C0037/599, Transcript of Proceedings [2003] AIRCTrans 1396 (15 April 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT2181
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C No 00375 of 1999

HEALTH SERVICE UNION OF AUSTRALIA
(ABORIGINAL AND TORRES STRAIT
ISLANDER HEALTH SERVICES)
AWARD 2002

Review under Item 51, Schedule 5,
Transitional WROLA Act 1996 re
award simplification

MELBOURNE

10.04 AM, TUESDAY, 1 APRIL 2003

Continued from 11.11.02

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN48

THE DEPUTY PRESIDENT: Yes. I note there are no changes to the appearances. Mr Terare, can you hear us okay up in Sydney?

PN49

MR TERARE: Yes, Deputy President Ives.

PN50

THE DEPUTY PRESIDENT: Thank you.

PN51

MR TERARE: Yes.

PN52

THE DEPUTY PRESIDENT: Now I have received some submissions from the HSUA and I have also received some correspondence in support of those submissions. Might start with you, Mr O'Malley. Yes, Mr Guivarra?

PN53

MR GUIVARRA: Before we start, your Honour, I would just like to announce a change of appearance. I now appear for the National Aboriginal Community Controlled Health Organisation and appearing with me is MR T. KINGSTON from the Victorian Aboriginal Community Controlled Health Organisation.

PN54

THE DEPUTY PRESIDENT: Yes, if you could just - - -

PN55

MR GUIVARRA: I will just hand the letters of authority.

PN56

DEPUTY PRESIDENT: Yes. Yes, thanks for that, Mr Guivarra. Thank you. Yes, Mr O'Malley.

PN57

MR O'MALLEY: Thank you, your Honour. If it pleases the Commission I would actually like to hand up a corrected submission, there were a couple of typographical errors in the document that I forwarded to your office last week.

PN58

THE DEPUTY PRESIDENT: Yes.

PN59

MR O'MALLEY: And if I could then address the issues.

PN60

THE DEPUTY PRESIDENT: Thank you. Did you wish to have this marked at all, Mr O'Malley?

PN61

MR O'MALLEY: Yes, please, Commissioner - your Honour.

PN62

THE DEPUTY PRESIDENT: Yes, I don't think we have any exhibits to date so I will mark this HSUA1.

EXHIBIT #HSUA1 CORRECTED SUBMISSION

PN63

THE DEPUTY PRESIDENT: Yes, Mr O'Malley.

PN64

MR O'MALLEY: Thank you, your Honour. Your Honour, the Full Bench decision that was handed down in Print Number Q7661 referred to the necessity to examine the history of award fixation before awards could be simplified. I am not sure if the Commission has a copy of that decision in front of it so I have one - - -

PN65

THE DEPUTY PRESIDENT: No, I don't.

PN66

MR O'MALLEY: Okay.

PN67

THE DEPUTY PRESIDENT: Okay. Thank you.

PN68

MR O'MALLEY: Your Honour, that was a decision in October 1998 and at paragraph 12, which should be at page 13 of the document I have just handed up to you, the Full Bench in that decision said:

PN69

It will be necessary to examine the history of fixation of rates in each review of an award under item 51 to ascertain whether the discretion in item 51(4) needs to be exercised.

PN70

Your Honour, the HSUA submits that the Aboriginal Health Services Award has had a fairly substantial history of fixation and I would now like to explain and address the history of that. As you will note from the formal submission that the union has submitted, your Honour, on 6 May 1992, Commissioner Turbett handed down a decision in relation to a new award. That award became known as the Health Services Union of Australia Aboriginal Health Services Award, 1992.

PN71

In that decision - and that decision was handed down in Print Number K2782. If I could hand up a copy. In that decision, your Honour, Commissioner Turbett at page 3 - what I am reading is probably the fourth paragraph that starts:

PN72

The rates of pay proposed are those currently being paid in Victoria under the State registered Victorian Aboriginal Health Service Agreement. The rates do not include increases of 3 percent which could be available under the second instalment of the August 1989 National Wage Case Structural Efficiency Principle 3 and the October 1991 National Wage Case Decision 4 of 2.5. The rates could be increased in the tests required by the respective decisions were met.

PN73

In that same decision, your Honour, Commissioner Turbett went on, over the page at page 4 in paragraph commencing:

PN74

Current wage fixing principles do not allow for the payment of the 2.5 1991 decision until the second structural efficiency exercise associated with the 1989 National Wage Decision has been completed.

