C2003/5649, Transcript of Proceedings [2003] AIRCTrans 4743 (27 October 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 10629
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2003/5649

AUSTRALIAN LIQUOR, HOSPITALITY AND
MISCELLANEOUS WORKERS UNION

and

ROYAL SOCIETY FOR PREVENTION OF
CRUELTY TO ANIMALS (VIC) INC

Notification pursuant to section 99 of the Act
of a dispute re an alleged breach of the
grievance procedure of the EBA and the
consultation process

10.36 AM, FRIDAY, 10 OCTOBER 2003

PN1

MS V. ILIAS: I appear on behalf of the LHMU along with MR G. HOGAN, organiser for the branch, as well as MS M. MACKINTOSH, delegate for the RSPCA, and MR D. GREEN, also delegate for the RSPCA.

PN2

MR C. MOLNAR: I seek leave to appear for the RSPCA with MS H. LEE of my office and MS J. LINDLEY, who is the responsible officer from the RSPCA.

PN3

THE COMMISSIONER: Is there any objection to Mr Molnar's appearance?

PN4

MS ILIAS: Yes, Commissioner. The purpose of today was to go through the process with you in relation to the disputes procedure and the concerns. It was hoped that we could go into conciliation at some stage through this process and the relevant people who are involved with the RSPCA are here who have full grasp of the problems at hand, and we seek that they will be able to best answer the questions in relation to this matter, Commissioner.

PN5

THE COMMISSIONER: Mr Molnar, why is it that you need to seek leave?

PN6

MR MOLNAR: Commissioner, the Act that refers under section 42(3)(ii), but the subsection (b) that I am referring to, that leave can be granted in regard to the subject matter of the proceeding if there are special circumstances that make it desirable the parties may be so represented. On the face of this, and there are not many details in the actual section 99 dispute notification, but on the face of it, this relates to a breach of an enterprise agreement and you will immediately recognise, sir, that is a very serious allegation. The allegation that any party has breached an agreement of this Commission has very significant effects, and may need to be dealt with with some care.

PN7

There is obviously a body of law which goes to those particular issues. Also on the face of it, sir - - -

PN8

THE COMMISSIONER: You are applying for leave to appear as counsel, are you?

PN9

MR MOLNAR: Yes, I am, sir.

PN10

THE COMMISSIONER: Thank you.

PN11

MR MOLNAR: I should have made that clear. Also, on the face of it, the application - and no doubt the applicant will detail precisely - in more precise terms what it wants, but on the face of it, it seems to be seeking that this Commission exercise judicial power in relation to a breach of an enterprise agreement. Of course as you would immediately appreciate, sir, the use of judicial power by this Commission in a jurisdictional sense is not possible, and you would certainly be aware of various cases that relate to that particular issue.

PN12

Also, sir, under section 42(3)(c) leave can be granted if the Commission is satisfied a party can only be adequately represented by the counsel, solicitor or agent. My client, sir, is not a member of the employer organisation so therefore is not able to access whatever representation is possible through those organisations. My client is not familiar, has no real familiarity with the processes in the Commission. In particular, the sort of issues that I have just mentioned, breaches of enterprise agreements, judicial power of this Commission and whether it has that power and whether it can, in these circumstances, be exercised.

PN13

THE COMMISSIONER: What would be the nature of any judicial power that would be exercised?

PN14

MR MOLNAR: Again, it is not clear, precisely what the applicant is actually seeking but it may ultimately - - -

PN15

THE COMMISSIONER: That would depend on the remedy sought.

PN16

MR MOLNAR: Exactly, and this is one of the things that we need to keep in mind, that ultimately the applicant - - -

PN17

THE COMMISSIONER: It would have to involve, would it not, a remedy whereby the Commission made an order?

PN18

MR MOLNAR: Correct, sir, and that may ultimately happen, sir, in these proceedings. We don't know - - -

PN19

THE COMMISSIONER: Well, that is questionable, with all due respect. The private arbitration case in the High Court suggests that the Commission cannot make orders in relation to the settlement of disputes arising under an agreement pursuant to section 170LW of the Act.

PN20

MR MOLNAR: Sir, this is not an application pursuant to section 170LW - - -

PN21

THE COMMISSIONER: But if there is an agreement, how can I arbitrate anything?

PN22

MR MOLNAR: Well, these are the sorts of submissions that I might be making to you, sir. These are exactly the sort of issues that I might be making to you and that is why - - -

PN23

THE COMMISSIONER: No, but I think the point you make is that it is hard to tell exactly what - - -

PN24

MR MOLNAR: Precisely.

PN25

THE COMMISSIONER: - - - the respondent will be confronted with without further elaboration by the - - -

PN26

MR MOLNAR: The way I propose to proceed, sir, if I may, is to outline, because I have been instructed by the client, I am familiar with the issues, to outline the background of what they have done and I think I can do that in the most efficient way in terms of this Commission. As the - - -

PN27

THE COMMISSIONER: But just before you do, Mr Molnar, I think I want to hear from the notifier as to exactly what the nature of the remedy that will be sought is. I think that is crucial. Thank you.

