AG2003/2049, Transcript of Proceedings [2003] AIRCTrans 1658 (1 May 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N VT2325

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT LACY
COMMISSIONER O'CONNOR

AG2003/2049

APPLICATION FOR CERTIFICATION OF
MULTIPLE BUSINESS AGREEMENT
(DIVISION 2)

Application under section 170LC of the Act
by Victorian Hospitals Industrial Association
for certification of Health Services Union of
Australia - Health and Allied Services -
Victorian Public Sector - Multi Employer
Certified Agreement 2002-2006

MELBOURNE

10.00 AM, TUESDAY, 15 APRIL 2003

PN1

MS M. CHAMBERS: I appear on behalf of the Health Services Union of Australia.

PN2

MR A. DJONEFF: I appear on behalf of the Victorian Hospitals Industrial Association.

PN3

MR T. LEE: I appear on behalf of the Department of Human Services, and I am seeking to intervene in these proceedings.

PN4

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Is there any objection to leave?

PN5

MS CHAMBERS: No, your Honour.

PN6

SENIOR DEPUTY PRESIDENT WATSON: Leave is granted, Mr Lee. Yes, Mr Djoneff?

PN7

MR DJONEFF: Yes, thank you, your Honour. If the Commission pleases, this is a culmination of the lengthy process of negotiations between the parties, and when I use the expression parties, I include the Department of Human Services for the purposes of this exercise.

PN8

SENIOR DEPUTY PRESIDENT WATSON: I have a vague recollection of the negotiations involving the department.

PN9

MR DJONEFF: Yes. Your familiarity with these matters may well assist us, your Honour. This is an agreement between the hospitals who are listed at the relevant schedule, and the Health Services Union of Australia. It is a multi employer business agreement that we are seeking certification for, and the agreement makes general provision for what might be termed conventional improvements in terms of conditions in pay and a number of employment conditions, and many of which derive, your Honour, if you like, from the outcomes of the nurses agreement that originated with the decisions of Commissioner Blair in the year 2000, under section 111AA proceedings.

PN10

The Commission would be aware that the nurses agreement has now been certified in recent weeks, and this agreement to some degree reflects some of the terms that were, in fact, contained in the nurses agreement. In addition to that, your Honour, there are a number of other provisions of this agreement that in their character require further work between the parties to give effect and implementation to a series of matters that are the subject of agreement.

PN11

And to give effect to that the parties have agreed to create a central implementation committee, and that is referred to in the statutory declaration of the parties at item 4D. The position we put, if the Commission pleases, is that it is in the public interest that this agreement be certified as a multi employer agreement for the reasons stated in the statutory declaration.

PN12

And I know Mr Lee will be addressing you particularly in relation to the threads that hold all the hospitals together in their relationship with the government through the funding systems that apply, and I will leave Mr Lee to address that in more detail. It is also, in our submission, appropriate to certify this as a multi employer agreement because the terms of the agreement make provision for matters to be dealt with on an industry basis.

PN13

And the matters particularly are implementation of the accrued day off system across the public health sector on a basis that is yet to be determined between the parties, and will be the subject of a process of discussion and implementation through the central implementation committee. Other matters are - and these are significant matters - over the life of the agreement there is to be a review of staffing work load levels across the sector.

PN14

And the parties in this agreement are to develop guidelines and terms of reference for that to be developed and implemented, and there is scope within the agreement to permit these matters to be dealt with at the local level, that is, individual hospital level, and any disputes arising from those individual hospital level discussions would be referred through to the central implementation committee for resolution, if possible.

PN15

That is not to say that any party cannot resort to the dispute settling procedure that the agreement provides for in any event. The other matters that are relevant to an industry wide approach is a commitment to review the classification structures within the award. Those classification structures have not been reviewed for many, many years, and it is common ground between the parties that to a significant degree those classification structures are either anachronistic or need some other form of change. And that commitment is made in the agreement.

PN16

There are also very specific commitments in relation to particular classifications, and are such as, theatre technicians, personal services assistants and personal care workers to be implemented in hospitals and health services that at this stage do not have those classifications implemented on a particular structured basis.

PN17

It is for those reasons, your Honour, together with the fact that all the hospitals are funded on a common basis through the casemix system and have identical obligations under their health service agreements, health service agreements with the Department of Human Services, about the manner in which services are to be delivered, the quality of those services and so on.

PN18

It is for those reasons that we say that there is a strong argument that this should be reflected in a multi employer agreement rather than in individual agreements. It is our submission that the agreement in every other respect satisfies the requirements of the Act as it relates to dispute settling procedures, no employee is disadvantaged by any of the terms of this agreement, and for those reasons, if the Commission pleases, we say that the agreement should be certified as a multi employer agreement. If the Commission pleases.

PN19

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you, Mr Djoneff. Ms Chambers?

PN20

MS CHAMBERS: If the Commission pleases, the HSUA supports the certification of this agreement as a multi employer certified agreement. We do believe that the public interest test is satisfied by the certification. If I can hand to the Bench two decisions. The first decision I have provided you is print PR926451, which is the application for certification of the Victorian Public Sector General Dentists Agreement 2002. And then more recently, if the Commission pleases, a decision of the Full Bench for certification of the agreement, the nurses agreement with which your Honour is familiar.

PN21

SENIOR DEPUTY PRESIDENT WATSON: Yes. The President didn't see fit to include me on the Bench in relation to that.

PN22

MS CHAMBERS: Maybe the President decided you had dealt with it long enough.

