AG2003/4406, Transcript of Proceedings [2003] AIRCTrans 3961 (8 September 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 10534
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2003/4406

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Care Connect Limited for certification
of the Care Connect Limited Certified
Agreement 2003

MELBOURNE

12.06 PM, MONDAY, 25 AUGUST 2003

PN1

MR C. CAMERON: I appear on behalf of Care Connect in this matter. I also have with me today MR T. FARRAH, the Finance Officer of Care Connect, and MS P. RIO, Human Resources Officer from Care Connect.

PN2

MR P. GILBERT: I seek to intervene pursuant to section 43. I understand that - I have had a quick peruse of the file this morning. I understand there is also a section 170XF application, although I am not aware of any notice of listing in respect to that matter and I need the guidance of your Honour a bit to know which matter your Honour proposes to deal with at this point in time.

PN3

THE SENIOR DEPUTY PRESIDENT: Well, I am dealing with them both. They are both subject to the same file number, so you seek to intervene generally?

PN4

MR GILBERT: Yes. Well, I do seek leave to intervene generally, not pursuant to section 43(2) but section 43(1). I do so, relying in part on the decision of Vice President Ross in print 927672. Is your Honour familiar with the decision of Vice President Ross in Grocon Proprietary Limited?

PN5

THE SENIOR DEPUTY PRESIDENT: Not in recent times. You might need to remind me about it.

PN6

MR GILBERT: I am content to provide your Honour with a copy if it would be of assistance - generously handing someone the copy that had my highlighting in it which will be helpful for someone. The decision relates to an application by Grocon Proprietary Limited for the certification of an agreement pursuant to section 170LK. Intervention was sought by the Construction, Forestry, Mining and Energy Union and a debate ensued as to whether an application for certification of an agreement - whether a union who wasn't seeking to be a party to the agreement and wasn't bringing with them evidence of an entitlement to represent an employee had leave to intervene.

PN7

The Vice President initially formed the view that he would assist in determining whether or not the employees in question were members of the CFMEU and covered by the agreement. That process failed to show that the CFMEU had any members in respect to that agreement and the CFMEU then relied upon, and I will take your Honour to paragraph 10, a decision of Senior Deputy President Williams in Re Maintenance Resource Engineering Proprietary Limited Shell Geelong Refinery Mechanical Enterprise Agreement 2002/2005 which they then conveniently refer to as the Maintenance Resource Number 2 Agreement.

PN8

To paraphrase, and your Honour can obviously read that at your leisure, but to paraphrase what Senior Deputy President Williams said that the process before the Commission is a multiple phase process and I think it is referred to as a two phase process in this decision, but in the case currently before your Honour it is, in fact, a three phase process and that is, firstly, an application under section 170XF that if the Commission does not determine a designated award then the application cannot proceed and the application is therefore not valid.

PN9

THE SENIOR DEPUTY PRESIDENT: Well, I have to determine - - -

PN10

MR GILBERT: You have to determine, yes.

PN11

THE SENIOR DEPUTY PRESIDENT: I have to designate an award as an appropriate award.

PN12

MR GILBERT: Correct, your Honour, and my first point would be that section 43(1) is the relevant section of the Act for me to seek leave to intervene in respect to that part of the process and I do so - - -

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that submission.

PN14

MR GILBERT: And I do so on the basis of that and of the basis that the ANF has a member in the workplace who is entitled to be covered by the agreement. There are a number of circumstances around this application that I would welcome further advice from the employer on. The member, I am aware, that we have in the employment of the employer I sought to contact this morning when I became aware of the application. That person was not - did not answer their telephone. This person is a registered nurse and we would say is employed in the industry of nursing. If I might provide a - if the parties are happy with that process I am happy to provide to the Commission a confidential exhibit from our membership system to show that we do have a member in the workplace. Not that it is crucial, I would think.

PN15

THE SENIOR DEPUTY PRESIDENT: Well, leave that aside for the moment but doesn't subsection (2)(a) of section 43 require that that employee request the organisation to represent him or her?

PN16

MR GILBERT: And this takes me back to the Grocon decision, your Honour. But the application before you is not yet the application for the certification of an agreement because unless the requirements of the Act are met the certification cannot proceed - the application cannot be valid unless the requirements of the Act have been met and - - -

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that argument. And how do you say that the requirements of the Act have not been met so as to entitle you to appear under section 43(1)?

PN18

MR GILBERT: Well, firstly, I would say that the 170XF application is flawed in that it does not, when it notes the awards that should be considered with respect to the no disadvantage test, it names the Social and Community Services Award as the only award that should be considered. It is our submission that there are registered nurses employed in this organisation. They are employed to do nursing work and an appropriate award for the no disadvantage test for some of the employees, that is, those who are registered nurses, should be the Nurses (Victorian Health Services) Award 2000. The ANF sought - - -

PN19

THE SENIOR DEPUTY PRESIDENT: Sorry, the Nurses?