PN28

MS ILIAS: Thank you, Commissioner. We don't seek an order today. We do seek to use your conciliatory powers at some stage of the process but what we would be looking - - -

PN29

THE COMMISSIONER: Well, just let us get a little bit technical for a moment. On what basis? Under the terms of the agreement or under section 99 of the Act?

PN30

MS ILIAS: Under the terms of the agreement, we notified the section 99 - - -

PN31

THE COMMISSIONER: Well, can you table the agreement?

PN32

MS ILIAS: Pardon?

PN33

THE COMMISSIONER: Do you have a copy of the agreement?

PN34

MS ILIAS: Yes, I do.

PN35

THE COMMISSIONER: Well, I think you need to show me.

PN36

MR MOLNAR: If I could perhaps just hand up a copy of the agreement, sir, if that is of assistance?

PN37

THE COMMISSIONER: Yes, thank you. Are you asking that I exercise certain functions which are provided for by the agreement?

PN38

MS ILIAS: Yes, Commissioner.

PN39

THE COMMISSIONER: Well, I think that is rather important because the notification, as Mr Molnar has pointed out, was made under section 99, not section 170LW.

PN40

MS ILIAS: Yes, Commissioner.

PN41

THE COMMISSIONER: But I take it that the purpose of bringing this matter to the attention of the Commission is for the purposes of the Commission doing some things which the agreement contemplates.

PN42

MS ILIAS: Yes, sir.

PN43

THE COMMISSIONER: Right. Well, that is a section 170LW proceeding, is it not?

PN44

MS ILIAS: Yes, Commissioner, that is correct.

PN45

THE COMMISSIONER: And what is the clause?

PN46

MS ILIAS: Under clause 20, the disputes and grievance procedure of the current agreement, at 20.4:

PN47

In the absence of a mutually acceptable resolution, the dispute will be referred to the executive officer. Should this not settle the dispute, it will be referred to the Australian Industrial Relations Commission for conciliation and, if necessary, arbitration.

PN48

We seek to exercise that clause in respect of the conciliation process to get some assistance from the Commission to resolve an ongoing issue that we are unable to resolve through part of the process of the grievance dispute. But also, Commissioner, I wish to bring your attention to clause 21 of the current agreement which is the introduction of change, and in particular, 21.4.2 of that clause which is in relation to the effects and changes that are likely to occur to employees. The dispute that we have does centre around these circumstances where it will have effect on the current employees that work at the RSPCA, so in fact, Commissioner, there are two parts of the agreement that we want to raise that haven't been followed correctly and seek your conciliatory powers to try and - - -

PN49

THE COMMISSIONER: Also, does the dispute in respect of which the grievance procedure should apply relate to the application of the terms of clause 21?

PN50

MS ILIAS: Yes, Commissioner. The introduction of change - there is going to be - the proposal is there will be significant changes to the way work is performed at the RSPCA which will potentially have ramifications of people losing jobs.

PN51

THE COMMISSIONER: Yes, but, Ms Ilias, I am actually still on the subject of the leave application.

PN52

MS ILIAS: Yes, Commissioner.

PN53

THE COMMISSIONER: And we need to sort of try and take a summary approach to this. There are certain statutory provisions that I have to consider and apply in relation to the application for leave. What I am trying to do is to characterise the nature of the proceedings for the purpose of making that determination.

PN54

MS ILIAS: Sorry, Commissioner.

PN55

THE COMMISSIONER: I don't want to go into the merits of the dispute in detail at the moment.

PN56

MS ILIAS: Sorry, I misunderstood.

PN57

THE COMMISSIONER: Yes. So, what you are saying is that you are seeking that the Commission conduct a conciliation contemplated by clause 20.4 of the grievance procedure.

PN58

MS ILIAS: Yes, Commissioner.

PN59

THE COMMISSIONER: And that the matter in respect of which the conciliation should be conducted is the application of the terms of clause 21 of the agreement.

PN60

MS ILIAS: Yes, Commissioner.

PN61

THE COMMISSIONER: And you don't seek that I issue any orders arising out of any conciliation proceeding?

PN62

MS ILIAS: No, Commissioner.

PN63

THE COMMISSIONER: Thank you. Mr Molnar, does that make it clearer for you?

PN64

MR MOLNAR: Well, there is still not, as far as I am aware, any section 170LW application before this Commission.

PN65

THE COMMISSIONER: I will accept it as being orally made and waive the rules accordingly.

PN66

MR MOLNAR: Okay. If that is the nature of the application, then we would wish to be raising threshold issues relating to whether or not section 170LW applies, what is the nature of the supposed grievance, whether that fits within 170LW, is this about the application of the agreement - - -

PN67

THE COMMISSIONER: Well, it says it is about the application of the introduction of change provisions.

PN68

MR MOLNAR: Well, we would contest whether or not there has actually been - whether that is the issue or whether that clause is in fact attracted to this issue. The introduction of change clause seems to be referring to where a party - and in this case the RSPCA - has made a decision, and it is quite clear, 21.3.1, where the RSPCA has made a definite decision to introduce major change to the production - etcetera, etcetera. No definite decision has been made, so there can't be a grievance about a clause where no definite decision has been made.

