AG2002/433, Transcript of Proceedings [2003] AIRCTrans 316 (3 February 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N VT10163

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2002/433

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Perth Clinic Pty Limited as trustee
Perth Clinic Trust and Another for
certification of the Perth Clinic
Employees' Enterprise Agreement 2002

MELBOURNE

12.55 AM, WEDNESDAY, 15 JANUARY 2003

PN1

MS C. DORIZZI: I appear on behalf of the Chamber of Commerce and Industry of Western Australia, appearing on behalf of the Perth Clinic.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, would you mind spelling your surname, please?

PN3

MS DORIZZI: D-o-r-i-z-z-i.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Dorizzi. Yes.

PN5

MS C. NOBBS: I appear on behalf of the Australian Nursing Federation in this matter.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, who is going to make submissions first?

PN7

MS DORIZZI: I will do that, sir. The agreement is lodged under division 2, part VIB of the Workplace Relations Act. The agreement is binding on employees otherwise bound by the Hospitals (Salaried Officers) Private Hospitals Award 1980, Enrolled Nurses and Nursing Assistants Private Award 1978, the Private Hospital and Residential Aged Care Nursing Homes Award 2002 and the Nurses ANF WA Private Hospitals and Nursing Homes Award 1999 and will cover 117 employees.

PN8

The agreement was genuinely approved by a valid majority on 13 December 2002 and adequate opportunity was afforded to employees to decide whether they wanted to give approval to that agreement. All staff employed by the clinic were presented with an offer of the enterprise agreement on 19 September. Registered nurses advised at that time that they preferred a separate agreement and such separate document was drafted and offered to the nurses in the ANF. The original offer to all staff was revised, excluding the nurses, and resubmitted to staff for ballot.

PN9

The registered nurses subsequently came back and advised that they did wish to become a party to this original agreement. It was then agreed between all staff and the document was finalised on 20 November 2002. A meeting of all staff was held on that day to explain the final document and seek any further discussion. Ballot papers were sent out to all staff on 5 December with a closing date of 13 December. Before any approval was given, at least 14 days prior the proposed agreement was widely distributed by the area managers and copies placed in all common areas, including staff rooms and the offices.

PN10

Discussions took place with the union and employees where employees had the opportunity to ask questions. A number of meetings were held with staff prior to the agreement being developed. A further and final meeting, as I said earlier, was held on 20 November to explain and discuss that final agreement. In summary, the agreement provides a 13 per cent pay increase over three years, additional annual leave entitlements, an ability to compact or cash in annual leave and an entitlement to paid parental leave. On balance, certification of this agreement would not result in a reduction of overall terms and conditions of employment when tested against the relevant awards I listed earlier. The agreement contains a dispute settlement clause found at clause 32, joint monitoring committee, and the nominal expiry date of the agreement is 1 November 2005. The necessary stat decs have been filed and we are seeking certification with effect from the first pay period commencing on or after today's date.

PN11

THE SENIOR DEPUTY PRESIDENT: The statutory declarations suggest that there are no reductions of any terms as compared with the awards.

PN12

MS DORIZZI: That is correct.

PN13

THE SENIOR DEPUTY PRESIDENT: That is correct, is it?

PN14

MS DORIZZI: Yes, it is.

PN15

THE SENIOR DEPUTY PRESIDENT: Very well.

PN16

MS DORIZZI: They are actually getting greater benefits.

PN17

THE SENIOR DEPUTY PRESIDENT: I am sorry?

PN18

MS DORIZZI: They are actually getting greater benefits, like further benefits.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, and no clauses have been reduced?

PN20

MS DORIZZI: No.

PN21

THE SENIOR DEPUTY PRESIDENT: Does the ANF represent all of the employees covered by the award, people like kitchen assistants and so on?

PN22

MS NOBBS: No, sir, we don't. We only represent the registered nurses.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, can somebody explain to me how the people who are not represented by the ANF were involved in the agreement making process?

PN24

MS DORIZZI: No, I can't, sorry, sir. The parties that have signed the agreement are the ANF and the Perth Clinic. I can undertake to find out why the Miscellaneous Workers' Union hasn't also filed a statutory declaration or been made a party to the agreement.

