AG2003/6027, Transcript of Proceedings [2003] AIRCTrans 4195 (24 September 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 4701
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG003/6027

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Villa Maria Society for the Blind and
Others for certification of the Residential
Aged Care Villa Maria, ANF and HSUA
Enterprise Agreement 2003

MELBOURNE

2.15 PM, MONDAY, 1 SEPTEMBER 2003

PN1

MR M. RAHILLY: I seek leave to appear for the applicant, Villa Maria Society.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Rahilly, leave is granted.

PN3

MR P. GILBERT: I appear with MS L. KELLY for the ANF and, to the extent that it is available to me, I understand you received a letter from the - or a facsimile from the HSUA advising of their inability to attend.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, and they have asked that you appear on their behalf, I think.

PN5

MR GILBERT: Yes, so to the extent necessary, I seek leave to do so.

PN6

THE SENIOR DEPUTY PRESIDENT: Leave is granted.

PN7

MR GILBERT: Thank you.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Rahilly.

PN9

MR RAHILLY: Thank you, your Honour. Your Honour, this agreement is an agreement between Villa Maria Society, the Australia Nursing Federation and the HSUA in respect of the employees of Villa Maria Society who are described in the agreement or within the scope of the agreement. The agreement provides for a range of benefits, many of which your Honour will have seen in other agreements in the aged care sector that have come before you for certification.

PN10

There are, however, some differences which exist in this agreement to the general run-of-the-mill agreements - if I can call them that - that have been before you. Perhaps I could just point out in respect of clause 7 that provision provides an alternative for employees with respect to the application of the increases provided for in the agreement in the context of those employees who are paid over-award payments and provide some limitation with respect to the application of the salary packaging provision which is contained in clause 8.

PN11

I draw your attention to clause 12 which provides an additional payment to employees by way of what is called a portfolio allowance, and to clause 17 which provides for the payment of a sick leave bonus in respect of employees who do not use the three days sick leave which is allowable without a certificate during the course of a year. But I can say generally otherwise the agreement is similar to agreements that have been dealt with by the Commission in the aged care sector of recent times.

PN12

The Commission has before it statutory declarations from Jacquie Hudson, the Human Resources Manager of the Villa Maria Society, by Lisa Fitzpatrick, the Secretary of the Australian Nursing Federation, and by Craig Thompson, the National Secretary of the Health Services Union of Australia. Those agreements are in similar - those declarations, rather, are in similar terms.

PN13

I would note, your Honour, that clause 6.2 of the statutory declarations indicates that the agreement was approved by a valid majority of employees on 18 June and the application was lodged for certification on 10 July. By my calculations, that is a period of 22 days.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted to extend time. I will extend time until the following day for the filing of documentation, Mr Rahilly.

PN15

MR RAHILLY: Thank you, your Honour. So having said that, your Honour, it is submitted that the agreement does comply with the requirements of the Act and the documentation in support of the agreement complies with the requirements of the Act. It is capable of certification and there are no other reasons such as those that might be contained in section 170LT why the Commission should refuse to certify the agreement and according - - -

PN16

THE SENIOR DEPUTY PRESIDENT: Mr Rahilly, in the staff grievance procedure which is attached to and forms part of the agreement, clause 6 provides that the matter, if not settled, should be referred to the Commission. The words are:

PN17

If a staff member still feels aggrieved, they have the option of taking the matter to be heard before the Australian Industrial Relations Commission.

PN18

What do the parties intend to be the powers of the Commission under that clause? Is it - what does the referral to the Commission do?

PN19

MR RAHILLY: Your Honour, I think - certainly the Commission's conciliation powers would be intended to be applied, and depending upon perhaps what the nature of the grievance is, might determine the Commission's position by virtue or reference to section 111AA.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, so there is no arbitral powers unless it is by consent. That is the intention and agreement of the parties?

PN21

MR RAHILLY: That is my - my understanding, your Honour, is - - -

PN22

THE SENIOR DEPUTY PRESIDENT: Let us see if the unions agree with you.

PN23

MR RAHILLY: Certainly.

PN24

THE SENIOR DEPUTY PRESIDENT: I don't care what it is as long as it is clear.

PN25

MR RAHILLY: Yes.

PN26

THE SENIOR DEPUTY PRESIDENT: And it is far from clear in that document and that only leads to disputation later on if somebody wants to do something if there is a grievance.

PN27

MR RAHILLY: Certainly, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: Mr Gilbert?

PN29

MR GILBERT: Just briefly in respect to the matter you have just raised, I certainly don't have any particular instructions in respect to this agreement. The clause I understand your Honour to be referring to is clause 24. Did you say there was an attachment to the agreement that went further than clause 24?

PN30

THE SENIOR DEPUTY PRESIDENT: I think clause 24 refers to the attachment, doesn't it?

PN31

MR GILBERT: My - what I am looking at here says the procedure contained within the relevant award.

