C2003/3922, Transcript of Proceedings [2003] AIRCTrans 4162 (19 September 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 4577
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2003/3922
C2003/4987
C2003/4988
C2003/1693
C2003/1694
C2003/1695

HEALTH SERVICES UNION OF
AUSTRALIA and ANOTHER

and

AUSTIN AND REPATRIATION
MEDICAL CENTRE and ANOTHER

Notifications pursuant to section 99 of the Act
of disputes re annual leave payments covered by
the Public Health Sector (Medical Scientists,
Pharmacists and Psychologists) Certified
Agreement 2000

HEALTH SERVICES UNION OF
AUSTRALIA (VICTORIA - PUBLIC
SECTOR) INTERIM AWARD 1993

Applications under section 113 of the Act
by Health Services Union of Australia -
Victorian No 4 Branch and Another to vary the
above award re a new clause 5(c), and wages
and conditions of employment

MELBOURNE

2.18 PM, THURSDAY, 4 SEPTEMBER 2003

PN1

DR R. KELLY: I appear for the Health Services Union of Australia.

PN2

MR R. CORBOY: I appear for VHIA on behalf of our respondent members.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes. Well, these applications are made, as I understand it, as a result of conferences and discussions that I have had with the parties in related matters, being C2003/1694 and 1695 and 1693. As I understand it, there has arisen a dispute about the application of a large number of certified agreements involving the parties and an agreed position was able to be reached in conference that necessitates the variation to the Health Services Union of Australia (Victoria - Public Sector) Interim Award 1993 and the resolution of the dispute over the application of the annual leave clauses in each of the certified agreements.

PN4

And as I can glean from the paperwork, there is a consent variation to the award that is proposed and the parties ask that I make a statement or a determination to resolve the dispute over the application of each of the agreements. Have I basically outlined the facts correctly or the matters correctly?

PN5

DR KELLY: Yes, your Honour.

PN6

MR CORBOY: Yes, your Honour, you have.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Well, that just means there now remains the actual paperwork, I suppose. The application to vary the award is C2003/4987, and that is an application by the HSUA to vary that award by inserting a new clause 5(c) into the award and that proposed variation forms part of the file. It is the application to vary C number 4987. Is that correct?

PN8

DR KELLY: Yes, your Honour, that is correct. If I could just say the application to vary has taken all of the annual leave clauses in those awards and combined the provisions together.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, when you say those awards, which awards are you talking about?

PN10

DR KELLY: Sorry, in that award.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes.

PN12

DR KELLY: In that award, your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, I want to be very careful with - - -

PN14

DR KELLY: Yes, in that Health Services Union of Australia (Victoria - Public Sector) Interim Award 1993. The parties found when they tried to deal with the annual leave loading clause on its own it caused consequential difficulties with other parts of the annual leave clause, so the total clause has been redrafted by the parties to accommodate their agreement over the loading. It replicates the provisions that were previously in the award and reproduces in total all of the annual leave provisions of the award.

PN15

The salient point is that it inserts in relation to annual leave loading a provision that employees will receive the higher of either their ordinary pay as defined plus a loading of 17.5 percent up to a maximum which is - I am looking at page 4 now, your Honour, up to a maximum based on the medical scientist grade 3 year 2, or payment at the actual rate that those individuals would have earned or have earned over the previous 12 months.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, that is in clause 9.1.

PN17

DR KELLY: Nine, yes. And 9 point - - -

PN18

THE SENIOR DEPUTY PRESIDENT: Of what will become a new clause 5(c).

PN19

DR KELLY: Yes, that is correct.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, and as I recall it, this is necessary because that interim award incorporated by reference some former awards of the old Victorian Industrial Relations Commission, which now no longer exists.

PN21

DR KELLY: That is correct, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, but without actually setting out those awards or those terms.

PN23

DR KELLY: That is right.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes. So what is sought is the insertion of a new clause 5(c) that reads:

PN25

In respect of annual leave and annual leave loading provisions only, the provisions of this subclause shall apply to all employees referred to in clause 1 covered by the terms of the following former awards of the Industrial Relations Commission of Victoria prior to 1 March 1993, in lieu of annual leave and annual leave loading provisions in those awards...

PN26

And then there are set out the names of the three awards, Hospital Pharmacists Award, Medical Scientists Award, Psychologists Award and then there follows the annual leave clause that is to apply generally in relation to the - in the Health Services Union of Australia (Victoria - Public Sector) Interim Award 1993. Yes.

PN27

DR KELLY: If your Honour pleases.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Corboy, is that right?

PN29

MR CORBOY: Yes, your Honour, that is correct. That is how I understand it.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes.

PN31

MR CORBOY: And there is consent by the VHIA in this matter.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, very well. The award will be varied in terms of the application which is attached to the file. And is there an agreement about an operative date? It was to be a retrospective date, was it not?

PN33

DR KELLY: Yes, the agreement to the operative date, it is retrospective, your Honour, to remove potential litigation over ambiguities in the old provisions under the Health Services Union Award.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes, and that date is 11 July 1997, is it?

PN35

DR KELLY: That is correct, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, well, the order will operate from 11 July 1997. I am satisfied that there are special circumstances warranting the making of a retrospective order. Do either of the parties have a copy of that order? I think you may have e-mailed me one in any event.

PN37

DR KELLY: A copy of the actual order, your Honour?

PN38

THE SENIOR DEPUTY PRESIDENT: Of the actual proposed order without the formal parts of the application in it?