PN69

Sir, there are some threshold issues that relate to whether or not (a) the particular grievance that they may have, and I am still not quite sure what that is, and no doubt that will be elaborated on; whether or not that is actually a grievance within the meaning of section or clause 20 and whether that section 170LW is in fact attracted. But you can immediately see, sir, that the subject matter of this thing before you is of some significance, that it relates to breaches of an enterprise agreement, it relates to the application under section 170LW, it relates to whether or not clause 21 has been breached. There are evidentiary matters which clearly the applicant needs to bring before this Commission on many of the threshold issues.

PN70

THE COMMISSIONER: Well, I am not sure that is right, Mr Molnar. All that I have to do is reach a conclusion that there is a probability that something contemplated in the introduction of change clause has arisen which is relevant.

PN71

MR MOLNAR: Yes. But on the threshold application of the leave application, sir, there are significant issues that go to the law, that - - -

PN72

THE COMMISSIONER: Well, I have some difficulty understanding that. I mean, you say they are, but I am not persuaded, that is the problem; I don't know what they are. What are they? What is significant?

PN73

MR MOLNAR: The issues that go to the matters to do with whether or not this application is properly on foot would go to whether or not section 170LW applies, whether this is in relation to the application of the agreement, and we may wish to make submissions on that - - -

PN74

THE COMMISSIONER: But how - I mean, I just can't see how it is arguable that section 170LW on the assumption that there are changes in the wind wouldn't apply.

PN75

MR MOLNAR: It would be a question of examining what is the real dispute here, and if - - -

PN76

THE COMMISSIONER: But, look, I am not going to get lost in a whole lot of sort of legal technicalities about this. These things are, you know, you can recite all of these things, but it is the substance of them that I am concerned with.

PN77

MR MOLNAR: I understand that, sir, but on the leave application these are issues that we would need to examine and to test, and there are issues which because of the subject matter mean that there are special circumstances.

PN78

THE COMMISSIONER: But you see, you keep referring to these issues. I am trying to get a grip on what you said was the judicial power might be exercised, well, it can't be in relation to conciliation. The exercise of conciliation powers is not a judicial function, so let us leave that out, because what I am asked to do is to determine your leave application in the context of an application for conciliation and the exercise of conciliation powers. Exercise of judicial power is to determine the existing rights, duties and obligations of the parties. I am not being asked to do that. I am simply being asked to conciliate a dispute.

PN79

I just point out to you that in the grievance procedure there is no limitation on the disputes that are subject to the clause, and that is clear in clause 20.2. So, if we take out the question of the judicial power, what - - -

PN80

MR MOLNAR: Well, sir - - -

PN81

THE COMMISSIONER: What has any substance?

PN82

MR MOLNAR: My comments in relation to judicial power went to the issue of the section 99 application.

PN83

THE COMMISSIONER: I see. All right. Well, the Commission couldn't - - -

PN84

MR MOLNAR: Well, the new application - - -

PN85

THE COMMISSIONER: - - - couldn't arbitrate under the section 99 notification because there is a certified agreement in place. If the agreement covers the subject matter which the applicant concedes by virtue of the notification, then there is no arbitration power exercisable. The applicant has conceded that the subject of the introduction of change and the subject matter of the notification, ie the procedures adopted by the respondent in relation to the introduction of change, are the subject of the agreement. There is no room for the Commission to therefore make an award or order displacing the terms of the agreement or dealing with that matter.

PN86

So, therefore, we are left with this conciliation power which is the power that is not the conciliation power under the Act because the applicant has conceded that the conciliation which is sought is a conciliation contemplated by clause 20 of the agreement.

PN87

MR MOLNAR: Yes. And the powers given to the Commission arise by reason of application or by operation of section 170LW.

PN88

THE COMMISSIONER: That is right.

PN89

MR MOLNAR: What that clause has to do with:

PN90

The procedure in the certified agreement for preventing and settling disputes between the employer and the employees ...(reads)... (a) to settle disputes over the application of the agreement -

PN91

presumably that would be one that the applicant is making. We say fundamentally that there is no dispute over the application of the agreement, this agreement. What - - -

PN92

THE COMMISSIONER: But how can that not be so? I mean, the applicant says there is a dispute. There must be a dispute by virtue of the fact that they say so. We are not in a realm here of defining industrial disputes for the purposes of the Act. It is a dispute for the purposes of the agreement.

PN93

MR MOLNAR: There is a threshold issue. There is an issue relating to, well, what is the real dispute? This Commission, even though a party may say there is a dispute, is obliged to look at what the real dispute is. We in fact say that the real dispute goes to the next enterprise agreement, because what the applicant has been doing in terms of its negotiations is saying that this issue is a matter which should be put in the next enterprise agreement.

