress the word "and conditions" would apply from 2 May 2001.

PN169

THE DEPUTY PRESIDENT: I must say, I find it rather novel to say that an effect date in an agreement has no effect other than the goodwill of the parties. My understanding is that parties often agree during the process of negotiations to when the outcome will take effect from, thereby reducing the time pressures on the negotiations to allow the parties time to properly consider the issues they need to consider. It is obviously a matter of whether the - how the legislation applies but just in principle it would seem a rather peculiar approach to take to say, well, the force of any agreed date is entirely at the goodwill of the parties.

PN170

MR FERGUS: Indeed, Mr Deputy President. I think that the term good faith and good faith bargaining has been used to date and has become a byword for enterprise bargaining, most recently in the State jurisdiction. It has been subject to some extensive discussion and definition. I think simply the fact that that operative date was expressed in a specific clause in the agreement which was sent subject to some discussion, goes to the heart of what good faith bargaining is and the fact that any ambiguity we suggest was resolved, or we certainly hoped was resolved at that point, should have meant that the agreement flowed from the 2 May once it was certified.

PN171

THE DEPUTY PRESIDENT: Well, I am not suggesting their is any bad faith by the Department or the other party to this but the concern I have, I suppose, is if their argument is valid, the implications of it when certification's come up, that is not a matter for us here today. Unless you have anything further to add, Mr Fergus, I will - - -

PN172

MR FERGUS: I guess only just a comment, Mr Deputy President, in that it is, as I think we have expressed previously, unusual for a date of operation to have a part in an enterprise bargaining period such as this one. So, I guess that again demonstrates the position between the parties at that time generally, as I am sure you are well aware, often wage elements are quarantined and subsequently the conditions do apply from the date of certification in the absence of an operative date.

PN173

THE DEPUTY PRESIDENT: Thank you, Mr Fergus. Thank you, Mr Gleeson. I will reserve on this and issue a decision at least and the form of that I will consider in my deliberations. Thank you both for your submissions, it is adjourned.

ADJOURNED INDEFINITELY [11.14am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 BUNDLE OF PAPERS PN11