PN75

When the award was first created, your Honour, Commissioner Turbett expressed some doubts, as he says in the next paragraph:

PN76

...about some of the appropriateness of some of the classification structures, for example, 9 and 10 year pay scales for Aboriginal health workers and dental officers. I would expect this type of issue to be part of the structural efficiency decision.

PN77

THE DEPUTY PRESIDENT: I think it says "discussions", Mr O'Malley.

PN78

MR O'MALLEY: I am sorry, yes, "discussions". I would actually like to hand up a copy of the first award for the Commission's information and if I could just take you to that, your Honour. If one turns the page to the third page of the document I have handed up, you will see that there are for the dental officer and Aboriginal health worker positions rather than different grades for those positions there are just a number of increments based on years of service.

PN79

I would also like to take you to the next page, your Honour, where it refers to the definitions. You will see that Aboriginal health worker means - and then goes on to explain the definition of an Aboriginal health worker. The importance of that definition, your Honour, cannot be understated given that subsequent decisions in the Commission varied the award to include a range of - specifically looking at the Aboriginal health worker classification, it then went on to develop Aboriginal Health Worker Grade 1, 2, 3, and 4, and explained the different tasks, duties and qualifications that each of those positions required.

PN80

I have another document I would like to hand up, just so the Commission has a better understanding of the difference between the first award and the document - or the award, now, your Honour. In the award that was handed down by yourself in November last year, if one turns to clause 11 it has the classification definitions, that is at page 5 of that document, your Honour.

PN81

THE DEPUTY PRESIDENT: Yes.

PN82

MR O'MALLEY: As I was just explaining, you will see that there are now specific grades with each of those grades having different qualification requirements, experience requirements, so on and so forth. If I could refer back to the formal submission, at point 5 in that document, Commissioner, we refer to a decision handed down by Commissioner O'Shea in April 1995. That decision was Print Number M0885 and that decision was part of a union application to apply the structural efficiency principles to the Aboriginal Health Services Award.

PN83

Commissioner O'Shea made comment of the revised salary structure and in Print M00885 that reference is made on page 2 at paragraph 1. Commissioner O'Shea stated:

PN84

The revised salary structure concentrates on the issues of skill related parts and work level definitions and classification standards that are appropriate to those career paths.

PN85

Commissioner O'Shea also went on to talk about, at paragraph 4, your Honour, that a structural efficiency clause had been inserted into the award similar to that of the Metal Industry Award. There was also, at paragraph 3, your Honour, a reference to access to training and skill formation and adjustment of career structures. The point I am making with this part of the submission, your Honour, is that it was through this process that the different grades were actually inserted into the award in comparison to the first award that was created in 1992.

PN86

THE DEPUTY PRESIDENT: Yes.

PN87

MR O'MALLEY: Your Honour, the HSUA submits that the rates contained in the ward and the incremental structure that was inserted by the Commission on the grounds - was inserted, I am sorry, on the grounds of structural efficiency and work value. This is clear, we would submit, your Honour, on the basis of the history that I have referred to just now and specifically the award variation that followed Commissioner O'Shea's decision in 1995. Following on from that, as we have said in the formal submission, your Honour, we don't see a need for formal variation of the awards - the wage rate clause in this award because we believe that previous work on this award has met work value issues.

PN88

In relation to the incremental structure, your Honour, the HSUA would seek to vary the award by inserting a position clarifying movement through the structure based on the principles identified by Commissioner O'Shea in 1995. At point 10 in the submission, your Honour, we make reference to a decision or at least a comment you submitted or made when you heard this matter in November last year when the union submitted on 12 November a proposed clause for progression through pay points. At that time, your Honour, you suggested - or stated fairly clearly that you did not agree with our position and I would submit that as I have said previously the process that has taken place in the past would probably - would definitely meet your concerns in terms of work value studies.

PN89

Further to our submission, your Honour, there are a number of cases that have allowed for increments to be maintained and I would like to submit some of those authorities for your consideration.

PN90

THE DEPUTY PRESIDENT: Thank you.

PN91

MR O'MALLEY: If I could go to the first one of those, Commissioner, that would be Print Number R9289. That is a decision of the Commission, it was a Full Bench decision I understand. Page 2 of that document, if you refer to clause 22.5 - which should be at the bottom of page 2 - - -

PN92

THE DEPUTY PRESIDENT: Yes.