PN94

THE COMMISSIONER: Yes, but if they are in dispute about it with you now, if they are unhappy with what you have done in relation to any introduction of change, that is a dispute contemplated by the agreement, is it not? They want you to - they presumably want you to do something else about the introduction of change than you want to do. Now, maybe that is wrong, maybe that is not the presumption. Maybe they want you to do what it is you have done and intend to do, but I doubt it.

PN95

MR MOLNAR: But that is not a - if the real dispute is not over the application of the agreement, sir, then there is no jurisdiction under section 170LW.

PN96

THE COMMISSIONER: That is correct, but I mean, I am presuming that the reason why the applicant is here is because they want you to do something different in relation to the introduction of changes than you have done so far. Isn't that right? Or does that need to be proved?

PN97

MR MOLNAR: Well, I think that may need to be established, sir.

PN98

THE COMMISSIONER: Well, are we going to waste our time looking at things that are on the record, because I am not going to be very happy about that, if what we do is spend a lot of the Commission's time receiving evidence about self-evident things.

PN99

MR MOLNAR: Look, sir, we don't wish to waste the time of the Commission. We do wish to reserve our position on some of these issues. We ultimately do wish to have a conciliation. We do wish to have a talk today to be able to resolve these issues, but we do wish to reserve our position on some of the other sort of perhaps threshold issues. But fundamentally, we came along today - - -

PN100

THE COMMISSIONER: Well, I am not dealing with the question of whether or not you would be granted leave in relation to any arbitration. I thought that was clear, but I will make that clear. I am only dealing with what the applicant seeks at the present time, and whether or not I will allow leave to counsel to intervene in relation to those proceedings and what is sought is conciliation.

PN101

MR MOLNAR: Well, before the Commission has any power under this clause there are some threshold issues relating - can I suggest, sir, that the best perhaps way of approaching - - -

PN102

THE COMMISSIONER: But well, you see, the threshold issue that you have identified and with which I agree is whether or not the dispute is about the application of the terms of the agreement. Now, that is probably in this case a matter of fact, primarily, and it is a question of whether or not the LHMU has actually put propositions to you that the way to deal with what they perceived to be changes which are likely to occur or certain to occur, are proposals to act differently. Is that right, or not? Have they, or have they not?

PN103

MR MOLNAR: They have - well, it is not clear to us what precisely is the problem.

PN104

THE COMMISSIONER: Have they communicated with you at all?

PN105

MR MOLNAR: They have; they have talked to my client about some of the issues, but it is not clear to us.

PN106

THE COMMISSIONER: Have they said anything to your client about what they would like your client to do?

PN107

MR MOLNAR: Not in a precise manner, quite frankly.

PN108

THE COMMISSIONER: All right. Well, let me hear from them for the moment.

PN109

MR MOLNAR: Can I - before we do that - perhaps suggest the way we might proceed today, and may I suggest that we proceed on the basis of the section 99. If the applicant wants to bring a section 170LW then they can do so at some other stage which is properly structured and we are actually given notice of that and come along today, well, to the hearing in relation to section 170LW, we proceed on the section 99, and then I - because I have got the material here - perhaps go through that material in the most efficient sort of manner that we can, and that won't take very long.

PN110

THE COMMISSIONER: But what I - I think the most efficient thing we can do is find out what the applicant wants.

PN111

MR MOLNAR: Okay.

PN112

THE COMMISSIONER: Go ahead.

PN113

MS ILIAS: Commissioner, would you - - -

PN114

THE COMMISSIONER: What would your preferred outcome be in relation to these changes that you apprehend?

PN115

MS ILIAS: Our preferred option would be to be able to sit down and work through the issues that we have tried and have raised with the RSPCA.

PN116

THE COMMISSIONER: Have you documented your concerns at all?

PN117

MS ILIAS: No. There have been many occasions where - - -

PN118

THE COMMISSIONER: But there has been a number of meetings, has there?

PN119

MS ILIAS: There has been a number of meetings, Commissioner.

PN120

THE COMMISSIONER: And what has been the subject matter of the meetings?

PN121

MS ILIAS: The subject matter has been in relation to the RSPCA wanting to change areas within their structure. They want to - - -

PN122

THE COMMISSIONER: What do these areas mean, change areas, what does that mean?

PN123

MS ILIAS: The area that they wish to change is the reception office area, Commissioner.

PN124

THE COMMISSIONER: And how do you know that?

PN125

MS ILIAS: I have been informed this by the delegates and the organiser.

PN126

THE COMMISSIONER: All right.

PN127

MS ILIAS: That have been attending these meetings.

PN128

THE COMMISSIONER: And they have been told by somebody in the management that there are proposed changes. Is that right?

PN129

MS ILIAS: Yes, Commissioner.

PN130

THE COMMISSIONER: And it is in the reception office area.

PN131

MS ILIAS: Yes.

PN132

THE COMMISSIONER: And do these changes affect anybody's work or employment?

PN133

MS ILIAS: Yes, it does, Commissioner.

PN134

THE COMMISSIONER: In what way?

PN135

MS ILIAS: Currently there are 13 nurses who work in a reception office and have a combination of duties which are theatre work, hospital wards, pharmacy and recovery. What the proposal is, is to change it to what is going to be called a customer service centre, and it is not clear and hasn't been determined, a number of new employees will be employed to fulfil that role, and the people who currently perform the duties of office and the other duties I have just highlighted will go back to pure nursing role.

