BP2002/5189, Transcript of Proceedings [2003] AIRCTrans 4878 (5 November 2003)

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TRANSCRIPT OF PROCEEDINGS

O/N 5053
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

BP2002/5189

APPLICATION FOR INITIATION OF
BARGAINING PERIOD

Application under section 170MI of the
Act by The Association of Professional
Engineers Scientists and Managers Australia
and Another for initiation of bargaining
period re Austin and Repatriation Medical
Centre, Studley Road, Heidelberg

MELBOURNE

10.O7 AM, MONDAY, 20 OCTOBER 2003

Continued from 28.8.03

PN11

THE COMMISSIONER: Any change in the appearances?

PN12

MR CORBOY: No, Commissioner.

PN13

MR ARTIS: I believe the last time we were before you, Mr Commissioner, we didn't have Mr Wall with us. Mr Wall, I believe will be joining us shortly.

PN14

THE COMMISSIONER: Well, I have only got your word for that, Mr Artis. Normally it would be good enough, but that person, you say he does exist. All right. Now who is going to say something that will advance this matter? Mr Artis, I - no, Mr Corboy is upstanding.

PN15

MR CORBOY: Yes, Commissioner. The last time we were before you we were just about to undertake a degree of, or a number of hopefully fruitful meetings. They were based around the document entitled, APESMA Outstanding Claims, where items 3, 4 and 5 were still to be agreed, following the previous exchange of correspondence in October last year.

PN16

In addition to that there were three other claims that MR Artis was seeking agreement. One was for the payment of child care allowance; the other was for the extension of the overtime provisions to part-time employees; and the third one was the returning from maternity leave part-time position or possibility.

PN17

As a result of discussions, Mr Artis provided a draft document loosely based upon the MSAV Number 4 Certified Agreement where the clauses had been worded, and this was distributed to our members. Our members had previously indicated that on the outstanding claims matters, 3 and 4 were - in principle they would be worked with, but point number 5, especially regarding the out call allowance being increased, there was one employee that had a problem with the overtime arrangements being increased because of the lack of funding, identified funding from the State Government.

PN18

Now, consequently I must say Mr Artis's draft provided a wonderful discussion point for our members, and there was a fairly fiery - perhaps I may rephrase that - there was a fairly direct meeting we had of members, where I was able to provide an amended draft document to Mr Artis. I believe that was provided on Thursday while I was interstate.

PN19

We have had, a bit like the curate's egg, mixed blessings out of the discussions that were undertaken. The study leave proposal, we have put back a proposed draft. Again, we concede that most of these need rewording. Perhaps I might hand up to the Commission - for your assistance, Commissioner, I will hand up the outstanding claims matter. I think you do have it.

PN20

Now, unfortunately, areas where I was hoping to seek agreement, that is, on the point 5 issues, was not able to be achieved.

PN21

THE COMMISSIONER: Well, I don't know that these are exhibits: I think not, Mr Artis, but I think perhaps the APESMA, the summary sheet, the APESMA Outstanding Claims should be your - Mr Corboy is being a bit of a bandit here, he is taking your exhibits, but I will mark the APESMA Outstanding Claims VHIA1, and the second document which I think is your - is this a discussion document, or a summary? What is that?

PN22

MR CORBOY: It is my amended draft response to APESMA.

EXHIBIT #VHIA1 APESMA OUTSTANDING CLAIMS

EXHIBIT #VHIA2 AMENDED DRAFT RESPONSE

PN23

MR CORBOY: And there is one further point, Commissioner. We had put a proposed date of the agreement applying from, I think it was the 16th or the 19th September, so there was a retrospective date of application. Now, if I may go through, Commissioner. On the study leave, you will see in point 35.2, because 35.1 - in the cutting and pasting exercise the Blair Decision in Number 4 Certified Agreement had a specific provision for numbers of places, so we have sort of cut that out. We have made the changes in italics, so where there have been changes to Mr Artis' draft, or proposed draft, we have the italics there.

PN24

There is a fine tuning of the study leave process where it is - we are seeking mutual agreement on that particular process. On the conference leave, which is entitled clause 36, remembering this is - - -

PN25

THE COMMISSIONER: You say in the fourth line of 35.2:

PN26

The employee must notify the employer of any change.

PN27

Does that refer to any proposed change?

PN28

MR CORBOY: That was any change of the agreed leave. That clause was put in, or requested to be put in by our members, on the basis that sometimes when someone undertakes studies there is a change to the study time table.

PN29

THE COMMISSIONER: Yes, so that is a proposed change?

PN30

MR CORBOY: Yes, a proposed change. So that clause was put in just, for example, for that particular scenario. Now, Mr Artis, I believe got this on Thursday while I was interstate, so he may or may not have had time to fully assess it.