PN93

MR O'MALLEY: - - - you will see that this award has been simplified and it includes reference to increments for registered nurses. If I could just read that:

PN94

Progression for all classifications for which there is more than one wage point shall by annual increments having regard to the acquisition and utilisation of skills and knowledge through experience in his or her practice settings over such a period.

PN95

Over the page of that same decision, your Honour, point 4, the Commission says:

PN96

Increments are only permitted in awards where progression through the classification structure is based on work value considerations.

PN97

In the next document that I would draw your attention to, your Honour - - -

PN98

THE DEPUTY PRESIDENT: Sorry, Mr O'Malley, you are not suggesting to me that as it currently stands that the wage clause in the award results in progression through the increments based on work value, are you? Is that what you are suggesting to me, or - - -

PN99

MR O'MALLEY: Well, not entirely, your Honour. I will go to explain now our position with regards to this.

PN100

THE DEPUTY PRESIDENT: Yes. I mean, I accept that between level 1 and level 2 and level 3 and level 4 and so on up the levels that that basis exists but what we are dealing with is really the increments within the levels. That is the bone of contention if you like, is it not?

PN101

MR O'MALLEY: Yes, it is, your Honour.

PN102

THE DEPUTY PRESIDENT: Thank you.

PN103

MR O'MALLEY: Okay. Your Honour, if I could draw your attention to Print Number T4994 with reference to Commissioner Larkin's decision of the Parliamentary Department Staff Award, 1998. Again, in that decision increments were inserted into that award:

PN104

A registered nurse will progress on his or her annual anniversary date from one pay point to the next, subject to the provisions of this clause. Advancing is subject to the employee's experience, acquisition and utilisation of additional skills and professional knowledge resulting in a nett addition to work value.

PN105

And again in Commissioner Larkin's decision, at Print Number PR902637, the ACT Nurses Award, if I could take you to page 3 of that decision. Again it reads, at point 4:

PN106

The ANF provision supported by the HSUA stated registered nurses, clause 15.1.1, progression for registered nurses classifications for which there is more than wage point shall, subject to clause 15.1.2, be biannual increments having regard to the acquisition and utilisation of skills and knowledge through experience in his or practice settings over such a period.

PN107

Your Honour, you also - - -

PN108

THE DEPUTY PRESIDENT: Sorry, Mr O'Malley, the awards themselves in these instances - and this is a question not a statement, but the awards in these instances don't provide detail of those skills and knowledge, is that correct?

PN109

MR O'MALLEY: I am sorry, the detail of the skills and knowledge meant to be acquired?

PN110

THE DEPUTY PRESIDENT: Yes. Yes, "having regard to the acquisition an utilisations of skills and knowledge through experience" which is the wording that you have just focused my attention on. If we got to the award itself in these cases, is it correct that the award doesn't expressly say what those skills and knowledge might be, it simply provides for the increments, is that correct?

PN111

MR O'MALLEY: That is correct.

PN112

THE DEPUTY PRESIDENT: Yes. Thank you.

PN113

MR O'MALLEY: Your Honour, I should also point out that this a matter that is currently - the general issue of increments for health workers is a matter that is under review by Commissioner Hinkley at the moment with regards to the HSUA Public Sector Interim Award 1992. It is my understanding that Commissioner Hinkley will be handing down a decision some time this week in regards to increments and we would be of the view that there is a need for consistency throughout all health awards that this union is a party to. I am just drawing your attention to that fact - - -

PN114

THE DEPUTY PRESIDENT: Yes.

PN115

MR O'MALLEY: - - - that there are other awards with this issue at the moment. Your Honour - - -

PN116

THE DEPUTY PRESIDENT: Well, I accept that there is a need for consistency, Mr O'Malley, but with respect I wouldn't be suggesting to other Members of this Commission that if I was wrong they should follow me.

PN117

MR O'MALLEY: No. I am not for one moment suggesting that, your Honour, I am just drawing your attention to that issue and the fact that other awards are going through this issue - this process to address this issue.

PN118

THE DEPUTY PRESIDENT: Yes.

PN119

MR O'MALLEY: Your Honour, I think that with the - well, I am not sure if the other parties to this matter would agree at this late stage to proposing a change to the submission that the union put on 11 November last year - I am sorry, 12 November last year, regarding the movement through an incremental structure. But what I would actually suggest at this stage, your Honour, that - and you will see at point 14 in the submission it is actually our alternative. I would actually like to make that our primary submission at this late stage and maybe Mr Guivarra and Mr Terare would choose to address that issue when they make their submissions.

