AG2003/471, Transcript of Proceedings [2003] AIRCTrans 335 (4 February 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT1379

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

AG2003/471

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Anglican Aged Care Services
Group and Others, for certification
of the Anglican Aged Care Services
Group and Australian Nursing Federation
Certified Agreement

MELBOURNE

12.51 PM, MONDAY, 20 JANUARY 2003

PN1

THE COMMISSIONER: Yes, Mr Gilbert and Mr O'Malley your appearance continues.

PN2

MS F. MATTHEWS: I am the Industrial Relations Officer at Anglican Aged Care Services Group, the employer applicant in this matter. I appear today with MR W. APPLEBY who is the General Manager of Human Resources, also of the employer applicant as well.

PN3

THE COMMISSIONER: Yes, thanks, Ms Matthews.

PN4

MS MATTHEWS: I apply today for the certification of the Anglican Aged Care Services Group and ANF Certified Agreement 2002. An agreement made according to the provisions of section 170LJ of the Workplace Relations Act and I seek certification of this agreement under section 170L(2) of the same Act. I submit that the agreement meets the requirements under section 170L(2) - sorry - LT - I correct myself - in that it passes the no disadvantage test, that it was approved by a valid majority of employees and that the terms of agreement was explained to all employees that are covered by this agreement, being the registered nursing staff of the employer.

PN5

I also submit that the agreement contains a dispute settlement procedure at clause 10.1 of the agreement and that it also contains a nominal expiry date, that being 31 May, 2005. Therefore, I submit that this agreement be certified.

PN6

THE COMMISSIONER: Yes, thanks Ms Matthews. Mr Gilbert.

PN7

MR GILBERT: Thank you, Commissioner. We, too, would support the certification of the agreement. Again, we have lodged the relevant documentation in support of the application, and to show that the application meets the requirements of the Workplace Relations Act. This is one of about 500 agreements that the ANF and the HSUA have been negotiating in the Victorian private aged care sector and is a big step forward for our members in this, unfortunately, solely Commonwealth funded industry. We would certainly commend the agreement for certification and make particular note, sir, for the Commission's interest, of the significant paid maternity leave provision that the employer, in this particular instance, has seen fit to agree to in the agreement, and would constitute one of the highest levels of paid maternity leave in the Victorian private aged care sector. If the Commission pleases.

PN8

THE COMMISSIONER: Yes, thank you. Mr O'Malley.

PN9

MR O'MALLEY: Commissioner, the HSUA concurs with Mr Gilbert's comments about this agreement and would hope the Commission certifies the agreement today. Thank you.

PN10

THE COMMISSIONER: Yes. Mr Gilbert or Mr O'Malley, I will ask you first and then see what Ms Matthews says about your response. It might be an easy way to do it. I am interested, as always, in the disputes procedure. And can I ask please, what it is - you first, Mr Gilbert, that you think is meant by 4.2.4 on page 30 of my copy?

PN11

MR GILBERT: Thank you, Commissioner. The clause in question is one that was once contained within the awards arising out of the 38 hour week agreement. And whilst it, once seen in an agreement I guess with the variety of options open to people today, it is certainly our intention that it would enable the Commission to have matters referred to it, and that the Commission would determine those matters, either in accordance with the dispute settling powers given to the Commission under the Act and under the agreement or such other means as might be agreed between the parties to the agreement.

PN12

THE COMMISSIONER: All right. We will go and have a conference. We will go off the record.

SHORT ADJOURNMENT [12.58pm]

RESUMED [1.06pm]

PN13

THE COMMISSIONER: We have had a conference in this matter, which I think has been helpful to cast some light on how 4.2.4 would be - would operate in the, can I say, practical reality of day to day difficulties that do, regrettably, sometimes arise. And this is not, of course, to think that any of these things will happen, because the parties are seeped in their agreement and it is really by way of an over cautious approach, perhaps. But, Mr Appleby, I might ask you to put on the record what it is that you say Anglicare have in mind as to the way in which 4.2.4 will operate; or you, Ms Matthews, whoever wishes to advocate. And then we will see whether Mr Gilbert and Mr O'Malley wish to say something to supplement that, and then, in turn, whether you can identify with what they say. So, Mr Appleby, what - I think there was a turn of phrase that you had used? You should be upstanding, Mr Appleby.

