AG2003/6030, Transcript of Proceedings [2003] AIRCTrans 4194 (24 September 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 4702

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2003/6030

APPLICATION FOR AGREEMENT ABOUT
INDUSTRIAL DISPUTE (DIVISION 3)

Application under section 170LS of the Act
by Tenth Tallow Pty Ltd and Others for
certification of Graceton Private Nursing
Home and the Australian Nursing Federation and
Health Services Union of Australia Certified
Agreement 2002-2005

MELBOURNE

2.15 PM, MONDAY, 1 SEPTEMBER 2003

PN1

MR P. GILBERT: I appear for the ANF and also seek leave to appear for the HSUA.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted. Nobody here appearing for the employer? Do you want to try to proceed, Mr Gilbert?

PN3

MR GILBERT: I shall certainly do so, your Honour. The agreement before you is an agreement that is consistent with a number of other agreements that have been before you on numerous occasions previously, and to that extent I don't think I need to go into the detail of the agreement, suffice to say it, in our view, meets all the requirements of the act and we have lodged a statutory declaration to that effect. I am not advised as to the date of the application for certification as we are not the applicant. I note the ballot was on 11 June and it would be reasonable to conclude from that that it would be at least a number of days beyond the 21 day period.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, it is eight days late.

PN5

MR GILBERT: Eight days, is it? So to the extent necessary, your Honour, I would seek that you extend that period of time to enable the application to proceed today - - -

PN6

THE SENIOR DEPUTY PRESIDENT: Are you going to advance any - - -

PN7

MR GILBERT: - - - and I am sure the reasons - sorry?

PN8

THE SENIOR DEPUTY PRESIDENT: Are you going to advance any explanation for the delay, Mr Gilbert?

PN9

MR GILBERT: Only comparable to those I have given to your Honour on previous occasions, and that is a considerable delay in terms of getting documentation back from the employer and I am also instructed in respect to a number of the agreements before you today that they coincided with a period of leave of the relevant Industrial Officer for the HSUA, which - - -

PN10

THE SENIOR DEPUTY PRESIDENT: Am I entitled to draw the inference that there was little or no change and certainly no significant change in the composition of the workforce in the period.

PN11

MR GILBERT: Yes, your Honour, as I have advised previously, where that has happened it is brought to my attention as these matters come up for certification. I am sure the employer, had they been represented, would have been able to give you a more accurate picture but it is certainly my understanding that there has not been any change such that would affect the ballot and that the ballot was overwhelmingly in support of the agreement.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, very well. I will extend the time for the filing of documents until 10 July.

PN13

MR GILBERT: Thank you, your Honour. I would understand you to have a statutory declaration on the file from Brian Fitzpatrick, the Proprietor of Graceton Private Nursing Home?

PN14

THE SENIOR DEPUTY PRESIDENT: Yes.

PN15

MR GILBERT: And also a statutory declaration from the Australia Nursing Federation and from the Health Services Unit.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, and Mr Fitzpatrick says that the agreement is in relation to the whole of the business. The ANF says it is - that it applies to part of a single business that is geographically distinct. What is it, Mr Gilbert?

PN17

MR GILBERT: It would be the whole of the single business, your Honour.

PN18

THE SENIOR DEPUTY PRESIDENT: So, that is an error on behalf of the - in the ANFs statutory declaration, is it? And this is important in this particular matter because I can only certify under that section an agreement that pertains to the whole of the business.

PN19

MR GILBERT: I would have no doubt it applies to the whole of the single business. I am surprised to find that our statutory declaration would indicate otherwise.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Well, I will accept that it applies to the whole of the business, Mr Gilbert.

PN21

MR GILBERT: Thank you, your Honour. We therefore rely on the statutory declaration as lodged by the parties in respect to the agreement to show that the requirements of the Act have been met and would seek the certification of the agreement today if the Commission pleases.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes. The agreement will be certified. I am satisfied that it is made to prevent an industrial situation - from giving rise to an industrial dispute involving parties to the industrial situation including an employer carrying on a single business and one or more organisations of employees. I am satisfied that it passes the no disadvantage test, that it was made in accordance with division 3 of part VIB of the Act and approved by a valid majority and that the explanation of its terms was appropriate in the circumstances.

PN23

I am also satisfied that it includes dispute settling procedures and specifies as the nominal expiry date a date which is not more than three years after the date on which the agreement will come into operation, not are there any reasons in section 170LU as to why I should refuse to certify it. Accordingly, the agreement will be certified to operate from today's date. The appropriate instrument will issue shortly.

ADJOURNED INDEFINITELY [2.27pm]