AG2003/7634, Transcript of Proceedings [2003] AIRCTrans 5121 (19 November 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 5212

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2003/7634

APPLICATION FOR CERTIFICATION
OF AGREEMENT

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

MELBOURNE

10.53 AM, WEDNESDAY, 5 NOVEMBER 2003

PN1

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

PN2

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

PN3

MR M. RAHILLY: I seek leave to appear for Primelife Corporation Limited.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes. Leave is granted, Mr Rahilly. Ms Kelly?

PN5

MS KELLY: If the Commission pleases - - -

PN6

THE SENIOR DEPUTY PRESIDENT: You can address both the XF application and the application for certification, please.

PN7

MS KELLY: Did you want me to go to the 170XF application first?

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, please.

PN9

MS KELLY: Yes. ANF has applied for 170XF application with respect to Villa del Sol Hostel. HSUA have applied 170XF application or have submitted 170XF application with respect to seven of the 14 Primelife facilities. I will let my colleague here speak to the Health and Allied Service Award matters.

PN10

THE SENIOR DEPUTY PRESIDENT: I take it that Primelife Corporation Limited is not a respondent to the award?

PN11

MS KELLY: That is correct, your Honour. As a corporation it is not named as a respondent in the awards - in our other award - other than to be respondent to - it is named as a respondent to change of shift penalty order in each award, but not as employer of the facilities.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes.

PN13

MS KELLY: I can advise that ANF is currently dealing with roping-in Villa del Sol. I can't speak for what the Health and Allied Services Union is doing or the Health Services Union of Australia is doing with respect to their seven facilities that are currently not respondent. ANF believes that the Nurses Award is the appropriate award for employees who are engaged to provide nursing services. The Nurses (Victorian Health Services) Award 2000 is the respondent award for 13 of the 14 facilities with respect to registered nurses.

PN14

It is a key designated award for the private aged care sector for this type of work and with respect to this we request that the application is granted for the purpose of the no disadvantage test.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes. Now, if you could address the agreement.

PN16

MS KELLY: Thank you. Again, this is an application under division 2 of part VIB of the Workplace Relations Act. The agreement is similar in terms to the others that are before you today. It provides for a wage increase each year of the agreement. There is a dispute settling procedure at clause 35 of the agreement and if I could just advise the Commission that on the ANF statutory declaration, we also omitted to name one of the facilities at 3.1, that is Lexington Gardens, we should have inserted that there with the other facilities.

PN17

THE SENIOR DEPUTY PRESIDENT: Is that dealt with in the other statutory authority?

PN18

MS KELLY: I believe so. We also have the bargaining period number for Lexington Gardens, is listed in 7.8 of the statutory declaration. It is just that the name was omitted from 3.1 in our preparation of that document.

PN19

THE SENIOR DEPUTY PRESIDENT: What about the agreement itself?

PN20

MS KELLY: No, the facilities aren't named as such in the body of the agreement. There may be - - -

PN21

THE SENIOR DEPUTY PRESIDENT: Just in relation to Primelife Corporation.

PN22

MS KELLY: No.

PN23

THE SENIOR DEPUTY PRESIDENT: The party to the agreement is Primelife Corporation in regard to its operations in Victoria.

PN24

MS KELLY: Yes.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes. That seems to cover that.

PN26

MS KELLY: There's no disadvantage to any of the employees to be covered by this agreement. The agreement has a nominal expiry date of not more than 3 years after it would come into effect and the making of this agreement also ends bargaining periods with respect to these proceedings. Subject to any questions that your Honour may have, I request that this agreement be certified effective from today's date.

PN27

THE SENIOR DEPUTY PRESIDENT: It was lodged out of time, was it not?

PN28

MS KELLY: Yes, your Honour. It was lodged 16 days out of time according to my calculations.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes. Why?

PN30

MS KELLY: Owner received the signed agreement on 11 September. It was approved on 11 August, so it was out of time and when owner received the signed agreement we lodged it on 17 September. I can't provide any detail as to the reasons for the lateness of these documents being forwarded to the ANF. The employer may not have lodged them early with Clare Dewan and Associates, but I will let Mr Rahilly speak to that. I'm advised that there's been little change in the work-force that would affect the outcome of the ballot by the relevant organisers.

PN31

I don't have the numbers with respect to the number of turnover of staff across all of their facilities. They have 14 facilities, I wasn't able to ascertain that before today's hearing. Mr Rahilly may have that detail. We would request, however, as in the other matters, that the Commission extend the prescribed time under section 111(1)(r) with respect to the late lodgment of this agreement.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MS KELLY: If the Commission pleases.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Yianoulatos?