PN23

SENIOR DEPUTY PRESIDENT WATSON: Perhaps he thought a section 105 application might be made.

PN24

MS CHAMBERS: Dealing first with the dentist's decision, the Bench will see in paragraph 9 on the second page of the decision, that the Bench in that case determined that having regard, and in particular relying upon the service and funding arrangements between the various employers, Dental Health Services of Victoria and the Department of Human Services, and the supervision of the employers pursuant to the Health Services Act, that it was not more appropriate to deal with these matters in any way other than by a multi employer certified agreement.

PN25

And the Bench had reference to submissions made by both the Department of Human Services in that matter, and the parties detailing the funding arrangements, which are essentially identical here, the existence of service agreements between the department and the various agencies, although legally independent, all operating in the same matter with obligations to provide uniform health outcomes to recipients of the services.

PN26

Similarly that funding arrangement is noted by the Full Bench in the nurses decision in paragraph E of page 3, and I won't read that to the Bench, but similar circumstances pertain here. More specifically, just to draw upon, and we support the submissions of Mr Djoneff, there is a central agreement committee established to oversee implementation of the agreement uniformally throughout the sector. That committee, in anticipation of certification, I should say, has already met and distributed certain guidelines to the health services in relation to the implementation of the first matter, which is the accrued day off, or a rostered day off for staff.

PN27

The agreement does provide for an improved career structure for technicians, personal care workers and personal services assistants. In part those new career structures recognise new mandatory training and qualification requirements for those classifications, but also in part to address attraction and retention issues within the sector within those classifications.

PN28

The other matter which Mr Djoneff referred to briefly is the fact that the classification structure contained in the award has not been reviewed since the early 90s, when it was reviewed last through the SEP process, and in recognition of that clause 25.3.5 gives to the central committee an obligation to review the classification structure with reference to current and future skill needs within the enterprise and within the industry. So it is a more uniform approach that will need to be taken rather than an enterprise by enterprise approach.

PN29

So on that basis we do support certification of this agreement as a multi employer agreement. We refer to the matters attested to by Craig Thompson in the statutory declaration, and otherwise confirm that the requirements of the Act have been met in the certification process. If the Commission pleases.

PN30

SENIOR DEPUTY PRESIDENT LACY: Ms Chambers, I wonder if I could ask you about the intended operation of clause 27, that is the sleep over provision, and in particular clause 27.3?

PN31

MS CHAMBERS: 27.3?

PN32

SENIOR DEPUTY PRESIDENT LACY: Yes. That is about working for a duration of one hour. Is it intended that any call outs would be cumulative, so that it is not one hour straight that is necessary to attract that?

PN33

MS CHAMBERS: This clause appears in a number of awards. Previously there was no sleep over clause. You may well be familiar with it. There was no sleep over clause.

PN34

SENIOR DEPUTY PRESIDENT LACY: I remember a battle in the Federal Court.

PN35

MS CHAMBERS: That is right. And this in part appears to have addressed that very issue, and particularly in aged care, in the public aged care sector, and it is intended that that would be a total of one hour's duration, so not necessarily the one hour block.

PN36

SENIOR DEPUTY PRESIDENT LACY: Thank you.

PN37

MS CHAMBERS: If there are no other questions?

PN38

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Ms Chambers. Mr Lee?

PN39

MR LEE: Thank you, your Honour. Your Honour, we are here intervening for one key reason, and that is, we, as the department, have a significant interest in assisting the parties who are here seeking to make this multi employer certified agreement. We have an interest in ensuring and assisting them to be successful in that regard. We obviously have a significant interest, and the Bench is well aware of our interest as the major funding source for the public hospital system. We have a very significant interest in seeing it operate in an effective manner.

PN40

We believe that the agreement that is sought and in the terms that are sought between the parties is an agreement that should be certified, and in particular we say it should be certified as a multi employer certified agreement, and not as a series of separate agreements. The government has invested a great deal in the health services. We see this agreement as a part of that investment in the health services.

PN41

In particular, it is our submission that it is in the public interest that this be certified as a multi employer certified agreement. Both of the parties have spoken on this point at some length. I support their submissions that they have made in that regard. In particular we say it is open to the Bench to see fit to certify it as a multi employer certified agreement because there is a high level of inter-connectedness between the health services.

PN42

The health services, while they do deal with a number of matters on a local basis, there are a large number of the aspects of the operation of the health services that do operate as a totality of one service, and not as a series of separate groups. And when it comes to settling a long term enterprise agreement that has a significant number of components to it, as does this one, we see it as being important that there is some uniformity, and in that regard, to ensure that uniformity, we agree that a multi employer certified agreement is the preferable way to proceed.

PN43

We also see it as important that the agreement is certified to help us secure an industrial environment that is a peaceful environment for at least for its duration. If the Commission pleases.

PN44

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Lee. Yes, we are able to announce a decision in this matter. We are satisfied that it is in the public interest to certify the agreement, and we are further satisfied that the matters dealt with in the agreement could not be more appropriately dealt with by an agreement other than a multi business agreement, having regard to provisions within the agreement which deal with certain issues on a service wide basis, the common funding basis and the existence of common obligations to the funding department.

PN45

We are also satisfied that other relevant requirements of the Act and rules have been met. The agreement will be certified with an operative date of 15 April 2003, and will expire on 31 January 2006. More detailed reasons for a decision will be issued in due course. We will now adjourn this matter.

ADJOURNED INDEFINITELY [10.18am]