PN120

THE DEPUTY PRESIDENT: Yes.

PN121

MR O'MALLEY: What you will see, your Honour, is that at point 14:

PN122

At the end of each 12 months from the date of entry of an employee into a classification the employee shall be eligible for incremental progression within the level. Incremental progression shall occur if the employee has shown competency at the existing level. Two, the employee has satisfactorily completed in-service training or has on assessment acquired, and is required by the employer to utilise and/or enhanced skills within the ambit of this classification definition for his or her position or other skills where agreed at the staff development or performance review.

PN123

And it then goes on to explain what that in-service training and what those skill enhancement activities should be.

PN124

THE DEPUTY PRESIDENT: Yes.

PN125

MR O'MALLEY: So as I said, if we can make that our substantive - - -

PN126

THE DEPUTY PRESIDENT: Primary submission, yes.

PN127

MR O'MALLEY: - - - submission at this stage, your Honour.

PN128

THE DEPUTY PRESIDENT: Mr O'Malley, do you have draft orders in respect of both the primary submission and the alternative submission?

PN129

MR O'MALLEY: No, I am sorry, I don't have draft orders at this stage. If you would like me to go away and draft those orders for you?

PN130

THE DEPUTY PRESIDENT: That would be helpful, Mr O'Malley, if you could provide the Commission with draft orders.

PN131

MR O'MALLEY: Okay. Certainly. Your Honour, just in regards to the position that I have currently put, there is - - -

PN132

THE DEPUTY PRESIDENT: I might just say, sorry to interrupt you, but I might just say on that, too - and to the extent that you do do that, Mr O'Malley, if you could distribute those draft orders to the other parties and I could have an indication from the other parties as to their position in respect of those draft orders. In fact, if that could be done within seven days of this hearing date then that puts me in a position after that to finalise the decision in respect of this matter.

PN133

MR O'MALLEY: Okay.

PN134

THE DEPUTY PRESIDENT: Yes.

PN135

MR O'MALLEY: There is one authority I would like to hand up in support of what is now the substantive submission, your Honour. That is from Print Number S4451, a decision of Commissioner Hingley, the Country Fire Authority Administrative Employees and Support Service Award and the Fire Services Professional Engineers Information Technology Victoria Award. You will see on page 2 of that document, your Honour, the CFA submissions and the Australian Services Union submissions, page 3, refers to - probably two-thirds of the way down the page - the matter of incremental progression.

PN136

And then at page four, Commissioner Hingley's decision regarding progression through increments, etcetera, etcetera. So the HSUA would submit that there is grounds for the retention of increment, albeit with a view to a slight variation or simplification of the award to require employees to move through the increments on the basis of the acquisition of new skills over the period of a 12 month process. This decision does not give automatic recognition to the movement to the next increment except when there has been the acquisition of new skills.

PN137

THE DEPUTY PRESIDENT: Yes. And as I understand it, that is a similar position that you are putting to me in respect of what is now your primary submission.

PN138

MR O'MALLEY: That is correct, your Honour.

PN139

THE DEPUTY PRESIDENT: Yes. Your Honour, in the alternative to the Commission accepting the primary submission, the HSUAs position - and this is something I would put in an oral submission now - you would be aware that there has been extensive negotiation between the parties as to a fall back position. The union's position, alternative position, would be that the Commission simply struck the award with the mid-range wage increments as currently set out in the award and the parties would then enter into a round of enterprise agreements with the respective employers to address a number of issues that I am sure that the Commission is aware of that we see as having need to address. At this point, your Honour, I have no further submissions and if you have any questions - - -

PN140

THE DEPUTY PRESIDENT: No, I think I have asked them as you went along, Mr O'Malley. Thank you.

PN141

MR O'MALLEY: Okay. Thank you, your Honour.

PN142

THE DEPUTY PRESIDENT: Mr Guivarra.

PN143

MR GUIVARRA: Thank you, your Honour. I don't have much to say in respect of this matter. My clients have already indicated to you that they accept the HSUAs primary submission as written however I will just indicate that we - I am instructed to support the alternate submission in respect of the incremental progression. That would be our preferred option to the - - -

PN144

THE DEPUTY PRESIDENT: So - just so that I am clear and we are talking about the same thing, the support in terms of the correspondence was in respect of what was then the HSUAs primary submission. You are now telling me that the people that you represent would support what is now the primary submission of the HSUA?