PN35

MR YIANOULATOS: Yes. Perhaps I may address the application pursuant to 170XF at subsection (2).

PN36

THE SENIOR DEPUTY PRESIDENT: I don't think you need to do that. You don't need to do it.

PN37

MR YIANOULATOS: Well, I will move on.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. I take it you are supporting it?

PN39

MR YIANOULATOS: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MR YIANOULATOS: Yes, indeed, sir. Sir, just in relation to what my friend has said in relation to the lateness in time in filing these or perhaps having these matters before the Court within the requisite time period. It is my understanding from the HSUA's point of view, the agreement was received on 17.9.2003. Immediately thereafter, it was forwarded on on 18 September. I cannot proffer an explanation in terms of the lateness in this matter being on foot except save to say that we do support the application and say that relying upon Craig Thompson's statutory declaration detailing the various issues which we believe satisfies the no disadvantage test. I can't take the matter any further, sir.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Rahilly.

PN43

MR RAHILLY: Thank you, your Honour. Your Honour, might I just seek some clarification, because I understand that there are two section 170XF applications; one by the ANF and one by the HSUA.

PN44

MR YIANOULATOS: Yes, that is correct, sir.

PN45

THE SENIOR DEPUTY PRESIDENT: I have one by the ANF. There does not seem to be one from the HSUA on the file.

PN46

MS KELLY: I have a copy of the application lodged by HSUA.

PN47

MR YIANOULATOS: I have it here too, sir.

PN48

MS KELLY: If the Commission would like this copy for your records.

PN49

THE SENIOR DEPUTY PRESIDENT: Well, are both applications seeking the designation of the same award?

PN50

MS KELLY: No. The Health Services Union of Australia application seeks an application covering the Health and Allied Services (Private Sector Victoria) Consolidated Award 1998 with respect to Claremont Terrace, Harwood Court, Manna Gardens Hostel, Medina Manor Hostel, Tannoch Brae Hostel, Trevi Court and Lexington Gardens Nursing Home and Hostel.

PN51

MR YIANOULATOS: My apologies, sir, I thought that you had the material before you.

PN52

THE SENIOR DEPUTY PRESIDENT: No. Yes, well you better address me on it then, Mr Yianoulatos.

PN53

MR YIANOULATOS: Yes, sir. As you can see, sir, Primelife has various facilities. It is our understanding that seven of those facilities on our application itself are not respondents to any award, that is the underpinning Health and Allied Services Award - Private Sector Award, and what we are seeking is that the underpinning award, they are made respondents in accordance with our application. We believe that it is the appropriate award. Those facilities themselves are aged care facilities and in all the circumstances we seek that our application be acceded to.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Mr Rahilly?

PN55

MR RAHILLY: Thank you, your Honour. In terms of each of the section 170XF applications, I would indicate to the Commission they are not opposed.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes. The appropriate determination is a mere determination that the two awards are appropriate awards to be used for the purpose of determining whether the agreement passes the no disadvantage test.

PN57

MR RAHILLY: That is so, your Honour, yes.

PN58

THE SENIOR DEPUTY PRESIDENT: The determination should go no further than that, should it?

PN59

MR RAHILLY: No, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: Well, I so determine.

PN61

MR RAHILLY: Thank you, your Honour. Your Honour, there is I think an omission from the statutory declarations in each case and that is Lexington Gardens Hostel.

PN62

THE SENIOR DEPUTY PRESIDENT: I'm sorry, I missed what you just said, Mr Rahilly?

PN63

MR RAHILLY: Lexington Gardens Hostel.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes, what about it?

PN65

MR RAHILLY: I think it is an omission from 3.1 of the statutory declarations in each case.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes. The agreement applies to the Primelife Corporation in respect of its operations in the State, so that - - -

PN67

MR RAHILLY: Not entirely, your Honour. You will notice that the employers statutory declaration - - -

PN68

THE SENIOR DEPUTY PRESIDENT: Yes. I was going to ask you about that.

PN69

MR RAHILLY: - - - it refers to the application of the agreement to part of the business of Primelife Corporation.

PN70

THE SENIOR DEPUTY PRESIDENT: You better define the part of the business.

PN71

MR RAHILLY: It is defined, your Honour, by reference to what are residential aged care facilities.

PN72

THE SENIOR DEPUTY PRESIDENT: And Primelife Corporation operates more than that, more than those, does it?

