C2003/1992, Transcript of Proceedings [2003] AIRCTrans 2128 (4 June 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 2716

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2003/1992

ENTERPRISE BARGAINING AWARD

Application pursuant to section 111(1)(b)
of the Act by Australian Nursing Federation
for certification of the Nurses (Victorian
Health Services) Award 2000

MELBOURNE

10.15 AM, MONDAY, 19 MAY 2003

PN1

MR N. BLAKE: I appear for the Australian Nursing Federation.

PN2

MR S. McCULLOUGH: I appear for the VHIA.

PN3

MR P. EBERHARD: I am from the Victorian Employers Chamber of Commerce and Industry and I continue to appear on behalf of the organisations that I had previously advised the Commission of.

PN4

THE SENIOR DEPUTY PRESIDENT: What organisations are they and when did you advise the Commission, Mr Eberhard?

PN5

MR EBERHARD: I think in the last proceedings I think we handed up a list and I thought you were about to say that, your Honour. I have actually lost the file so I don't know which specific organisations I do appear on behalf but we do have - - -

PN6

THE SENIOR DEPUTY PRESIDENT: Well, that is going to cause us problems. This is a new file. It is an application to rope in an award. I have no idea for whom you appear nor do I have any idea for who Mr McCullough appears and we will get on with that in a minute. Yes, next appearance.

PN7

MS K. IRWIN: I am from the Australian Industry Group and I appear on behalf of Care with Quality Pty Limited.

PN8

THE SENIOR DEPUTY PRESIDENT: Sorry.

PN9

MS IRWIN: Care with Quality.

PN10

THE SENIOR DEPUTY PRESIDENT: Care with Quality.

PN11

MS IRWIN: Merck, Sharp and Dohme.

PN12

THE SENIOR DEPUTY PRESIDENT: Merck, how do you spell that?

PN13

MS IRWIN: M-E-R-C-K.

PN14

THE SENIOR DEPUTY PRESIDENT: Sharp.

PN15

MS IRWIN: And Dohme, D-O-H-M-E.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MS IRWIN: Iveco Trucks who were formerly International Trucks and Masterfoods Snack Food Division formerly Mars Confectionery, South Pacific - - -

PN18

THE SENIOR DEPUTY PRESIDENT: Just a minute.

PN19

MS IRWIN: Sorry, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: Formerly - Masterfood was formerly?

PN21

MS IRWIN: Mars Confectionery, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23

MS IRWIN: South Pacific Tyres.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes.

PN25

MS IRWIN: And the University of Ballarat.

PN26

THE SENIOR DEPUTY PRESIDENT: Now, Mr McCullough, which of the proposed respondents to the award do you appear for?

PN27

MR McCULLOUGH: Yes, your Honour. With regards to those places listed in the application, the VHIA have only had a short time to peruse the proposed application. There was an issue by which the documents were actually delivered to the wrong address, a former address of the VHIA. Having said that, a brief perusal of those documents, we have been able to identify five of our members, those being James Barker House Hostel.

PN28

THE SENIOR DEPUTY PRESIDENT: James Barker.

PN29

MR McCULLOUGH: House Hostel.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes.

PN31

MR McCULLOUGH: Mt Martha Valley Lodge, Parkhill Gardens.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MR McCULLOUGH: Ripplebrook Village and the Windsor Registered Aged Care Facility.

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN35

MR McCULLOUGH: If the Commission pleases.

PN36

THE SENIOR DEPUTY PRESIDENT: And, Mr Eberhard, you have no idea for whom you appear?

PN37

MR EBERHARD: Certainly in regards to - I know that there are more than this but certainly Cabrini Pathology which would be part of Cabrini St Francis Xavier Cabrini Hospital.

PN38

THE SENIOR DEPUTY PRESIDENT: Just a minute, just a minute, Cabrini Pathology.

PN39

MR EBERHARD: Which would be part of the St Francis Xavier Cabrini Hospital. They are members of the Victorian Employers Chamber of Commerce and Industry.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MR EBERHARD: And they may well be others but I haven't - - -

PN42

THE SENIOR DEPUTY PRESIDENT: I suspect there are.