PN25

THE SENIOR DEPUTY PRESIDENT: Was it involved in the negotiations?

PN26

MS NOBBS: The other unions were not involved in the negotiations. The ANF was the only union involved.

PN27

THE SENIOR DEPUTY PRESIDENT: And can you give me an indication of how the vote was taken and the size of the majority? Was it by a vote or secret ballot or what happened?

PN28

MS DORIZZI: It was a secret ballot.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, and what majority of employees - how many eligible employees voted and what was the majority?

PN30

MS DORIZZI: Sorry, sir, I don't have those figures either. Again, I can undertake to provide those figures to you later on today.

PN31

THE SENIOR DEPUTY PRESIDENT: Can you tell me whether it was a substantial majority or not?

PN32

MS DORIZZI: My understanding is that the employees were keen to enter into the agreement and that the vote was a high majority, but unfortunately I don't have the exact figures on me.

PN33

THE SENIOR DEPUTY PRESIDENT: And, indeed, I think you told me that the employees who are not nurses were keen to enter into the agreement when the nurses didn't want to. Is that right?

PN34

MS DORIZZI: When the agreement first went out, it included all employees. The registered nurses then indicated that they wanted a separate agreement, so another agreement was drafted for the registered nurses and the original agreement was altered to obviously take the registered nurses out.

PN35

THE SENIOR DEPUTY PRESIDENT: But otherwise the original agreement was the same, was it?

PN36

MS DORIZZI: That is right, and then when the RNs came back and said, no, we do want to be in it, we redrafted it back to the original agreement and included all employees again.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes, and while the nurses were out of the agreement, did you have any indication of the views of the other employees?

PN38

MS DORIZZI: No. My understanding was that they were still going to pursue the agreement that was given to them, even with the Rns in it or not.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, so they were in favour of the agreement, even without the nurses in it?

PN40

MS DORIZZI: That is correct.

PN41

THE SENIOR DEPUTY PRESIDENT: Very well. I have got one other problem, a more fundamental query. The agreement doesn't indicate by any clause in it who the parties to it are, but one goes to clause 33, the signatories, to find that out and it is there said that it is signed for and on behalf of the ANF Western Australian branch. The statutory declarations also suggest that the agreement is made with the Australian Nursing Federation, Western Australia branch, as the union party to it. What is the status of the Western Australian branch, Ms Nobbs?

PN42

MS NOBBS: Sorry, I don't understand what you mean by status.

PN43

THE SENIOR DEPUTY PRESIDENT: Well, is the Western Australian branch a State-registered union or is it - - -

PN44

MS NOBBS: It is a Federation. We are the ANF WA, but there are branches in all States, but this agreement is for WA.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that, but under the Act, the agreement must be made with an organisation which is a registered organisation. The Australian Nursing Federation is a registered organisation, but the Australian Nursing Federation WA branch, I doubt that that is a registered organisation, is it?

PN46

MS NOBBS: Yes, it is. Sir, it is a registered organisation.

PN47

THE SENIOR DEPUTY PRESIDENT: Well, it is the ANF that is the registered organisation, isn't it? I just have this difficulty. I have raised this in other agreements I think with your union in Melbourne. You obviously wouldn't be aware of that, but the Commission can only certify agreements between certain types of employers, being constitutional corporations and I don't have a problem with that here and registered organisations of employees and the branch doesn't have that character. Quite often, agreements are signed by the union and only apply in respect of people eligible to be members of a branch. I appreciate that, but I need to be persuaded that this agreement has been made between a registered organisation and the employer. Now, I can adjourn the matter and enable you to address me in correspondence, if you like, but I don't think as presently advised, I would be prepared to certify this agreement.

PN48

MS NOBBS: Well, I can correspond with you today, if that would be suitable.

PN49

THE SENIOR DEPUTY PRESIDENT: Well, you take your time, but I need to be persuaded that the agreement is made in accordance with the requirements of the Act and that the party to the agreement, the union party to the agreement is a registered organisation, so I will give you seven days in which to submit whatever you want to satisfy me as to that and if you want to take some different course, you might advise me.

PN50

MS NOBBS: Yes, sir, I can do that.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN52

MS NOBBS: Thank you.

ADJOURNED ACCORDINGLY [1.07pm]