PN73

MR RAHILLY: It does, your Honour. It operates retirement villages which are not residential aged care facilities. So that this agreement is limited to that part of its operation which is a distinct operational unit.

PN74

THE SENIOR DEPUTY PRESIDENT: That part of its business.

PN75

MR RAHILLY: Yes. It is part of its business, it is a distinct operational unit which refers to residential aged care facilities, as they are named in 3.1 of the statutory declaration, as now amended.

PN76

THE SENIOR DEPUTY PRESIDENT: Is there anything in clause 4 to indicate that the agreement is limited to that part of Primelife Corporation's business, the aged care part?

PN77

MR RAHILLY: No, your Honour, there probably isn't.

PN78

THE SENIOR DEPUTY PRESIDENT: Aren't you in some difficulty then, if I certify this agreement to apply to Primelife Corporation in regard to its operations in this State? Insofar as people eligible to be members of the ANF and HSUA are concerned, if their employment falls within the scope of the two awards. You know, that would also cover your other facilities, would it not?

PN79

MR RAHILLY: Prima facie, I suppose your Honour, that is correct.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes. The statutory declarations won't limit the operation of the agreement. They explained to me what the part is, but the agreement on its face goes beyond that.

PN81

MR RAHILLY: Yes, it does.

PN82

THE SENIOR DEPUTY PRESIDENT: What do you want to do?

PN83

MS KELLY: Your Honour, could it be possible to add an attachment to the agreement naming the facilities, at this stage, or to provide the Commission with that?

PN84

THE SENIOR DEPUTY PRESIDENT: That would be a variation to the agreement that wasn't voted upon and I think there's authority to the effect that we can't do that.

PN85

MS KELLY: Yes.

PN86

MR RAHILLY: Your Honour, is it possible that without having gone to the legislation, that the Commission has the power to vary an agreement to remove any uncertainty?

PN87

THE SENIOR DEPUTY PRESIDENT: Under section 170MD(6)?

PN88

MR RAHILLY: Yes. That it may be open to your Honour on the basis of submissions to vary clause 4 of the agreement to remove any uncertainty as to its scope and application.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Rahilly, if you provide me with a draft variation to the agreement, I think that might be an appropriate course. Do you support that, Ms Kelly?

PN90

MS KELLY: Yes, your Honour, that seems like the way to resolve this issue.

PN91

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Yianoulatos?

PN92

MR YIANOULATOS: Yes, that is an appropriate measure, sir.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes.

PN94

MR RAHILLY: Yes, very well. Certainly, your Honour. Well, I will provide the Commission with a replacement if you like of clause 4.

PN95

THE SENIOR DEPUTY PRESIDENT: No. What I think you need do is provide me with an application to vary under section 170MD(6) with a proposed order to be made by consent.

PN96

MR RAHILLY: Yes.

PN97

THE SENIOR DEPUTY PRESIDENT: I will indicate that I will certify the agreement as is and I will make the variation provided that I receive the written consent of all parties to it. It won't be necessary to have a further hearing, I will do it on the papers.

PN98

MR RAHILLY: Thank you, your Honour, I appreciate that. Your Honour, the only other matter I think which needs to be addressed is the section 111(1)(r) matter. The declarations disclose that the agreement was approved on 11 August 2003 and the documents provided to me in relation to the material to go into the statutory declaration, were provided on 28 August. The declaration was signed on 8 September and returned to me by mail, together with three signed copies of the agreement which were then forwarded on to the ANF.

PN99

I think Ms Kelly said she received them on 11 September. So the only apparent time delay up to that point appeared to be the period between the vote and the provision of the information necessary to prepare the statutory declarations, which was a period of some 17 days as I recall. Your Honour, I can inform your Honour that the declarations disclose that there are some 646 employees to whom the agreement applies. Of those, 279 voted on the approval, 249 of those voted in favour and 30 voted against, and I'm instructed that since the date of the vote, there have been approximately eight changes in staff across all of these facilities.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes. I will extend the time of lodging the documentation until 17 September 2003.

PN101

MR RAHILLY: Thank you, your Honour.

PN102

THE SENIOR DEPUTY PRESIDENT: I will certify the agreement. I'm satisfied that it does pass all of the statutory tests as I've annunciated in earlier matters. On receipt of the application under section 170MD(6) I will vary the scope clause of the agreement to remove the uncertainty that currently exists in relation to what part of the single business of Primelife Incorporated the agreement is meant to operate in relation to.

ADJOURNED INDEFINITELY [11.10am]