PN31

With the conference leave, it went from a "shall" to a "may", in 36.1, and again we are focusing on agreement with the employer. 36.3, that original clause had the MSAV on number 4 provision of not requiring a report back. The employers were seeking that any Biomedical Engineer going on report leave would share that information with fellow colleagues in the workplace.

PN32

The professional development leave, over the page, Commissioner, unfortunately was not agreed, but there a bit of sort of cut and pasting here. The higher qualification allowances are basically agreed, and I omitted to put this in here. The employers would be seeking that if a Biomedical Engineer is receiving an above award payment, that the higher qualifications allowances if increased would be able to be offset against payments currently made.

PN33

We also had a list of qualifications provided by Mr Artis, but these were more of the Medical Scientist classification. We were hoping if we could identify some biomedical ones, or ones that related to biomedical engineering, we would hopefully agree on a list as soon as possible. What appears as item 12 on page 2, the night shift allowances, that has been agreed, but there may need to be some rewording of that.

PN34

I believe what may be one of the more contentious issues is the on call allowance, where previously some members indicated that they could pay it, and some members had trouble with it. I have not got agreement on our members agreeing for the on call claim by the APESMA.

PN35

Rest breaks, item 19, has been agreed. Over the page, item 18, the four clear days proposal: our members unfortunately have not got funding for it, and they cannot agree this time. Clause 20, the overtime, the increase of - so that is the overtime being provided to a part-time employee after a set number of hours, or the normal shift hours, that has been agreed.

PN36

What appears as item 14, at the bottom of that page, where someone returning to work from a maternity leave or parental leave situation, the part-time employment provision has been agreed, but possibly may need some reworking. And the child costs claim from APESMA has been agreed as well.

PN37

So just in summary, we had three identified points from VHIA1, being 3, 4 and 5. And the three additional claims for - I am not saying additional claims, because they were claims in the original log - the child care costs, the part-time maternity leave, and the overtime for part-timers. Now, out of those we only appear to have problems with number 5, from point 5 on VHIA1, where there is a cost increase.

PN38

Now, I have not got any complaint from members regarding the application date, so at this stage hopefully we can sort of move forward on that. However, I think it is perhaps seeing where we go, whether Mr Artis can agree to this form of documents, we can move it forward, or whether he would wish to pursue it in some other form. Thank you, Mr Commissioner.

PN39

THE COMMISSIONER: Yes, thank you, Mr Corboy. Mr Artis.

PN40

MR ARTIS: If the Commission pleases. The VHIA response, which is VHIA2, to the document - to the exhibit VHIA1, we did receive that from the VHIA on Friday of last week, on 17 October. So I have had a chance to have a look through it.

PN41

Just by way of further explanation, Mr Commissioner. The claims that the Association has made on behalf of its members upon the Victorian Hospital Industrial Association have appeared in several forms throughout these proceedings. There was an original log served in April 2002.

PN42

The document which we have been using as a basis for discussion since the matter was brought to the attention of the Commission, and this is the document headed, APESMA Outstanding Claims by Medical Engineers in Victorian Public Hospitals, was something which I prepared as a shorthand version of the original claims, simply to inform the Commission of what the outstanding matters were.

PN43

VHIA1 is something which I prepared and forwarded to the VHIA since our last report back to the Commission. Apparently I have incorrectly listed the exhibits. Mr Corboy is advising me that VHIA1 is APESMA Outstanding Claims by Medical Engineers in Victorian Public Hospitals.

PN44

THE COMMISSIONER: Correct.

PN45

MR ARTIS: I did not get that correct, and I apologise. VHIA2 is the response of the VHIA to the document I was just describing, so it might be opportune, perhaps, to table the document I am referring to.

PN46

THE COMMISSIONER: Mr Artis, I am very happy for you to get on the board with these exhibits, but is this different than VHIA2?

PN47

MR ARTIS: It is.

PN48

THE COMMISSIONER: It is. Good, very well. I have had a quick look, and it didn't look very different, but it is now going to be forever APESMA1.

PN49

MR ARTIS: Is the document that I just handed the Commission, does that have italics in it?

PN50

THE COMMISSIONER: It does.

PN51

MR ARTIS: Yes, well it is the wrong document, Mr Commissioner.

PN52

MR CORBOY: Excuse me, Commissioner, if Mr Artis wants to table that, I may have a couple of copies, but it will need a couple of minutes to de-staple them.

PN53

MR ARTIS: Perhaps we can just pause for a minute to sort ourselves out, Mr Commissioner.

PN54

THE COMMISSIONER: Yes, Mr Artis. We will go off the record.

OFF THE RECORD

PN55

THE COMMISSIONER: Yes, Mr Artis. Well, it will be forever APESMA1.