PN14

MR APPLEBY: Sorry, Commissioner. The way in which we would interpret that provision would be that it is issue based, in terms of what reference body would hear the matter, and certainly concur that matters won't be exclusively heard in one or the other, and such matters could be heard in one or two or multiple reference bodies for decisions and resolution.

PN15

THE COMMISSIONER: All right. Thanks, Mr Appleby. And Mr Gilbert, do you want to - before I go on with the other aspects of the certification, do you wish to say something about that?

PN16

MR GILBERT: Merely just to confirm that, from our point of view, it is intended to be able to operate in respect to any dispute arising under the agreement, and for the Commission to determine any issue arising that the parties are unable to resolve, notwithstanding that it may also be the subject of proceedings before another body, but understanding that the Commission would have regard to proceedings before that other body, in terms of decisions that the Commission might make.

PN17

THE COMMISSIONER: All right, thank you. Mr O'Malley, is there any issues to add to that?

PN18

MR O'MALLEY: Nothing further to add, Commissioner.

PN19

THE COMMISSIONER: Yes. All right. Then I will come back to you, Mr Appleby. Are you in general accord with what Mr Gilbert has said, as a gloss on top of your comments?

PN20

MR APPLEBY: Yes, I am, Commissioner.

PN21

THE COMMISSIONER: Yes. Thanks, Mr Appleby. Well this is an agreement which is to be known as the Anglican Aged Care Services Group and Australian Nursing Federation Certified Agreement 2002. It comes to the Commission for certification, pursuant to section 170LJ of the Act. Mr O'Malley, in looking at the agreement, what is the role of the HSUA? You are not a party to the agreement. I am sorry to ask you this, now, as I go ahead with the - can you explain why it is that you have appeared?

PN22

MR O'MALLEY: Commissioner, my understanding for my attendance, today, is that we are a party to the agreement, and my understanding is that we have division 2 nurses who are covered by this agreement, who are our members employed at - employed by Anglican Aged Care Services, and hence you are seeing me here today.

PN23

THE COMMISSIONER: Yes, well you are given as, in clause 3.1, as one of the two unions that the single word "union" means, and then, as a party bound you don't appear. So, am I to take it that that is, in your submission, that that is simply an error and that there has been a slip at - an important one though - at clause 4?

PN24

MR O'MALLEY: Yes, I do think it is a - - -

PN25

THE COMMISSIONER: All right. We will just see what Ms Matthews says about that. Ms Appleby, it might - Ms Matthews, I am sorry, I am doing a bit of genderising there.

PN26

MS MATTHEWS: That is okay.

PN27

THE COMMISSIONER: But it may be that there has been an administrative slip in the typing of clause 4?

PN28

MS MATTHEWS: That would - sorry, Commissioner, I was just involved in something else at the time that Mr O'Malley made his comment. Basically, the union, as defined under clause 3.1, covers the Health Services Union of Australia in respect to division 2 registered nurses. Therefore, the union has given a singular, I suppose, definition.

PN29

THE COMMISSIONER: Yes, I see.

PN30

MS MATTHEWS: Rather than a plural.

PN31

THE COMMISSIONER: Yes. Yes. But it is beyond doubt, is it, in the view of the employer, that they are there?

PN32

MS MATTHEWS: That is correct. That it applies to both unions. Yes.

PN33

THE COMMISSIONER: Yes, I see. And as a consequence of accepting that explanation, the agreement binds not only the Australian Nursing Federation but the Health Services Union of Australia, and has as its period of operation a period extending from the date of certification until 31 May, 2005. The agreement is to be read in conjunction with the Victorian - I will say again, the Nurses Victorian Health Services Award of 2000, and has several noteworthy features for the purpose of certification. One is, the conferral of industrial benefits, not the cause of disadvantage, and the fact that it contains a disputes procedure which does provide for matters arising in the requisite way, to be resolved. And it is important in this agreement to notice that they have been further clarified on the transcript, today.

PN34

In accepting those explanatory remarks, the submissions of the parties, I rely on those and would find that this is a proper disputes procedure satisfying the requirement of the Act that it have a procedure which prevents and settles issues arising. And, for those reasons, I will certify the agreement and I do that pursuant to section 170LT of the Act and I will sign a copy - sign, rather, an instrument to that effect, which sets out that the agreement comes into force from 20 January, 2003 and continues in force until 31 May, 2005. The Commission adjourns.

ADJOURNED INDEFINITELY [1.15pm]