PN20

MR GILBERT: Yes, Nurses (Victorian Health Services) Award 2000. That award's history goes back to the Victorian Industrial Relations Commission common rule award became - on first award principles. The Commission will be quite familiar with it, I would suspect.

PN21

THE SENIOR DEPUTY PRESIDENT: I have a passing knowledge of it, yes.

PN22

MR GILBERT: Yes, I thought you might, your Honour. That award, in our submission, in terms of intervention, is an award that your Honour should consider as being one of the awards that are relevant and for that reason - or that is one of the reasons we do seek leave to intervene and say that the application is not currently a valid one. Secondly, I have perused the statutory - - -

PN23

THE SENIOR DEPUTY PRESIDENT: Well, just a moment, stopping you there. Assuming that you are right and that the Nurses (Victorian Health Services) Award should also be designated as an appropriate award. How do you get to the next step in saying that this is not a valid application?

PN24

MR GILBERT: Because I think there is an obligation on the employer to nominate the awards that are valid for some or all of the employees, not just one award, but all awards that are valid and they fail to do so on this occasion.

PN25

THE SENIOR DEPUTY PRESIDENT: And that makes this an invalid application you say.

PN26

MR GILBERT: I say it does, yes, your Honour, because it doesn't provide - - -

PN27

THE SENIOR DEPUTY PRESIDENT: Just flesh that out for me if you would.

PN28

MR GILBERT: Well, it doesn't provide to your Honour the information that the employer is obliged to provide as the applicant before you today. That is, they must, in my submission and in fact in any hearing before the Commission, provide to the Commission all relevant information that the Commission needs to consider its decision.

PN29

THE SENIOR DEPUTY PRESIDENT: But does that invalidate the application or is that a ground for me to decline to certify the agreement?

PN30

MR GILBERT: Well, that will be a decision for your Honour.

PN31

THE SENIOR DEPUTY PRESIDENT: What was the flaw in the Grocon matter that enabled Vice President Ross to grant leave to intervene on the basis that there was no application?

PN32

MR GILBERT: Ultimately, the flaw was that the employees covered by the agreement did not know that they were the only two employees covered by that agreement and therefore they hadn't been given - or genuine consent hadn't been arrived at in the ballot process because they - or the Commission was satisfied in that instance that two employees didn't know that the agreement was only going to cover them and not most or all employees of Grocon. And in this instance it is hard - it is very much a chicken and egg argument, as I am sure it was before Vice President Ross - - -

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, it is. I think it may have been, yes.

PN34

MR GILBERT: - - - whereby perusing the statutory declaration, for example, it refers to attachments, being a notice to employees and a notice under - - -

PN35

THE SENIOR DEPUTY PRESIDENT: Which I don't have on the file.

PN36

MR GILBERT: That aren't on the file. So - - -

PN37

THE SENIOR DEPUTY PRESIDENT: That is a matter that I was going to raise with Mr Cameron actually.

PN38

MR GILBERT: The mystery remains somewhat there. Thirdly, in respect to the statutory declarations, the statutory declaration by the employee appears to be a statutory declaration, in fact, by an executive officer of the organisation rather than by an employee who would be covered by the terms of the agreement.

PN39

THE SENIOR DEPUTY PRESIDENT: There also doesn't seem to be a statutory declaration by the employee, or employees, who were chosen to represent the other employees, as I read the - - -

PN40

MR GILBERT: I am assuming that that is Mr - whose name I did write down Mr - but - - -

PN41

THE SENIOR DEPUTY PRESIDENT: That wasn't the way I read the statutory - that was another question I had for Mr Cameron, I must say.

PN42

MR GILBERT: It says Human Resources Executive Officer. However, they might have swapped titles some time before they got here today, I don't know, because he is no longer in that position.

PN43

THE SENIOR DEPUTY PRESIDENT: All right. I think because - - -

PN44

MR GILBERT: But they are reasons why I say that there are matters that would put the application in some doubt and it might be as an alternative that your Honour could grant leave to intervene or, sorry, could reserve that decision but allow the ANF to make submissions and be satisfied at some later point that intervention is appropriate.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes, I think that is a more appropriate course to follow but I will hear Mr Cameron on that. Thank you.

PN46

MR CAMERON: Thank you, your Honour. Certainly, it is worth outlining to the Commission this morning that I came prepared to make an application pursuant to section 170LK of the Workplace Relations Act and was unaware and not provided with instructions from my colleague, Mr Douglas, that the 170XF application had not actually been heard and agreed at this point in time. So it certainly does place me in a difficult position to run any extensive argument.

PN47

THE SENIOR DEPUTY PRESIDENT: Well, Mr Gilbert says he would welcome some discussions with you. Is it appropriate that we go no further and that you have those discussions and that we re-list this at another time?

PN48

MR CAMERON: Save to say, your Honour, that this negotiation process has been under way since August 2001.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes, but the ANF has just become aware of the matter.