PN32

THE SENIOR DEPUTY PRESIDENT: I will stand this matter down while the parties sort themselves out.

PN33

MR GILBERT: That would be helpful, thank you, your Honour. I don't have a copy of those appendices on the file.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes, well, that doesn't help much, does it? I will stand it down. There is a matter that I don't think either of you are involved in that is being dealt with shortly and you can see if you can work out a common position at that time.

SHORT ADJOURNMENT [2.22pm]

RESUMED [2.56pm]

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, gentlemen. Mr Rahilly.

PN36

MR RAHILLY: Thank you, your Honour, for the opportunity to have discussions with the Australian Nursing Federation about clause 23 of the agreement. As I think I said to your Honour earlier it is the employer's view that the role of the Commission in respect of the statement in the policy to which clause 23 of the agreement refers is a role to assist the parties by way of conciliation and to the extent that the Commission has power to deal with whatever the issue is, which is the grievance, then by arbitration. By way of example - - -

PN37

THE SENIOR DEPUTY PRESIDENT: I am not sure what you mean by that.

PN38

MR RAHILLY: Well perhaps I can give your Honour an example - the grievance which is referred to, or the grievance provision itself refers to all grievances, unsatisfactory performance or disciplinary action. Now a grievance may arise within a work place concerning a suggestion by an employee that they have been underpaid, or that they have not been paid some entitlement either under the agreement or under the award to which the agreement relates.

PN39

Now, clearly if that matter were pursued through the policy which is attached to the - to the agreement itself, and ultimately came before the Commission then obviously there is a question about the Commission's jurisdiction to finally determine that question. Now it may be that the parties, when they come to the Commission, might accept that the Commission makes a recommendation which is binding upon the parties in relation to it but if it is a breach of award or a delegation of breach of award then clearly that matter is not something that the Commission would be in a position to ultimately or finally determine as between the parties.

PN40

THE SENIOR DEPUTY PRESIDENT: Unless the parties authorise that in the dispute settling procedure, that is why I raised the question.

PN41

MR RAHILLY: Well, your Honour, the disputes settling procedure which is contained in the agreement talks about disputes arising out of the implementation of the provisions of the agreement.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes.

PN43

MR RAHILLY: Dealt with in accordance with the disputes settling procedure in the award.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes, and what does that provide?

PN45

MR RAHILLY: The award provides that the Commission can determine the dispute by decision - the word is - the words are, "by decision".

PN46

THE SENIOR DEPUTY PRESIDENT: Yes, well as long as the parties have agreed as to the meaning of the clause there is very little I can do about it even if - if my view of it is somewhat different, or might be different and it is not a matter that I can - that I need consider in exercising any discretion that I have in relation to certification. Yes, thank you.

PN47

MR RAHILLY: Thank you.

PN48

THE SENIOR DEPUTY PRESIDENT: Mr Gilbert.

PN49

MR GILBERT: Yes, thank you, your Honour. We too would largely endorse what Mr Rahilly has said and it is our understanding and intention that, to the extent that the Act currently allows the Commission to determine day to day work place disputes then a grievance arising under this could be determined in the same way and in fact the grievance procedure of long standing in the award left that open to debate from day to day anyway as to exactly what was intended but to avoid disputation anyway in distinguishing between grievances and disputes arising under the agreement, clearly the Commission can determine by way of decision any dispute arising out of the agreement and I guess to the extent necessary if it became a dispute about what was in and what was out of clause 23 then it could be determined under clause 24.

PN50

THE SENIOR DEPUTY PRESIDENT: Well, let us hope that it does not come to that. Yes, okay.

PN51

MR GILBERT: Indeed, but it would be an interesting way to proceed, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: I am trying to avoid interesting proceedings, Mr Gilbert, that is why I raise these questions.

PN53

MR GILBERT: Thank you.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I will certify the agreement. I am satisfied that it is about matters pertaining to the relationship between an employer in Victoria that is carrying on a single business was it, Mr Rahilly?

PN55

MR RAHILLY: Part of a single business, your Honour.

PN56

THE SENIOR DEPUTY PRESIDENT: Sorry, part of a single business?

PN57

MR RAHILLY: Yes.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes, sorry I was confused - yes, part of a single business and employees in Victoria employed by their employer in that part and whose employment is subject to the agreement. I am also satisfied that each union has at least one member employed in the party to which the agreement relates and is entitled to represent his or her industrial interests.

PN59

I am also satisfied that the agreement passes a no-disadvantage test and that it was made in accordance with section 170LJ and approved by a valid majority, that the explanation of its terms was appropriate in the circumstances, that it includes disputes settling procedures and that it specifies a nominal expiry date which is not more than three years after the date on which the agreement comes into operation. Nor are there any reasons in section 170LU as to why I should refuse to certify it and accordingly it will be certified to operate from today's date. Thank you ladies and gentlemen. I adjourn the Commission.

ADJOURNED INDEFINITELY [3.03pm]