PN136

THE COMMISSIONER: All right. Well, that is how you see it, that is what you think is going on. Is that right?

PN137

MS ILIAS: That is what I have been informed, Commissioner, and that is what the delegates have been told by senior management of the RSPCA. The concept of this idea was put to the consultative committee by management. There were a number of questions that were raised about the effects that it would have on the employees, whether there would be criteria on the six positions currently - but as I said, Commissioner, there are 13 nurses who fulfil those roles and six of those will go back to pure nursing roles, and how the criteria will be selected for that is not clear, whether there is enough work for the nurses to fulfil, so whether there will be job losses at another stage of these changes.

PN138

Also, Commissioner, there is a proposal that the front desk and shelter welfare desk will also be combined and how that will - - -

PN139

THE COMMISSIONER: All right. Well, you don't need to go through all of them. As I say, we are still in the leave application. What I am trying to sort out is whether there are any jurisdictional issues of substance.

PN140

MS ILIAS: Yes, Commissioner.

PN141

THE COMMISSIONER: And now you say that - I gather from your section 99 notification you think that some of the provisions of the agreement haven't been complied with. Is that right?

PN142

MS ILIAS: Commissioner, the reason that we say this is that we have asked, the delegates and the organiser have asked the RSPCA to supply a proposal about how the effects will take place and who will be affected, not affected, the roles, etcetera. That has been failed to be provided.

PN143

THE COMMISSIONER: So they have asked for this verbally, have they?

PN144

MS ILIAS: Yes.

PN145

THE COMMISSIONER: All right. Now, is that your primary objective, to obtain that information?

PN146

MS ILIAS: Yes, Commissioner, to come away with the information that we need on the details for the process and how it will affect the current structure and the employees.

PN147

THE COMMISSIONER: So you would like to see the matters either under contemplation or decided by the RSPCA reduced to writing for the information of the employees. Is that right?

PN148

MS ILIAS: Yes, Commissioner.

PN149

THE COMMISSIONER: And the union.

PN150

MS ILIAS: But also, Commissioner, may I just add to that that there will be no changes as per the dispute settlement procedure of the award, that the status quo will remain as per clause 20.5 of the disputes and grievance. My understanding is that there was a proposal for it to be implemented in November, but it has now been moved to 1 December.

PN151

THE COMMISSIONER: Thanks. Mr Molnar, is there any obstacle to that happening on behalf of your client?

PN152

MR MOLNAR: To a very large extent it has happened.

PN153

THE COMMISSIONER: It has happened?

PN154

MR MOLNAR: Considerable information, and I can lead you through this, has been supplied.

PN155

THE COMMISSIONER: In documentary form?

PN156

MR MOLNAR: Absolutely, sir. It has been supplied. We are still in the consultative process, and you know, documentation has been supplied, we have received feedback and no definite decision has been made about anything, sir.

PN157

THE COMMISSIONER: All right. Well, will you confer with the union and provide such additional information in response to any written request?

PN158

MR MOLNAR: Absolutely, sir. I mean, if they have a written request for information that will be supplied. There is no - - -

PN159

THE COMMISSIONER: It will be responded to. All right. Now, is it true that no action to effect the matters under deliberation is to be taken before December?

PN160

MR MOLNAR: Under the timeline there is a process, and I can take - perhaps take you to the timeline, sir. That might be convenient - - -

PN161

THE COMMISSIONER: All right.

PN162

MR MOLNAR: - - - at this stage. This is the revised one. Perhaps I could just have this marked as an exhibit, sir.

EXHIBIT #RSPCA1 REVISED TIMELINE

PN163

MR MOLNAR: This is a revised timeline. The reason why it has been changed is because it was thought necessary to broaden the - push back the times to enable further consultation. If I could perhaps take you through it, it starts in August, the objective was to finalise the design proposal, and you will see at the top, present it to the CEO, there were revisions to the proposal, key elements were extracted. There was consultation with the AWC managers - AWC stands for Animal Welfare Centre. There was - a summary of the proposal was sent to the joint consultative committee, which is a committee established under the enterprise agreement.

PN164

A dot point paper was circulated to the relevant staff. There was a second presentation to the CEO. There was a presentation of the exhibit to the management team. There was a brief to the strategic policy committee. There were feedback sessions with staff, and perhaps I could just take you to a further document, sir, which outlines the extent of consultation which has taken place with staff. And perhaps I could have this marked as an exhibit, sir.

EXHIBIT #RSPCA2 DOCUMENT OUTLINING EXTENT OF CONSULTATION WITH STAFF

PN165

MR MOLNAR: You will see that through September there has been extensive consultation with all the staff members, so there is one, two, three, four, five, six, seven, eight, nine, 10, 11, there have been about 11, 12, 13 opportunities to talk to staff about the proposals. And perhaps I could hand up to you, sir, really the proposal which has been circulated to staff, and if perhaps I could have this marked as an exhibit, sir.