PN145

MR GUIVARRA: That is correct, sir, yes. Yes, sir. Yes.

PN146

THE DEPUTY PRESIDENT: Yes, thank you, Mr Guivarra. Yes, continue.

PN147

MR GUIVARRA: That is all I have got to submit at this stage, your Honour.

PN148

THE DEPUTY PRESIDENT: And do you have anything to say in respect of the last point that Mr O'Malley made as far as the - I guess what is now the second alternative position of the HSUA? Do you have any - anything at all to submit on that, Mr Guivarra?

PN149

MR GUIVARRA: We would support that only as a last resort, your Honour. Like, you know, the alternate submission that the HSUA - or the primary submission, now, we would support but if the Commission was so disposed not to accept that - the primary submission as it stands then we would have, I would suggest, no choice but to go along with the second submission, sir.

PN150

THE DEPUTY PRESIDENT: Well, yes. I mean, to the extent that it - that second submission singles out a particular increment - - -

PN151

MR GUIVARRA: Yes.

PN152

THE DEPUTY PRESIDENT: - - - is that - would that be, if the Commission was of a mind to go that way, is that the increment that your clients would also have chosen, Mr Guivarra?

PN153

MR GUIVARRA: Well, we would quite obviously prefer the lowest grade, or the lowest pay scale in each of the stages but at this stage I don't have specific instructions on that.

PN154

THE DEPUTY PRESIDENT: No, that is fine.

PN155

MR GUIVARRA: Yes.

PN156

THE DEPUTY PRESIDENT: Thanks, Mr Guivarra. Mr Terare.

PN157

MR TERARE: Yes, your Honour. Just what Frank was saying, yes, we support the incremental progression as first stated by the HSUA, we support that - as written down by the HSUAs submission, and also about the second one, we would also probably - I have to go back, but I think the lowest rate would be the third option if we had to go to that stage.

PN158

THE DEPUTY PRESIDENT: Yes. Now just so that I am clear on that, Mr Terare, you are supporting - - -

PN159

MR TERARE: The primary, yes.

PN160

THE DEPUTY PRESIDENT: - - - what is now - - -

PN161

MR TERARE: The incremental progression.

PN162

THE DEPUTY PRESIDENT: - - - what is now the primary submission of the HSUA, is that correct?

PN163

MR TERARE: Yes. Yes.

PN164

THE DEPUTY PRESIDENT: Right. Okay, good. Thank you. Is there anything further, Mr O'Malley?

PN165

MR O'MALLEY: No, your Honour.

PN166

THE DEPUTY PRESIDENT: All right. Well, look, at this point if I can simply reiterate what I said, if you could provide me with drafts, Mr O'Malley, of the orders under each of the circumstances that you have proposed in your submissions, if you could also provide those to the other parties within a seven day period, if I can have an indication from the parties within that seven day - is that a sufficient time, Mr O'Malley?

PN167

MR O'MALLEY: Yes, it is, your Honour.

PN168

THE DEPUTY PRESIDENT: Yes. If I can have an indication within that seven day period from the parties if there is any opposition to those drafts, it might be easier to do it that way. In the absence of hearing anything from any of the other parties I will take it as read that there is no objection to anything that is in those drafts. Mr Guivarra.

PN169

MR GUIVARRA: Your Honour, I just might have a difficulty of indicating to you within seven days. I am away for the remainder of this week and two days of next week so I won't be back in my office until next Wednesday.

PN170

THE DEPUTY PRESIDENT: All right. Well if I made it the close of business on this coming Friday week - what date would that be?

PN171

MR GUIVARRA: The 11th.

PN172

THE DEPUTY PRESIDENT: The 11th. If I made it close of business on the 11th and I will take silence as consent, is that a reasonable position to take?

PN173

MR GUIVARRA: It is not - - -

PN174

THE DEPUTY PRESIDENT: I only mean in terms of if you have anything - anything that you sought was incorrect in the drafts that are provided then I would expect to hear from you before close of business on the 11th.

PN175

MR TERARE: Yes.

PN176

MR GUIVARRA: Yes, sir. Yes.

PN177

THE DEPUTY PRESIDENT: And beyond that point then I am in a position to be able to make a decision in the matter and there is no significance whatsoever in having the matter heard on today's date, I might add. All right, I will adjourn. Thank you.

ADJOURNED INDEFINITELY [10.35am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #HSUA1 CORRECTED SUBMISSION PN63