EXHIBIT #APESMA1 OUTSTANDING CLAIMS BY MEDICAL ENGINEERS IN VICTORIAN PUBLIC HOSPITALS

PN56

THE COMMISSIONER: So this new document, APESMA1, one suspects will not play a major role. APESMA2, on the other hand, is a document headed APESMA Claims and MSAV Clauses.

EXHIBIT #APESMA2 APESMA CLAIMS AND MSAV CLAUSES

PN57

MR ARTIS: Now that particular document was prepared by me after our last report back to the Commission. What it did was to - it sought to clarify our claims in exact terms by duplicating the outcome to those claims in the Medical Scientists Association Enterprise Bargaining Agreement. All our claims were based on - and these are the catch up claims - were based on the outcomes in that agreement. So to try and ensure that we didn't have any misunderstandings at this late stage as to what we are after, I reproduced the clauses in full for Mr Corboy's benefit. Apparently they have been used for subsequent discussions with his members.

PN58

Now, with respect to the responses to our claims, perhaps if this was June 2002 they might represent some progress, and a promising basis for further discussions. However, it is not June 2002, it is October 2003, and as far as the more substantive claims are concerned, it represents no progress at all in relation to our claims.

PN59

If I just might correct on the record. In relation to claim number 3, the leave provisions, I don't see them as being substantively agreed at all. In relation to conference leave provision, in sub-clause 36.1 - - -

PN60

THE COMMISSIONER: Yes, you say the "may" guts that clause.

PN61

MR ARTIS: Well, in sub-clause 36.1, the words have been added, "by agreement with the employer". Now, the reality is that that takes us no further than the current situation we have, because it is always possible for our members to take conference leave by agreement with the employer. The whole point to the provision in the MSAV agreement becomes a right of our members, and not something that is subject to the agreement of the employer.

PN62

So in relation to that, the addition of those words takes us no further whatsoever.

PN63

THE COMMISSIONER: Yes, and it may be that agreement, or the capacity for agreement on substantive claims is going to be few and far between. So if there is a chance, it seems to me that we have got to really focus on that. I wonder whether 36.1 as it is set out in VHIA2 is perhaps a little more negative than even its author intended. Because it may be that the author is prepared to acknowledge that there is a right for two days of this leave, conference leave, subject to the agreement. And that would mean that you are both able to have some satisfaction, once one adds, of course, that if agreement is unreasonably withheld in the view of an employee who seeks to action the right, that that can then be put to a practical test and determined. So you will not have a right which is incapable of being enjoyed because people just never grant the right.

PN64

MR ARTIS: Well, I think that is something that can be subject to further discussion, Mr Commissioner. At this stage I am only pointing out - I am just correcting perhaps a couple of impressions Mr Corboy gave. It is my intention to request the Commission in a couple of minutes time to adjourn into conference so we can have a close look at them.

PN65

THE COMMISSIONER: Yes. Well, I think that would be very helpful. But I see that, and 36.1 leapt off the page, I might say. As it is drawn, it does have a particular - it is hard to see that there would be much benefit gained.

PN66

MR ARTIS: And Item number - as far as our claim for three days professional development leave, which has been conceded to all other health professionals, for reasons which I am sure Mr Corboy will explain a bit later, it is not agreed, and we don't know at this stage why not.

PN67

In relation to the item number 5, I simply record at this stage that the reason given for the VHIA members non-agreement to the on call provisions and the four days clear, is because they have cost implications because there is no funding. VHIA has known since February this year that there is no funding for these claims.

PN68

When the parties were before the Commission on 12 June, my understanding was that the VHIA would be recommending to its members that they concede these claims, understanding that there is no funding, on the basis that there was no significant cost involved. We find it a little bit difficult to be in a situation today where we are simply being told that these claims are not being conceded because there is no funding.

PN69

Seven weeks have elapsed since we were last before the Commission. The entirety of that seven week period has been taken up with the VHIA ascertaining the views of its members on our claims. Those claims were first lodged in April 2002. Seven weeks was the time it took the VHIA to negotiate an entire agreement with the Health Services Union Number 1, from the time they lodged their claims until the time they had their agreement.

PN70

So I am perfectly happy now to retire into conference to see if we can make more progress, but I want to make it pretty clear on the record that our members have just about had enough of the attitude of the VHIA and the employers towards our claims. If the Commission pleases.

PN71

THE COMMISSIONER: Yes, thanks, Mr Artis. We will go off the record.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VHIA1 APESMA OUTSTANDING CLAIMS PN23
EXHIBIT #VHIA2 AMENDED DRAFT RESPONSE PN23
EXHIBIT #APESMA1 OUTSTANDING CLAIMS BY MEDICAL ENGINEERS IN VICTORIAN PUBLIC HOSPITALS PN56
EXHIBIT #APESMA2 APESMA CLAIMS AND MSAV CLAUSES PN57