AG2003/7431, Transcript of Proceedings [2003] AIRCTrans 5118 (19 November 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 5207

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2003/7431

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Australian Nursing Federation -
Victorian Branch and Others for the
certification of the Eildon Nursing Home,
ANF and HSUA Certified Agreement 2002

MELBOURNE

10.24 AM, WEDNESDAY, 5 NOVEMBER 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, I will take the appearances, please.

PN2

MS L. KELLY: I appear for the Australian Nursing Federation.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Kelly.

PN4

MR J. YIANOULATOS: I appear on behalf of the HSUA.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Yianoulatos.

PN6

MR S. McCULLOUGH: Good morning, your Honour. I appear on behalf of Eildon Nursing Home in this matter.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, Mr McCullough.

PN8

MS KELLY: Thank you, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: You will have to a bit more persuading this time, Ms Kelly.

PN10

MS KELLY: Yes, your Honour. The first matter that I will need to deal with, with regard to this application is the lodgement date. This agreement was lodged, by my calculations, 54 days out of time, and we would seek the Commission's discretion under section 111(i)(r) of the Workplace Relations Act regarding the extension of prescribed time for late lodgements. Mr McCullough - - -

PN11

THE SENIOR DEPUTY PRESIDENT: Why was it lodged so late?

PN12

MS KELLY: Mr McCullough may be able to provide specific detail as to why the agreement was lodged late. I understand the facility was undergoing accreditation. The owners are fairly new to the industry and they had little understanding of the process but if Mr McCullough could provide more detail, I would appreciate that.

PN13

I can advise that since the date of the ballot and today's date, there has been a turnover of only 1 staff member. The agreement was balloted on 26 June. The result of that ballot was 19 to 1 in favour of the agreement. Did you want me to proceed with the application?

PN14

THE SENIOR DEPUTY PRESIDENT: Yes, please.

PN15

MS KELLY: This is an application again, under Division 2, Part VIB of the Workplace Relations Act, to certify this agreement under section 170LJ. This agreement is similar in terms to the agreement previously dealt with. The agreement contains a dispute settling procedure at clause 35 of the agreement and I would - sorry, clause - yes, clause 35 of the agreement. The agreement provides terms over and above the current award conditions and unless your Honour has questions, I would seek that this agreement is certified in the terms sought as of today's date, if the Commission pleases.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Yianoulatos? Have you got any explanation for the delay?

PN17

MR YIANOULATOS: Sir, I can only say that in relation to our position, the agreement was received by us on 8 September 2003. It was signed on 9 September 2003 and we, in fact, couriered it off the other party on 10.9.2003.

PN18

THE SENIOR DEPUTY PRESIDENT: Did you not make any inquiries as to why it had not been received somewhat closer to the day of the vote?

PN19

MR YIANOULATOS: No, sir. Unfortunately, I am at a loss to provide any explanation or any comfort to the Commission in those terms. Perhaps Mr McCullough could shed some light in relation to what the status is in relation to this matter? In any event, sir, we do support the application in relation to certification of this agreement, in view of what has been said by my friend in relation to the majority of members voting on this. In support of the application, we rely on the statutory declaration of Craig Thompson. Thank you, sir.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. Mr McCullough, you have got to try to persuade me as to why I should extend the time.

PN21

MR McCULLOUGH: Yes, your Honour. With regards to that application, there are a couple of matters that are particular to this business. The proprietors of this particular business have had it for some period of 18 months. Accreditation, while it is a challenge for all employers within this particular industry, has been a particular issue with regards to this facility. They have had a lot of work to do in order to satisfy - and read that, successfully - which they did. That accreditation fell due in July.

PN22

I'm also of the understanding that the proprietors - this is their first purchase of an aged care facility. There is almost a zero awareness of the requirements of the Workplace Relations Act. Although they received all the relevant materials, they have not provided the documents or returned them within a satisfactory period of time. I can confirm to the - - -

PN23

THE SENIOR DEPUTY PRESIDENT: Was your organisation involved in facilitating the making of this agreement?

PN24

MR McCULLOUGH: That is correct, your Honour. The documents - - -

PN25

THE SENIOR DEPUTY PRESIDENT: Why did you not chase it up?

PN26

MR McCULLOUGH: We would have made a number of calls during that period of time. That has been our practice with regards to all the documents. There have been some 130 agreements, I guess, that have passed through our office. The responsiveness with regards to those inquiries vary greatly from 1 facility to another. It is significantly out of time. The delay was with the facility. Effectively, the documents for signing returned there not long after the vote, but sat there during the period of accreditation.

PN27

I can confirm though that there was an overwhelming majority in favour of the agreement and that there has been a small turnover of staff and 1 person has left. Your Honour, it is a long way out of time. I do realise that but there are some particular difficulties for these proprietors but what I would say is that if the matter is not certified today, that probably the only party that could stand to be penalised potentially would be the employees who stand to gain benefits under this agreement. We would support the application made under section 111(i)(r) for the exercise of your discretion although I do recognise that it is a significant test of the Commission's patience.

PN28

THE SENIOR DEPUTY PRESIDENT: Indeed.

PN29

MR McCULLOUGH: With regards to the application for certification, we would also support that application. It is read in conjunction with the relevant awards and we say meets the requirements of the no disadvantage test. If the Commission pleases.

PN30

THE SENIOR DEPUTY PRESIDENT: You know, I don't know how many times I have to emphasise to the parties in front of me that the time frames are prima facie, to be complied with. I'm sounding like a broken record and I'm sick of hearing my own voice quite frankly. As Mr McCullough says it is the employees who will suffer and they are the innocent parties if the discretion is not exercised in favour of the applicant so I will extend the time for filing the documentation until 8 September 2003 and I will certify the agreement for reasons given in the preceding matter.

SHORT ADJOURNMENT [10.30am]

RESUMED [10.36am]

PN31

THE SENIOR DEPUTY PRESIDENT: Yes. Mr McCullough, while you are on your feet, in relation to the last matter for Eildon Nursing Home, the statutory declarations seem to indicate it was part of a single business, but that does not seem right to me.

PN32

MR McCULLOUGH: My understanding is that the statutory declaration refers to NDN Care Services Proprietary Limited trading as Eildon Nursing Home. Your Honour, with regards to that description of the business, I think it is fair to say that the agreement applies to the whole of that business. However, whether or not there was any other operation conducted by NDN Care Services Proprietary Limited that do not fall within the scope of this agreement, I'm not aware.

PN33

THE SENIOR DEPUTY PRESIDENT: So we really don't know whether that one applies to the whole or part of the single business.

PN34

MR McCULLOUGH: Your Honour, so far as the description in the statutory declaration where it makes reference to NDN Care Services Proprietary Limited trading as Eildon Nursing Home, I think that the appropriate assessment would probably be whole of that business, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Yet the statutory declaration on behalf of the director manager says that it is part of a business that is geographically distinct.

PN36

MR McCULLOUGH: I think that has been done on the basis, your Honour, that there is not - as to whether or not there's any other operation conducted by NDN Proprietary Limited as opposed to Eildon Nursing Home. It is less than clear in the way that that has been prepared and I do apologise. But I think that with regards to the Eildon Nursing Home part of that business, that is the entire - - -

PN37

THE SENIOR DEPUTY PRESIDENT: Applies to the whole of that business?

PN38

MR McCULLOUGH: That is correct, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, well we certify on that basis.

ADJOURNED INDEFINITELY [10.37am]