EXHIBIT #RSPCA3 PROPOSAL

PN166

MR MOLNAR: You will see here that at the top of this proposal, this is the proposed redesign, is the rationale. And perhaps I could just explain to you, sir, that this affects the animal welfare centre. It is composed of two areas; the animal shelter and the veterinary clinic. The animal shelter, as the name suggests, provides care for sick, injured and stray animals, and provides - provided shelter for over 40,000 animals. It employs 17 full-time employees, six part-time employees and 13 casual employees. The other part is the veterinary clinic. This offers veterinary services to private clients and provides treatment for animals taken in by the animal shelter. It employs seven full-time vets, eight casual vets, 17 full-time vet nurses, one part-time vet nurse, and eight casual employees.

PN167

Essentially the changes - and if I could just take you to this document, sir - - -

PN168

THE COMMISSIONER: This is number 3.

PN169

MR MOLNAR: Number 3. If you have a look at the - - -

PN170

THE COMMISSIONER: Just before you go to the details, I would have thought that the preamble to the document establishes the 170LW jurisdiction fairly conclusively, does it not? The word "will" is used.

PN171

MR MOLNAR: This has been given to the staff as a proposal.

PN172

THE COMMISSIONER: Yes, well, that is true, but the word "will", the decision in the mind of the RSPCA on that piece of evidence is a clear intention to make changes.

PN173

MR MOLNAR: There is an intention to make changes, yes.

PN174

THE COMMISSIONER: Yes.

PN175

MR MOLNAR: The nature and extent of those changes is uncertain.

PN176

THE COMMISSIONER: Yes, but there is a decision seems to have been made to make changes.

PN177

MR MOLNAR: Yes.

PN178

THE COMMISSIONER: All right. Well, under those circumstances, aren't we at the situation where section 170LW will at least apply in relation to the introduction of change provisions? It is a dispute about the application of those provisions of the agreement.

PN179

[11.05am]

PN180

MR MOLNAR: Well, it relates to whether the consultations issues - - -

PN181

THE COMMISSIONER: Well, all I need to be satisfied is, for the purposes of 170LW jurisdiction is, that the dispute which is alleged is a dispute about the application of the agreement. The agreement has a clause which deals with the subject, Introduction of Change. Exhibit RSPCA3 evidences a decision of intent to introduce changes.

PN182

MR MOLNAR: We say, sir, that the real dispute relates to the next EBA. What the - - -

PN183

THE COMMISSIONER: Well, that might be another dispute.

PN184

MR MOLNAR: But we would say that that is the real dispute.

PN185

THE COMMISSIONER: Well, there is no need for there to be a choice between any dispute. All disputes are real for the purposes of the agreement, are they not?

PN186

MR MOLNAR: No, sir. If the real dispute - - -

PN187

THE COMMISSIONER: Yes. Yes, they are. They are real, aren't they, clause 20.2, any dispute?

PN188

MR MOLNAR: Only disputes relating to the application of the agreement. The dispute resolution clause - - -

PN189

THE COMMISSIONER: That is right, any dispute relating to the application of the agreement.

PN190

MR MOLNAR: And we say, sir, that the real dispute is not related to the application agreement. All through these - - -

PN191

THE COMMISSIONER: Yes, but I don't know what you are talking about, with all due respect. What is the real dispute about? Do you have any authority for this proposition under section 170LW?

PN192

MR MOLNAR: Yes, there has been a number of - - -

PN193

THE COMMISSIONER: The use of the word, "real"?

PN194

MR MOLNAR: Related to. Well, yes, these issues have been litigated in these sort of cases.

PN195

THE COMMISSIONER: I am familiar with most of the cases. I don't recall any reference to the distinction of a real or an unreal dispute.

PN196

MR MOLNAR: I didn't come here to talk about the nature of section 99.

PN197

THE COMMISSIONER: But that is what you are relying on. You are making a jurisdictional point that there has to be a real dispute.

PN198

MR MOLNAR: Well, I am - yes, I am.

PN199

THE COMMISSIONER: And you are saying this dispute isn't real? This is a fanciful dispute.

PN200

MR MOLNAR: No. Because the real dispute here is about the next EBA, which is not over the application - - -

PN201

THE COMMISSIONER: Well, there may be a dispute about the next EBA, but I don't need to worry about that. There is no - look, I think what you are tracing is this notion of genuineness that applies to the exercise of the Commission's statutory powers.

PN202

MR MOLNAR: The issue - - -

PN203

THE COMMISSIONER: And you are introducing it into the 170LW jurisdiction, where it doesn't have the same effect.

PN204

MR MOLNAR: The dispute must be over the application of the agreement.

PN205

THE COMMISSIONER: True.

PN206

MR MOLNAR: If the Commission determines that it - that the dispute i snot over the application of the agreement, section 170LW doesn't apply.

PN207

THE COMMISSIONER: Correct. There is no jurisdiction.

PN208

MR MOLNAR: All through these negotiations, what the union have focused on is the next EBA. We say, based on that, that what they - - -

PN209

THE COMMISSIONER: The negotiating conduct of the parties is irrelevant.