PN43

MR EBERHARD: I think also that another one would be Kalkee which is K-A-L-K-E-E Aged Peoples Community.

PN44

THE SENIOR DEPUTY PRESIDENT: K-A-L-K-E-E.

PN45

MR EBERHARD: K-E-E, yes. And I would suspect that there would be more but I really have to check on that.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Blake, you are seeking a roping-in award to rope in how many entities, I didn't add them up but there would be the best part of a hundred odd I suppose?

PN47

MR BLAKE: The list goes for about four pages, Senior Deputy President and there is probably about 50 on each page.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes.

PN49

MR BLAKE: So I would say in excess of 200 employers.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Blake, I made an order for substituted service in respect of this matter and I don't think I should have done that on reflection. I did it I think in error and I would invite your comments about it. The file for some reason or another was headed "Award by Consent of the Parties" and I misapprehended the nature of the application for substituted service and thought that you wanted to inform the respondents to the award, but then there are countless, of this application by virtue of substituted service. But indeed what it seems to be is that you wanted substituted service in respect of those you were proposing to make respondents to the award. That is correct, isn't it?

PN51

MR BLAKE: Yes, I think the application was fairly clear in that respect.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes, well, I think it is probably my fault but be that as it may - - -

PN53

MR BLAKE: We made the application in the clear knowledge that those persons we seek to abide by the roping-in award would be members of one or the other of the employer organisations. I think it is clear that in respect of this industry the vast majority are members of employer organisations and that is on the - that is why we made the application.

PN54

THE SENIOR DEPUTY PRESIDENT: Well, so far the employer representatives have failed to establish that more than about 10 of the proposed 500 are their members.

PN55

MR BLAKE: 200.

PN56

THE SENIOR DEPUTY PRESIDENT: 200, sorry, are their members.

PN57

MR BLAKE: Yes, look, I acknowledge that and we have I believe given the employer organisations enough notice of today's hearing and the nature of it but our - we are confident that they are members of - - -

PN58

THE SENIOR DEPUTY PRESIDENT: Well, how can you be confident when they don't know?

PN59

MR BLAKE: Well, in terms of enterprise bargaining in this industry in Victoria, we note that in other proceedings before other members of this Commission, extensive lists of employers have been provided to this Commission indicating that the vast majority are members of employer organisations, in terms of agreements that have been reached in this industry that they seem to be, in our experience, based on membership of employer organisations who represent their interests quite properly.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes.

PN61

MR BLAKE: So we are confident we have a fairly extensive knowledge of the industry, Senior Deputy President, and our view is that the application ought proceed today and that perhaps a period of time may be given to the employer organisations to provide you with the lists of people they do represent in respect of this matter and the award not apply until you are satisfied that that has taken place but I can't really offer much more than that today.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. And what do the employer representatives have to say?

PN63

MR McCULLOUGH: Your Honour, with regards to the course proposed by the ANF, so far as allowing a period of time in which to better examine our list and provide advice to the Commission as to representation, that would certainly be appreciated and seems a reasonable course under the circumstances. I am mindful of the comments with regards to the lists and the information available through the enterprise bargaining process. Just perusing today's application I am aware of at least one organisation that has been involved with the aged care enterprise bargaining process that I don't think has been served with this particular application but a period a time might enable the parties to correct that particular difficulty.

PN64

THE SENIOR DEPUTY PRESIDENT: Well, the organisations haven't been - sorry, which organisation are you talking about?

PN65

MR McCULLOUGH: Clare Dewar and Associates were a party or were involved.

PN66

MR BLAKE: And they have been served.

PN67

MR McCULLOUGH: They have. Sorry, your Honour, I am just looking at the order for substituted service.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes. Well, SIAG has been served, AIG has been served, VECCI has been served, HSUA has been served, VHIA has been served according to a letter that Mr Blake wrote to the Registrar on 7 May and you say Clare Dewar and Associates represents at least one or some of these entities and has not been served.