PN50

MR CAMERON: Yes. I would like to place on the record that it is the position of the applicant in this matter that the Nurses Award that was referred to by my friend from the ANF, we would put, does not cover any of the employees engaged by the applicant in this matter, though - - -

PN51

THE SENIOR DEPUTY PRESIDENT: What does the applicant do? What - - -

PN52

MR CAMERON: The applicant is engaged in the provision of what might otherwise be called co-ordinating or management services to ensure the delivery and maintenance of services to their clients which, indeed, may well be the parties requiring care otherwise it may be - the patient - or a better way is the client, I think. To that extent the people that they engage, whilst they may well have qualifications pertaining to nursing and other relevant areas of care, they do not rely, as I am led to believe, they do not rely upon those qualifications to provide the service in this particular circumstance. It is no different from many organisations - - -

PN53

THE SENIOR DEPUTY PRESIDENT: Well, I am going to need some evidence about all of that if the matter proceeds, aren't I, if Mr Gilbert doesn't succeed on his current basis for his application to intervene - although perhaps not.

PN54

MR CAMERON: Yes.

PN55

THE SENIOR DEPUTY PRESIDENT: Do you oppose his application for intervention at all?

PN56

MR CAMERON: We do oppose the application for intervention on the grounds that we believe that the relevant awards have been outlined in the application pursuant to 170XF, given the fact that we maintain that the - - -

PN57

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Gilbert contends that another award should be - had regard to, on the basis that he has a member who is affected by the agreement. It seems to me, and I would welcome your submission on it, that in hearing a matter under section 170XF, section 43(1) of the relevant intervention section, and if Mr Gilbert maintains that he has a member affected by the agreement I should grant him leave to intervene at least on the section 170XF application.

PN58

MR CAMERON: Yes. Well, your Honour, I guess at this point, as I mentioned, at the commencement of my submissions, it is very difficult for me to put a substantial submission in that regard, your Honour.

PN59

THE SENIOR DEPUTY PRESIDENT: Well, you have been taken by surprise, I understand that. I am also in the difficult position that I have another matter that I have adjourned from this morning until 12 o'clock - it is a quarter past 12 now. Would the best way to proceed be to adjourn this matter and if you want it brought on - if you come to an agreement with Mr Gilbert and there is no opposition to the certification of the agreement the matter can be disposed of relatively quickly. If there is to be an argument, well, we had better find another dated, hadn't we?

PN60

MR CAMERON: Your Honour, it is probably worth mentioning. Look, I would like to just seek the position of those that I represent, but I would outline for the purposes of the record that if, indeed, the matter is adjourned we would seek an expeditious, let us say - the discussion is left to us, but bringing the matter back on on the grounds that there are a number of employees who will be relying upon provisions under this certified agreement for, in particular I think, maternity leave and paid maternity leave which, of course, in the event that it is not certified prior to their departure on such leave. It could have. I am not saying it necessarily would have but it could well have implications.

PN61

THE SENIOR DEPUTY PRESIDENT: What I will do is I will adjourn it to a date which we will agree on very shortly. I might indicate to you before we try to find a date that I had certain queries and I will point those out to you because you will need to address those in any event. Mr Gilbert has pointed to a couple of references to appendices - I think there were two appendices that were referred to. They are not attached to the statutory declaration - to either of the statutory declarations. In the statutory declaration of Mr Woodlock there are no answers to questions 5.8, 5.9 and 5.10.

PN62

In relation to the statutory declaration of Mr Ferrag he describes himself as the Executive Officer, Human Resources, of Care Connect Limited. And I think there is another description somewhere else of his position. But, more importantly, in answer to question 4.1 in the statutory declaration he says that the agreement was negotiated with an employee acting on his or her own behalf and on behalf of other employees. And that that is demonstrated by the fact that an employee representative from each group in the organisation was chosen by the employees to represent their interests.

PN63

Now, from that I did not discern that Mr Ferrag was the employee chosen in relation to each group to represent the interests of the employees in that group. I would have thought that there should have been a statutory declaration from each of the employees representing others in the group. Now, you will need to address me about that. Now, coming to the agreement itself, although it is said - and this is something you may have intended to take me to this morning. Although it is said that there is no disadvantage as compared with the award, I am unable to draw a comparison between the classifications and salaries in the agreement and those in the award which I notice contains - well, certainly different classifications and wage rates.

PN64

And they appear in clause 13 but there are also a number of penalty - not penalty, overtime shift work, weekend work and holiday provisions in Part VI and I need to be satisfied that the annualised salary provided by the agreement does not disadvantage people as against the award when one has regard to those provisions to which I have just referred. I don't know if you did intend to demonstrate to me how that occurs today, Mr Cameron, but that is something that you will certainly have to satisfy me about. So having pointed you in the direction of where I need assistance, before I could certify this agreement, we will just go off the record briefly to find a date for this matter to come back.

OFF THE RECORD

PN65

THE SENIOR DEPUTY PRESIDENT: Yes, I will adjourn the further hearing of this matter until 2.30 pm on Monday 1 September 2003. Thank you, adjourn the Commission.

ADJOURNED UNTIL MONDAY, 1 SEPTEMBER 2003 [12.30pm]