PN210

MR MOLNAR: But it displays intent.

PN211

THE COMMISSIONER: The parties can't characterise the dispute. You can't. They can only notify it, and the Commission has to evaluate whether or not the nature of the demand, which is either not acceded to, or rejected - - -

PN212

MR MOLNAR: Correct.

PN213

THE COMMISSIONER: - - - is a demand which concerns the application of the agreement.

PN214

MR MOLNAR: Correct.

PN215

THE COMMISSIONER: That is the only issue.

PN216

MR MOLNAR: And that is an issue - - -

PN217

THE COMMISSIONER: What the parties say to one another at the negotiating table is not - - -

PN218

MR MOLNAR: But that is a matter of evidence and we say that the intent - the real dispute here is what goes into the next EBA, not over this application of this agreement.

PN219

THE COMMISSIONER: Do you want to respond to that, Ms Ilias? Do you want something to be done about these procedures or - when does the agreement expire?

PN220

MS ILIAS: The agreement doesn't expire until March 2004, Commissioner.

PN221

THE COMMISSIONER: Right, so you want something done between now and then?

PN222

MS ILIAS: This dispute relates about the current EBA, with the implemental change that is going to affect the staff prior to the expiry date of the next agreement. I can't give submissions about what took place in the negotiations of this issue, Commissioner.

PN223

THE COMMISSIONER: Yes. Mr Molnar, I am not really interested in hearing more about the concept of the real and unreal dispute. I think it is a dead end, with all due respect. The only thing that could arise out of this notification is activities in relation to events likely to occur, and on RSPCA1, 2 and 3, intended to occur prior to the expiry of the agreement. Isn't that right? If these exhibits are the subject matter of the disputation between the parties, my cursory - maybe I have got it wrong, but they all occur prior to the termination of the agreement, don't they?

PN224

MR MOLNAR: That is the intent, sir.

PN225

THE COMMISSIONER: So it is not about the next agreement, it is about what happens in the life of this agreement under the terms of this agreement.

PN226

MR MOLNAR: We say that it is possible that it may have that character, but we say that - - -

PN227

THE COMMISSIONER: Well, that is all it needs, isn't it?

PN228

MR MOLNAR: Well, we would say - - -

PN229

THE COMMISSIONER: If the union wants to talk to you about the next EBA, that is irrelevant to my considerations, that is something the parties can do.

PN230

MR MOLNAR: Yes, but what we say is that the dispute is not over the application of the agreement. We say - - -

PN231

THE COMMISSIONER: Yes. No, I hear that - - -

PN232

MR MOLNAR: Yes, that you hear that.

PN233

THE COMMISSIONER: - - - but look, with all due respect, I don't find it very persuasive. What is it that you want exactly as a result of this notification?

PN234

MS ILIAS: Commissioner, "meaningful discussions" is a good term to put, that the RSPCA sit down - - -

PN235

THE COMMISSIONER: Well, they have agreed to meet and confer with you.

PN236

MS ILIAS: Yes.

PN237

THE COMMISSIONER: And to answer any requests for information.

PN238

MS ILIAS: That is what we seek. We seek something in writing that explains how the effects - - -

PN239

THE COMMISSIONER: Well, why don't you write to them and request the information that you want.

PN240

MS ILIAS: We can do that, Commissioner, we can put it on the document.

PN241

THE COMMISSIONER: All right. If they respond to you in a reasonable time, wouldn't that be a better basis for the conduct of any conciliation, if what you are really seeking is the provision of information?

PN242

MS ILIAS: Yes, Commissioner.

PN243

THE COMMISSIONER: All right.

PN244

MS ILIAS: As long as that 20.5 of the disputes and grievance procedure is upheld by the RSPCA.

PN245

THE COMMISSIONER: Well, that is - as long as these things occur within the time frame that are already - that is already exhibited, nothing is going to happen to give effect to any of the intentions; isn't that right? That would affect the employees, that is to say.

PN246

MS ILIAS: Yes, Commissioner.

PN247

THE COMMISSIONER: Because that is the scope of the introduction of change clause. It applies to the effects upon employees, does it not?

PN248

MS ILIAS: Yes, Commissioner.

PN249

THE COMMISSIONER: So my understanding is that - well, we are very close to this scenario, I suppose.

PN250

MR MOLNAR: Sir, where we are - and I will be quite precise where we are - is that the employees have raised a number of issues, and perhaps I could hand up this document to you, sir. This is a draft response to the issues which the staff have put forward to the employer. This is a draft - it hasn't gone to the employees, and I would ask that it not be given to the employees until it has been - actually been finalised. and perhaps if I could have this marked as an exhibit, sir.

EXHIBIT #RSPCA4 DRAFT RESPONSE

PN251

MR MOLNAR: In the left-hand column you will see that these are the issues which the staff have raised, and this is the proposed response by the employer. So you will see that there has been a number of discussions with the employees through the 11 or so consultation meetings, plus all the other meetings that the employers had with the union. A number of issues have been raised, and now we are proposing to respond to those issues in the manner put forward by the response.