PN39

DR KELLY: No, I am sorry, I only have the application to vary.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I think it is sufficiently identified by what I said, that it is the operative part of the order that appears in the application to set aside or vary the award that was filed on 4 August 2003. I think that will probably be sufficient. Would you, Dr Kelly, arrange to have e-mailed to my associate the new clause 5(c) - - -

PN41

DR KELLY: Yes, your Honour.

PN42

THE SENIOR DEPUTY PRESIDENT: - - - so that the variation can be made. And that way I think there will be less risk that the wrong words go in. So that deals with C number 4987 of 2003. Then there is a C2003/3922 is a notification of dispute, and it says section 99 concerning annual leave payments covered by the Public Health Sector (Medical Scientists, Pharmacists and Psychologists) Certified Agreement 2000. Is that the formal notification of a dispute about the application of the agreements?

PN43

DR KELLY: It should really be a dispute notification about section 45 of those agreements, which is the dispute resolution clause.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes. But that is - I am working on the correct C number now, am I, C number 3922?

PN45

DR KELLY: As I understand it, that is correct.

PN46

THE SENIOR DEPUTY PRESIDENT: Which notifies the Commission under section 99, and I waive compliance with the necessity to indicate that it is under the dispute settling clause of each agreement. But that is a dispute between the HSUA and a number of health care providers, Dr Kelly, is that correct?

PN47

DR KELLY: That is correct. There is 74 individual agreements and each of those 74 public sector health care providers employ either psychologists, pharmacists or medical scientists.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, and the other party to it is the Victorian Hospitals Industrial Association.

PN49

DR KELLY: The parties to those agreements are the actual health services - - -

PN50

THE SENIOR DEPUTY PRESIDENT: I am sorry?

PN51

DR KELLY: - - - the parties to these agreements are the actual health services themselves.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes.

PN53

DR KELLY: The HIA, I don't think are parties.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Now I have a list of - that is headed Variations to the Terms of Certified Agreements, and there are listed then I assume 74 agreements, are there, Dr Kelly?

PN55

DR KELLY: Yes, your Honour, there is 74 individual agreements listed.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes, and the operative part of that document, which I think I should probably mark as an exhibit because it doesn't form part of the file.

EXHIBIT #A IN MATTER C2003/3922 DOCUMENT HEADED VARIATION TO TERMS OF CERTIFIED AGREEMENTS IN THE MATTER OF A NUMBER OF AGREEMENTS

PN57

THE SENIOR DEPUTY PRESIDENT: And then there is an operative part that is intended to be a determination by me. And it says:

PN58

Having heard the representatives of the parties to the certified agreements listed above and having regard to the dispute resolution provision of each of the ...(reads)... In respect of annual leave loading provisions under the named enterprise agreements the following provisions shall apply in view of those provisions...

PN59

And then there is a heading, Annual Leave Loading, and an operative clause dealing with annual leave loading. It is the agreement of the parties, is it, that by my determining that that should apply in lieu of the provision in each of the agreements relating to annual leave loading, that will settle the dispute over the application of each of the agreements?

PN60

DR KELLY: That is correct, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Corboy?

PN62

MR CORBOY: That is correct, your Honour, and it shall remove ambiguity that currently exists.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, well, I make the determination in the terms of the wording that commences on the fourth page of exhibit A and I do so having regard to the dispute resolution clause in each of the agreements, which I think is clause 45 in each of them, is it, Dr Kelly, and particularly clause 45.1.1 and clause 45.3.1.

PN64

DR KELLY: That is correct, your Honour.

PN65

THE SENIOR DEPUTY PRESIDENT: And the determination will operate instead of the annual leave loading clause in each of those agreements which - is it clause 22 in each of the agreements?

PN66

DR KELLY: Yes, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes, instead of clause 22 in each of the agreements. Yes, well, that settles the dispute or the disputes over the application of each of the agreements named in exhibit A and that resolves the matter in matter C2003/3922. That leaves me with another file, C2003/4988. That also purports to be a section 99 notification, and I just wonder if it is necessary to process this matter at all. Dr Kelly?

PN68

DR KELLY: Could you remind me, your Honour?

PN69

THE SENIOR DEPUTY PRESIDENT: Well, this one is a little odd. Perhaps if I show it to you.

PN70

DR KELLY: It might have been that - - -

PN71

THE SENIOR DEPUTY PRESIDENT: Well, we might just go off the record for a moment.

PN72

DR KELLY: Yes.

OFF THE RECORD

PN73

THE SENIOR DEPUTY PRESIDENT: Having spoken with the representatives of the parties, it is agreed that C number 2003/4988 is withdrawn. Is there anything else from either of you that needs to be said?

PN74

MR CORBOY: No, your Honour. No thank you.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes. Dr Kelly?

PN76

DR KELLY: Your Honour, I just make the point that those other three applications to vary that were made and which initiated this whole thing by the VHIA possibly need to be dealt with and just those numbers closed as well.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, perhaps they should also be withdrawn, Mr Corboy.

PN78

MR CORBOY: Yes, I thank Dr Kelly for reminding me. Those matters have now been resolved and I believe they should be withdrawn.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes, very well, the applications to vary an award in matters C2003/1693, 1694 and 1694, although not formally before me, I suppose I can actually call them on now and have them before me, which I have now done. And, Mr Corboy, you have indicated that you wish to withdraw them, is that correct?

PN80

MR CORBOY: That is correct, your Honour, the matter has been resolved.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, well, each of those applications is withdrawn. I think I can now adjourn the Commission. Yes, thank you.

ADJOURNED INDEFINITELY [2.35pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A IN MATTER C2003/3922 DOCUMENT HEADED VARIATION TO TERMS OF CERTIFIED AGREEMENTS IN THE MATTER OF A NUMBER OF AGREEMENTS PN57