PN69

MR McCULLOUGH: Certainly, your Honour, that is a possibility. Myself and Mr Eberhard were involved in negotiations which included that organisation for aged care enterprise agreements and it might be appropriate for them to examine that list to identify any of their clients that might be on that list.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, Mr Eberhard, what do you have to say?

PN71

MR EBERHARD: Your Honour, we would not oppose the process that Mr Blake has outlined in regards to giving the parties some time to review the lists and advising the Commission accordingly. If the Commission pleases.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Irwin.

PN73

MS IRWIN: I have nothing further to add, your Honour.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Blake, what I think I should do is to give the parties, including the ANF, a period of time to satisfy me that all of the proposed respondents to the award are members of the employer organisations and consent to the roping-in award or that those that aren't members of the employer organisations have been served with a copy of the application and have been told that unless they oppose - that unless they notify me in writing or my associate in writing that they oppose the application they will be bound by the award. I need to be satisfied that each proposed respondent to the award is either represented by an employer organisation that has been served or, if not, that it knows about the application and consents to it. I would be prepared - I take it none of the employer organisations object to the award in its terms as long as their members have been told that they are going to be roped in. Is that a fair assumption?

PN75

MR McCULLOUGH: Yes, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: Mr Eberhard?

PN77

MR EBERHARD: No, we wouldn't be opposing the application.

PN78

THE SENIOR DEPUTY PRESIDENT: Ms Irwin?

PN79

MS IRWIN: Not in principle, your Honour, although we do have one member who is opposed to being roped in to this particular award on the basis of them not having any registered or state enrolled nurses or mothercraft nurses employed by them.

PN80

THE SENIOR DEPUTY PRESIDENT: Well, is that an argument you are going to make to me?

PN81

MS IRWIN: That would be, your Honour. What we would be seeking in that respect would be a period of time within which to present full argument on that issue and obviously also to have further discussion with Mr Blake in relation to that particular organisation.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well, Mr Blake, what I propose and tell me if it is not acceptable, is to give the parties 21 days in which to notify me in writing or my associate in writing which proposed respondents to the award are members of which organisation and that there is no objection to their members being roped into the award and I will make the award roping those entities into it. Any entities that are not on those lists I will rope in if I am otherwise satisfied that there is a consent to be roped in and that my involve you notifying them - - -

PN83

MR BLAKE: Yes.

PN84

THE SENIOR DEPUTY PRESIDENT: - - - separately and if it is necessary to deal with any objections to roping-in after people have been informed of the event we will list that for dealing with. I am sorry but I am just not - - -

PN85

MR BLAKE: Yes, look, I understand what you are saying.

PN86

THE SENIOR DEPUTY PRESIDENT: - - - prepared to rope entities in without knowing they know about it.

PN87

MR BLAKE: I am happy with that process, Senior Deputy President. What I envisage doing is advising those parties who are not members of the organisations represented today that the award has been made subject to their advising their opposition.

PN88

THE SENIOR DEPUTY PRESIDENT: And within 21 - by close of business on - I think we will make it 10 June 2003 which is just over three weeks. And if they haven't advised my associate in writing by that date that they oppose the making of a roping-in award they will be roped in upon my being satisfied that they had been notified of the matter.

PN89

MR BLAKE: Yes. Senior Deputy President, we are happy to do that and do the bulk of that work as long as the employers can get their lists to us within a reasonable period.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes, well, I direct the employers to get their lists to the ANF by close of business on Monday, 26th, that is a week from today. It shouldn't take you that long to know who your members are and I also direct the employer organisations to notify my associate in writing of which of the proposed respondents to the award are members of which organisation and then we can do the working out to find out who should be in and who shouldn't be in.

PN91

I apologise for having made the substituted service although I don't think I would have done it had I fully apprehended what it was but I think that should sort the matter out so unless somebody asks the matter to be brought on again, it won't be brought on but the award will be made in three weeks time roping those that I know consent to it into the award.

PN92

MR BLAKE: Yes.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes. Adjourn the Commission please.

ADJOURNED INDEFINITELY [10.30am]