PN252

And as a result of the issues raised by the employees, sir, there have in fact been modifications to the proposal. We have listened to what they had to say. They have wanted still an involvement at the front desk, and we have given that involvement, insofar as the veterinary nurses are concerned. So there has been a two-way sort of process. This document I have just been instructed was to be given to them this week, has been delayed because of these proceedings, but it is proposed, sir, that it will be given, either today, but I also believe some employees might have been given it yesterday.

PN253

THE COMMISSIONER: All right. I think it would be a good idea to distribute this, don't you, as soon as practicable?

PN254

MS ILIAS: Commissioner, we haven't a problem with the distribution fo the document. This was requested from the RSPCA a couple of weeks ago. My - - -

PN255

THE COMMISSIONER: Well, that is probably why you notified it to the Commission.

PN256

MS ILIAS: Yes, and - - -

PN257

THE COMMISSIONER: So in any event, I think where we are up to is the RSPCA will meet and confer with you and they will respond expeditiously to any request for any additional information. You have this which is additional information. You can use it for the formation of any request. What more can I do?

PN258

MS ILIAS: At this stage, Commissioner, I don't know whether there is anything more but - - -

PN259

THE COMMISSIONER: Except re-list this matter?

PN260

MS ILIAS: Yes, if we desire we will make application to have it re-listed.

PN261

THE COMMISSIONER: I am going to reserve the position on whether or not leave is granted for Mr Molnar to appear as counsel, and adjourn these proceedings to a future date, on the understanding that no implementation is likely to occur within the time that I will list the matter for report back. So when can I safely do that? Within two weeks? All right.

PN262

MR MOLNAR: And perhaps if we could get some sort of commitment from the union when they will sort of make their request, formalise their request for information?

PN263

THE COMMISSIONER: Within that time.

PN264

MR MOLNAR: But there would need to be an appropriate period of time which my client would need to respond by.

PN265

THE COMMISSIONER: Yes, all right. Look, what I will do is - you try and work out a timetable for that. And if you have any difficulties with it, I will just put it on for mention, and sort it out. Unfortunately, I think it wouldn't be before either 28 or 29 October, and I can't tell you precisely when it will be, because I have got matters in the diary, and I am not sure how long they will go on those days. I will put it on the afternoon of the 28th at 2.30 pm.

PN266

As I say, if the parties would work out a timetable for the issuance of the notifier's request for further information, and to provide the response, and I will list the matter as I said, on the 28th, on the assumption that there will be no change in the working arrangements in that time.

PN267

MR MOLNAR: And that is agreeable and acceptable. There are, as you can see in the timeline, there is further consultation which needs to take place with the staff.

PN268

THE COMMISSIONER: Yes, yes.

PN269

MR MOLNAR: There is going to be discussion about selection criteria. It is obviously going to be sort of formal advice, which is going to given to the union. No doubt this will be sort of incorporated. the proposed structure was supposed to be sort of announced. But, you know, we are happy to say that there will be no formal changes to the working arrangements until the - - -

PN270

THE COMMISSIONER: Well, at the moment, what the applicant and notifier wants has been dealt with. If there are steps in relation to RSPCA1 that are contentious or whatever, that may arise. It is perhaps appropriate to discuss them now. Are there any steps in RSPCA1 which are contentious? I mean I would have thought that, you know, management decisions that take account of this notification and these proceedings would probably be expected - I would expect management probably to consider the time-line having regard to the fact that these proceedings have arisen.

PN271

MR MOLNAR: We have done so already.

PN272

THE COMMISSIONER: And to try fit the stepping process in with this to enable the matter to be brought a conclusion if necessary, any further than it has been today, on the 28th. But there is - I notice that there is a fair bit of information there which is indicative that there are, if any, very limited adverse or prejudicial effects on employees. There are no redundancies, for example.

PN273

MR MOLNAR: No, sir.

PN274

THE COMMISSIONER: I understand that there may be reallocation of duties but there is no intention to prejudice anybody's terms and conditions of employment - is that right - that they will continue, that all the employees will continue to enjoy their existing terms and conditions of employment?

PN275

MR MOLNAR: Precisely, sir.

PN276

THE COMMISSIONER: All right.

PN277

MR MOLNAR: What we are talking about is a dysfunction.

PN278

THE COMMISSIONER: Yes, all right. Well, I don't - apart from perhaps some grievance about something to do with the allocation of duties, I can't see the effects on employees being prejudicial, having had a cursory reading of RSPCA4. But if there are, you can tell me on the 28th. Very well, I will adjourn these proceedings to 2.30 pm on 28 October. Thank you.

ADJOURNED UNTIL TUESDAY, 28 OCTOBER 2003 [11.17am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #RSPCA1 REVISED TIMELINE PN163
EXHIBIT #RSPCA2 DOCUMENT OUTLINING EXTENT OF CONSULTATION WITH STAFF PN165
EXHIBIT #RSPCA3 PROPOSAL PN166
EXHIBIT #RSPCA4 DRAFT RESPONSE PN251